11. G.R. No.

L-24803 May 26, 1977

PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of Agapito Elcano, deceased, plaintiffs-
appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said minor, defendants-appellees.

BARREDO, J.:

Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in Civil Case No. Q-8102,
Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to dismiss of defendants, the complaint of plaintiffs for
recovery of damages from defendant Reginald Hill, a minor, married at the time of the occurrence, and his father, the
defendant Marvin Hill, with whom he was living and getting subsistence, for the killing by Reginald of the son of the
plaintiffs, named Agapito Elcano, of which, when criminally prosecuted, the said accused was acquitted on the ground that
his act was not criminal, because of "lack of intent to kill, coupled with mistake."

Actually, the motion to dismiss based on the following grounds:

1. The present action is not only against but a violation of section 1, Rule 107, which is now Rule III, of
the Revised Rules of Court;

2. The action is barred by a prior judgment which is now final and or in res-adjudicata;

3. The complaint had no cause of action against defendant Marvin Hill, because he was relieved as
guardian of the other defendant through emancipation by marriage.

(P. 23, Record [p. 4, Record on Appeal.])

was first denied by the trial court. It was only upon motion for reconsideration of the defendants of such denial, reiterating
the above grounds that the following order was issued:

Considering the motion for reconsideration filed by the defendants on January 14, 1965 and after
thoroughly examining the arguments therein contained, the Court finds the same to be meritorious and
well-founded.

WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered by ordering the
dismissal of the above entitled case.

SO ORDERED.

Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on Appeal.)

Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our resolution the following
assignment of errors:

THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE CLAIM OF
DEFENDANTS THAT -

THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF SECTION 1, RULE 107,
NOW RULE 111, OF THE REVISED RULES OF COURT, AND THAT SECTION 3(c) OF RULE 111,
RULES OF COURT IS APPLICABLE;

II

THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR RES-ADJUDICTA;

 III

THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL CODE, ARE
INAPPLICABLE IN THE INSTANT CASE; and

IV

THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT MARVIN HILL
BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT THROUGH
EMANCIPATION BY MARRIAGE. (page 4, Record.)

It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant- appellee Reginald Hill was prosecuted
criminally in Criminal Case No. 5102 of the Court of First Instance of Quezon City. After due trial, he was acquitted on the
ground that his act was not criminal because of "lack of intent to kill, coupled with mistake." Parenthetically, none of the
parties has favored Us with a copy of the decision of acquittal, presumably because appellants do not dispute that such
indeed was the basis stated in the court's decision. And so, when appellants filed their complaint against appellees
Reginald and his father, Atty. Marvin Hill, on account of the death of their son, the appellees filed the motion to dismiss
above-referred to.

As We view the foregoing background of this case, the two decisive issues presented for Our resolution are:

1. Is the present civil action for damages barred by the acquittal of Reginald in the criminal case wherein the action for
civil liability, was not reversed?

2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty. Hill, notwithstanding the
undisputed fact that at the time of the occurrence complained of. Reginald, though a minor, living with and getting
subsistenee from his father, was already legally married?

The first issue presents no more problem than the need for a reiteration and further clarification of the dual character,
criminal and civil, of fault or negligence as a source of obligation which was firmly established in this jurisdiction in Barredo
vs. Garcia, 73 Phil. 607. In that case, this Court postulated, on the basis of a scholarly dissertation by Justice Bocobo on
the nature of culpa aquiliana in relation to culpa criminal or delito and mere culpa or fault, with pertinent citation of
decisions of the Supreme Court of Spain, the works of recognized civilians, and earlier jurisprudence of our own, that the
same given act can result in civil liability not only under the Penal Code but also under the Civil Code. Thus, the opinion
holds:

The, above case is pertinent because it shows that the same act machinist. come under both the Penal
Code and the Civil Code. In that case, the action of the agent killeth unjustified and fraudulent and
therefore could have been the subject of a criminal action. And yet, it was held to be also a proper subject
of a civil action under article 1902 of the Civil Code. It is also to be noted that it was the employer and not
the employee who was being sued. (pp. 615-616, 73 Phil.). 1

It will be noticed that the defendant in the above case could have been prosecuted in a criminal case
because his negligence causing the death of the child was punishable by the Penal Code. Here is
therefore a clear instance of the same act of negligence being a proper subject matter either of a criminal
action with its consequent civil liability arising from a crime or of an entirely separate and independent civil
action for fault or negligence under article 1902 of the Civil Code. Thus, in this jurisdiction, the separate
individuality of a cuasi-delito or culpa aquiliana, under the Civil Code has been fully and clearly
recognized, even with regard to a negligent act for which the wrongdoer could have been prosecuted and
convicted in a criminal case and for which, after such a conviction, he could have been sued for this civil
liability arising from his crime. (p. 617, 73 Phil.) 2

It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil
Code. It is thus that although J. V. House could have been criminally prosecuted for reckless or simple
negligence and not only punished but also made civilly liable because of his criminal negligence,
nevertheless this Court awarded damages in an independent civil action for fault or negligence under
article 1902 of the Civil Code. (p. 618, 73 Phil.) 3
 The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this
case. But inasmuch as we are announcing doctrines that have been little understood, in the past, it might
not he inappropriate to indicate their foundations.

Firstly, the Revised Penal Code in articles 365 punishes not only reckless but also simple negligence. If
we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished
by law, accordingly to the literal import of article 1093 of the Civil Code, the legal institution of culpa
aquiliana would have very little scope and application in actual life. Death or injury to persons and
damage to property- through any degree of negligence - even the slightest - would have to be Idemnified
only through the principle of civil liability arising from a crime. In such a state of affairs, what sphere would
remain for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker any intention to bring
about a situation so absurd and anomalous. Nor are we, in the interpretation of the laws, disposed to
uphold the letter that killeth rather than the spirit that giveth life. We will not use the literal meaning of the
law to smother and render almost lifeless a principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito, which is conserved and made enduring in articles 1902 to
1910 of the Spanish Civil Code.

Secondary, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is
required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay in
damages. There are numerous cases of criminal negligence which can not be shown beyond reasonable
doubt, but can be proved by a preponderance of evidence. In such cases, the defendant can and should
be made responsible in a civil action under articles 1902 to 1910 of the Civil Code. Otherwise. there
would be many instances of unvindicated civil wrongs. "Ubi jus Idemnified remedium." (p. 620,73 Phil.)

Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on this
subject, which has given rise to the overlapping or concurrence of spheres already discussed, and for
lack of understanding of the character and efficacy of the action for culpa aquiliana, there has grown up a
common practice to seek damages only by virtue of the civil responsibility arising from a crime, forgetting
that there is another remedy, which is by invoking articles 1902-1910 of the Civil Code. Although this
habitual method is allowed by, our laws, it has nevertheless rendered practically useless and nugatory the
more expeditious and effective remedy based on culpa aquiliana or culpa extra-contractual. In the present
case, we are asked to help perpetuate this usual course. But we believe it is high time we pointed out to
the harms done by such practice and to restore the principle of responsibility for fault or negligence under
articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of quasi-delict
or culpa aquiliana to flow on its own natural channel, so that its waters may no longer be diverted into that
of a crime under the Penal Code. This will, it is believed, make for the better safeguarding or private rights
because it realtor, an ancient and additional remedy, and for the further reason that an independent civil
action, not depending on the issues, limitations and results of a criminal prosecution, and entirely directed
by the party wronged or his counsel, is more likely to secure adequate and efficacious redress. (p. 621,
73 Phil.)

Contrary to an immediate impression one might get upon a reading of the foregoing excerpts from the opinion in Garcia
that the concurrence of the Penal Code and the Civil Code therein referred to contemplate only acts of negligence and not
intentional voluntary acts - deeper reflection would reveal that the thrust of the pronouncements therein is not so limited,
but that in fact it actually extends to fault or culpa. This can be seen in the reference made therein to the Sentence of the
Supreme Court of Spain of February 14, 1919, supra, which involved a case of fraud or estafa, not a negligent act.
Indeed, Article 1093 of the Civil Code of Spain, in force here at the time of Garcia, provided textually that obligations
"which are derived from acts or omissions in which fault or negligence, not punishable by law, intervene shall be the
subject of Chapter II, Title XV of this book (which refers to quasi-delicts.)" And it is precisely the underline qualification,
"not punishable by law", that Justice Bocobo emphasized could lead to an ultimo construction or interpretation of the letter
of the law that "killeth, rather than the spirit that giveth lift- hence, the ruling that "(W)e will not use the literal meaning of
the law to smother and render almost lifeless a principle of such ancient origin and such full-grown development as culpa
aquiliana or quasi-delito, which is conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code." And
so, because Justice Bacobo was Chairman of the Code Commission that drafted the original text of the new Civil Code, it
is to be noted that the said Code, which was enacted after the Garcia doctrine, no longer uses the term, 11 not punishable
by law," thereby making it clear that the concept of culpa aquiliana includes acts which are criminal in character or in
violation of the penal law, whether voluntary or matter. Thus, the corresponding provisions to said Article 1093 in the new
code, which is Article 1162, simply says, "Obligations derived from quasi-delicto shall be governed by the provisions of
Chapter 2, Title XVII of this Book, (on quasi-delicts) and by special laws." More precisely, a new provision, Article 2177 of
the new code provides:
 ART. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and
distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the defendant.

According to the Code Commission: "The foregoing provision (Article 2177) through at first sight startling, is not so novel
or extraordinary when we consider the exact nature of criminal and civil negligence. The former is a violation of the
criminal law, while the latter is a "culpa aquiliana" or quasi-delict, of ancient origin, having always had its own foundation
and individuality, separate from criminal negligence. Such distinction between criminal negligence and "culpa
extracontractual" or "cuasi-delito" has been sustained by decision of the Supreme Court of Spain and maintained as clear,
sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the proposed Article 2177,
acquittal from an accusation of criminal negligence, whether on reasonable doubt or not, shall not be a bar to a
subsequent civil action, not for civil liability arising from criminal negligence, but for damages due to a quasi-delict or
'culpa aquiliana'. But said article forestalls a double recovery.", (Report of the Code) Commission, p. 162.)

Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same argument of Justice
Bacobo about construction that upholds "the spirit that giveth lift- rather than that which is literal that killeth the intent of the
lawmaker should be observed in applying the same. And considering that the preliminary chapter on human relations of
the new Civil Code definitely establishes the separability and independence of liability in a civil action for acts criminal in
character (under Articles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of the Revised Penal
Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111, contemplate also the same separability,
it is "more congruent with the spirit of law, equity and justice, and more in harmony with modern progress"- to borrow the
felicitous relevant language in Rakes vs. Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article
2176, where it refers to "fault or negligencia covers not only acts "not punishable by law" but also acts criminal in
character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the offender in
a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is
not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the
extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article
100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a
crime is not estinguished even by a declaration in the criminal case that the criminal act charged has not happened or has
not been committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa aquiliana includes
voluntary and negligent acts which may be punishable by law. 4

It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished his liability for quasi-delict,
hence that acquittal is not a bar to the instant action against him.

Coming now to the second issue about the effect of Reginald's emancipation by marriage on the possible civil liability of
Atty. Hill, his father, it is also Our considered opinion that the conclusion of appellees that Atty. Hill is already free from
responsibility cannot be upheld.

While it is true that parental authority is terminated upon emancipation of the child (Article 327, Civil Code), and under
Article 397, emancipation takes place "by the marriage of the minor (child)", it is, however, also clear that pursuant to
Article 399, emancipation by marriage of the minor is not really full or absolute. Thus "(E)mancipation by marriage or by
voluntary concession shall terminate parental authority over the child's person. It shall enable the minor to administer his
property as though he were of age, but he cannot borrow money or alienate or encumber real property without the
consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father,
mother or guardian."

Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity,
the mother, are responsible. The father and, in case of his death or incapacity, the mother, are responsible for the
damages caused by the minor children who live in their company." In the instant case, it is not controverted that Reginald,
although married, was living with his father and getting subsistence from him at the time of the occurrence in question.
Factually, therefore, Reginald was still subservient to and dependent on his father, a situation which is not unusual.

It must be borne in mind that, according to Manresa, the reason behind the joint and solidary liability of presuncion with
their offending child under Article 2180 is that is the obligation of the parent to supervise their minor children in order to
prevent them from causing damage to third persons. 5 On the other hand, the clear implication of Article 399, in providing
that a minor emancipated by marriage may not, nevertheless, sue or be sued without the assistance of the parents, is that
such emancipation does not carry with it freedom to enter into transactions or do any act that can give rise to judicial
litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing someone else invites judicial action. Otherwise
stated, the marriage of a minor child does not relieve the parents of the duty to see to it that the child, while still a minor,
does not give answerable for the borrowings of money and alienation or encumbering of real property which cannot be
done by their minor married child without their consent. (Art. 399; Manresa, supra.)

Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the emancipation by marriage of
Reginald. However, inasmuch as it is evident that Reginald is now of age, as a matter of equity, the liability of Atty. Hill
has become milling, subsidiary to that of his son.

WHEREFORE, the order appealed from is reversed and the trial court is ordered to proceed in accordance with the
foregoing opinion. Costs against appellees.

12. G.R. No. L-20392 December 18, 1968

MARCIAL T. CAEDO, JUANA SANGALANG CAEDO, and the Minors, EPHRAIM CAEDO, EILEEN CAEDO, ROSE
ELAINE CAEDO, suing through their father, MARCIAL T. CAEDO, as guardian ad litem, plaintiffs-appellants,
vs.
YU KHE THAI and RAFAEL BERNARDO, defendants-appellants.

