FULL Cases:

1. Air France vs Carroscoso, 18 SCRA 155 (torts on air carriers) (quasi-delict although there is a contract)
2. Go vs CA, 272 SCRA 752, (quasi-delict although there is a contract)
3. Calalas vs CA (breach of contract of carriage)
4. Picart vs Smith (test of determining negligence)
5. Phoenix Construction vs Carbonel (improper parking of truck on street is negligence)
6. Ramos vs CA, 321 SCRA 584, (medical malpractice)
__________________________________________________________________________________________

1. Air France vs Carroscoso, 18 SCRA 155 (torts on air carriers) (quasi-delict although
there is a contract)
G.R. No. L-21438

September 28, 1966

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

(Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the
plane.3
1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of
Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the issues
properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn the
appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record
without expressing therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed in
the statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly the
facts and the law on which it is based"; 6 and that "Every decision of the Court of Appeals shall contain
complete findings of fact on all issues properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however,
solely insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A
court of justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one
party and the other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the
sentence the facts"which a party "considered as proved". 11 This is but a part of the mental process from which
the Court draws the essential ultimate facts. A decision is not to be so clogged with details such that prolixity,
if not confusion, may result. So long as the decision of the Court of Appeals contains the necessary facts to
warrant its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with
respect to the evidence for the defense". Because as this Court well observed, "There is no law that so
requires". 12 Indeed, "the mere failure to specify (in the decision) the contentions of the appellant and the
reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the
provisions of law and the Constitution". It is in this setting that in Manigque, it was held that the mere fact
that the findings "were based entirely on the evidence for the prosecution without taking into consideration
or even mentioning the appellant's side in the controversy as shown by his own testimony", would not vitiate
the judgment. 13 If the court did not recite in the decision the testimony of each witness for, or each item of
evidence presented by, the defeated party, it does not mean that the court has overlooked such testimony or
such item of evidence. 14 At any rate, the legal presumptions are that official duty has been regularly
performed, and that all the matters within an issue in a case were laid before the court and passed upon by
it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of
the ultimate facts as found by the court ... and essential to support the decision and judgment rendered
thereon". 16They consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A
question of law, upon the other hand, has been declared as "one which does not call for an examination of the
probative value of the evidence presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of
Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter
the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals
support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket.
But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the
parties; that said respondent knew that he did not have confirmed reservations for first class on any specific
flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no
guarantee that he would have a first class ride, but that such would depend upon the availability of first class
seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of
Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had
confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey,
particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no
guarantee that the passenger to whom the same had been issued, would be accommodated in the
first-class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at
every station for the necessary first-class reservation. We are not impressed by such a reasoning. We
cannot understand how a reputable firm like defendant airplane company could have the indiscretion
to give out tickets it never meant to honor at all. It received the corresponding amount in payment of
first-class tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in
keeping with the ordinary course of business that the company should know whether or riot the tickets
it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his
testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness,
Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx

xxx

xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although
plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in
Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over
written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said
witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket without any
reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation
for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such

confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by
defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount
refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of
Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the judgment
of the lower court. 24Implicit in that affirmance is a determination by the Court of Appeals that the proceeding
in the Court of First Instance was free from prejudicial error and "all questions raised by the assignments of
error and all questions that might have been raised are to be regarded as finally adjudicated against the
appellant". So also, the judgment affirmed "must be regarded as free from all error". 25 We reached this policy
construction because nothing in the decision of the Court of Appeals on this point would suggest that its
findings of fact are in any way at war with those of the trial court. Nor was said affirmance by the Court of
Appeals upon a ground or grounds different from those which were made the basis of the conclusions of the
trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the
fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of
the hands of an airline. What security then can a passenger have? It will always be an easy matter for an
airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal
agreement to the contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a
rule, a written document speaks a uniform language; that spoken word could be notoriously unreliable. If only
to achieve stability in the relations between passenger and air carrier, adherence to the ticket so issued is
desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the
covenants in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which the Court
of Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first
class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of
distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor
do we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to
provoke an issue". 29 And this because, as petitioner states, Carrascoso went to see the Manager at his office
in Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 30 Why, then,
was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better
right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that
Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages there
must be an averment of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a
finding of bad faith. The pivotal allegations in the complaint bearing on this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable
consideration, the latter acting as general agents for and in behalf of the defendant, under which said
contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on
defendant's plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting
point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok,
defendant furnished to the plaintiff First Class accommodation but only after protestations, arguments
and/or insistence were made by the plaintiff with defendant's employees.

5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only TouristClass accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has
been compelled by defendant's employees to leave the First Class accommodation berths at
Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments
brought by defendant's breach of contract was forced to take a Pan American World Airways plane on
his return trip from Madrid to Manila.32
xxx

xxx

xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff
suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious
anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of
P30,000.00. 33
xxx

xxx

xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class
passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when
petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was
already, seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience,
embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and
social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad
faith in the complaint. But, the inference of bad faith is there, it may be drawn from the facts and
circumstances set forth therein. 34 The contract was averred to establish the relation between the parties. But
the stress of the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on
guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso
was oustedby petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the
fulfillment of the contract was presented without objection on the part of the petitioner. It is, therefore,
unnecessary to inquire as to whether or not there is sufficient averment in the complaint to justify an award
for moral damages. Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to
conform to the evidence is not even required. 36 On the question of bad faith, the Court of Appeals declared:

That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the
defendant Air France while at Bangkok, and was transferred to the tourist class not only without his
consent but against his will, has been sufficiently established by plaintiff in his testimony before the
court, corroborated by the corresponding entry made by the purser of the plane in his notebook which
notation reads as follows:
"First-class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of
the plane who was asked by the manager of defendant company at Bangkok to intervene even refused
to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence

for the plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at
the trial of the case, or yet to secure his disposition; but defendant did neither. 37
The Court of appeals further stated
Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence,
if the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had
already been taken, surely the plaintiff should not have been picked out as the one to suffer the
consequences and to be subjected to the humiliation and indignity of being ejected from his seat in the
presence of others. Instead of explaining to the white man the improvidence committed by
defendant's employees, the manager adopted the more drastic step of ousting the plaintiff who was
then safely ensconsced in his rightful seat. We are strengthened in our belief that this probably was
what happened there, by the testimony of defendant's witness Rafael Altonaga who, when asked to
explain the meaning of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is
confirmed for first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief
of the Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what reservation the passenger has
arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)
In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right"
to the seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not
prove "any better", nay, any right on the part of the "white man" to the "First class" seat that
the plaintiff was occupying and for which he paid and was issued a corresponding "first class"
ticket.
If there was a justified reason for the action of the defendant's Manager in Bangkok, the
defendant could have easily proven it by having taken the testimony of the said Manager by
deposition, but defendant did not do so; the presumption is that evidence willfully suppressed
would be adverse if produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances,
the Court is constrained to find, as it does find, that the Manager of the defendant airline in
Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did
not give up his "first class" seat because the said Manager wanted to accommodate, using the
words of the witness Ernesto G. Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use
the term "bad faith". But can it be doubted that the recital of facts therein points to bad faith? The
manager not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed
his arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go
to the tourist class compartment - just to give way to another passenger whose right thereto has not
been established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning
different from what is understood in law. For, "bad faith" contemplates a "state of mind affirmatively
operating with furtive design or with some motive of self-interest or will or for ulterior purpose." 39

And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of
the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation with plaintiff in
bad faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the
extent of threatening the plaintiff in the presence of many passengers to have him thrown out
of the airplane to give the "first class" seat that he was occupying to, again using the words of
the witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to
accommodate, and the defendant has not proven that this "white man" had any "better right"
to occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by the defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled
in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article
21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of
Article 2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any other contractual
relation. 43And this, because of the relation which an air-carrier sustains with the public. Its business is mainly
with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air
carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's
employees, naturally, could give ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the carrier's
employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against
personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or
discourteous conduct on the part of employees towards a passenger gives the latter an action for damages
against the carrier.44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a
tort, giving a right of action for its agent in the presence of third persons to falsely notify her that the check
was worthless and demand payment under threat of ejection, though the language used was not insulting and
she was not ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both
in origin and nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another case,
"Where a passenger on a railroad train, when the conductor came to collect his fare tendered him the cash
fare to a point where the train was scheduled not to stop, and told him that as soon as the train reached such
point he would pay the cash fare from that point to destination, there was nothing in the conduct of the
passenger which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and
the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said
passenger.1awphl.nt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we
have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier
a case of quasi-delict. Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus

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

A When we left already that was already in the trip I could not help it. So one of the flight
attendants approached me and requested from me my ticket and I said, What for? and she said, "We
will note that you transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to
accepting my transfer." And I also said, "You are not going to note anything there because I am
protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.

Q About that purser?

A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I
stood up and I went to the pantry that was next to me and the purser was there. He told me, "I have
recorded the incident in my notebook." He read it and translated it to me because it was recorded in
French "First class passenger was forced to go to the tourist class against his will, and that the
captain refused to intervene."
Mr. VALTE
I move to strike out the last part of the testimony of the witness because the best evidence would be
the notes. Your Honor.
COURT
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook
reading "First class passenger was forced to go to the tourist class against his will, and that the captain refused
to intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not
think so. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come
within the proscription of the best evidence rule. Such testimony is admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling
occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements
then, in this environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous
excitement and mental and physical condition of the declarant". 51 The utterance of the purser regarding his
entry in the notebook was spontaneous, and related to the circumstances of the ouster incident. Its
trustworthiness has been guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of
the res gestae.
At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have
been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no
such entry was made, the deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary
damages in contracts and quasi- contracts. The only condition is that defendant should have "acted in a
wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent
Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages. 54
9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment
for attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that
attorneys' fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised
as it was here should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus:
P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees.
The task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with
the same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and
circumstances point to the reasonableness thereof.57
On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against petitioner. So ordered.
__________________________________________________________________________________________

2. Go vs CA, 272 SCRA 752, (quasi-delict although there is a contract)

G.R. No. 114791 May 29, 1997
NANCY GO AND ALEX GO, petitioners, vs. THE HONORABLE COURT OF APPEALS, HERMOGENES ONG and
JANE C. ONG, respondents.
ROMERO, J.:
No less than the Constitution commands us to protect marriage as an inviolable social institution and the
foundation of the family. 1 In our society, the importance of a wedding ceremony cannot be underestimated
as it is the matrix of the family and, therefore, an occasion worth reliving in the succeeding years.
It is in this light that we narrate the following undisputed facts:
Private respondents spouses Hermogenes and Jane Ong were married on June 7, 1981, in Dumaguete City.
The video coverage of the wedding was provided by petitioners at a contract price of P1,650.00. Three times
thereafter, the newlyweds tried to claim the video tape of their wedding, which they planned to show to their
relatives in the United States where they were to spend their honeymoon, and thrice they failed because the
tape was apparently not yet processed. The parties then agreed that the tape would be ready upon private
respondents' return.
When private respondents came home from their honeymoon, however, they found out that the tape had
been erased by petitioners and therefore, could no longer be delivered.