MAKALINTAL, J.:

As a result of a vehicular accident in which plaintiff Marcial Caedo and several members of his family were injured they
filed this suit for recovery of damages from the defendants. The judgment, rendered by the Court of First Instance of Rizal
on February 26, 1960 (Q-2952), contains the following disposition:

IN VIEW OF THE FOREGOING, the court renders a judgment, one in favor of the plaintiffs and against the
defendants, Yu Khe Thai and Rafael Bernardo, jointly and severally, to pay to plaintiffs Marcial Caedo, et al., the
sum of P1,929.70 for actual damages; P48,000.00 for moral damages; P10,000.00 for exemplary damages; and
P5,000.00 for attorney's fees, with costs against the defendants. The counterclaim of the defendants against the
plaintiffs is hereby ordered dismissed, for lack of merits.

On March 12, 1960 the judgment was amended so as to include an additional award of P3,705.11 in favor of the plaintiffs
for the damage sustained by their car in the accident.

Both parties appealed to the Court of Appeals, which certified the case to us in view of the total amount of the plaintiffs'
claim.

There are two principal questions posed for resolution: (1) who was responsible for the accident? and (2) if it was
defendant Rafael Bernardo, was his employer, defendant Yu Khe Thai, solidarily liable with him? On the first question the
trial court found Rafael Bernardo negligent; and on the second, held his employer solidarily liable with him.

The mishap occurred at about 5:30 in the morning of March 24, 1958 on Highway 54 (now E. de los Santos Avenue) in
the vicinity of San Lorenzo Village. Marcial was driving his Mercury car on his way from his home in Quezon City to the
airport, where his son Ephraim was scheduled to take a plane for Mindoro. With them in the car were Mrs. Caedo and
three daughters. Coming from the opposite direction was the Cadillac of Yu Khe Thai, with his driver Rafael Bernardo at
the wheel, taking the owner from his Paraaque home to Wack Wack for his regular round of golf. The two cars were
traveling at fairly moderate speeds, considering the condition of the road and the absence of traffic the Mercury at 40 to
50 kilometers per hour, and the Cadillac at approximately 30 to 35 miles (48 to 56 kilometers). Their headlights were
mutually noticeable from a distance. Ahead of the Cadillac, going in the same direction, was a caretella owned by a
certain Pedro Bautista. The carretela was towing another horse by means of a short rope coiled around the rig's vertical
post on the right side and held at the other end by Pedro's son, Julian Bautista.

Rafael Bernardo testified that he was almost upon the rig when he saw it in front of him, only eight meters away. This is
the first clear indication of his negligence. The carretela was provided with two lights, one on each side, and they should
have given him sufficient warning to take the necessary precautions. And even if he did not notice the lights, as he
claimed later on at the trial, the carretela should anyway have been visible to him from afar if he had been careful, as it
must have been in the beam of his headlights for a considerable while.

In the meantime the Mercury was coming on its own lane from the opposite direction. Bernardo, instead of slowing down
or stopping altogether behind the carretela until that lane was clear, veered to the left in order to pass. As he did so the
curved end of his car's right rear bumper caught the forward rim of the rig's left wheel, wrenching it off and carrying it
along as the car skidded obliquely to the other lane, where it collided with the oncoming vehicle. On his part Caedo had
seen the Cadillac on its own lane; he slackened his speed, judged the distances in relation to the carretela and concluded
that the Cadillac would wait behind. Bernardo, however, decided to take a gamble beat the Mercury to the point where
it would be in line with the carretela, or else squeeze in between them in any case. It was a risky maneuver either way,
and the risk should have been quite obvious. Or, since the car was moving at from 30 to 35 miles per hour (or 25 miles
according to Yu Khe Thai) it was already too late to apply the brakes when Bernardo saw the carretela only eight meters
in front of him, and so he had to swerve to the left in spite of the presence of the oncoming car on the opposite lane. As it
was, the clearance Bernardo gave for his car's right side was insufficient. Its rear bumper, as already stated, caught the
wheel of the carretela and wrenched it loose. Caedo, confronted with the unexpected situation, tried to avoid the collision
at the last moment by going farther to the right, but was unsuccessful. The photographs taken at the scene show that the
right wheels of his car were on the unpaved shoulder of the road at the moment of impact.

There is no doubt at all that the collision was directly traceable to Rafael Bernardo's negligence and that he must be held
liable for the damages suffered by the plaintiffs. The next question is whether or not Yu Khe Thai, as owner of the
Cadillac, is solidarily liable with the driver. The applicable law is Article 2184 of the Civil Code, which reads:

ART. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the
vehicle, could have, by the use of due diligence, prevented the misfortune. It is disputably presumed that a driver
was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the
next preceding two months.

Under the foregoing provision, if the causative factor was the driver's negligence, the owner of the vehicle who was
present is likewise held liable if he could have prevented the mishap by the exercise of due diligence. The rule is not new,
although formulated as law for the first time in the new Civil Code. It was expressed in Chapman vs. Underwood (1914),
27 Phil. 374, where this Court held:

... The same rule applies where the owner is present, unless the negligent acts of the driver are continued for
such a length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to
desist therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a
violation of the law by the performance of negligent acts, after he has had a reasonable opportunity to observe
them and to direct that the driver cease therefrom, becomes himself responsible for such acts. The owner of an
automobile who permits his chauffeur to drive up the Escolta, for example, at a speed of 60 miles an hour, without
any effort to stop him, although he has had a reasonable opportunity to do so, becomes himself responsible, both
criminally and civilly, for the results produced by the acts of the chauffeur. On the other hand, if the driver, by a
sudden act of negligence, and without the owner having a reasonable opportunity to prevent the act or its
continuance, injures a person or violates the criminal law, the owner of the automobile, although present therein
at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of
must be continued in the presence of the owner for such a length of time that the owner, by his acquiescence,
makes his driver act his own.

The basis of the master's liability in civil law is not respondent superior but rather the relationship of paterfamilias. The
theory is that ultimately the negligence of the servant, if known to the master and susceptible of timely correction by him,
reflects his own negligence if he fails to correct it in order to prevent injury or damage.

In the present case the defendants' evidence is that Rafael Bernardo had been Yu Khe Thai's driver since 1937, and
before that had been employed by Yutivo Sons Hardware Co. in the same capacity for over ten years. During that time he
had no record of violation of traffic laws and regulations. No negligence for having employed him at all may be imputed to
his master. Negligence on the part of the latter, if any, must be sought in the immediate setting and circumstances of the
accident, that is, in his failure to detain the driver from pursuing a course which not only gave him clear notice of the
danger but also sufficient time to act upon it. We do not see that such negligence may be imputed. The car, as has been
stated, was not running at an unreasonable speed. The road was wide and open, and devoid of traffic that early morning.
There was no reason for the car owner to be in any special state of alert. He had reason to rely on the skill and
experience of his driver. He became aware of the presence of the carretela when his car was only twelve meters behind it,
but then his failure to see it earlier did not constitute negligence, for he was not himself at the wheel. And even when he
did see it at that distance, he could not have anticipated his driver's sudden decision to pass the carretela on its left side in
spite of the fact that another car was approaching from the opposite direction. The time element was such that there was
no reasonable opportunity for Yu Khe Thai to assess the risks involved and warn the driver accordingly. The thought that
entered his mind, he said, was that if he sounded a sudden warning it might only make the other man nervous and make
the situation worse. It was a thought that, wise or not, connotes no absence of that due diligence required by law to
prevent the misfortune.
The test of imputed negligence under Article 2184 of the Civil Code is, to a great degree, necessarily subjective. Car
owners are not held to a uniform and inflexible standard of diligence as are professional drivers. In many cases they
refrain from driving their own cars and instead hire other persons to drive for them precisely because they are not trained
or endowed with sufficient discernment to know the rules of traffic or to appreciate the relative dangers posed by the
different situations that are continually encountered on the road. What would be a negligent omission under aforesaid
Article on the part of a car owner who is in the prime of age and knows how to handle a motor vehicle is not necessarily
so on the part, say, of an old and infirm person who is not similarly equipped.

The law does not require that a person must possess a certain measure of skill or proficiency either in the mechanics of
driving or in the observance of traffic rules before he may own a motor vehicle. The test of his intelligence, within the
meaning of Article 2184, is his omission to do that which the evidence of his own senses tells him he should do in order to
avoid the accident. And as far as perception is concerned, absent a minimum level imposed by law, a maneuver that
appears to be fraught with danger to one passenger may appear to be entirely safe and commonplace to another. Were
the law to require a uniform standard of perceptiveness, employment of professional drivers by car owners who, by their
very inadequacies, have real need of drivers' services, would be effectively proscribed.

We hold that the imputation of liability to Yu Khe Thai, solidarily with Rafael Bernardo, is an error. The next question refers
to the sums adjudged by the trial court as damages. The award of P48,000 by way of moral damages is itemized as
follows:

1. Marcial Caedo P 20,000.00

2. Juana S. Caedo 15,000.00

3. Ephraim Caedo 3,000.00

4. Eileen Caedo 4,000.00

5. Rose Elaine Caedo 3,000.00

6. Merilyn Caedo 3,000.00

Plaintiffs appealed from the award, claiming that the Court should have granted them also actual or compensatory
damages, aggregating P225,000, for the injuries they sustained. Defendants, on the other hand maintain that the amounts
awarded as moral damages are excessive and should be reduced. We find no justification for either side. The amount of
actual damages suffered by the individual plaintiffs by reason of their injuries, other than expenses for medical treatment,
has not been shown by the evidence. Actual damages, to be compensable, must be proven. Pain and suffering are not
capable of pecuniary estimation, and constitute a proper ground for granting moral, not actual, damages, as provided in
Article 2217 of the Civil Code.

The injuries sustained by plaintiffs are the following:

MARCIAL T. CAEDO:

A. Contusion, with hematoma, scalp, frontal left; abrasions, chest wall, anterior;
B. Multiple fractures, ribs, right, lst to 5th inclusive. Third rib has a double fracture; Subparieto-plaural
hematoma; Basal disc atelectasis, lung, right lower lobe, secondary;
C. Pseudotosis, left, secondary to probable basal fracture, skull.

JUANA SANGALANG CAEDO:

A. Abrasions, multiple:
(1)frontal region, left; (2) apex of nose; (3) upper eyelid, left; (4) knees.
B. Wound, lacerated, irregular, deep, frontal;
C. Fracture, simple, 2nd rib posterior, left with displacement.
D. Fracture, simple, base, proximal phalanx right, big toe.
E. Fracture, simple, base, metatarsals III and V right.
F. Concussion, cerebral.
 EPHRAIM CAEDO:

A. Abrasions, multiple:
(1) left temporal area; (2) left frontal; (3) left supraorbital

EILEEN CAEDO:

A. Lacerated wound (V-shaped), base, 5th finger, right, lateral aspect.

B. Abrasions, multiple:
(1) dorsum, proximal phalanx middle finger; (2) Knee, anterior, bilateral; (3) shin, lower 1/3.

ROSE ELAINE CAEDO:

A. Abrasions, multiple: (1) upper and lower lids; (2) left temporal; (3) nasolabial region; (4) leg, lower third,
anterior.

MARILYN CAEDO:

A. Abrasions, multiple: (1)shin, lower 1/3 right; (2) arm, lower third

C. Contusion with hematoma, shin, lower 1/3, anterior aspect, right. (See Exhibits D, D-1, D-2, D-3, D-4,
and D- 5)

It is our opinion that, considering the nature and extent of the above-mentioned injuries, the amounts of moral damages
granted by the trial court are not excessive.

WHEREFORE, the judgment appealed from is modified in the sense of declaring defendant-appellant Yu Khe Thai free
from liability, and is otherwise affirmed with respect to defendant Rafael Bernardo, with costs against the latter.

13. G.R. No. 88582 March 5, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HEINRICH S. RITTER, accused-appellant,

GUTIERREZ, JR., J.:

The appellant challenges his conviction of the crime involving a young girl of about 12 years old who had been allegedly
raped and who later died because of a foreign object left inside her vaginal canal.

Heinrich Stefan Ritter was charged with the crime of rape with homicide under an information which reads:

That on or about the tenth (10th day of October, 1986 in the City of Olongapo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused with lewd design and with intent to kill one Rosario
Baluyot, a woman under twelve (12) years of age, did then and there wilfully, unlawfully and feloniously have
carnal knowledge of said Rosario Baluyot and inserted a foreign object into the vaginal canal of said Rosario
Baluyot which caused her death shortly thereafter, to the damage and prejudice of her relatives. (66)

When arraigned, the accused pleaded "Not Guilty". Thereafter, the case was set for trial on the merits.

To prove the guilt of the accused, the prosecutor presented the following witnesses, namely: (1) Jessie Ramirez, (2) Maria
Burgos y Turla, (3) P/Cpl. Mariano Victoria, (4) Policarpio Baluyot, (5) Dr. Reino Rosete, (6) Sumulong Daniel, (7) Jessica
Herrera, (8) Sister Eva Palencia, (9) Conrado Salonga, (10) Dr. Devonne Loop, (11) Dr. Leo Cruz, (12) Paul Maclor, (13)
Aida Sarmiento, (14) Patricia Prollamanta (15) Mel Santos, (16) Lorna Limos, (17) Eduard Lee Bungarner, (18) Ronaldo
Marquez, (19) Tom Bonte, (20) 2nd Asst. City Fiscal Nini Alcala, (21) lst Asst. City Fiscal Dorentino Z. Floresta, (22)
Corazon Caber, (23) Rodolfo Mercurio and (24) Fe Israel.
On the other hand, the defense offered in evidence Exhibits "1" to "24" and the testimonies of (1) Heinrich S. Ritter, (2)
Father Roque Villanueva, (3) Angelita Amulong (4) Gaspar Alcantara, (5) Dr. Val Barcinal and (6) Dr. Pedro C. Solis.

The facts of the case upon which the lower court based its finding of guilt beyond reasonable doubt are summarized in its
decision, as follows:

The people's evidence show that on October 10, 1986 about midnight, accused Heinrich Stefan Ritter brought a
boy and girl namely: Jessie Ramirez and Rosario Baluyot inside his hotel room at MGM Hotel along Magsaysay
Drive, Olongapo City. These two (2) children were chosen from among a bunch of street children. Once inside the
hotel room accused told them to take a bath. Jessie Ramirez, alias "Egan", was the first to take a bath and when
he came out Rosario Baluyot went to the bathroom to do the same. While Rosario Baluyot was inside the
bathroom, accused Ritter took out some pictures depicting dressed up young boys, and put them on top of the
table. Other things which were taken out and placed on top of a table were three (3) other objects which he
described as like that of a vicks inhaler. One of these objects the accused played with his hands and placed it on
his palms. The color of which is grayish blue which turned out later to be the foreign object which was inserted
inside the vagina of Rosario Baluyot. The other objects were later established to be anti-nasal inhalers against
pollution purchased by the accused in Bangkok when he went there as a tourist. While Rosario was in the
bathroom, accused told Ramirez to lay down on bed, and so did the accused. He then started masturbating the
young boy and also guided the boy's hand for him to be masturbated, so that they masturbated each other, while
they were both naked, and he gave Jessie Ramirez an erection. When Rosario Baluyot came out of the
bathroom, she was told to remove her clothes by accused and to join him in bed. The accused then placed
himself between the two (2) children and accused started fingering Rosario.

At this time, Ramirez was already sleepy, but Rosario touched him to call his attention. He looked, and he saw
accused placing his penis against the vagina of Rosario and that he was trying to penetrate the vagina but it
would not fit. After what he saw, Ramirez did not anymore bother to look because he was sleepy and fell asleep.

The following morning, the accused, whom the juveniles described as an "American, paid Ramirez alias "Egan"
P200.00 and Rosario P300.00. He then left them in the hotel. After the American left, they went downstairs, and
Rosario told Egan that the American inserted something in her vagina. But they could not do anything anymore,
because the American had already left, and neither did they report the matter to the police. Sometime the
following day, Jessie saw Rosario and he asked her whether the object was already removed from her body and
Rosario said "Yes". However, Jessie Ramirez claimed that on the evening of that same date, he saw Rosario and
she was complaining of pain in her vagina and when Egan asked her, she said that the foreign object was not yet
removed. Then there was another occasion wherein Jessie was summoned and when he came he saw Rosario
writhing in pain and when he tried to talk to Rosario she scolded him with defamatory remarks. Thereafter, he did
not see Rosario anymore because he already went home to his aunt's house who resided at Barrio Barretto and
resumed his studies in the primary grades.

On May 14, 1987, Gaspar Alcantara, a defense witness, while garbage scavenging at Lot 21, near the gate of the
U.S. Naval Base saw Rosario at Magsaysay Drive near the Happy Bake Shop near Lot 21, being ogled by people
because Rosario's skirt was bloodied and she was unconscious and foul smelling. Since nobody helped Rosario,
he took pity on her condition and brought her to the Olongapo City General Hospital in an unconscious condition,
via jeepney. He went to the Information desk and he was the one who gave the personal circumstances of
Rosario as to her name, age, her residence as Nagbakulaw, Lower Kalaklan, and Gaspar Alcantara signed as
"guardian" of Rosario, while Rosario was already in the emergency room. Although Gaspar Alcantara denied that
he did not know the name of Rosario Baluyot when he brought her to the hospital, this is belied by the testimony
of the Information clerk Lorna Limos, who was then on duty. Limos testified that it was Alcantara who supplied the
personal circumstances of Rosario. The Court gives more credence to the testimony of Miss Limos as against
Gaspar Alcantara who became a defense witness, for the reason that through his own testimony, Gaspar
Alcantara claimed that even prior to May 14, 1987, he had already known Rosario Baluyot for more than one (1)
year, because he has seen the said girl go to the house of his twin brother, Melchor Alcantara, who is his
immediate neighbor. Rosario used to visit a girl by the name of "Nora" who was then in the custody of his brother.
His brother Melchor was also living with their mother, brother and sister-in-law and their two (2) children in his
house. Rosario as per Gaspar's testimony even stays for one week or a few days at his brother's house when she
visits Nora. So the Court can safely assume that of all the more than one (1) year that he had regularly seen
Rosario at his brother's house, he must have already did come to know the name of Rosario Baluyot including her
age. In his testimony in Court he stated that he even asked Rosario for movie and softdrinks money which can
safely be concluded that he knows her very well. It is against normal behavior especially to a Filipino who have a
characteristic of curiosity not to have found out the real name of the girl he claims to know only as "Tomboy".
While Rosario Baluyot was confined at the Olongapo City General Hospital, nobody was attending to her since
she is a street child, having stowed away from the custody of her grandmother. Three (3) good samaritans who
belong to religious and civic organizations, in the persons of Jessica Herrera, Fe Israel and Sr. Eva Palencia, in
one of their missions in the hospital chanced upon Rosario Baluyot who was all alone with no relatives attending
to her and after finding out that she was only 12 years old decided to help her. After a short interview with
Rosario, regarding her name and age only because she clamped up about her residence and her relatives, they
decided to help her by providing her the medicine she needed during her confinement in readiness for an
operation. It was Fe Israel who was able to get the name and age of Rosario Baluyot from Rosario Baluyot herself
when she saw her for the first time. For Fe Israel, the age of Rosario Baluyot was an important factor because
their program assisted only indigent patients from infants up to 13 years old.

Rosario's first ailment at the Olongapo City General Hospital was loose bowel movement and vomiting, which was
first suspected as gastro-enteritis, but which came out later as symptoms of peritonitis due to a massive infection
in the abdominal cavity. Subsequently, on May 17, 1987, after she was examined by the physicians at the
hospital, it was found out that there was a foreign object lodged in her vaginal canal and she had vaginal
discharge tinged with blood and foul smelling odor emanating from her body. One of the doctors who attended to
her was Dr. Barcinal, an OB-GYNE. Dr. Barcinal tried to extract the foreign object by means of a forceps, but
several attempts proved futile because said object was deeply embedded in the vaginal canal and was covered
by tissues. Her abdomen was enlarged, tender and distended, symptoms of peritonitis. The patient was feverish
and incoherent when she was scheduled for operation on May 19, 1987, after the first attempt for an operation on
May 17 was aborted allegedly because the consent of Dr. Reino Rosete, the hospital director was not obtained.
The surgeon who operated on her was Dr. Rosete himself. He testified that Rosario had to be operated even in
that condition in order to save her life. Her condition was guarded. This was corroborated by Dr. Leo Cruz, the
anesthesiologist during Rosario's operation. It was in the evening of May 19 at about 7:00 p.m. when Dr. Rosete
opened her abdomen by making a 5 inch incision on her stomach. He found out that the fallopian tubes were
congested with pus and so with the peritonieum, and the pelvic cavity, and patches of pus in the liver, although
the gallbladder and kidney appeared to have septicemia, poisoning of the blood. The peritonitis and septicemia
were traced to have been caused through infection by the foreign object which has been lodged in the intra-
vaginal canal of Rosario. The foreign object which was already agreed upon by both parties that it is a portion of a
sexual vibrator was extracted from the vagina of Rosario while under anesthesia. Said object was coated with
tissues, pus and blood. Dr. Rosete gave it to the assisting surgical nurse for safekeeping and gave instructions to
release it to the authorized person. This object was shown by the nurse to Dr. Leo Cruz. Dr. Rosete considered
the operation successful and the patient was alive when he left her under Dr. Cruz. Dr. Cruz stayed with said
patient in the ward for about 30 minutes and thereafter he left. The following day, Rosario got serious and it was
Dr. Leo Cruz who pronounced her death at 2:00 to 2:15 in the afternoon of May 20, 1987.

Thereafter, a death certificate was prepared under the direction of Dr. Cruz which was indicated therein that the
cause of death was cardio-respiratory arrest, secondary to septicemia caused by the foreign object lodged in the
intra uteral vaginal canal of Rosario Baluyot.

The foreign object was washed by nurse Obedina, then placed it in a transparent small jar and labelled "Rosario
Baluyot". Jessica Herrera asked the nurse for the foreign object, and it was given to her under proper receipt.
Herrera then showed the same to the persons who helped financially Rosario's case, and afterwards she gave it
to Sister Eva Palencia. Sis. Palencia was in custody of the said object until Mr. Salonga came and asked her for
the object.

After Rosario Baluyot died, Sis. Palencia and a companion went to Gaspar Alcantara to ask him in locating the
relatives of Rosario. They were able to trace Rosario's grandmother, Mrs. Maria Burgos Turla, and informed her
that her granddaughter was already dead and lying in state at St. Martin Funeral Parlor. Mrs. Turla went there
with her son, who shouldered all the burial expenses for Rosario.

Subsequently, Sis. Palencia, Fr. Cullens and Mr. Salonga came to her residence at Sta. Rita and asked her if she
was interested in filing a case against the person who caused the death of her granddaughter. Of course she
agreed. Hence, she was brought to the Fiscal's (City) Office to file the same.

After the case was filed against the herein accused, Atty. Edmundo Legaspi with his messenger came to her
house and told her that the accused was willing to settle the case, but that accused Ritter had only P15,000.00.
The old woman did not accept it because she knows that the accused is liable to pay damages anyway. After that,
she received a letter from Atty. Legaspi telling her to get a lawyer for her case. By this time, Mrs. Turla, who
wanted to have the case settled once and for all giving the reason that she can no longer bear the situation, sent
her nephew, Conrado Marcelo to Atty. Legaspi. Her nephew obliged and told her that she will be paid at the office
of Atty. Legaspi. On a date not clear in the records, she went with her nephew Conrado Marcelo, and Roberto
Sundiam, an assistant barangay tanod of Sta. Rita, and while they were there, she saw Ritter arrive at the law
office. Ritter and Atty. Legaspi talked at the office near the bathroom, and thereafter Ritter left. After he left, Atty.
Legaspi told Rosario's grandmother that they are willing to settle for P20,000.00, but that Ritter left only
P15,000.00, so she received the money with the understanding that there was a balance of P5,000.00 yet. She
was made to sign a statement, and she was asked to change the age of her granddaughter Rosario. With the
document prepared, she and the lawyer's messenger went to the Fiscal's office to have it subscribed, and was
subscribed before an assistant city fiscal. But the balance of P5,000.00 was not paid, because later on Atty.
Legaspi became the OIC of Olongapo City and he could no longer attend to it. Atty. Legaspi, during one of the
hearings before the Court even apologized to her.

As to the case, P/Cpl. Marino Victoria, as criminal investigator of Station "A", was directed by Col. Daos, Station
Commander of the Olongapo Police Department to make a follow up of the case of Rosario Baluyot. On the other
hand, since the suspect who inserted the foreign object inside Rosario's vagina was said to be an American, the
NISRA Subic Naval Base also conducted its investigation headed by criminal investigator Agent Conrado
Salonga. Coordinating with the local police and with Sister Eva Palencia, since Rosario was a street child at
Magsaysay Drive, they rounded up about 43 street children and from some of them they learned that Rosario
Baluyot was with Jessie Ramirez with an American at the MGM Hotel when the foreign object was inserted in her
vagina. After finding Jessie Ramirez, they asked him about Rosario Baluyot. They found out that indeed he was
with Rosario Baluyot sometime before Christmas of 1986 with an American, who brought them to the said hotel.
Jessie Ramirez was taken inside the U.S. Naval Base, Olongapo City and took his statement. Then he was
brought to Mr. Edward Lee Bungarner, a cartographer, and out of the description supplied by Ramirez, a
composite drawing was photocopied and copies thereof were distributed to the local police and to the sentries at
the gate of the U.S. Naval Base. Some American servicemen who had resemblance to the composite drawing
were photographed and these were shown to Jessie Ramirez, but the result was negative. Aside from the
physical description by Ramirez about the appearance of the suspect, he also described him as having the
mannerisms of a homo-sexual.

After obtaining information that foreign homo-sexuals frequented Ermita, Manila, and thinking that the so-called
American may be European or Australian national, the team composed of Agent Salonga, Mr. Heinsell, P/Cpl.
Marino Victoria and P/Cpl. Andres Montaon, Jessie Ramirez and Michael Johnson, another juvenile, proceeded to
Manila. They first went to the Manila NISRA Office, and thereafter checked in a hotel. That was on September 23,
1987. On the first night, they went to Luneta Park where foreign homo-sexuals were said to be frequenting, but
the result was negative. Then on September 25, at about 11:00 p.m., while they were standing at the corner of A.
Mabini and M.H. del Pilar Street, a male caucasian who looked like a homo-sexual stopped by admiringly infront
of the two (2) juveniles, Ramirez and Johnson. Jessie Ramirez then reported to Mr. Salonga that this foreigner
had a similarity with the American suspect, so the two minors were instructed to follow the foreigner and to strike
a conversation. They did, and when they returned, Jessie Ramirez told them that indeed the said foreigner was
the one who brought him and Rosario Baluyot to the MGM Hotel. Bobby Salonga told Ramirez that this foreigner
had no beard while the one previously described by Ramirez had a beard. Jessie Ramirez told them that maybe
he have just shaved it off. The said caucasian then entered a bar, and after several minutes he came out, and
Jessie Ramirez upon his signal with his thumbs up, as a signal to confirm that the said foreigner is the suspect,
arrested Ritter and brought him to the Manila Western Police District. It could be mentioned at this stage that in
this operation they were accompanied by two (2) policemen from the Western Police District. The foreigner was
hand cuffed and was told that he was a suspect for Rape with Homicide. After the arrest, they first went to the
pension house of the suspect in Ermita, Manila to get his shoulder bag which contained his personal belongings,
and from there they brought him to the Western Police Department. At the said police headquarters, they were
allowed a permissive search by the foreigner of his clutch bag and his small shoulder bag and confiscated his
passport, I.D., 3 inhalers, money in the form of dollars and travellers checks amounting about $1,500.00 and
about P100.00, all duly receipted for. From the passport they learned that the suspect's name was Heinrich
Stefan Ritter, an Austrian national. During the questioning of Hitter, Salonga and his team already left the
headquarters and went to their hotel, because at this time Jessie Ramirez was already shaking with fear after he
identified the accused.