Furious at the loss of the tape which was supposed to be the only record of their wedding, private
respondents filed on September 23, 1981 a complaint for specific performance and damages against
petitioners before the Regional Trial Court, 7th Judicial District, Branch 33, Dumaguete City. After a protracted
trial, the court a quorendered a decision, to wit:
WHEREFORE, judgment is hereby granted:
1. Ordering the rescission of the agreement entered into between plaintiff Hermogenes Ong
and defendant Nancy Go;
2. Declaring defendants Alex Go and Nancy Go jointly and severally liable to plaintiffs
Hermogenes Ong and Jane C. Ong for the following sums:
a) P450.00 , the down payment made at contract time;
b) P75,000.00, as moral damages;
c) P20,000.00, as exemplary damages;
d) P5,000.00, as attorney's fees; and
e) P2,000.00, as litigation expenses;
Defendants are also ordered to pay the costs.
SO ORDERED.
Dissatisfied with the decision, petitioners elevated the case to the Court of Appeals which, on September 14,
1993, dismissed the appeal and affirmed the trial court's decision.
Hence, this petition.
Petitioners contend that the Court of Appeals erred in not appreciating the evidence they presented to prove
that they acted only as agents of a certain Pablo Lim and, as such, should not have been held liable. In
addition, they aver that there is no evidence to show that the erasure of the tape was done in bad faith so as
to justify the award of damages. 2
The petition is not meritorious.
Petitioners claim that for the video coverage, the cameraman was employed by Pablo Lim who also owned the
video equipment used. They further assert that they merely get a commission for all customers solicited for
their principal. 3
This contention is primarily premised on Article 1883 of the Civil Code which states thus:
Art. 1883. If an agent acts in his own name, the principal has no right of action against the
persons with whom the agent has contracted; neither have such persons against the principal.

In such case the agent is the one directly bound in favor of the person with whom he has
contracted, as if the transaction were his own, except when the contract involves things
belonging to the principal.
xxx xxx xxx
Petitioners' argument that since the video equipment used belonged to Lim and thus the contract was actually
entered into between private respondents and Lim is not deserving of any serious consideration. In the instant
case, the contract entered into is one of service, that is, for the video coverage of the wedding. Consequently,
it can hardly be said that the object of the contract was the video equipment used. The use by petitioners of
the video equipment of another person is of no consequence.
It must also be noted that in the course of the protracted trial below, petitioners did not even present Lim to
corroborate their contention that they were mere agents of the latter. It would not be unwarranted to assume
that their failure to present such a vital witness would have had an adverse result on the case. 4
As regards the award of damages, petitioners would impress upon this Court their lack of malice or fraudulent
intent in the erasure of the tape. They insist that since private respondents did not claim the tape after the
lapse of thirty days, as agreed upon in their contract, the erasure was done in consonance with consistent
business practice to minimize losses. 5
We are not persuaded.
As correctly observed by the Court of Appeals, it is contrary to human nature for any newlywed couple to
neglect to claim the video coverage of their wedding; the fact that private respondents filed a case against
petitioners belies such assertion. Clearly, petitioners are guilty of actionable delay for having failed to process
the video tape. Considering that private respondents were about to leave for the United States, they took care
to inform petitioners that they would just claim the tape upon their return two months later. Thus, the
erasure of the tape after the lapse of thirty days was unjustified.
In this regard, Article 1170 of the Civil Code provides that "those who in the performance of their obligations
are guilty of fraud, negligence or delay, and those who is any manner contravene the tenor thereof, are liable
for damages."
In the instant case, petitioners and private respondents entered into a contract whereby, for a fee, the former
undertook to cover the latter's wedding and deliver to them a video copy of said event. For whatever reason,
petitioners failed to provide private respondents with their tape. Clearly, petitioners are guilty of contravening
their obligation to said private respondents and are thus liable for damages.
The grant of actual or compensatory damages in the amount of P450.00 is justified, as reimbursement of the
downpayment paid by private respondents to petitioners. 6
Generally, moral damages cannot be recovered in an action for breach of contract because this case is not
among those enumerated in Article 2219 of the Civil Code. However, it is also accepted in this jurisdiction that
liability for a quasi-delict may still exist despite the presence of contractual relations, that is, the act which
violates the contract may also constitute a quasi-delict. 7 Consequently, moral damages are recoverable for
the
breach
of
contract
8
which was palpably wanton, reckless, malicious or in bad faith, oppressive or abusive.

Petitioners' act or omission in recklessly erasing the video coverage of private respondents' wedding was
precisely the cause of the suffering private respondents had to undergo.
As the appellate court aptly observed:
Considering the sentimental value of the tapes and the fact that the event therein recorded
a wedding which in our culture is a significant milestone to be cherished and remembered
could no longer be reenacted and was lost forever, the trial court was correct in awarding the
appellees moral damages albeit in the amount of P75,000.00, which was a great reduction from
plaintiffs' demand in the complaint in compensation for the mental anguish, tortured feelings,
sleepless nights and humiliation that the appellees suffered and which under the circumstances
could be awarded as allowed under Articles 2217 and 2218 of the Civil Code. 9
Considering the attendant wanton negligence committed by petitioners in the case at bar, the award of
exemplary damages by the trial court is justified 10 to serve as a warning to all entities engaged in the same
business to observe due diligence in the conduct of their affairs.
The award of attorney' s fees and litigation expenses are likewise proper, consistent with Article 2208 11 of the
Civil Code.
Finally, petitioner Alex Go questions the finding of the trial and appellate courts holding him jointly and
severally liable with his wife Nancy regarding the pecuniary liabilities imposed. He argues that when his wife
entered into the contract with private respondent, she was acting alone for her sole interest. 12
We find merit in this contention. Under Article 117 of the Civil Code (now Article 73 of the Family Code), the
wife may exercise any profession, occupation or engage in business without the consent of the husband. In
the instant case, we are convinced that it was only petitioner Nancy Go who entered into the contract with
private respondent. Consequently, we rule that she is solely liable to private respondents for the damages
awarded below, pursuant to the principle that contracts produce effect only as between the parties who
execute them. 13
WHEREFORE, the assailed decision dated September 14, 1993 is hereby AFFIRMED with the MODIFICATION
that petitioner Alex Go is absolved from any liability to private respondents and that petitioner Nancy Go is
solely liable to said private respondents for the judgment award. Costs against petitioners. SO ORDERED.
__________________________________________________________________________________________

3. Calalas vs CA (breach of contract of carriage)

G.R. No. 122039 May 31, 2000

VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO
SALVA, respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated March 31, 1991,
reversing the contrary decision of the Regional Trial Court, Branch 36, Dumaguete City, and awarding damages
instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action for breach of contract of carriage.
The facts, as found by the Court of Appeals, are as follows:
At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a college
freshman majoring in Physical Education at the Siliman University, took a passenger jeepney owned and
operated by petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga
was given by the conductor an "extension seat," a wooden stool at the back of the door at the rear end of the
vehicle.
On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As she was
seated at the rear of the vehicle, Sunga gave way to the outgoing passenger. Just as she was doing so, an Isuzu
truck driven by Iglecerio Verena and owned by Francisco Salva bumped the left rear portion of the jeepney. As
a result, Sunga was injured. She sustained a fracture of the "distal third of the left tibia-fibula with severe
necrosis of the underlying skin." Closed reduction of the fracture, long leg circular casting, and case wedging
were done under sedation. Her confinement in the hospital lasted from August 23 to September 7, 1989. Her
attending physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a cast for a
period of three months and would have to ambulate in crutches during said period.
On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the contract of
carriage by the former in failing to exercise the diligence required of him as a common carrier. Calalas, on the
other hand, filed a third-party complaint against Francisco Salva, the owner of the Isuzu truck.
The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of liability,
holding that it was the driver of the Isuzu truck who was responsible for the accident. It took cognizance of
another case (Civil Case No. 3490), filed by Calalas against Salva and Verena, for quasi-delict, in which Branch
37 of the same court held Salva and his driver Verena jointly liable to Calalas for the damage to his jeepney.
On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that Sunga's
cause of action was based on a contract of carriage, not quasi-delict, and that the common carrier failed to
exercise the diligence required under the Civil Code. The appellate court dismissed the third-party complaint
against Salva and adjudged Calalas liable for damages to Sunga. The dispositive portion of its decision reads:
WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and another one
is entered ordering defendant-appellee Vicente Calalas to pay plaintiff-appellant:
(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;