The following day, they brought the accused to Olongapo and was detained at the Olongapo City Jail. The case
for Rape with Homicide was filed against him at the City Fiscal of Olongapo. At the preliminary investigation,
accused was assisted by his own counsel. The private complainant was Maria Burgos Turla because it was she
who had custody of Rosario Baluyot after her mother Anita Burgos died on January 12, 1982, and their father
Policarpio Baluyot had left them under her custody. When this case was filed, the father's whereabouts was
unknown, and he only appeared when the trial of this case before the Court was already in progress. And upon
 his (Policarpio Baluyot) own admission, he only learned about the death of his daughter Rosario Baluyot from the
newspaper, long after Rosario was already gone.

The defense tried to dislodge the case by claiming that there could be no crime of Rape with Homicide because
the suspect was described as an American while Ritter is an Austrian. Also advanced by the defense is that, it is a
case of mistaken identity. That Rosario Baluyot was at the time of the commission of the offense, already more
than 13 years old, she having been born on December 26, 1973 as per baptismal certificate, wherein it appears
that Rosario Baluyot was baptized on December 25, 1974 and was born on December 26, 1973 as testified to by
Fr. Roque Villanueva of St. James Parish Church who issued the Baptismal Certificate, having custody and
possession of the book of baptism for the year 1975, but admitted that he had no personal knowledge about the
matters or entries entered therein. Likewise, the defense's stand is that the accused cannot be liable for Homicide
because a vibrator is not a weapon of death but it is a thing for the purpose of giving sexual pleasure, and that the
death of Rosario Baluyot was due to the incompetence of Dr. Rosete, the surgeon and Director of the Olongapo
City General Hospital, who operated on her. (Rollo, pp. 109-116)

On March 29, 1989, the trial court rendered its decision. The dispositive portion of the decision reads as follows:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court holds, that the prosecution has established the
GUILT of the accused beyond reasonable doubt for the crime of Rape with Homicide as defined and penalized in
Art. 335 No. 3 of the Revised Penal Code, and hereby sentences HEINRICH STEFAN RITTER to a penalty of
RECLUSION PERPETUA, to indemnify the heirs of the deceased in the sum of SIXTY THOUSAND PESOS
(P60,000.00) Philippine Currency, and TEN THOUSAND PESOS (Pl0,000.00) by way of attorney's fees to the
private prosecutors and to pay the costs. (Rollo, p. 126)

The accused now comes to this Court on the following assigned errors allegedly committed by the court:

THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING THAT THE ALLEGED
OFFENSE WAS COMMITTED ON OCTOBER 10, 1986 AND THAT IT WAS ACCUSED-APPELLANT WHO
COMMITTED IT.

II

THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING THAT ROSARIO
BALUYOT WAS LESS THAN TWELVE (12) YEARS OLD WHEN THE ALLEGED OFFENSE WAS COMMITTED
AND IN HOLDING THAT THERE WAS RAPE WITH HOMICIDE.

III

THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN GIVING CREDENCE TO AND NOT
REJECTING THE PROSECUTION'S EVIDENCE AND IN NOT UPHOLDING THAT OF THE DEFENSE AND
ACQUITTING THE ACCUSED.

Inasmuch as it is the bounden duty of this Court to affirm a judgment of conviction only if the guilt of the accused has been
proved beyond reasonable doubt, it behooves us to exert the most painstaking effort to examine the records in the light of
the arguments of both parties if only to satisfy judicial conscience that the appellant indeed committed the criminal act
(See People v. Villapaa, 161 SCRA 73 [1988]).

The appellant was convicted by the trial court of the crime of rape with homicide of a young girl who died after the rape
because of a foreign object, believed to be a sexual vibrator, left inside her vagina.

As stated by the trial court one crucial issue in this case is the age of the victimwhether or not Rosario Baluyot was less
than twelve (12) years old at the time the alleged incident happened on October 10, 1986. The age is important in
determining whether or not there was statutory rape, Article 335 of the Revised Penal Code defines the third type of rape
as having carnal knowledge of a woman under 12 years of age, in which case force, intimidation, deprivation of reason or
unconscious state do not have to be present.
The trial court found that Rosario was below 12 years old when she was sexually abused by the accused and, therefore,
rape was committed inspite of the absence of force or intimidation.

In resolving the issue, the trial court put great weight on the testimonies of the victim's grandmother and father who
testified that she was born on December 22, 1975. These oral declarations were admitted pursuant to then Rule 130,
Section 33 of the Rules of Court where, in the absence of a birth certificate, the act or declaration about pedigree may be
received in evidence on any notable fact in the life of a member of the family. Since birth is a matter of pedigree within the
rule which permits the admission of hearsay evidence, oral declarations are therefore admissible as proof of birth
(Decision, p. 54).

The grandmother, Maria Burgos Turla, testified that she remembered Rosario's birth date because her brother died in
Pampanga and her daughter, Anita (Rosario's mother) was the only one who failed to attend the funeral because the
latter has just given birth allegedly to Rosario (T.S.N. p. 8, Jan. 13, 1988).

The father likewise testified that as far as he could remember, Rosario was born on December 22, 1975 (T.S.N., p. 4, Jan.
27, 1988) and he was certain that Rosario was more than one (1) year old when she was baptized (T.S.N., p. 45, Jan. 27,
1988).

The trial court further added that their testimony is supported by the clinical record and the death certificate indicating that
she was 12 years old when she was admitted at the Olongapo City General Hospital for treatment. The age was supplied
by Rosario's alleged guardian, Gaspar Alcantara to the hospital's clinical record clerk, Lorna Limos. Fe Israel, a social
worker who interviewed Rosario Baluyot also testified that she was told by Rosario that she was 12 years old. The trial
court accepted this as adequate evidence of the truth. Moreover, Jessie Ramirez, the principal witness in this case
declared that he was born on September 5, 1973 and that he was older than Rosario Baluyot. Therefore, since he was 13
years old in 1986, Rosario must have been less than 12 yeas old in 1986. (Decision, p. 55)

The trial court concluded that the oral declarations of the grandmother and father supported by other independent
evidence such as the clinical record, death certificate and the testimonies of Fe Israel and Jessie Ramirez, rendered the
baptismal certificate presented by the defense without any probative or evidentiary value. (Decision, p. 55)

The findings of the trial court with respect to Rosario Baluyot's age cannot stand the application of evidentiary rules.

The trial court relied on Section 33, Rule 130 (now Section 40 of Rule 130 of the 1989 Revised Rules of Court).

For oral evidence to be admissible under this Rule, the requisites are:

(1) That the declarant must be dead or outside of the Philippines or unable to testify;

(2) That pedigree is in issue;

(3) That the person whose pedigree is in question must be related to the declarant by birth or marriage;

(4) That the declaration must be made before the controversy occurred or ante litem motam; and

(5) That the relationship between the declarant and the person whose pedigree is in question must as a general
rule be shown by evidence other than such act or declaration.

These requirements were not satisfied by the evidence for the prosecution nor do the declarations fall within the purview
of the rule.

The victim's grandmother and father whose declarations regarding Rosario's age were admitted by the trial court are both
alive, in the Philippines and able to testify as they both did testify in court. Their declarations were made at the trial which
is certainly not before the controversy arose. The other witnesses who testified on Rosario's age are not members of the
victim's family. The testimonies of Rosario's relatives must be weighed according to their own personal knowledge of what
happened and not as hearsay evidence on matters of family history.

At this point, we find the evidence regarding Rosario's age of doubtful value.
The trial court justified the admissibility of the grandmother's testimony pursuant to the ruling laid down in U.S. v.
Bergantino, (3 Phil., 118 [1903]) where the Court accepted the testimony of the mother that her daughter was 14 years old
and 4 months old. The mother stated that she knew the age because the child was born about the time of the cholera
epidemic of 1889. This was not hearsay, but came from one who had direct knowledge of the child's birth.

It is however, equally true that human memory on dates or days is frail and unless the day is an extraordinary or unusual
one for the witness, there is no reasonable assurance of its correctness. (People v. Dasig 93 Phil. 618, 632 [1953])

With respect to the grandmother's testimony, the date of the brother's death or funeral was never established, which
indicates that the day was rather insignificant to be remembered. The father's declaration is likewise not entirely reliable.
His testimony in court does not at all show that he had direct knowledge of his daughter's birth. He was certain though that
she was more than one (1) year old at the time she was baptized.

The other witnesses are not at all competent to testify on the victim's age, nor was there any basis shown to establish
their competence for the purpose. The clinical records were based on Gaspar Alcantara's incompetent information given
when he brought the victim to the hospital. Alcantara came to know her only about a year before her death. He had
absolutely no knowledge about the circumstances of Rosario's birth. The death certificate relied upon by the trial court
was merely based on the clinical records. It is even less reliable as a record of birth.

All the evidence presented by the prosecution showing that Rosario Baluyot was less than 12 years old at the time of the
alleged incident are not adequate to establish the exact date of birth, much less offset a documentary record showing a
different date.

The defense presented Rosario Baluyot's baptismal certificate which the trial court rejected as being hearsay and of no
value. As against the oral declarations made by interested witnesses establishing Rosario's age to be less than 12 years
old, the evidence on record is more convincing and worthy of belief. (See Filinvest Land, Inc. v. Court of Appeals, 183
SCRA 664, 673 [1990]).

By virtue of a subpoena duces tecum and ad testificandum, issued by the lower court to the St. James Parish Church,
Subic, Zambales, Fr. Roque Villanueva a Roman Catholic priest testified and stated that he is the head of said parish. He
brought with him Baptismal Register No. 9 entitled "Liber Baptisnorum", a latin term for baptismal book or record. On page
151, No. 3 of the said Registry Book, there appears the name of Rosario Baluyot who was baptized on December 25,
1974, and born on December 26, 1973. Parents are Policarpio Baluyot and Anita Burgos, residents of Subic, Zambales.
Edita R. Milan appears as the only sponsor with Olongapo City as her address.

In the case of Macadangdang v. Court of appeals (100 SCRA 73 [1980]), we held that:

xxx xxx xxx

In our jurisprudence, this Court has been more definite in its pronouncements on the value of baptismal
certificates. It thus ruled that while baptismal and marriage certificates may be considered public documents, they
are evidence only to prove the administration of the sacraments on the dates therein specifiedbut not the
veracity of the status or declarations made therein with respect to his kinsfolk and/or citizenship (Paa v. Chan, L-
25945, Oct. 31, 1967). Again, in the case of Fortus v. Novero (L-22378, 23 SCRA 1331 [1968]), this Court held
that a baptismal certificate is conclusive proof only of the baptism administered, in conformity with the rites of the
Catholic Church by the priest who baptized the child, but it does not prove the veracity of the declarations and
statements contained in the certificate that concern the relationship of the person baptized. Such declarations and
statements, in order that their truth may be admitted, must indispensably be shown by proof recognized by law.
(At pp. 84-85)

In the same light, the entries made in the Registry Book may be considered as entries made in the course of business
under Section 43 of Rule 130, which is an exception to the hearsay rule. The baptisms administered by the church are
one of its transactions in the exercise of ecclesiastical duties and recorded in a book of the church during the course of its
business. (U.S. v. de Vera, 28 Phil. 105 [1914] Hence, the certificate (Exhibit "22") presented by the defense that Rosario
Baluyot was baptized on December 25, 1974 may be admitted in evidence as proof of baptism. Policarpio Baluyot, the
victim's father testified that he had in his possession a baptismal certificate different from the one presented in court.
However, no other baptismal record was ever presented to prove a date different from that brought by the official
custodian. Since the baptismal certificate states that Rosario was baptized on December 25, 1974, it is therefore highly
improbable that Rosario could have been born on December 22, 1975. She could not have been baptized before she was
born. Exhibit "22" may be proof only of baptism but it puts a lie to the declaration that Rosario was born in 1975. With the
father's assertion that Rosario was more than one (1) year old when she was baptized, we are then more inclined to agree
that Rosario was born in 1973 as stated in the Baptismal Registry.

In the case of People v. Rebancos (172 SCRA 425 [1989]), the Court stated:

xxx xxx xxx

. . . Although no birth certificate was presented because her birth had allegedly not been registered, her baptismal
certificate, coupled by her mother's testimony, was sufficient to establish that Mary Rose was below twelve years
old when she was violated by Rebancos. (At. p. 426)

Unfortunately, in the instant case, nobody could corroborate the date on a more reliable document as to Rosario's birth
which could serve as sufficient proof that she was born on December 26, 1973. Therefore, she was more than 12 years
old at the time of the alleged incident on October 10, 1986.

Moreover, it is not incumbent upon the defense to prove Rosario's age. The burden of proof lies on the prosecution to
prove that Rosario was less than 12 years old at the time of the alleged incident in a charge of statutory rape. The
prosecution failed in this respect.

Since Rosario was not established to have been under 12 years of age at the time of the alleged sexual violation, it was
necessary to prove that the usual elements of rape were present; i.e. that there was force of intimidation or that she was
deprived of reason or otherwise unconscious in accordance with Article 335 of the Revised Penal Code.

We agree with the defense that there was no proof of such facts. On the contrary, the evidence shows that Rosario
submitted herself to the sexual advances of the appellant. In fact, she appears to have consented to the act as she was
paid P300.00 the next morning while her companion, Jessie Ramirez was paid P200.00 (T.S.N. p. 50, January 6, 1988).
The environmental circumstances coupled with the testimonies and evidence presented in court clearly give the
impression that Rosario Baluyot, a poor street child, was a prostitute inspite of her tender age. Circumstances in life may
have forced her to submit to sex at such a young age but the circumstances do not come under the purview of force or
intimidation needed to convict for rape.

In view of these clear facts which the prosecution failed to refute, no rape was committed. But was Ritter guilty of
homicide?

The trial court justified its ruling by saying that the death of the victim was a consequence of the insertion of the foreign
object into the victim's vagina by the appellant.

We now ask "Was the appellant responsible for the sexual vibrator left inside Rosario's vagina which led to her death?