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

Such extraordinary diligence in the vigilance over the goods is further expressed in articles
1734, 1735, and 1746, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the
passengers is further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with due regard for
all the circumstances.
Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they prove that they observed extraordinary
diligence as prescribed by articles 1733 and 1755.
In the case at bar, upon the happening of the accident, the presumption of negligence at once arose, and it
became the duty of petitioner to prove that he had to observe extraordinary diligence in the care of his
passengers.
Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide, using the
utmost diligence of very cautious persons, with due regard for all the circumstances" as required by Art. 1755?
We do not think so. Several factors militate against petitioner's contention.
First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being exposed
about two meters from the broad shoulders of the highway, and facing the middle of the highway in a
diagonal angle. This is a violation of the R.A. No. 4136, as amended, or the Land Transportation and Traffic
Code, which provides:
Sec. 54. Obstruction of Traffic. No person shall drive his motor vehicle in such a manner as to
obstruct or impede the passage of any vehicle, nor, while discharging or taking on passengers
or loading or unloading freight, obstruct the free passage of other vehicles on the highway.
Second, it is undisputed that petitioner's driver took in more passengers than the allowed seating capacity of
the jeepney, a violation of 32(a) of the same law. It provides:
Exceeding registered capacity. No person operating any motor vehicle shall allow more
passengers or more freight or cargo in his vehicle than its registered capacity.
The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which the other
passengers were exposed. Therefore, not only was petitioner unable to overcome the presumption of
negligence imposed on him for the injury sustained by Sunga, but also, the evidence shows he was actually
negligent in transporting passengers.
We find it hard to give serious thought to petitioner's contention that Sunga's taking an "extension seat"
amounted to an implied assumption of risk. It is akin to arguing that the injuries to the many victims of the
tragedies in our seas should not be compensated merely because those passengers assumed a greater risk of
drowning by boarding an overloaded ferry. This is also true of petitioner's contention that the jeepney being
bumped while it was improperly parked constitutes caso fortuito. A caso fortuito is an event which could not
be foreseen, or which, though foreseen, was inevitable.3 This requires that the following requirements be
present: (a) the cause of the breach is independent of the debtor's will; (b) the event is unforeseeable or
unavoidable; (c) the event is such as to render it impossible for the debtor to fulfill his obligation in a normal
manner, and (d) the debtor did not take part in causing the injury to the

creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its body protruding two
meters into the highway.
Finally, petitioner challenges the award of moral damages alleging that it is excessive and without basis in law.
We find this contention well taken.
In awarding moral damages, the Court of Appeals stated:
Plaintiff-appellant at the time of the accident was a first-year college student in that school year
1989-1990 at the Silliman University, majoring in Physical Education. Because of the injury, she
was not able to enroll in the second semester of that school year. She testified that she had no
more intention of continuing with her schooling, because she could not walk and decided not to
pursue her degree, major in Physical Education "because of my leg which has a defect already."

Plaintiff-appellant likewise testified that even while she was under confinement, she cried in
pain because of her injured left foot. As a result of her injury, the Orthopedic Surgeon also
certified that she has "residual bowing of the fracture side." She likewise decided not to further
pursue Physical Education as her major subject, because "my left leg . . . has a defect already."
Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that
she suffered. Under Article 2219 of the Civil Code, she is entitled to recover moral damages in
the sum of P50,000.00, which is fair, just and reasonable.
As a general rule, moral damages are not recoverable in actions for damages predicated on a breach of
contract for it is not one of the items enumerated under Art. 2219 of the Civil Code.5 As an exception, such
damages are recoverable: (1) in cases in which the mishap results in the death of a passenger, as provided in
Art. 1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which the carrier is guilty of fraud
or bad faith, as provided in Art. 2220.6
In this case, there is no legal basis for awarding moral damages since there was no factual finding by the
appellate court that petitioner acted in bad faith in the performance of the contract of carriage. Sunga's
contention that petitioner's admission in open court that the driver of the jeepney failed to assist her in going
to a nearby hospital cannot be construed as an admission of bad faith. The fact that it was the driver of the
Isuzu truck who took her to the hospital does not imply that petitioner was utterly indifferent to the plight of
his injured passenger. If at all, it is merely implied recognition by Verena that he was the one at fault for the
accident.

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated September
11, 1995, are AFFIRMED, with the MODIFICATION that the award of moral damages is DELETED. SO ORDERED.
__________________________________________________________________________________________

4. Picart vs Smith (test of determining negligence)

G.R. No. L-12219

March 15, 1918

AMADO PICART, plaintiff-appellant, vs. FRANK SMITH, JR., defendant-appellee.

STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of
P31,000, as damages alleged to have been caused by an automobile driven by the defendant. From a
judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability the
plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the
Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was
riding on his pony over said bridge. Before he had gotten half way across, the defendant approached from the
opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant
neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. He continued
his course and after he had taken the bridge he gave two more successive blasts, as it appeared to him that
the man on horseback before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed
by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the
railing on the right side of the bridge instead of going to the left. He says that the reason he did this was that
he thought he did not have sufficient time to get over to the other side. The bridge is shown to have a length
of about 75 meters and a width of 4.80 meters. As the automobile approached, the defendant guided it
toward his left, that being the proper side of the road for the machine. In so doing the defendant assumed
that the horseman would move to the other side. The pony had not as yet exhibited fright, and the rider had
made no sign for the automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of
veering to the right while yet some distance away or slowing down, continued to approach directly toward the
horse without diminution of speed. When he had gotten quite near, there being then no possibility of the
horse getting across to the other side, the defendant quickly turned his car sufficiently to the right to escape
hitting the horse alongside of the railing where it as then standing; but in so doing the automobile passed in
such close proximity to the animal that it became frightened and turned its body across the bridge with its
head toward the railing. In so doing, it as struck on the hock of the left hind leg by the flange of the car and the
limb was broken. The horse fell and its rider was thrown off with some violence. From the evidence adduced
in the case we believe that when the accident occurred the free space where the pony stood between the
automobile and the railing of the bridge was probably less than one and one half meters. As a result of its
injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness and
required medical attention for several days.
The question presented for decision is whether or not the defendant in maneuvering his car in the manner
above described was guilty of negligence such as gives rise to a civil obligation to repair the damage done; and
we are of the opinion that he is so liable. As the defendant started across the bridge, he had the right to
assume that the horse and the rider would pass over to the proper side; but as he moved toward the center of
the bridge it was demonstrated to his eyes that this would not be done; and he must in a moment have
perceived that it was too late for the horse to cross with safety in front of the moving vehicle. In the nature of
things this change of situation occurred while the automobile was yet some distance away; and from this
moment it was not longer within the power of the plaintiff to escape being run down by going to a place of

greater safety. The control of the situation had then passed entirely to the defendant; and it was his duty
either to bring his car to an immediate stop or, seeing that there were no other persons on the bridge, to take
the other side and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing
this, the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into doing
this by the fact that the horse had not yet exhibited fright. But in view of the known nature of horses, there
was an appreciable risk that, if the animal in question was unacquainted with automobiles, he might get exited
and jump under the conditions which here confronted him. When the defendant exposed the horse and rider
to this danger he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular case may be stated as follows: Did
the defendant in doing the alleged negligent act use that person would have used in the same situation? If
not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in the situation before him. The law
considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence
and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must of course be
always determined in the light of human experience and in view of the facts involved in the particular case.
Abstract speculations cannot here be of much value but this much can be profitably said: Reasonable men
govern their conduct by the circumstances which are before them or known to them. They are not, and are
not supposed to be, omniscient of the future. Hence they can be expected to take care only when there is
something before them to suggest or warn of danger. Could a prudent man, in the case under consideration,
foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions
to guard against that harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this
prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper
criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent
when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another
was sufficiently probable to warrant his foregoing conduct or guarding against its consequences.
Applying this test to the conduct of the defendant in the present case we think that negligence is clearly
established. A prudent man, placed in the position of the defendant, would in our opinion, have recognized
that the course which he was pursuing was fraught with risk, and would therefore have foreseen harm to the
horse and the rider as reasonable consequence of that course. Under these circumstances the law imposed on
the defendant the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant
was also negligent; and in such case the problem always is to discover which agent is immediately and directly
responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these
circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to
do so is chargeable with the consequences, without reference to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held that while contributory negligence on the part of the
person injured did not constitute a bar to recovery, it could be received in evidence to reduce the damages
which would otherwise have been assessed wholly against the other party. The defendant company had there
employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge in Manila harbor to the

company's yards located not far away. The rails were conveyed upon cars which were hauled along a narrow
track. At certain spot near the water's edge the track gave way by reason of the combined effect of the weight
of the car and the insecurity of the road bed. The car was in consequence upset; the rails slid off; and the
plaintiff's leg was caught and broken. It appeared in evidence that the accident was due to the effects of the
typhoon which had dislodged one of the supports of the track. The court found that the defendant company
was negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment of
the accident, guilty of contributory negligence in walking at the side of the car instead of being in front or
behind. It was held that while the defendant was liable to the plaintiff by reason of its negligence in having
failed to keep the track in proper repair nevertheless the amount of the damages should be reduced on
account of the contributory negligence in the plaintiff. As will be seen the defendant's negligence in that case
consisted in an omission only. The liability of the company arose from its responsibility for the dangerous
condition of its track. In a case like the one now before us, where the defendant was actually present and
operating the automobile which caused the damage, we do not feel constrained to attempt to weigh the
negligence of the respective parties in order to apportion the damage according to the degree of their relative
fault. It is enough to say that the negligence of the defendant was in this case the immediate and determining
cause of the accident and that the antecedent negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer,
to the effect that the subject matter of the action had been previously adjudicated in the court of a justice of
the peace. In this connection it appears that soon after the accident in question occurred, the plaintiff caused
criminal proceedings to be instituted before a justice of the peace charging the defendant with the infliction of
serious injuries (lesiones graves). At the preliminary investigation the defendant was discharged by the
magistrate and the proceedings were dismissed. Conceding that the acquittal of the defendant at the trial
upon the merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the
question of his civil liability arising from negligence -- a point upon which it is unnecessary to express an
opinion -- the action of the justice of the peace in dismissing the criminal proceeding upon the preliminary
hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be reversed, and judgment is her
rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other
instances. The sum here awarded is estimated to include the value of the horse, medical expenses of the
plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest on the whole to the date
of this recovery. The other damages claimed by the plaintiff are remote or otherwise of such character as not
to be recoverable. So ordered.
Separate Opinions

MALCOLM, J., concurring:

After mature deliberation, I have finally decided to concur with the judgment in this case. I do so because of
my understanding of the "last clear chance" rule of the law of negligence as particularly applied to automobile
accidents. This rule cannot be invoked where the negligence of the plaintiff is concurrent with that of the
defendant. Again, if a traveler when he reaches the point of collision is in a situation to extricate himself and
avoid injury, his negligence at that point will prevent a recovery. But Justice Street finds as a fact that the
negligent act of the interval of time, and that at the moment the plaintiff had no opportunity to avoid the
accident. Consequently, the "last clear chance" rule is applicable. In other words, when a traveler has reached
a point where he cannot extricate himself and vigilance on his part will not avert the injury, his negligence in
reaching that position becomes the condition and not the proximate cause of the injury and will not preclude
a recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.)

__________________________________________________________________________________________

5. Phoenix Construction vs Carbonel (improper parking of truck on street is

negligence)
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners, vs. THE INTERMEDIATE
APPELLATE COURT and LEONARDO DIONISIO, respondents.
FELICIANO, J:
In the early morning of 15 November 1975 at about 1:30 a.m. private respondent Leonardo Dionisio was
on his way home he lived in 1214-B Zamora Street, Bangkal, Makati from a cocktails-and-dinner meeting
with his boss, the general manager of a marketing corporation. During the cocktails phase of the evening,
Dionisio had taken "a shot or two" of liquor. Dionisio was driving his Volkswagen car and had just crossed the
intersection of General Lacuna and General Santos Streets at Bangkal, Makati, not far from his home, and was
proceeding down General Lacuna Street, when his car headlights (in his allegation) suddenly failed. He
switched his headlights on "bright" and thereupon he saw a Ford dump truck looming some 2-1/2 meters
away from his car. The dump truck, owned by and registered in the name of petitioner Phoenix Construction
Inc. ("Phoenix"), was parked on the right hand side of General Lacuna Street (i.e., on the right hand side of a
person facing in the same direction toward which Dionisio's car was proceeding), facing the oncoming traffic.
The dump truck was parked askew (not parallel to the street curb) in such a manner as to stick out onto the
street, partly blocking the way of oncoming traffic. There were no lights nor any so-called "early warning"
reflector devices set anywhere near the dump truck, front or rear. The dump truck had earlier that evening
been driven home by petitioner Armando U. Carbonel, its regular driver, with the permission of his employer
Phoenix, in view of work scheduled to be carried out early the following morning, Dionisio claimed that he
tried to avoid a collision by swerving his car to the left but it was too late and his car smashed into the dump
truck. As a result of the collision, Dionisio suffered some physical injuries including some permanent facial
scars, a "nervous breakdown" and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically claiming that
the legal and proximate cause of his injuries was the negligent manner in which Carbonel had parked the
dump truck entrusted to him by his employer Phoenix. Phoenix and Carbonel, on the other hand, countered
that the proximate cause of Dionisio's injuries was his own recklessness in driving fast at the time of the
accident, while under the influence of liquor, without his headlights on and without a curfew pass. Phoenix
also sought to establish that it had exercised due rare in the selection and supervision of the dump truck
driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered the
latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and the
replacement of the lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of expected income for
plaintiff brought about the accident in controversy and which is the result of the negligence of
the defendants;

(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral damages for the
unexpected and sudden withdrawal of plaintiff from his lifetime career as a marketing man;
mental anguish, wounded feeling, serious anxiety, social humiliation, besmirched reputation,
feeling of economic insecurity, and the untold sorrows and frustration in life experienced by
plaintiff and his family since the accident in controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the wanton
disregard of defendants to settle amicably this case with the plaintiff before the filing of this
case in court for a smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for attorney's fees;
and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No. 65476 affirmed
the decision of the trial court but modified the award of damages to the following extent:
1. The award of P15,000.00 as compensatory damages was reduced
to P6,460.71, the latter being the only amount that the appellate court found the
plaintiff to have proved as actually sustained by him;
2. The award of P150,000.00 as loss of expected income was reduced
to P100,000.00,basically because Dionisio had voluntarily resigned his job such
that, in the opinion of the appellate court, his loss of income "was not solely
attributable to the accident in question;" and
3. The award of P100,000.00 as moral damages was held by the appellate court
as excessive and unconscionable and hence reduced to P50,000.00.
The award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees
and costs remained untouched.
This decision of the Intermediate Appellate Court is now before us on a petition for review.
Both the trial court and the appellate court had made fairly explicit findings of fact relating to the manner in
which the dump truck was parked along General Lacuna Street on the basis of which both courts drew the
inference that there was negligence on the part of Carbonel, the dump truck driver, and that this negligence
was the proximate cause of the accident and Dionisio's injuries. We note, however, that both courts failed to
pass upon the defense raised by Carbonel and Phoenix that the true legal and proximate cause of the accident
was not the way in which the dump truck had been parked but rather the reckless way in which Dionisio had
driven his car that night when he smashed into the dump truck. The Intermediate Appellate Court in its
questioned decision casually conceded that Dionisio was "in some way, negligent" but apparently failed to see
the relevance of Dionisio's negligence and made no further mention of it. We have examined the record both
before the trial court and the Intermediate Appellate Court and we find that both parties had placed into the
record sufficient evidence on the basis of which the trial court and the appellate court could have and should
have made findings of fact relating to the alleged reckless manner in which Dionisio drove his car that night.
The petitioners Phoenix and Carbonel contend that if there was negligence in the manner in which the dump
truck was parked, that negligence was merely a "passive and static condition" and that private respondent

Dionisio's recklessness constituted an intervening, efficient cause determinative of the accident and the
injuries he sustained. The need to administer substantial justice as between the parties in this case, without
having to remand it back to the trial court after eleven years, compels us to address directly the contention
put forward by the petitioners and to examine for ourselves the record pertaining to Dionisio's alleged
negligence which must bear upon the liability, or extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio had a
curfew pass valid and effective for that eventful night; (b) whether Dionisio was driving fast or speeding just
before the collision with the dump truck; (c) whether Dionisio had purposely turned off his car's headlights
before contact with the dump truck or whether those headlights accidentally malfunctioned moments before
the collision; and (d) whether Dionisio was intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the person of
Dionisio immediately after the accident nor was any found in his car. Phoenix's evidence here consisted of the
testimony of Patrolman Cuyno who had taken Dionisio, unconscious, to the Makati Medical Center for
emergency treatment immediately after the accident. At the Makati Medical Center, a nurse took off
Dionisio's clothes and examined them along with the contents of pockets together with Patrolman
Cuyno. 1 Private respondent Dionisio was not able to produce any curfew pass during the trial. Instead, he
offered the explanation that his family may have misplaced his curfew pass. He also offered a certification
(dated two years after the accident) issued by one Major Benjamin N. Libarnes of the Zone Integrated Police
Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said to have authority to issue curfew
passes for Pampanga and Metro Manila. This certification was to the effect that private respondent Dionisio
had a valid curfew pass. This certification did not, however, specify any pass serial number or date or period of
effectivity of the supposed curfew pass. We find that private respondent Dionisio was unable to prove
possession of a valid curfew pass during the night of the accident and that the preponderance of evidence
shows that he did not have such a pass during that night. The relevance of possession or non-possession of a
curfew pass that night lies in the light it tends to shed on the other related issues: whether Dionisio was
speeding home and whether he had indeed purposely put out his headlights before the accident, in order to
avoid detection and possibly arrest by the police in the nearby police station for travelling after the onset of
curfew without a valid curfew pass.
On the second issue whether or not Dionisio was speeding home that night both the trial court and the
appellate court were completely silent.
The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene of the
accident almost immediately after it occurred, the police station where he was based being barely 200 meters
away. Patrolman Cuyno testified that people who had gathered at the scene of the accident told him that
Dionisio's car was "moving fast" and did not have its headlights on. 2 Dionisio, on the other hand, claimed that
he was travelling at a moderate speed at 30 kilometers per hour and had just crossed the intersection of
General Santos and General Lacuna Streets and had started to accelerate when his headlights failed just
before the collision took place.3
Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fag within any
of the recognized exceptions to the hearsay rule since the facts he testified to were not acquired by him
through official information and had not been given by the informants pursuant to any duty to do so. Private
respondent's objection fails to take account of the fact that the testimony of Patrolman Cuyno is admissible
not under the official records exception to the hearsay rule 4 but rather as part of the res gestae. 5 Testimonial
evidence under this exception to the hearsay rule consists of excited utterances made on the occasion of an
occurrence or event sufficiently startling in nature so as to render inoperative the normal reflective thought

processes of the observer and hence made as a spontaneous reaction to the occurrence or event, and not the
result of reflective thought. 6
We think that an automobile speeding down a street and suddenly smashing into a stationary object in the
dead of night is a sufficiently startling event as to evoke spontaneous, rather than reflective, reactions from
observers who happened to be around at that time. The testimony of Patrolman Cuyno was therefore
admissible as part of theres gestae and should have been considered by the trial court. Clearly, substantial
weight should have been ascribed to such testimony, even though it did not, as it could not, have purported to
describe quantitatively the precise velocity at winch Dionisio was travelling just before impact with the
Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off his headlights, or whether his headlights
accidentally malfunctioned, just moments before the accident. The Intermediate Appellate Court expressly
found that the headlights of Dionisio's car went off as he crossed the intersection but was non-committal as to
why they did so. It is the petitioners' contention that Dionisio purposely shut off his headlights even before he
reached the intersection so as not to be detected by the police in the police precinct which he (being a
resident in the area) knew was not far away from the intersection. We believe that the petitioners' theory is a
more credible explanation than that offered by private respondent Dionisio i.e., that he had his headlights
on but that, at the crucial moment, these had in some mysterious if convenient way malfunctioned and gone
off, although he succeeded in switching his lights on again at "bright" split seconds before contact with the
dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The evidence
here consisted of the testimony of Patrolman Cuyno to the effect that private respondent Dionisio smelled of
liquor at the time he was taken from his smashed car and brought to the Makati Medical Center in an
unconscious condition. 7 This testimony has to be taken in conjunction with the admission of Dionisio that he
had taken "a shot or two" of liquor before dinner with his boss that night. We do not believe that this
evidence is sufficient to show that Dionisio was so heavily under the influence of liquor as to constitute his
driving a motor vehicle per se an act of reckless imprudence. 8 There simply is not enough evidence to show
how much liquor he had in fact taken and the effects of that upon his physical faculties or upon his judgment
or mental alertness. We are also aware that "one shot or two" of hard liquor may affect different people
differently.
The conclusion we draw from the factual circumstances outlined above is that private respondent Dionisio
was negligent the night of the accident. He was hurrying home that night and driving faster than he should
have been. Worse, he extinguished his headlights at or near the intersection of General Lacuna and General
Santos Streets and thus did not see the dump truck that was parked askew and sticking out onto the road
lane.
Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the legal and
proximate cause of the accident and of Dionisio's injuries was the wrongful or negligent manner in which
the dump truck was parked in other words, the negligence of petitioner Carbonel. That there was a reasonable
relationship between petitioner Carbonel's negligence on the one hand and the accident and respondent's
injuries on the other hand, is quite clear. Put in a slightly different manner, the collision of Dionisio's car with
the dump truck was a natural and foreseeable consequence of the truck driver's negligence.
The petitioners, however, urge that the truck driver's negligence was merely a "passive and static condition"
and that private respondent Dionisio's negligence was an "efficient intervening cause and that consequently
Dionisio's negligence must be regarded as the legal and proximate cause of the accident rather than the