The trial court convicted the accused based on circumstantial evidence. Unfortunately, the circumstances are capable of
varying interpretations and are not enough to justify conviction.

Jessie Ramirez, the principal witness did not actually see the object inserted in Rosario's vagina. Neither could he identify
the object (Exhibit "C-2") taken from Rosario as the same object which the appellant was holding at that time of the
alleged incident.

In his sworn statement given to the police investigator on September 4, 1987, he answered that:

xxx xxx xxx

T Habang kayo ay nasa loob ng kuwarto ng otel, mayroon ka bang napansin na inilabas ng kano sa kanyang
daladalahan kung mayroon man?

S Ang Amerikano ay may dala-dalang shoulder bag na kulay itim, at napansin ko na may inilabas siya sa
kanyang bag na parang vicks inhaler, na kanyang inamoy-amoy habang nasa otel kami at pagkatapos niya ay
inilapag niya sa lamiseta.

T Ilarawan mo nga sa akin ang bagay na nakita mong inilabas ng Amerikano?

 S Ito ay may habang tatlong pulgada at ang takip nito ay may habang dalawang pulgada. Iyong takip ay bilog na
patulis at may tabang mga kalahating pulgada. Hindi ko napansin ang hugis ng dulo ng bagay na may takip dahil
natatakpan ng kamay at ilong ng Amerikano.

T Ipinakikita ko sa iyo ang isang larawan. Tignan mong mabuti ang larawang ito at sabihin mo nga sa akin kung
makikilala mo ang mga bagay na nasa larawang ito, na may kinalaman sa nakita mong kinuha ng Amerikano sa
kanyang bag?

S Napansin ko na ang kulay asul na bagay sa larawan ay katulad na katulad noong takip ng bagay na inilabas ng
Amerikano sa kanyang bag. Kaya lang ay bakit naging kulay asul gayong ng makita ko ito ay kulay puti? (Exhibit
"A", p. 2; Emphasis Supplied)

Presumably, what Jessie Ramirez saw was merely the Vicks inhaler which the appellant does not deny having possessed
at that time. He was certain that the object was white. (T.S.N. p. 91, January 6, 1988)

Later, Ramirez retracted and corrected himself. He said that it was grayish in color with color blue (Medyo kulay abo na
may kulay na parang blue). (T.S.N. p. 92, January 6, 1988) The inconsistency of the witness' testimony casts doubt as to
the veracity of the statements made especially when he answered on additional cross-examination that the reason why he
concluded that Exhibit "C-2" was the same object being held by Ritter was because it was the only one shown to him by
the prosecution (T.S.N. pp. 109-110, January 6, 1988). Jessie Ramirez was not all certain about the sexual vibrator
because he did not actually see it in the possession of the appellant.

What he merely remembers is the revelation made by Rosario the next morning that the foreigner inserted something
inside her vagina. The trial court admitted such statement as part of the res gestae. In a strained effort to accept such
statement as part of res gestae, the trial court focused the test of admissibility on the lapse of time between the event and
the utterance. For the average 13 years old, the insertion of a mechanical device or anything for that matter into the
vagina of a young girl is undoubtedly startling. For Rosario and Jessie, however, there must be more evidence to show
that the statement, given after a night's sleep had intervened, was given instinctively because the event was so startling
Res gestae does not apply. (Section 42, Rule 130, Rules of Court)

Even if it were established that the appellant did insert something inside Rosario's vagina, the evidence is still not
adequate to impute the death of Rosario to the appellant's alleged act.

Jessie Ramirez testified that Rosario was able to remove the object inserted in her vagina. We quote:

Q Now, you also stated on direct examination that later on Rosario even categorically admitted to you that she
was already able to remove the object allegedly inserted inside her vagina, is that correct?

A Yes, sir.

xxx xxx xxx

ATTY. CARAAN:

Q Will you kindly tell to this Honorable Court the exact words used by Rosario Baluyot later on when you met her
when you asked her and when she told you that she was already able to remove that object from her vagina?

A "Oy, Jessie, natanggal na, "she told me that. I asked her, "Was it already removed?" And she answered, "Yes,
it was removed." But the same night, she again complained of pain of her stomach. She sent one of her friends to
call for me. And as a matter of fact, Tomboy was uttering defamatory words against me as she was groaning in
pain. (TSN, Jan. 6,1988, pp. 72-73)

This encounter happened on the night of the day following the day after both children were invited by the foreigner to the
hotel. (T.S.N. p. 73, January 6, 1988). Rosario was said to be groaning in pain so we can just imagine the distress she
was undergoing at this point in time. If the device inserted by the appellant caused the pain, it is highly inconceivable how
she was able to endure the pain and discomfort until May, 1987, seven (7) months after the alleged incident. Evidence
must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common
experience and observation of mankind can approve as probable under the circumstances. (People vs. Patog, 144 SCRA
429 [1986]).
At this juncture, we find Dr. Pedro Solis' testimony rather significant. Dr. Pedro Solis, a witness for the defense is
considered an expert witness. (A Doctor of Medicine and a graduate of the State University in 1940, a degree of Bachelor
of Laws and member of the Bar 1949, and a graduate of the Institute of Criminology University. He was awarded Post
Graduate Diploma in Criminology in 1963, and also a graduate of United Nations Asia and Far East Asia Institute on the
Prevention of Crimes in Tokyo Japan 1965. He was appointed Medico Legal Officer of the National Bureau of
Investigation in 1940 until 1944. He became Chief Medico Legal Officer in 1970 and became the Deputy Director of the
NBI up to 1984. He is at present a Professorial Lecturer on Legal Medicine at the UP, FEU, UE, and Fatima College of
Medicine; a Medico Legal Consultant of the PGH Medical Center, Makati Medical Center, UERM Medical Center, MCU
Medical Center. He has been with the NBI for 43 years. He has attended no less than 13 conferences abroad. He is the
author of the textbooks entitled "Legal Medicine" and "Medical Jurisprudence".) With his impressive legal and medical
background, his testimony is too authoritative to ignore. We quote the pertinent portions of his testimony:

Q Now Dr. Solis, would you kindly go over this object marked as Exh. "C-2" which object was described as a part
of a sexual vibrator battery operated. Now, given this kind of object, would you kindly tell us what would be the
probable effect upon a 12 years old girl when it is inserted into her vagina?

A Well, this vibrator must be considered a foreign body placed into a human being and as such be considered a
foreign object. As a foreign object, the tendency of the body may be: No. 1expel the foreign bodyNo. 2.The
tendency of the body is to react to that foreign body. One of the reactions that maybe manifested by the person
wherein such foreign body is concerned is to cover the foreign body with human tissue, in a way to avoid its
further injury to the body.

Now, the second reaction is irritation thereby producing certain manifest symptoms and changes in the area
where the foreign body is located.

In severe cases, the symptoms manifestation might not only be localized but may be felt all over the body, we call
it systemic reaction. Now, considering the fact that this foreign body as shown to me is already not complete, this
shows exposure of its different parts for the body to react. If there is mechanism to cause the foreign body to
vibrate, there must be some sort of power from within and that power must be a dry cell battery. [The] composition
of the battery are, manganese dioxide ammonium, salts, water and any substance that will cause current flow. All
of these substances are irritants including areas of the container and as such, the primary reaction of the body is
to cause irritation on the tissues, thereby inflammatory changes develop and in all likelihood, aside from those
inflammatory changes would be a supervening infection in a way that the whole generative organ of the woman
will suffer from diseased process causing her the systemic reaction like fever, swelling of the area, and other
systemic symptoms. . . . . (TSN., pp. 13-15, October 19,1988)

xxx xxx xxx

Q Now, given this object, how long would it take, Doctor before any reaction such as an infection would set in,
how many days after the insertion of this object in the vagina of a 12 year old girl?

A In the example given to me, considering that one of the ends is exposed, in a way that vaginal secretion has
more chance to get in, well, liberation of this irritant chemicals would be enhanced and therefore in a shorter
period of time, there being this vaginal reaction.

Q How many days or weeks would you say would that follow after the insertion?

A As I said, with my experience at the NBI, insertion of any foreign body in the vaginal canal usually developed
within, a period of two (2) weeks . . .

xxx xxx xxx

Q . . . [T]he subject in this case was allegedly raped, and a sexual vibrator was inserted in her vagina on October
10, 1986 and she was operated on, on May 19, 1987 the following year, so it took more than 7 months before this
was extracted, would you say that it will take that long before any adverse infection could set in inside the vagina?

A Infection and inflamatory changes will develop in a shorter time. (TSN., Oct. 19,1988, p. 18)

xxx xxx xxx

 Q When you said shorter, how long would that be, Doctor?

A As I said, in my personal experience, hair pins, cottonballs and even this lipstick of women usually, there are
only about two (2) weeks time that the patient suffer some abnormal symptoms.

Q Now, considering that this is a bigger object to the object that you mentioned, this object has a shorter time?

A Yes, Sir shorter time. (TSN., Oct. 19. 1988, p. 20)

The trial court, however, ruled that "there is no hard and fast rule as to the time frame wherein infection sets in upon
insertion of a foreign body in the vagina canal. For Dr. Solis, the time frame is not more than 10 months, and this case is
still within the said time frame."

A more generous time interval may be allowed in non-criminal cases. But where an accused is facing a penalty of
reclusion perpetua, the evidence against him cannot be based on probabilities which are less likely than those
probabilities which favor him.

It should be clarified that the time frame depends upon the kind of foreign body lodged inside the body. An examination of
the object gave the following results:

(1) Color: Blue

Size: (a) Circumference3.031
inches (b) Lengthapproximately
2.179 inches.
Composition: Showed the general
characteristics of a styrene-butadiene plastic.

(2) The specimen can be electrically operated by means of a battery as per certification dated 01 June 1988,
signed by Mr. Rodolfo D. Mercuric, Shipboard Electrical Systems Mechanics, Foreman II, SRF Shop 51, Subic
(see attached certification).

(3) No comparative examination was made on specimen #1 and vibrator depicted in the catalog because no
actual physical dimensions and/or mechanical characteristics were shown in the catalog. (Exhibit "LL")

The vibrator end was further subjected to a macro-photographic examination on the open end portion which revealed the
following:

Result of Examination

Macro-photographic examination on the open end portion of specimen #1 shows the following inscription:

MABUCHI MOTOR JAPAN RE 14 PAT (Exhibit "MM")

From the above results, the subject object is certainly not considered as inert and based on Dr. Solis' testimony, it is more
likely that infection should set in much earlier. Considering also that the object was inserted inside the vagina which is part
of the generative organ of a woman, an organ which is lined with a very thin layer of membrane with plenty of blood
supply, this part of the body is more susceptible to infection. (T.S.N. p. 34, October 19, 1988)

The truth of Dr. Solis' testimony is more probable under the circumstances of the case. We see no reason why his
opinions qualified by training and experience should not be controlling and binding upon the Court in the determination of
guilt beyond reasonable doubt. (People v. Tolentino, 166 SCRA 469 [1988]).

Dr. Barcinal, another witness for the defense also testified that he examined Rosario Baluyot on May 17, 1986 as a
referral patient from the Department of Surgery to give an OB-GYN clearance to the patient prior to operation. (T.S.N. p.
6, September 28, 1988)

Q And how many times did you examine this patient Rosario Baluyot on that day?
 A I examined her twice on that day.

Q The first time that you examined her, what is the result of your findings, if any?

A My first examination, I examined the patient inside the delivery room. The patient was brought to the delivery
room wheel-chaired then from the wheel chair, the patient was ambigatory (sic). She was able to walk from the
door to the examining table. On examination, the patient is conscious, she was fairly nourished, fairly developed,
she had fever, she was uncooperative at that time and examination deals more on the abdomen which shows
slightly distended abdomen with muscle guarding with tenderness all over, with maximum tenderness over the
hypogastric area. (T.S.N. p. 5, September 28, 1988)

xxx xxx xxx

Q What about your second examination to the patient, what was your findings, if any?

A In my second examination, I repeated the internal examination wherein I placed my index finger and middle
finger inside the vagina of the patient and was able to palpate a hard object. After which, I made a speculum
examination wherein I was able to visualize the inner portion of the vaginal canal, there I saw purulent foul
smelling, blood tints, discharge in the vaginal canal and a foreign body invaded on the posterior part of the vaginal
canal.

xxx xxx xxx

A I referred back to Dr. Fernandez about my findings and he asked me to try to remove the said foreign object by
the use of forceps which I tried to do so also but I failed to extract the same.

Q All this time that you were examining the patient Rosario Baluyot both in the first and second instance, Rosario
Baluyot was conscious and were you able to talk to her when you were examining her?

A Yes, sir.

Q And did you ask her why there is a foreign object lodge inside her vagina?

A Yes, Sir I asked her.

Q And what did she tell you, if any?

A She said in her own words that "GINAMIT AKO NG NEGRO AT SIYA ANG NAGLAGAY NITO."

Q Did she also tell you when, this Negro who used her and who inserted and placed the foreign object on her
vagina?

A Yes, Sir I asked her and she said he used me three (3) months ago from the time I examined her.

Q Now, you said that you referred the patient to the ward, what happened next with your patient?

A To my knowledge, the patient is already scheduled on operation on that date.

Q Meaning, May 17, 1987?

A Yes, Sir I was presuming that the patient would undergo surgery after that?

(TSN, Sept. 28,1988, pp. 8-9; Emphasis supplied)

The trial court debunked Dr. Barcinals testimony considering Rosario's condition at that time. It ruled that it is
inconceivable that she would be striking a normal conversation with the doctors and would be sitting on the examination
table since Gaspar Alcantara stated that when he brought Rosario Baluyot to the hospital, she was unconscious and
writhing in pain.
It was not improbable for Rosario Baluyot to still be conscious and ambulant at that time because there were several
instances testified to by different witnesses that she was still able to talk prior to her operation:

(1) Fe Israel, a witness for the prosecution and a member of the Olongapo Catholic Charismatic Renewal Movement
testified that as a member of this group she visits indigent children in the hospital every Saturday and after office hours on
working days.