earlier negligence of Carbonel. We note that the petitioners' arguments are drawn from a reading of some of
the older cases in various jurisdictions in the United States but we are unable to persuade ourselves that these
arguments have any validity for our jurisdiction. We note, firstly, that even in the United States, the
distinctions between "cause" and "condition" which the 'petitioners would have us adopt have already been
"almost entirely discredited." Professors and Keeton make this quite clear:
Cause and condition. Many courts have sought to distinguish between the active "cause" of the
harm and the existing "conditions" upon which that cause operated. If the defendant has
created only a passive static condition which made the damage possible, the defendant is said
not to be liable. But so far as the fact of causation is concerned, in the sense of necessary
antecedents which have played an important part in producing the result it is quite impossible
to distinguish between active forces and passive situations, particularly since, as is invariably the
case, the latter are the result of other active forces which have gone before. The defendant who
spills gasoline about the premises creates a "condition," but the act may be culpable because of
the danger of fire. When a spark ignites the gasoline, the condition has done quite as much to
bring about the fire as the spark; and since that is the very risk which the defendant has
created, the defendant will not escape responsibility.Even the lapse of a considerable time
during which the "condition" remains static will not necessarily affect liability; one who digs a
trench in the highway may still be liable to another who fans into it a month afterward. "Cause"
and "condition" still find occasional mention in the decisions; but the distinction is now almost
entirely discredited. So far as it has any validity at all, it must refer to the type of case where the
forces set in operation by the defendant have come to rest in a position of apparent safety, and
some new force intervenes. But even in such cases, it is not the distinction between "cause" and
"condition" which is important but the nature of the risk and the character of the intervening
cause. 9
We believe, secondly, that the truck driver's negligence far from being a "passive and static condition" was
rather an indispensable and efficient cause. The collision between the dump truck and the private
respondent's car would in an probability not have occurred had the dump truck not been parked askew
without any warning lights or reflector devices. The improper parking of the dump truck created an
unreasonable risk of injury for anyone driving down General Lacuna Street and for having so created this risk,
the truck driver must be held responsible. In our view, Dionisio's negligence, although later in point of time
than the truck driver's negligence and therefore closer to the accident, was not an efficient intervening or
independent cause. What the Petitioners describe as an "intervening cause" was no more than a foreseeable
consequent manner which the truck driver had parked the dump truck. In other words, the petitioner truck
driver owed a duty to private respondent Dionisio and others similarly situated not to impose upon them the
very risk the truck driver had created. Dionisio's negligence was not of an independent and overpowering
nature as to cut, as it were, the chain of causation in fact between the improper parking of the dump truck
and the accident, nor to sever the juris vinculum of liability. It is helpful to quote once more from Professor
and Keeton:
Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human
experience is reasonably to be anticipated or one which the defendant has reason to anticipate
under the particular circumstances, the defendant may be negligence among other reasons,
because of failure to guard against it; or the defendant may be negligent only for that
reason. Thus one who sets a fire may be required to foresee that an ordinary, usual and
customary wind arising later wig spread it beyond the defendant's own property, and therefore
to take precautions to prevent that event. The person who leaves the combustible or explosive
material exposed in a public place may foresee the risk of fire from some independent source.

... In all of these cases there is an intervening cause combining with the defendant's conduct to
produce the result and in each case the defendant's negligence consists in failure to protect the
plaintiff against that very risk.
Obviously the defendant cannot be relieved from liability by the fact that the risk or a
substantial and important part of the risk, to which the defendant has subjected the plaintiff has
indeed come to pass. Foreseeable intervening forces are within the scope original risk, and
hence of the defendant's negligence. The courts are quite generally agreed that intervening
causes which fall fairly in this category will not supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to anticipate the usual weather of the
vicinity, including all ordinary forces of nature such as usual wind or rain, or snow or frost or fog
or even lightning; that one who leaves an obstruction on the road or a railroad track should
foresee that a vehicle or a train will run into it; ...
The risk created by the defendant may include the intervention of the foreseeable negligence of
others. ... [The standard of reasonable conduct may require the defendant to protect the
plaintiff against 'that occasional negligence which is one of the ordinary incidents of human life,
and therefore to be anticipated.' Thus, a defendant who blocks the sidewalk and forces the
plaintiff to walk in a street where the plaintiff will be exposed to the risks of heavy traffic
becomes liable when the plaintiff is run down by a car, even though the car is negligently
driven; and one who parks an automobile on the highway without lights at night is not relieved
of responsibility when another negligently drives into it. --- 10
We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and
proximate cause" of the injury remained the truck driver's "lack of due care" and that consequently
respondent Dionisio may recover damages though such damages are subject to mitigation by the courts
(Article 2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here of
petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio had the "last
clear chance" of avoiding the accident and hence his injuries, and that Dionisio having failed to take that "last
clear chance" must bear his own injuries alone. The last clear chance doctrine of the common law was
imported into our jurisdiction by Picart vs. Smith 11 but it is a matter for debate whether, or to what extent, it
has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common
law was to mitigate the harshness of another common law doctrine or rule that of contributory
negligence. 12 The common law rule of contributory negligence prevented any recovery at all by a plaintiff
who was also negligent, even if the plaintiff's negligence was relatively minor as compared with the wrongful
act or omission of the defendant. 13 The common law notion of last clear chance permitted courts to grant
recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to
avoid the casualty and failed to do so. 14 Accordingly, it is difficult to see what role, if any, the common law
last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory
negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article
2179 of the Civil Code of the Philippines. 15
Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix
and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so.
Under Article 2179, the task of a court, in technical terms, is to determine whose negligence the plaintiff's
or the defendant's was the legal or proximate cause of the injury. That task is not simply or even primarily

an exercise in chronology or physics, as the petitioners seem to imply by the use of terms like "last" or
"intervening" or "immediate." The relative location in the continuum of time of the plaintiff's and the
defendant's negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of
more fundamental importance are the nature of the negligent act or omission of each party and the character
and gravity of the risks created by such act or omission for the rest of the community. The petitioners urge
that the truck driver (and therefore his employer) should be absolved from responsibility for his own prior
negligence because the unfortunate plaintiff failed to act with that increased diligence which had become
necessary to avoid the peril precisely created by the truck driver's own wrongful act or omission. To accept
this proposition is to come too close to wiping out the fundamental principle of law that a man must respond
for the forseeable consequences of his own negligent act or omission. Our law on quasi-delicts seeks to reduce
the risks and burdens of living in society and to allocate them among the members of society. To accept the
petitioners' pro-position must tend to weaken the very bonds of society.
Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his employer
Phoenix16 in supervising its employees properly and adequately. The respondent appellate court in effect
found, correctly in our opinion, that Phoenix was not able to overcome this presumption of negligence. The
circumstance that Phoenix had allowed its truck driver to bring the dump truck to his home whenever there
was work to be done early the following morning, when coupled with the failure to show any effort on the
part of Phoenix to supervise the manner in which the dump truck is parked when away from company
premises, is an affirmative showing of culpa in vigilando on the part of Phoenix.
Turning to the award of damages and taking into account the comparative negligence of private respondent
Dionisio on one hand and petitioners Carbonel and Phoenix upon the other hand, 17 we believe that the
demands of substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of
the damages awarded by the respondent appellate court, except the award of P10,000.00 as exemplary
damages and P4,500.00 as attorney's fees and costs, shall be borne by private respondent Dionisio; only the
balance of 80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarity liable therefor to
the former. The award of exemplary damages and attorney's fees and costs shall be borne exclusively by the
petitioners. Phoenix is of course entitled to reimbursement from Carbonel. 18 We see no sufficient reason for
disturbing the reduced award of damages made by the respondent appellate court.
WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate amount of
compensatory damages, loss of expected income and moral damages private respondent Dionisio is entitled
to by 20% of such amount. Costs against the petitioners. SO ORDERED.

__________________________________________________________________________________________

6. Ramos vs CA, 321 SCRA 584, (medical malpractice)

G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors,
ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.
KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their
patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through
gross negligence or incompetence or plain human error, may spell the difference between life and death. In
this sense, the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which overturned
the decision 4 of the Regional Trial Court, dated 30 January 1992, finding private respondents liable for
damages arising from negligence in the performance of their professional duties towards petitioner Erlinda
Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A") robust
woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort due to
pains allegedly caused by the presence of a stone in her gall bladder (TSN, January 13, 1988, pp.
4-5), she was as normal as any other woman. Married to Rogelio E. Ramos, an executive of
Philippine Long Distance Telephone Company, she has three children whose names are Rommel
Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought professional
advice. She was advised to undergo an operation for the removal of a stone in her gall bladder
(TSN, January 13, 1988, p. 5). She underwent a series of examinations which included blood and
urine tests (Exhs. "A" and "C") which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and
her husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN,
February 20, 1990, p. 3), one of the defendants in this case, on June 10, 1985. They agreed that
their date at the operating table at the DLSMC (another defendant), would be on June 17, 1985
at 9:00 A.M.. Dr. Hosaka decided that she should undergo a "cholecystectomy" operation after
examining the documents (findings from the Capitol Medical Center, FEU Hospital and DLSMC)
presented to him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good anesthesiologist.