On the Saturday prior to Rosario's death which was May 17, she was still able to talk to Rosario Baluyot. In fact, one of
her groupmates helped Rosario go to the comfort room to urinate. (T.S.N., pp. 16-19, May 25, 1988)

(2) Angelita Amulong, a witness for the defense is another para social worker who worked at Pope John 23rd Community
Center under Sister Eva Palencia. In one of her hospital visits, she encountered Rosario Baluyot in the month of May,
1987. She actually saw a child who happened to be Rosario Baluyot seated on the cement floor and when she asked why
she was seated there, she was told that it was too hot in the bed. She saw Rosario Baluyot for about 2 or 3 days
successively. (T.S.N. pp. 10-13, September 7, 1988)

(3) Gaspar Alcantara, the person who brought Rosario to the hospital actually testified that she was conscious (T.S.N. p.
36, September 14, 1988) but writhing in pain. He took pity on her so he brought her to the hospital (T.S.N. p. 12,
September 14, 1988)

From the above testimonies, it is clear that Rosario was still conscious and could still answer questions asked of her
although she was complaining of stomach pains. Unfortunately, the medical attention given to her failed to halt the
aggravation of her condition. The operation on May 19 was too late.

Rosario died because of septicemia, which in layman's language is blood poisoning, and peritonitis, which is massive
infection, in the abdominal cavity caused by the foreign object or the cut sexual vibrator lodged in the vagina of the victim.
This led to the infection from the uterus to the fallopian tubes and into the peritoneum and the abdominal cavity.

The trial court convicted the accused citing the rationale of Article 4 of the RPC

He who is the cause of the cause is the cause of the evil caused.

But before the conviction is affirmed, we must first follow the rule as stated in the case of Urbano vs. Intermediate
Appellate Court (157 SCRA 1 [1988]) to wit:

The rule is that the death of the victim must be the direct, natural and logical consequence of the wounds inflicted
upon him by the accused. And since we are dealing with a criminal conviction, the proof that the accused caused
the victim's death must convince a rational mind beyond reasonable doubt. (Emphasis supplied)

In People v. Tempongko, Jr., (144 SCRA 583, 592 [1986]), we explained that:

xxx xxx xxx

The basic principle in every criminal prosecution is that accusation is not synonymous with guilt. The accused is
presumed innocent until the contrary is proved by the prosecution. If the prosecution fails, it fails utterly, even if
the defense is weak or, indeed, even if there is no defense at all. The defendant faces the full panoply of state
authority with all "The People of the Philippines" arrayed against him. In a manner of speaking, he goes to bat
with all the bases loaded. The odds are heavily against him. It is important, therefore, to equalize the positions of
the prosecution and the defense by presuming the innocence of the accused until the state is able to refute the
presumption by proof of guilt beyond reasonable doubt. (At. p. 592)

The evidence for the accused maybe numerically less as against the number of witnesses and preponderance of
evidence presented by the prosecution but there is no direct and convincing proof that the accused was responsible for
the vibrator left inside the victim's vagina which caused her death seven (7) months after its insertion. What the
prosecution managed to establish were mere circumstances which were not sufficient to overcome the constitutional
presumption of innocence. While circumstantial evidence may suffice to support a conviction it is imperative, though, that
the following requisites should concur:

(a) There is more than one circumstance;

 (b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (Rule
133, Sec. 4 Revised Rules of Court)

For the well-entrenched rule in evidence is that "before conviction can be had upon circumstantial evidence, the
circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to
the defendant, to the exclusion of all others, as the author of the crime (People v. Subano, 73 Phil. 692 [1942]; Emphasis
supplied). It must fairly exclude every reasonable hypothesis of innocence (Dorado v. Court of Appeals, 153 SCRA 420,
433 [1987]). In this case the circumstantial evidence presented by the prosecution does not conclusively point to the
liability of the appellant for the crime charged. (People v. Tolentino, supra)

We are aware of the wide publicity given to the plight of Rosario Baluyot and how her death exemplified starkly the daily
terrors that most street children encounter as they sell their bodies in order to survive. At an age when innocence and
youthful joys should preponderate in their lives, they experience life in its most heartless and inhuman form. Instead of
nothing more than gentle disappointments occupying their young minds, they daily cope with tragedies that even adults
should never be made to carry.

It is with distressing reluctance that we have to seemingly set back the efforts of Government to dramatize the death of
Rosario Baluyot as a means of galvanizing the nation to care for its street children. It would have meant a lot to social
workers and prosecutors alike if one pedophile-killer could be brought to justice so that his example would arouse public
concern, sufficient for the formulation and implementation of meaningful remedies. However, we cannot convict on
anything less than proof beyond reasonable doubt. The protections of the Bill of Rights and our criminal justice system are
as much, if not more so, for the perverts and outcasts of society as they are for normal, decent, and law-abiding people.

The requirement of proof which produces in an unprejudiced mind moral certainty or conviction that the accused did
commit the offense has not been satisfied.

By way of emphasis, we reiterate some of the factors arousing reasonable doubt:

1. The evidence on Rosario Baluyot's baptism creates reasonable doubt about her being less than 12 years old
when the carnal knowledge took place. If the evidence for the prosecution is to be believed, she was not yet born
on the date she was baptized.

2. Since the proof of Rosario's being under 12 years of age is not satisfactory, the prosecution has to prove force,
intimidation, or deprivation of reason in order to convict for rape. There is no such proof. In fact, the evidence
shows a willingness to submit to the sexual act for monetary considerations.

3. The only witness to the fact of Ritter's placing a vibrator inside the vagina of Rosario was Jessie Ramirez. This
witness did not see Ritter insert the vibrator. The morning after the insertion, he was only told by Rosario about it.
Two days later, he allegedly met Rosario who informed him that she was able to remove the object. And yet,
Ramirez testified that on the night of that second encounter, he saw Rosario groaning because of pain in her
stomach. She was even hurling invectives. Ramirez' testimony is not only hearsay, it is also contradictory.

4. It was improbable, according to expert medical testimony, for a foreign object with active properties to cause
pain, discomfort, and serious infection only after seven months inside a young girl's vaginal canal. Infection would
have set in much earlier. Jessie Ramirez recalled that the incident happened in December of 1986. (TSN.,
January 6, 1988, pp. 15-17) The evidence, however shows that the appellant was not here in the Philippines that
December. As per the Commission on Immigration Arrival and Departure Report, Heinrich Ritter arrived in the
Philippines on October 7, 1986 and left on October 12, 1986. He never returned until September 23, 1987
(Exhibits "DD" and "EE") The incident could have happened only in October, but then it would have been highly
improbable for the sexual vibrator to stay inside the vagina for seven (7) months with the kind of serious
complications it creates.

5. The gynecologist who attended to Rosario during her hospital confinement testified that she told him "Ginamit
ako ng Negro at siya ang naglagay nito." The accused is not a black.

Noteworthy is the fact that nothing was mentioned about Rosario's activities after the hotel incident. Considering Dr.
Barcinal's testimony indicating that she was "used" by a "Negro" three (3) months prior to admission in the hospital and
Rosario's unfortunate profession, there is always the possibility that she could have allowed herself to be violated by this
perverse kind of sexual behavior where a vibrator or vibrators were inserted into her vagina between October, 1986 and
May, 1987.

Moreover, the long delay of seven (7) months after the incident in reporting the alleged crime renders the evidence for the
prosecution insufficient to establish appellant's guilty connection with the requisite moral certainty. (See People v. Mula
Cruz, 129 SCRA 156 [1984]).

The established facts do not entirely rule out the possibility that the appellant could have inserted a foreign object inside
Rosario's vagina. This object may have caused her death. It is possible that the appellant could be the guilty person.
However, the Court cannot base an affirmance of conviction upon mere possibilities. Suspicions and possibilities are not
evidence and therefore should not be taken against the accused. (People v. Tolentino, supra)

Well-established is the rule that every circumstance favorable to the accused should be duly taken into account. This rule
applies even to hardened criminals or those whose bizarre behaviour violates the mores of civilized society. The evidence
against the accused must survive the test of reason. The strongest suspicion must not be allowed to sway judgment. (See
Sacay v. Sandiganbayan, 142 SCRA 593 [1986]). As stated in the case of People v. Ng (142 SCRA 615 [1986]):

. . . [F]rom the earliest years of this Court, it has emphasized the rule that reasonable doubt in criminal cases
must be resolved in favor of the accused. The requirement of proof beyond reasonable doubt calls for moral
certainty of guilt. It has been defined as meaning such proof "to the satisfaction of the court, keeping in mind the
presumption of innocence, as precludes every reasonable hypothesis except that which it is given to support. It is
not sufficient for the proof to establish a probability, even though strong, that the fact charged is more likely to be
true than the contrary. It must establish the truth of the fact to a reasonable and moral certaintya certainty that
convinces and satisfies the reason and the conscience of those who are to act upon it. (Moreno, Philippine Law
Dictionary, 1972 Edition, p. 379, citing U.S. v. Reyes, 3 Phil. 3). . . .

In the instant case, since there are circumstances which prevent our being morally certain of the guilt of the appellant, he
is, therefore, entitled to an acquittal.

This notwithstanding, the Court can not ignore the acts of the appellant on the children, Jessie Ramirez and Rosario
Baluyot in October, 1986 at the MGM Hotel. Inspite of his flat denials, we are convinced that he comes to this country not
to look at historical sights, enrich his intellect or indulge in legitimate pleasures but in order to satisfy the urgings of a sick
mind.

With the positive Identification and testimony by Jessie Ramirez that it was the appellant who picked him and Rosario
from among the children and invited them to the hotel; and that in the hotel he was shown pictures of young boys like him
and the two masturbated each other, such actuations clearly show that the appellant is a pedophile. When apprehended
in Ermita, he was sizing up young children. Dr. Solis defined pedophilia in his book entitled Legal Medicine, 1987 edition,
as follows:

PedophiliaA form of sexual perversion wherein a person has the compulsive desire to have sexual intercourse
with a child of either sex. Children of various ages participate in sexual activities, like fellatio, cunnilingus, fondling
with sex organs, or anal sexual intercourse. Usually committed by a homosexual between a man and a boy the
latter being a passive partner.

Ritter was prosecuted for rape with homicide and not pedophilia, assuming this is a crime by itself. Pedophilia is clearly a
behavior offensive to public morals and violative of the declared policy of the state to promote and protect the physical,
moral, spiritual and social well-being of our youth. (Article II, Section 13, 1987 Constitution) (Harvey v. Defensor Santiago,
162 SCRA 840, 848 [1989]). Pedophiles, especially thrill seeking aliens have no place in our country.

In this case, there is reasonable ground to believe that the appellant committed acts injurious not only to Rosario Baluyot
but also to the public good and domestic tranquility of the people. The state has expressly committed itself to defend the
right of children to assistance and special protection from all forms of neglect, abuse, cruelty, exploitation and other
conditions prejudicial to their development. (Art. XV, Section 3 [2] . . . (Harvey v. Santiago, supra). The appellant has
abused Filipino children, enticing them with money. The appellant should be expelled from the country.

Furthermore, it does not necessarily follow that the appellant is also free from civil liability which is impliedly instituted with
the criminal action. (Rule III, Section 1) The well-settled doctrine is that a person while not criminally liable, may still be
civilly liable. We reiterate what has been stated in Urbano v. IAC, supra.
 . . . While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt, only a
preponderance of evidence is required in a civil action for damages. (Article 29, Civil Code). The judgment of
acquittal extinguishes the civil liability of the accused only when it includes a declaration that the facts from which
the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559).

The reason for the provisions of Article 29 of the Civil Code, which provides that the acquittal of the accused on
the ground that his guilt has not been proved beyond reasonable doubt does not necessarily exempt him from
civil liability for the same act or omission, has been explained by the Code Commission as follows:

The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one
of the most serious flaws in the Philippine legal system. It has given rise to numberless instances of
miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to
the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived from
the criminal offense, when the latter is not proved, civil liability cannot be demanded.

This is one of those causes where confused thinking leads to unfortunate and deplorable consequences.
Such reasoning fails to draw a clear line of demarcation between criminal liability and civil responsibility,
and to determine the logical result of the distinction. The two liabilities are separate and distinct from each
other. One affects the social order and the other, private rights. One is for the punishment or correction of
the offender while the other is for the reparation of damages suffered by the aggrieved party. The two
responsibilities are so different from each other that article 1813 of the present (Spanish) Civil Code reads
thus: "There may be a compromise upon the civil action arising from a crime; but the public action for the
imposition of the legal penalty shall not thereby be extinguished." It is just and proper that, for the
purposes of the imprisonment of or fine upon the accused, the offense should be proved beyond
reasonable doubt. But for the purpose of indemnifying the complaining party, why should the offense also
be proved beyond reasonable doubt? Is not the invasion or violation of every private right to be proved
only by a preponderance of evidence? Is the right of the aggrieved person any less private because the
wrongful act is also punishable by the criminal law?

For these reasons, the Commission recommends the adoption of the reform under discussion. It will
correct a serious defect in our law. It will close up an inexhaustible source of injusticea cause for
disillusionment on the part of the innumerable persons injured or wronged.

Rosario Baluyot is a street child who ran away from her grandmother's house.1wphi1 Circumstances forced her to
succumb and enter this unfortunate profession. Nonetheless, she has left behind heirs who have certainly suffered mental
anguish, anxiety and moral shock by her sudden and incredulous death as reflected in the records of the case. Though
we are acquitting the appellant for the crime of rape with homicide, we emphasize that we are not ruling that he is
innocent or blameless. It is only the constitutional presumption of innocence and the failure of the prosecution to build an
airtight case for conviction which saved him, not that the facts of unlawful conduct do not exist. As earlier stated, there is
the likelihood that he did insert the vibrator whose end was left inside Rosario's vaginal canal and that the vibrator may
have caused her death. True, we cannot convict on probabilities or possibilities but civil liability does not require proof
beyond reasonable doubt. The Court can order the payment of indemnity on the facts found in the records of this case.