Dr. Hosaka charged a fee of P16,000.00, which was to include the anesthesiologist's fee and
which was to be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN,
February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the rooms of the
DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the
operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the
College of Nursing at the Capitol Medical Center, was also there for moral support. She
reiterated her previous request for Herminda to be with her even during the operation. After
praying, she was given injections. Her hands were held by Herminda as they went down from
her room to the operating room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was
also with her (TSN, October 19, 1989, p. 18). At the operating room, Herminda saw about two
or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to administer
anesthesia. Although not a member of the hospital staff, Herminda introduced herself as Dean
of the College of Nursing at the Capitol Medical Center who was to provide moral support to
the patient, to them. Herminda was allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not
yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz
about the prospect of a delay in the arrival of Dr. Hosaka. Herminda then went back to the
patient who asked, "Mindy, wala pa ba ang Doctor"? The former replied, "Huwag kang magalaala, darating na iyon" (Ibid.).

Thereafter, Herminda went out of the operating room and informed the patient's husband,
Rogelio, that the doctor was not yet around (id., p. 13). When she returned to the operating
room, the patient told her, "Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor." So, she
went out again and told Rogelio about what the patient said (id., p. 15). Thereafter, she
returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival of the
doctor" even as he did his best to find somebody who will allow him to pull out his wife from
the operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his
wife, who was inside the operating room waiting for the doctor to arrive (ibid.). At almost 12:00
noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for Dr.
Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to know
that Dr. Hosaka arrived as a nurse remarked, "Nandiyan na si Dr. Hosaka, dumating na raw."
Upon hearing those words, he went down to the lobby and waited for the operation to be
completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient,
heard somebody say that "Dr. Hosaka is already here." She then saw people inside the
operating room "moving, doing this and that, [and] preparing the patient for the operation"
(TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos, she then saw Dr.
Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez say, "ang hirap maintubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the
remarks of Dra. Gutierrez, she focused her attention on what Dr. Gutierrez was doing. She
thereafter noticed bluish discoloration of the nailbeds of the left hand of the hapless Erlinda

even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for someone to
call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the
operating room, she saw this anesthesiologist trying to intubate the patient. The patient's
nailbed became bluish and the patient was placed in a trendelenburg position a position
where the head of the patient is placed in a position lower than her feet which is an indication
that there is a decrease of blood supply to the patient's brain (Id., pp. 19-20). Immediately
thereafter, she went out of the operating room, and she told Rogelio E. Ramos "that something
wrong was . . . happening" (Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July
25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being
rushed towards the door of the operating room. He also saw several doctors rushing towards
the operating room. When informed by Herminda Cruz that something wrong was happening,
he told her (Herminda) to be back with the patient inside the operating room (TSN, October 19,
1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg
position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the
patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed
the former that something went wrong during the intubation. Reacting to what was told to him,
Rogelio reminded the doctor that the condition of his wife would not have happened, had he
(Dr. Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the
patient. The doctors explained that the patient had bronchospasm (TSN, November 15, 1990,
pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November
15, 1985, the patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting to
P93,542.25 which is the subject of a promissory note and affidavit of undertaking executed by
Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of June 17, 1985, she has been
in a comatose condition. She cannot do anything. She cannot move any part of her body. She
cannot see or hear. She is living on mechanical means. She suffered brain damage as a result of
the absence of oxygen in her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22).
After being discharged from the hospital, she has been staying in their residence, still needing
constant medical attention, with her husband Rogelio incurring a monthly expense ranging
from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be
suffering from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21,
1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of Quezon
City against herein private respondents alleging negligence in the management and care of Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff presented
the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the sustained by Erlinda was
due to lack of oxygen in her brain caused by the faulty management of her airway by private respondents
during the anesthesia phase. On the other hand, private respondents primarily relied on the expert testimony
of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage was Erlinda's allergic
reaction to the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the
aforecited provisions of law and jurisprudence to the case at bar, this Court finds and so holds
that defendants are liable to plaintiffs for damages. The defendants were guilty of, at the very
least, negligence in the performance of their duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable
care in not only intubating the patient, but also in not repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10), without due regard to the fact that the patient was inside the
operating room for almost three (3) hours. For after she committed a mistake in intubating
[the] patient, the patient's nailbed became bluish and the patient, thereafter, was placed in
trendelenburg position, because of the decrease of blood supply to the patient's brain. The
evidence further shows that the hapless patient suffered brain damage because of the absence
of oxygen in her (patient's) brain for approximately four to five minutes which, in turn, caused
the patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta
Gutierrez whom he had chosen to administer anesthesia on the patient as part of his obligation
to provide the patient a good anesthesiologist', and for arriving for the scheduled operation
almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of
the doctors in their "practice of medicine" in the operating room. Moreover, the hospital is
liable for failing through its responsible officials, to cancel the scheduled operation after Dr.
Hosaka inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have acted
with due care and prudence in rendering medical services to plaintiff-patient. For if the patient
was properly intubated as claimed by them, the patient would not have become comatose.
And, the fact that another anesthesiologist was called to try to intubate the patient after her
(the patient's) nailbed turned bluish, belie their claim. Furthermore, the defendants should
have rescheduled the operation to a later date. This, they should have done, if defendants
acted with due care and prudence as the patient's case was an elective, not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and
against the defendants. Accordingly, the latter are ordered to pay, jointly and severally, the
former the following sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda
Ramos reckoned from November 15, 1985 or in the total sum of P632,000.00 as
of April 15, 1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further sum of
P200,000,00 by way of exemplary damages; and,
4) the costs of the suit.
SO ORDERED. 7
Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion of the decision of
the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the
complaint below against the appellants is hereby ordered DISMISSED. The counterclaim of
appellant De Los Santos Medical Center is GRANTED but only insofar as appellees are hereby
ordered to pay the unpaid hospital bills amounting to P93,542.25, plus legal interest for justice
must be tempered with mercy.
SO ORDERED. 8
The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received by
the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the appellate
court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of the
reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for extension
of time in its Resolution dated 25 July 1995. 9Meanwhile, petitioners engaged the services of another counsel,
Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for
reconsideration contending that the period to file the appropriate pleading on the assailed decision had not
yet commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof
to the counsel on record. Despite this explanation, the appellate court still denied the motion to admit the
motion for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that
the fifteen-day (15) period for filing a motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration
cannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the
other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of the
decision as early as June 9, 1995. Computation wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion for Reconsideration, in turn, was received by
the Court of Appeals already on July 4, necessarily, the 15-day period already passed. For that
alone, the latter should be denied.

Even assuming admissibility of the Motion for the Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby DENIED.
SO ORDERED. 10
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April
1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition
for certiorari under Rule 45. The Court granted the motion for extension of time and gave petitioners
additional thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of the
resolution of the Court of Appeals within which to submit the petition. The due date fell on 27 May 1996. The
petition was filed on 9 May 1996, well within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:

I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA.
CALDERON AND DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11
Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the
petition in relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition should not be given due course since the motion
for reconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed by the
appellate court for having been filed beyond the reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to then
counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate court
was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly
addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner Rogelio Ramos,
the appellate court apparently mistook him for the counsel on record. Thus, no copy of the decision of the
counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for
reconsideration, referred the same to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyer at
his given address. With a few exceptions, notice to a litigant without notice to his counsel on record is no
notice at all. In the present case, since a copy of the decision of the appellate court was not sent to the
counsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of
the motion for reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals
already issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on

25 July 1995, and denied the motion for reconsideration of petitioner, we believed that the receipt of the
former should be considered in determining the timeliness of the filing of the present petition. Based on this,
the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the issue on the applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa
loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The
phrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a
plaintiff's prima faciecase, and present a question of fact for defendant to meet with an explanation. 13 Where
the thing which caused the injury complained of is shown to be under the management of the defendant or
his servants and the accident is such as in ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from or was caused by the defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences may justify an inference of
negligence on the part of the person who controls the instrumentality causing the injury in the absence of
some explanation by the defendant who is charged with negligence. 15 It is grounded in the superior logic of
ordinary human experience and on the basis of such experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident itself. 16 Hence, res ipsa loquitur is applied in conjunction
with the doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not
create or constitute an independent or separate ground of liability. 17 Instead, it is considered as merely
evidentiary or in the nature of a procedural rule. 18 It is regarded as a mode of proof, or a mere procedural of
convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific
proof of negligence. 19 In other words, mere invocation and application of the doctrine does not dispense with
the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff
to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine,
creating an inference or presumption of negligence, and to thereby place on the defendant the burden of
going forward with the proof. 20 Still, before resort to the doctrine may be allowed, the following requisites
must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the absence of
someone's negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant
or defendants; and
3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated. 21
In the above requisites, the fundamental element is the "control of instrumentality" which caused the
damage. 22Such element of control must be shown to be within the dominion of the defendant. In order to
have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it