The appellant certainly committed acts contrary to morals, good customs, public order or public policy (see Article 21 Civil
Code). As earlier mentioned, the appellant has abused Filipino children, enticing them with money. We can not overstress
the responsibility for proper behavior of all adults in the Philippines, including the appellant towards young children. The
sexual exploitation committed by the appellant should not and can not be condoned. Thus, considering the circumstances
of the case, we are awarding damages to the heirs of Rosario Baluyot in the amount of P30,000.00.

And finally, the Court deplores the lack of criminal laws which will adequately protect street children from exploitation by
pedophiles, pimps, and, perhaps, their own parents or guardians who profit from the sale of young bodies. The provisions
on statutory rape and other related offenses were never intended for the relatively recent influx of pedophiles taking
advantage of rampant poverty among the forgotten segments of our society. Newspaper and magazine articles, media
exposes, college dissertations, and other studies deal at length with this serious social problem but pedophiles like the
appellant will continue to enter the Philippines and foreign publications catering to them will continue to advertise the
availability of Filipino street children unless the Government acts and acts soon. We have to acquit the appellant because
the Bill of Rights commands us to do so. We, however, express the Court's concern about the problem of street children
and the evils committed against them. Something must be done about it.
WHEREFORE, the appealed judgment is REVERSED and SET ASIDE. Appellant HEINRICH STEFAN RITTER is
ACQUITTED on grounds of reasonable doubt. The appellant is ordered to pay the amount of P30,000.00 by way of moral
and exemplary damages to the heirs of Rosario Baluyot. The Commissioner of Immigration and Deportation is hereby
directed to institute proper deportation proceedings against the appellant and to immediately expel him thereafter with
prejudice to re-entry into the country.

SO ORDERED.

14. 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 the res 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 Phoenix 16 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.

15. G.R. No. L-10134 June 29, 1957

SABINA EXCONDE, plaintiff-appellant,

vs.
DELFIN CAPUNO and DANTE CAPUNO, defendants-appellees.

BAUTISTA ANGELO, J.:

Dante Capuno, son of Delfin Capuno, was accused of double homicide through reckless imprudence for the death of
Isidoro Caperina and Amado Ticzon on March 31, 1949 in the Court of First Instance of Laguna (Criminal Case No.
15001). During the trial, Sabina Exconde, as mother of the deceased Isidoro Caperina, reserved her right to bring a
separate civil action for damages against the accused. After trial, Dante Capuno was found guilty of the crime charged
and, on appeal, the Court Appeals affirmed the decision. Dante Capuno was only (15) years old when he committed the
crime.

In line with her reservation, Sabina Exconde filed the present action against Delfin Capuno and his son Dante Capuno
asking for damages in the aggregate amount of P2,959.00 for the death of her son Isidoro Caperia. Defendants set up
the defense that if any one should be held liable for the death of Isidoro Caperina, he is Dante Capuno and not his father
Delfin because at the time of the accident, the former was not under the control, supervision and custody, of the latter.
This defense was sustained by the lower court and, as a consequence it only convicted Dante Capuno to pay the
damages claimed in the complaint. From decision, plaintiff appealed to the Court of Appeals but the case was certified to
us on the ground that the appeal only involves questions of law.

It appears that Dante Capuno was a member of the Boy Scouts Organization and a student of the Bilintawak Elementary
School situated in a barrio in the City of San Pablo and on March 31, 1949 he attended a parade in honor of Dr. Jose
Rizal in said city upon instruction of the city school's supervisor. From the school Dante, with other students, boarded a
jeep and when the same started to run, he took hold of the wheel and drove it while the driver sat on his left side. They
have not gone far when the jeep turned turtle and two of its passengers, Amado Ticzon and Isidore Caperia, died as a
consequence. It further appears that Delfin Capuno, father of Dante, was not with his son at the time of the accident, nor
did he know that his son was going to attend a parade. He only came to know it when his son told him after the accident
that he attended the parade upon instruction of his teacher.

The only issue involved in this appeal is whether defendant Delfin Capuno can be held civilly liable, jointly and severally
with his son Dante, for damages resulting from the death of Isidoro Caperia caused by the negligent act of minor Dante
Capuno.

The case comes under Article 1903 of the Spanish Civil Code, paragraph 1 and 5, which provides:

ART. 1903. The obligation impossed by the next preceding articles is enforceable not only for personal acts and
omissions, but also for those of persons for whom another is responsible.

The father, and, in case of his death or incapacity, the mother, are liable for any damages caused by the minor
children who live with them.

xxx xxx xxx

Finally, teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices
while they are under their custody.

Plaintiff contends that defendant Delfin Capuno is liable for the damages in question jointly and severally with his son
Dante because at the time the latter committed the negligent act which resulted in the death of the victim, he was a minor
and was then living with his father, and inasmuch as these facts are not disputed, the civil liability of the father is evident.
And so, plaintiff contends, the lower court erred in relieving the father from liability.
We find merit in this claim. It is true that under the law above quoted, "teachers or directors of arts and trades are liable for
any damages caused by their pupils or apprentices while they are under their custody", but this provision only applies to
an institution of arts and trades and not to any academic educational institution (Padilla, Civil Law, 1953, Ed., Vol. IV, p.
841; See 12 Manresa, 4th Ed., p. 557). Here Dante capuno was then a student of the Balintawak Elementary School and
as part of his extra-curricular activity, he attended the parade in honor of Dr. Jose Rizal upon instruction of the city
school's supervisor. And it was in connection with that parade that Dante boarded a jeep with some companions and while
driving it, the accident occurred. In the circumstances, it is clear that neither the head of that school, nor the city school's
supervisor, could be held liable for the negligent act of Dante because he was not then a student of an institute of arts and
trades as provided by law.

The civil liability which the law impose upon the father, and, in case of his death or incapacity, the mother, for any
damages that may be caused by the minor children who live with them, is obvious. This is necessary consequence of the
parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping them in
their company, educating them and instructing them in proportion to their means", while, on the other hand, gives them
the "right to correct and punish them in moderation" (Articles 154 and 155, Spanish Civil Code). The only way by which
they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good father of a family
to prevent the damage(Article 1903, last paragraph, Spanish Civil Code). This defendants failed to prove.

WHEREFORE, the decision appealed from is modified in the sense that defendants Delfin Capuno and Dante Capuno
shall pay to plaintiff, jointly and severally, the sum of P2,959.00 as damages, and the costs of action.

Bengzon, Montemayor, Labrador and Endencia, JJ., concur.

Paras, C.J., concurs in the result.

16. G.R. No. L-24101 September 30, 1970

MARIA TERESA Y. CUADRA, minor represented by her father ULISES P. CUADRA, ET AL., plaintiffs-appellees,
vs.
ALFONSO MONFORT, defendant-appellant.

MAKALINTAL, J.:

This is an action for damages based on quasi-delict, decided by the Court of First Instance of Negros Occidental favorably
to the plaintiffs and appealed by the defendant to the Court of Appeals, which certified the same to us since the facts are
not in issue.

Maria Teresa Cuadra, 12, and Maria Teresa Monfort, 13, were classmates in Grade Six at the Mabini Elementary School
in Bacolod City. On July 9, 1962 their teacher assigned them, together with three other classmates, to weed the grass in
the school premises. While thus engaged Maria Teresa Monfort found a plastic headband, an ornamental object
commonly worn by young girls over their hair. Jokingly she said aloud that she had found an earthworm and, evidently to
frighten the Cuadra girl, tossed the object at her. At that precise moment the latter turned around to face her friend, and
the object hit her right eye. Smarting from the pain, she rubbed the injured part and treated it with some powder. The next
day, July 10, the eye became swollen and it was then that the girl related the incident to her parents, who thereupon took
her to a doctor for treatment. She underwent surgical operation twice, first on July 20 and again on August 4, 1962, and
stayed in the hospital for a total of twenty-three days, for all of which the parents spent the sum of P1,703.75. Despite the
medical efforts, however, Maria Teresa Cuadra completely lost the sight of her right eye.

In the civil suit subsequently instituted by the parents in behalf of their minor daughter against Alfonso Monfort, Maria
Teresa Monfort's father, the defendant was ordered to pay P1,703.00 as actual damages; P20,000.00 as moral damages;
and P2,000.00 as attorney's fees, plus the costs of the suit.

The legal issue posed in this appeal is the liability of a parent for an act of his minor child which causes damage to
another under the specific facts related above and the applicable provisions of the Civil Code, particularly Articles 2176
and 2180 thereof, which read:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by provisions of this Chapter.
 ART 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity are responsible for the damages caused by the minor
children who live in their company.

xxx xxx xxx

The responsibility treated of in this Article shall cease when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damage.

The underlying basis of the liability imposed by Article 2176 is the fault or negligence accompanying the act or the
omission, there being no willfulness or intent to cause damage thereby. When the act or omission is that of one person for
whom another is responsible, the latter then becomes himself liable under Article 2180, in the different cases enumerated
therein, such as that of the father or the mother under the circumstances above quoted. The basis of this vicarious,
although primary, liability is, as in Article 2176, fault or negligence, which is presumed from that which accompanied the
causative act or omission. The presumption is merely prima facie and may therefore be rebutted. This is the clear and
logical inference that may be drawn from the last paragraph of Article 2180, which states "that the responsibility treated of
in this Article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of
a family to prevent damage."

Since the fact thus required to be proven is a matter of defense, the burden of proof necessarily rests on the defendant.
But what is the exact degree of diligence contemplated, and how does a parent prove it in connection with a particular act
or omission of a minor child, especially when it takes place in his absence or outside his immediate company? Obviously
there can be no meticulously calibrated measure applicable; and when the law simply refers to "all the diligence of a good
father of the family to prevent damage," it implies a consideration of the attendant circumstances in every individual case,
to determine whether or not by the exercise of such diligence the damage could have been prevented.

In the present case there is nothing from which it may be inferred that the defendant could have prevented the damage by
the observance of due care, or that he was in any way remiss in the exercise of his parental authority in failing to foresee
such damage, or the act which caused it. On the contrary, his child was at school, where it was his duty to send her and
where she was, as he had the right to expect her to be, under the care and supervision of the teacher. And as far as the
act which caused the injury was concerned, it was an innocent prank not unusual among children at play and which no
parent, however careful, would have any special reason to anticipate much less guard against. Nor did it reveal any
mischievous propensity, or indeed any trait in the child's character which would reflect unfavorably on her upbringing and
for which the blame could be attributed to her parents.

The victim, no doubt, deserves no little commiseration and sympathy for the tragedy that befell her. But if the defendant is
at all obligated to compensate her suffering, the obligation has no legal sanction enforceable in court, but only the moral
compulsion of good conscience.

The decision appealed from is reversed, and the complaint is dismissed, without pronouncement as to costs.

17. G.R. No. 82465 February 25, 1991

ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO NANTES AND ROSARIO LACANDULA,
BENJAMIN ILUMIN, TIRSO DE CHAVEZ, LUISITO VINAS, CONNIE ARQUIO AND PATRIA CADIZ, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION and DR. ROMULO CASTILLO and LILIA CADIZ,
respondents.

PARAS, J.:

This is a petition for review of the decision * of the Court of Appeals, the dispositive portion of which reads:

WHEREFORE, the decision under appeal is hereby affirmed, with the following modifications: (1) Exemplary
damages in the amount of P20,000.00 are hereby awarded to plaintiffs, in addition to the actual damages of
P30,000.00, moral damages of P20,000.00 and attorney's fees in the amount of P15,000.00 awarded to plaintiffs
in the decision under appeal; (2) St. Francis High School, represented by the Spouses Fernando Nantes and
 Rosario Lacandula, and Benjamin Illumin, are hereby held jointly and severally liable with defendants Connie
Arquio, Tirso de Chaves, Luisito Vinas and Patria Cadis for the payment to plaintiffs of the abovementioned actual
damages, moral damages, exemplary damages and attorney's fees, and for costs; and (3) Defendants Yoly Jaro
and Nida Aragones are hereby absolved from liability, and the case against them, together with their respective
counterclaims, is hereby ordered dismissed.

SO ORDERED. (p. 60, Rollo)

The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1-C at the St. Francis High School,
wanted to join a school picnic undertaken by Class I-B and Class I-C at Talaan Beach, Sariaya, Quezon. Ferdinand's
parents, respondents spouses Dr. Romulo Castillo and Lilia Cadiz Castillo, because of short notice, did not allow their son
to join but merely allowed him to bring food to the teachers for the picnic, with the directive that he should go back home
after doing so. However, because of persuasion of the teachers, Ferdinand went on with them to the beach.

During the picnic and while the students, including Ferdinand, were in the water, one of the female teachers was
apparently drowning. Some of the students, including Ferdinand, came to her rescue, but in the process, it was Ferdinand
himself who drowned. His body was recovered but efforts to resuscitate him ashore failed. He was brought to a certain Dr.
Luna in Sariaya, Quezon and later to the Mt. Cannel General Hospital where he was pronounced dead on arrival.

Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834, in the Regional Trial Court, Branch
LVIII of Lucena City, against the St. Francis High School, represented by the spouses Fernando Nantes and Rosario
Lacandula, Benjamin Illumin (its principal), and the teachers: Tirso de Chaves, Luisito Vinas, Connie Arquio, Nida
Aragones, Yoly Jaro, and Patria Cadiz, for Damages which respondents allegedly incurred from the death of their 13-year
old son, Ferdinand Castillo. Contending that the death of their son was due to the failure of the petitioners to exercise the
proper diligence of a good father of the family in preventing their son's drowning, respondents prayed of actual, moral and
exemplary damages, attorney's fees and expenses for litigation.