is applicable, and must establish that the essential elements of the doctrine were present in a particular
incident. 23
Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been
applied when the circumstances attendant upon the harm are themselves of such a character as to justify an
inference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in medical negligence
cases presents a question of law since it is a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given inference. 26
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res
ipsa loquituris availed by the plaintiff, the need for expert medical testimony is dispensed with because the
injury itself provides the proof of negligence. 27 The reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the domain of medical science, and not to matters that
are within the common knowledge of mankind which may be testified to by anyone familiar with the
facts. 28 Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether
a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony
as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions
which are observable by any one may be given by non-expert witnesses. 29 Hence, in cases where the res ipsa
loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the court from its fund of common knowledge can
determine the proper standard of care. 30 Where common knowledge and experience teach that a resulting
injury would not have occurred to the patient if due care had been exercised, an inference of negligence may
be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but how and why it occurred. 31 When the doctrine is
appropriate, all that the patient must do is prove a nexus between the particular act or omission complained
of and the injury sustained while under the custody and management of the defendant without need to
produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed
because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress
for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation, 32 injuries sustained on a healthy part of the body which
was not under, or in the area, of treatment, 33 removal of the wrong part of the body when another part was
intended, 34 knocking out a tooth while a patient's jaw was under anesthetic for the removal of his
tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or
following an operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of
each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter
of common knowledge and observation, that the consequences of professional care were not as such as
would
ordinarily
have
followed
if
due
care
had
been
37
exercised. A distinction must be made between the failure to secure results, and the occurrence of
something more unusual and not ordinarily found if the service or treatment rendered followed the usual
procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician or surgeon which involves the merits of a

diagnosis or of a scientific treatment. 38 The physician or surgeon is not required at his peril to explain why any
particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired
result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired
result of an operation or treatment was not accomplished. 40 The real question, therefore, is whether or not in
the process of the operation any extraordinary incident or unusual event outside of the routine performance
occurred which is beyond the regular scope of customary professional activity in such operations, which, if
unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the
untoward consequence. 41 If there was such extraneous interventions, the doctrine of res ipsa loquitur may be
utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the
damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the
application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court in
applying the res ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid operation and delivered his person over to
the care, custody and control of his physician who had complete and exclusive control over
him, but the operation was never performed. At the time of submission he was neurologically
sound and physically fit in mind and body, but he suffered irreparable damage and injury
rendering him decerebrate and totally incapacitated. The injury was one which does not
ordinarily occur in the process of a mastoid operation or in the absence of negligence in the
administration of an anesthetic, and in the use and employment of an endoctracheal tube.
Ordinarily a person being put under anesthesia is not rendered decerebrate as a consequence
of administering such anesthesia in the absence of negligence. Upon these facts and under
these circumstances a layman would be able to say, as a matter of common knowledge and
observation, that the consequences of professional treatment were not as such as would
ordinarily have followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he was under
the influence of anesthetics and unconscious, and the circumstances are such that the true
explanation of event is more accessible to the defendants than to the plaintiff for they had the
exclusive control of the instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of
action is stated under the doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case,
Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be performed on her
gall bladder. On that fateful day she delivered her person over to the care, custody and control of private
respondents who exercised complete and exclusive control over her. At the time of submission, Erlinda was
neurologically sound and, except for a few minor discomforts, was likewise physically fit in mind and body.
However, during the administration of anesthesia and prior to the performance of cholecystectomy she
suffered irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating
room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an
injury which does not normally occur in the process of a gall bladder operation. In fact, this kind of situation
does not in the absence of negligence of someone in the administration of anesthesia and in the use of
endotracheal tube. Normally, a person being put under anesthesia is not rendered decerebrate as a

consequence of administering such anesthesia if the proper procedure was followed. Furthermore, the
instruments used in the administration of anesthesia, including the endotracheal tube, were all under the
exclusive control of private respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda could
not have been guilty of contributory negligence because she was under the influence of anesthetics which
rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the
patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a
practical administration of justice dictates the application of res ipsa loquitur. Upon these facts and under
these circumstances the Court would be able to say, as a matter of common knowledge and observation, if
negligence attended the management and care of the patient. Moreover, the liability of the physicians and the
hospital in this case is not predicated upon an alleged failure to secure the desired results of an operation nor
on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever
performed on Erlinda. Thus, upon all these initial determination a case is made out for the application of the
doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the
doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to any
and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be within the res
ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed
therein, the Court now comes to the issue of whether the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation and, if in
the affirmative, whether the alleged negligence was the proximate cause of Erlinda's comatose condition.
Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the testimonies of the
witnesses for the private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to admit that she experienced some difficulty in the
endotracheal intubation 45 of the patient and thus, cannot be said to be covering her negligence with
falsehood. The appellate court likewise opined that private respondents were able to show that the brain
damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic
reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by
their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean
Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to the wrongful
insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in the process of
intubation. In so holding, the appellate court returned a verdict in favor of respondents physicians and
hospital and absolved them of any liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to
disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the
proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based. As will
be shown hereinafter, private respondents' own testimonies which are reflected in the transcript of

stenographic notes are replete of signposts indicative of their negligence in the care and management of
Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As
borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was attested
to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's sister-in-law,
who was in the operating room right beside the patient when the tragic event occurred. Witness Cruz testified
to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process administered by Dra.
Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the patient, I was beside the stretcher holding the left
hand of the patient and all of a sudden heard some remarks coming from Dra.
Perfecta Gutierrez herself. She was saying "Ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan.
xxx xxx xxx

ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the
person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I
was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr.
Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's
nailbed became bluish and I saw the patient was placed in trendelenburg
position.

xxx xxx xxx

Q: Do you know the reason why the patient was placed in that trendelenburg
position?
A: As far as I know, when a patient is in that position, there is a decrease of
blood supply to the brain. 46
xxx xxx xxx
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country will show that intubation is not
taught as part of nursing procedures and techniques. Indeed, we take judicial notice of the fact
that nurses do not, and cannot, intubate. Even on the assumption that she is fully capable of
determining whether or not a patient is properly intubated, witness Herminda Cruz, admittedly,
did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there
is no evidence that she ever auscultated the patient or that she conducted any type of
examination to check if the endotracheal tube was in its proper place, and to determine the
condition of the heart, lungs, and other organs. Thus, witness Cruz's categorical statements that
appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra.
Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman
in the process of intubation, witness Cruz is not competent to testify on whether or not the intubation was a
success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the
statements and acts of the physician and surgeon, external appearances, and manifest conditions which are
observable by any one. 48 This is precisely allowed under the doctrine of res ipsa loquitur where the testimony
of expert witnesses is not required. It is the accepted rule that expert testimony is not necessary for the proof
of negligence in non-technical matters or those of which an ordinary person may be expected to have
knowledge, or where the lack of skill or want of care is so obvious as to render expert testimony
unnecessary. 49 We take judicial notice of the fact that anesthesia procedures have become so common, that
even an ordinary person can tell if it was administered properly. As such, it would not be too difficult to tell if
the tube was properly inserted. This kind of observation, we believe, does not require a medical degree to be
acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing, was fully capable
of determining whether or not the intubation was a success. She had extensive clinical experience starting as a
staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean of
the Laguna College of Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of
Nursing. 50Reviewing witness Cruz' statements, we find that the same were delivered in a straightforward
manner, with the kind of detail, clarity, consistency and spontaneity which would have been difficult to
fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to demonstrate
through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first
attempt (sic), you did not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata ito," what were you referring to?
A: "Mahirap yata itong i-intubate," that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered
hardship in the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly
(slightly deviated from the normal anatomy of a person) 52 making it harder to locate and, since Erlinda is
obese and has a short neck and protruding teeth, it made intubation even more difficult.
The argument does not convince us. If this was indeed observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough assessment of Erlinda's airway, prior to the induction
of anesthesia, even if this would mean postponing the procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to
lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins
when the anesthesiologist reviews the patient's medical records and visits with the patient, traditionally, the
day before elective surgery. 53 It includes taking the patient's medical history, review of current drug therapy,
physical examination and interpretation of laboratory data. 54 The physical examination performed by the
anesthesiologist is directed primarily toward the central nervous system, cardiovascular system, lungs
and upper airway. 55 A thorough analysis of the patient's airway normally involves investigating the following:
cervical spine mobility, temporomandibular mobility, prominent central incisors, diseased or artificial teeth,
ability to visualize uvula and the thyromental distance. 56 Thus, physical characteristics of the patient's upper
airway that could make tracheal intubation difficult should be studied. 57Where the need arises, as when initial
assessment indicates possible problems (such as the alleged short neck and protruding teeth of Erlinda) a
thorough examination of the patient's airway would go a long way towards decreasing patient morbidity and
mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the
operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of
Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was likewise not properly informed of the possible difficulties
she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her
patient for the first time only an hour before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in

dealing with human lives lie at the core of the physician's centuries-old Hippocratic Oath. Her failure to follow
this medical procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial
court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried
to muddle the difference between an elective surgery and an emergency surgery just so her failure to perform
the required pre-operative evaluation would escape unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the patient a
day before so you can introduce yourself to establish good doctor-patient
relationship and gain the trust and confidence of the patient?

DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative procedure of
the anesthesiologist and in my case, with elective cases and normal cardiopulmonary clearance like that, I usually don't do it except on emergency and on
cases that have an abnormalities (sic). 58
However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on the other hand, are operative procedures that can
wait for days, weeks or even months. Hence, in these cases, the anesthesiologist possesses the luxury of time
to be at the patient's beside to do a proper interview and clinical evaluation. There is ample time to explain
the method of anesthesia, the drugs to be used, and their possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at least one day before the intended surgery, when the
patient is relaxed and cooperative.
Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to
make a thorough evaluation of Erlinda's case prior to the operation and prepare her for anesthesia. However,
she never saw the patient at the bedside. She herself admitted that she had seen petitioner only in the
operating room, and only on the actual date of the cholecystectomy. She negligently failed to take advantage
of this important opportunity. As such, her attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient
which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly the
proximate cause of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma was
due to bronchospasm 59 mediated by her allergic response to the drug, Thiopental Sodium, introduced into
her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and
Diplomate of the Philippine Specialty Board of Internal Medicine, who advanced private respondents' theory
that the oxygen deprivation which led to anoxic encephalopathy, 60 was due to an unpredictable drug reaction
to the short-acting barbiturate. We find the theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is
not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly

enlightening the court about anesthesia practice and procedure and their complications. Dr. Jamora is likewise
not an allergologist and could not therefore properly advance expert opinion on allergic-mediated processes.
Moreover, he is not a pharmacologist and, as such, could not have been capable, as an expert would, of
explaining to the court the pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium
(Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is further supported by his own admission that he formulated
his opinions on the drug not from the practical experience gained by a specialist or expert in the
administration and use of Sodium Pentothal on patients, but only from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use
pentothal as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate
our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what you
have read from books and not by your own personal application of the medicine
pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my appendectomy.
Q: And because they have used it on you and on account of your own personal
experience you feel that you can testify on pentothal here with medical
authority?
A: No. That is why I used references to support my claims. 61
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs
to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases are within the
expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic mediated
bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and pharmacology.
On the basis of the foregoing transcript, in which the pulmonologist himself admitted that he could not testify
about the drug with medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamora's
testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence 62 regarding expert witnesses states:
Sec. 49. Opinion of expert witness. The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he is shown to possess, may be received in
evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter
about which he or she is to testify, either by the study of recognized authorities on the subject or by practical
experience.63 Clearly, Dr. Jamora does not qualify as an expert witness based on the above standard since he
lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart from submitting

testimony from a specialist in the wrong field, private respondents' intentionally avoided providing testimony
by competent and independent experts in the proper areas.
Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by
triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions, or
wheezing some of the more common accompanying signs of an allergic reaction appears on record. No
laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept private respondents' hypothesis without supporting medical
proof, and against the weight of available evidence, then every anesthetic accident would be an act of God.
Evidently, the Thiopental-allergy theory vigorously asserted by private respondents was a mere afterthought.
Such an explanation was advanced in order to advanced in order to absolve them of any and all responsibility
for the patient's condition.
In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty intubation
which was the proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without which the result would not have occurred. 64 An
injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in
the case, that the act or omission played a substantial part in bringing about or actually causing the injury or
damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the
act or omission. 65 It is the dominant, moving or producing cause.

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

successfully inserted during the second attempt, it was obviously too late. As aptly explained by the trial court,
Erlinda already suffered brain damage as a result of the inadequate oxygenation of her brain for about four to
five minutes. 68
The above conclusion is not without basis. Scientific studies point out that intubation problems are
responsible for one-third (1/3) of deaths and serious injuries associated with anesthesia. 69 Nevertheless,
ninety-eight percent (98%) or the vast majority of difficult intubations may be anticipated by performing a
thorough evaluation of the patient's airway prior to the operation. 70 As stated beforehand, respondent Dra.
Gutierrez failed to observe the proper pre-operative protocol which could have prevented this unfortunate
incident. Had appropriate diligence and reasonable care been used in the pre-operative evaluation,
respondent physician could have been much more prepared to meet the contingency brought about by the
perceived anatomic variations in the patient's neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together with a change in technique. 71 In other words, an
experienced anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would have had
little difficulty going around the short neck and protruding teeth. 72 Having failed to observe common medical
standards in pre-operative management and intubation, respondent Dra. Gutierrez' negligence resulted in
cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the
so-called "captain of the ship," 73 it is the surgeon's responsibility to see to it that those under him perform
their task in the proper manner. Respondent Dr. Hosaka's negligence can be found in his failure to exercise the
proper authority (as the "captain" of the operative team) in not determining if his anesthesiologist observed
proper anesthesia protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified
if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not escape us that
respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as Erlinda's
cholecystectomy, and was in fact over three hours late for the latter's operation. Because of this, he had little
or no time to confer with his anesthesiologist regarding the anesthesia delivery. This indicates that he was
remiss in his professional duties towards his patient. Thus, he shares equal responsibility for the events which
resulted in Erlinda's condition.
We now discuss the responsibility of the hospital in this particular incident. The unique practice (among
private hospitals) of filling up specialist staff with attending and visiting "consultants," 74 who are allegedly not
hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice
cases. However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct
of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are
required to submit proof of completion of residency, their educational qualifications; generally, evidence of
accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references.
These requirements are carefully scrutinized by members of the hospital administration or by a review
committee set up by the hospital who either accept or reject the application. 75 This is particularly true with
respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand
rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to
these, the physician's performance as a specialist is generally evaluated by a peer review committee on the
basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A

consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable
to the hospital or its peer review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
"consultant" staff. While "consultants" are not, technically employees, a point which respondent hospital
asserts in denying all responsibility for the patient's condition, the control exercised, the hiring, and the right
to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the
exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is
determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an employer-employee relationship in effect exists between
hospitals and their attending and visiting physicians. This being the case, the question now arises as to
whether or not respondent hospital is solidarily liable with respondent doctors for petitioner's condition. 76
The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article
2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of
others based on the former's responsibility under a relationship of patria potestas. 77 Such responsibility
ceases when the persons or entity concerned prove that they have observed the diligence of a good father of
the family to prevent damage. 78 In other words, while the burden of proving negligence rests on the plaintiffs,
once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who
should prove that they observed the diligence of a good father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the
hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision
which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature,
respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having
failed to do this, respondent hospital is consequently solidarily responsible with its physicians for Erlinda's
condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of
the witnesses for the private respondents. Indeed, as shown by the above discussions, private respondents
were unable to rebut the presumption of negligence. Upon these disquisitions we hold that private
respondents are solidarily liable for damages under Article 2176 79 of the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00
pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated"
covering the period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the care of
the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the time of its decision would be
grossly inadequate to cover the actual costs of home-based care for a comatose individual. The calculated
amount was not even arrived at by looking at the actual cost of proper hospice care for the patient. What it
reflected were the actual expenses incurred and proved by the petitioners after they were forced to bring
home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing in
the care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimum
standards of care. In the instant case for instance, Erlinda has to be constantly turned from side to side to
prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation should be

normally made by a dietitian to provide her with the correct daily caloric requirements and vitamin
supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to avoid muscle
atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which can lead to respiratory
complications.
Given these considerations, the amount of actual damages recoverable in suits arising from negligence should
at least reflect the correct minimum cost of proper care, not the cost of the care the family is usually
compelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code on actual or
compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as
he has duly proved. The Civil Code provides:
Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury
suffered as a consequence of an act of negligence has been completed and that the cost can be liquidated.
However, these provisions neglect to take into account those situations, as in this case, where the resulting
injury might be continuing and possible future complications directly arising from the injury, while certain to
occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately and correctly
respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to
the time of trial; and one which would meet pecuniary loss certain to be suffered but which could not, from
the nature of the case, be made with certainty. 80 In other words, temperate damages can and should be
awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing.
And because of the unique nature of such cases, no incompatibility arises when both actual and temperate
damages are provided for. The reason is that these damages cover two distinct phases.
As it would not be equitable and certainly not in the best interests of the administration of justice for the
victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the
compensatory damages previously awarded temperate damages are appropriate. The amount given as
temperate damages, though to a certain extent speculative, should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who
has remained in that condition for over a decade. Having premised our award for compensatory damages on
the amount provided by petitioners at the onset of litigation, it would be now much more in step with the
interests of justice if the value awarded for temperate damages would allow petitioners to provide optimal
care for their loved one in a facility which generally specializes in such care. They should not be compelled by
dire circumstances to provide substandard care at home without the aid of professionals, for anything less
would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages
would therefore be reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered by
the plaintiff would have led to expenses which were difficult to estimate because while they would have been
a direct result of the injury (amputation), and were certain to be incurred by the plaintiff, they were likely to
arise only in the future. We awarded P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her
left lower extremity at the distal left thigh just above the knee. Because of this, Valenzuela will
forever be deprived of the full ambulatory functions of her left extremity, even with the use of
state of the art prosthetic technology. Well beyond the period of hospitalization (which was
paid for by Li), she will be required to undergo adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During the lifetime, the prosthetic devise will have to
be replaced and readjusted to changes in the size of her lower limb effected by the biological
changes of middle-age, menopause and aging. Assuming she reaches menopause, for example,
the prosthetic will have to be adjusted to respond to the changes in bone resulting from a
precipitate decrease in calcium levels observed in the bones of all post-menopausal women. In
other words, the damage done to her would not only be permanent and lasting, it would also
be permanently changing and adjusting to the physiologic changes which her body would
normally undergo through the years. The replacements, changes, and adjustments will require
corresponding adjustive physical and occupational therapy. All of these adjustments, it has
been documented, are painful.
xxx xxx xxx
A prosthetic devise, however technologically advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the lower limb. The sensory functions are
forever lost. The resultant anxiety, sleeplessness, psychological injury, mental and physical pain
are inestimable.83
The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more
serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose state
for over fourteen years now. The burden of care has so far been heroically shouldered by her husband and
children, who, in the intervening years have been deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioner's
condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the surface
of the resulting moral damage because it would be highly speculative to estimate the amount of emotional
and moral pain, psychological damage and injury suffered by the victim or those actually affected by the
victim's condition. 84The husband and the children, all petitioners in this case, will have to live with the day to
day uncertainty of the patient's illness, knowing any hope of recovery is close to nil. They have fashioned their
daily lives around the nursing care of petitioner, altering their long term goals to take into account their life
with a comatose patient. They, not the respondents, are charged with the moral responsibility of the care of
the victim. The family's moral injury and suffering in this case is clearly a real one. For the foregoing reasons,
an award of P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit we are of the opinion that attorney's fees valued at
P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers
of life and, they rarely set out to intentionally cause injury or death to their patients. However, intent is
immaterial in negligence cases because where negligence exists and is proven, the same automatically gives
the injured a right to reparation for the damage caused.
Established medical procedures and practices, though in constant flux are devised for the purpose of
preventing complications. A physician's experience with his patients would sometimes tempt him to deviate
from established community practices, and he may end a distinguished career using unorthodox methods
without incident. However, when failure to follow established procedure results in the evil precisely sought to
be averted by observance of the procedure and a nexus is made between the deviation and the injury or
damage, the physician would necessarily be called to account for it. In the case at bar, the failure to observe
pre-operative assessment protocol which would have influenced the intubation in a salutary way was fatal to
private respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to
award in favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as
actual damages computed as of the date of promulgation of this decision plus a monthly payment of
P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as
moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as exemplary damages and
attorney's fees; and, 5) the costs of the suit.

SO ORDERED.