The trial court found in favor of the respondents and against petitioners-teachers Arquio, de Chaves, Vinas, Aragones,
Jaro and Cadiz, ordering all of them jointly and severally to pay respondents the sum of P30,000.00 as actual damages,
P20,000.00 as moral damages, P15,000.00 as attorney's fees, and to pay the costs. The court a quo reasoned:

Taking into consideration the evidence presented, this Court believes that the defendant teachers namely: Connie
Arquio, Luisito Vinas, Tirso de Chaves, Yoly Jaro, Nida Aragones and Patria Cadiz had failed to exercise the
diligence required of them by law under the circumstances to guard against the harm they had foreseen. (pp.
2930, Rollo)

xxx xxx xxx

While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the drowning
incident had already occurred, such fact does not and cannot excuse them from their liability. In fact, it could be
said that by coming late, they were remiss in their duty to safeguard the students. (p. 30, Rollo)

The students, young as they were then (12 to 13 years old), were easily attracted to the sea without aforethought
of the dangers it offers. Yet, the precautions and reminders allegedly performed by the defendants-teachers
definitely fell short of the standard required by law under the circumstances. While the defendants-teachers
admitted that some parts of the sea where the picnic was held are deep, the supposed lifeguards of the children
did not even actually go to the water to test the depth of the particular area where the children would swim. And
indeed the fears of the plaintiffs that the picnic area was dangerous was confirmed by the fact that three persons
during the picnic got drowned at the same time. Had the defendant teachers made an actual and physical
observation of the water before they allowed the students to swim, they could have found out that the area where
the children were swimming was indeed dangerous. And not only that, the male teachers who according to the
female teachers were there to supervise the children to ensure their safety were not even at the area where the
children were swimming. They were somewhere and as testified to by plaintiffs' witness they were having a
drinking spree. (pp. 55-56, Rollo)

On the other hand, the trial court dismissed the case against the St. Francis High School, Benjamin Illumin and Aurora
Cadorna. Said the court a quo:

As shown and adverted to above, this Court cannot find sufficient evidence showing that the picnic was a school
sanctioned one. Similarly no evidence has been shown to hold defendants Benjamin Illumin and Aurora Cadorna
 responsible for the death of Ferdinand Castillo together with the other defendant teachers. It has been sufficiently
shown that Benjamin Illumin had himself not consented to the picnic and in fact he did not join it. On the other
hand, defendant Aurora Cadorna had then her own class to supervise and in fact she was not amongst those
allegedly invited by defendant Connie Arquio to supervise class I-C to which Ferdinand Castillo belongs. (p. 30,
Rollo)

Both petitioners and respondents appealed to the Court of Appeals. Respondents-spouses assigned the following errors
committed by the trial court:

1. The lower court erred in not declaring the defendant St. Francis High School and its administrator/principal
Benjamin Illumin as equally liable not only for its approved co-curricular activities but also for those which they
unreasonably failed to exercise control and supervision like the holding of picnic in the dangerous water of Talaan
Beach, Sariaya, Quezon.

2. The lower court erred in not declaring the St. Francis High School and principal Benjamin Illumin as jointly and
solidarily liable with their co-defendants-teachers Rosario Lacandula, et als., for the tragic death of Ferdinand
Castillo in a picnic at Talaan Beach, Sariaya, Quezon, last March 20, 1982.

3. The lower court erred in not declaring higher amount for actual and moral damages for the untimely and tragic
death of Ferdinand Castillo in favor of plaintiffs-appellants against all the defendants. (pp. 56-57, Rollo)

The Court of Appeals ruled:

We find plaintiffs-appellants' submission well-taken.

Even were We to find that the picnic in question was not a school-sponsored activity, nonetheless it cannot be
gainsaid that the same was held under the supervision of the teachers employed by the said school, particularly
the teacher in charge of Class I-C to whom the victim belonged, and those whom she invited to help her in
supervising the class during the picnic. Considering that the court a quo found negligence on the part of the six
defendants-teachers who, as such, were charged with the supervision of the children during the picnic, the St.
Francis High School and the school principal, Benjamin Illumin, are liable under Article 2176 taken together with
the 1st, 4th and 5th paragraphs of Article 2180 of the Civil Code. They cannot escape liability on the mere excuse
that the picnic was not an "extra-curricular activity of the St. Francis High School." We find from the evidence that,
as claimed by plaintiffs-appellants, the school principal had knowledge of the picnic even from its planning stage
and had even been invited to attend the affair; and yet he did not express any prohibition against undertaking the
picnic, nor did he prescribe any precautionary measures to be adopted during the picnic. At the least, We must
find that the school and the responsible school officials, particularly the principal, Benjamin Illumin, had
acquiesced to the holding of the picnic.

Under Article 2180, supra, the defendant school and defendant school principal must be found jointly and
severally liable with the defendants-teachers for the damages incurred by the plaintiffs as a result of the death of
their son. It is the rule that in cases where the above-cited provisions find application, the negligence of the
employees in causing the injury or damage gives rise to a presumption of negligence on the part of the owner
and/or manager of the establishment (in the present case, St. Francis High School and its principal); and while
this presumption is not conclusive, it may be overthrown only by clear and convincing proof that the owner and/or
manager exercised the care and diligence of a good father of a family in the selection and/or supervision of the
employee or employees causing the injury or damage (in this case, the defendants-teachers). The record does
not disclose such evidence as would serve to overcome the aforesaid presumption and absolve the St. Francis
High School and its principal from liability under the above-cited provisions.

As to the third assigned error interposed by plaintiffs-appellants, while We cannot but commiserate with the
plaintiffs for the tragedy that befell them in the untimely death of their son Ferdinand Castillo and understand their
suffering as parents, especially the victim's mother who, according to appellants, suffered a nervous breakdown
as a result of the tragedy, We find that the amounts fixed by the court a quo as actual damages and moral
damages (P30,000.00 and P20,000.00, respectively) are reasonable and are those which are sustained by the
evidence and the law.

However, We believe that exemplary or corrective damages in the amount of P20,000.00 may and should be, as
it is hereby, imposed in the present case by way of example of correction for the public good, pursuant to Article
2229 of the Civil Code. (pp. 57-59, Rollo)
On the other hand, petitioners-teachers assigned the following errors committed by the trial court:

1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas, Nida Aragones, Yoly Jaro and
Patria Cadiz guilty of negligence and jointly and severally liable for damages such finding not being supported by
facts and evidence.

2. ". . . in dismissing the counterclaim interposed by the defendants. (p. 59, Rollo)

On this score, respondent Court ruled:

The main thrust of defendants-appellants appeal is that plaintiffs, the parents of the victim Ferdinand Castillo,
were not able to prove by their evidence that they did not give their son consent to join the picnic in question.
However, We agree with the trial court in its finding that whether or not the victim's parents had given such
permission to their son was immaterial to the determination of the existence of liability on the part of the
defendants for the damage incurred by the plaintiffs-appellants as a result of the death of their son. What is
material to such a determination is whether or not there was negligence on the part of defendants vis-a-vis the
supervision of the victim's group during the picnic; and, as correctly found by the trial court, an affirmative reply to
this question has been satisfactorily established by the evidence, as already pointed out.

However, We sustain defendants-appellants insofar as two of the defendants-teachers, Yoly Jaro and Nida
Aragones, are concerned. As to them, the trial court found:

While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the
drowning incident had already occurred, such fact does not and cannot excuse them from their liability. In
fact, it could be said that by coming late, they were remiss in their duty to safeguard the students.

The evidence shows that these two defendants had satisfactorily explained why they were late in going to the
picnic site, namely, that they had to attend to the entrance examination being conducted by the school which is
part of their duty as teachers thereof. Since they were not at the picnic site during the occurrence in question, it
cannot be said that they had any participation in the negligence attributable to the other defendants-teachers who
failed to exercise diligence in the supervision of the children during the picnic and which failure resulted in the
drowning of plaintiffs' son. Thus, We may not attribute any act or omission to the two teachers, Yoly Jaro and Nida
Aragones, as to make them liable for the injury caused to the plaintiffs because of the death of their son resulting
from his drowning at the picnic. Accordingly, they must be absolved from any liability.

As to the second assigned error raised by defendants-appellants, We agree with the court a quo that the
counterclaim must be dismissed for lack of merit. (pp. 59-60, Rollo)

Hence, this petition.

The issues presented by petitioners are:

A) Whether or not there was negligence attributable to the defendants which will warrant the award of damages to
the plaintiffs;

B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the case at bar;

C) Whether or not the award of exemplary and moral damages is proper under the circumstances surrounding the
case at bar. (pp. 81-82, Rollo)

In the resolution of January 16, 1989, We gave due course to the petition and required the parties to submit their
respective memoranda.

The petition is impressed with merit.

If at all petitioners are liable for negligence, this is because of their own negligence or the negligence of people under
them. In the instant case however, as will be shown hereunder, petitioners are neither guilty of their own negligence or
guilty of the negligence of those under them.
Hence, it cannot be said that they are guilty at all of any negligence. Consequently they cannot be held liable for damages
of any kind.

At the outset, it should be noted that respondent spouses, parents of the victim Ferdinand, allowed their son to join the
excursion.

Testimony of Dr. Castillo on cross exam. by Atty. Flores

Q Now, when your son asked you for money to buy food, did you not ask him where he will bring this?

A I asked him where he was going, he answered, I am going to the picnic, and when I asked him where,
he did not answer, sir.

Q And after giving the money, you did not tell him anything more?

A No more, sir.

Q And after that you just learned that your son join the picnic?

A Yes, sir.

Q And you came to know of it after the news that your son was drowned in the picnic came to you, is that
correct?

A Yes, sir.

Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20, 1982, you did not know that
your son join the picnic?

A No, sir, I did not know.

Q Did you not look for your son during that time?

A I am too busy with my profession, that is why I was not able, sir.

Q You did not ask your wife?

A I did not, sir.

Q And neither did your wife tell you that your son join the picnic?

A Later on after 12:00, sir.

Q And during that time you were too busy that you did not inquire whether your son have joined that
picnic?

A Yes, sir.

(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo)

The fact that he gave money to his son to buy food for the picnic even without knowing where it will be held, is a sign of
consent for his son to join the same. Furthermore.

Testimony of Dr. Lazaro on cross examination:

Q How did you conduct this mental and physical examination?

 A I have interviewed several persons and the patient herself She even felt guilty about the death of her
son because she cooked adobo for him so he could join the excursion where her son died of drowning.

Q Why were you able to say she was feeling guilty because she was the one who personally cooked the
adobo for her son?

A It was during the interview that I had gathered it from the patient herself. She was very sorry had she
not allowed her son to join the excursion her son would have not drowned. I don't know if she actually
permitted her son although she said she cooked adobo so he could join. (Emphasis Supplied) (TSN, p.
19, hearing of April 30, 1984, Dr. Lazaro witness).

Respondent Court of Appeals committed an error in applying Article 2180 of the Civil Code in rendering petitioner school
liable for the death of respondent's son.

Article 2180, par. 4 states that:

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those
of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the
scope of their assigned tasks, even though the former are not engaged in any business or industry.

Under this paragraph, it is clear that before an employer may be held liable for the negligence of his employee, the act or
omission which caused damage or prejudice must have occurred while an employee was in the performance of his
assigned tasks.

In the case at bar, the teachers/petitioners were not in the actual performance of their assigned tasks. The incident
happened not within the school premises, not on a school day and most importantly while the teachers and students were
holding a purely private affair, a picnic. It is clear from the beginning that the incident happened while some members of
the I-C class of St. Francis High School were having a picnic at Talaan Beach. This picnic had no permit from the school
head or its principal, Benjamin Illumin because this picnic is not a school sanctioned activity neither is it considered as an
extra-curricular activity.

As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of the planning of the picnic by the
students and their teachers does not in any way or in any manner show acquiescence or consent to the holding of the
same. The application therefore of Article 2180 has no basis in law and neither is it supported by any jurisprudence. If we
were to affirm the findings of respondent Court on this score, employers wig forever be exposed to the risk and danger of
being hailed to Court to answer for the misdeeds or omissions of the employees even if such act or omission he
committed while they are not in the performance of their duties.

Finally, no negligence could be attributable to the petitioners-teachers to warrant the award of damages to the
respondents-spouses.

Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand belonged, did her best and exercised
diligence of a good father of a family to prevent any untoward incident or damages to all the students who joined the
picnic.

In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both P.E. instructors and scout masters
who have knowledge in First Aid application and swimming. Moreover, even respondents' witness, Segundo Vinas,
testified that "the defendants (petitioners herein) had life savers especially brought by the defendants in case of
emergency." (p. 85, Rollo) The records also show that both petitioners Chavez and Vinas did all what is humanly possible
to save the child.

Testimony of Luisito Vinas on cross examination,

Q And when you saw the boy, Ferdinand Castillo, you approached the boy and claim also having applied
first aid on him?
 A Yes, sir.

Q And while you were applying the so called first aid, the children were covering you up or were
surrounding you?

A Yes, sir.

Q You were rattled at that time, is it not?

A No, sir.

Q You mean you were in calm and peaceful condition?

A Yes, sir.

Q Despite the fact that the boy was no longer responding to your application of first aid?

A Yes, sir.

Q You have never been disturbed, "nababahala" in the process of your application of the first aid on the
body of Ferdinand Castillo?

A No, sir, because we were attending to the application of first aid that we were doing, sir.

Q After you have applied back to back pressure and which you claimed the boy did not respond, were
you not disturb anyway?

A I was disturbed during that time, sir.

Q For how many minutes have you applied the back to back pressure?

A From 9 to 11 times, sir.

Q You mean 9 to 11 times of having applied the pressure of your body on the body of Ferdinand Castillo?

A Yes, sir.

Q Will you please describe how you applied a single act of back to back pressure?

A This has been done by placing the boy lay first downwards, then the face was a little bit facing right and
doing it by massaging the back of the child, sir." (TSN, pp. 32-35, hearing of July 30, 1984)

Testimony of Tirso de Chavez on direct examination

ATTY. FLORES:

Q Who actually applied the first aid or artificial respiration to the child?

A Myself, sir.

Q How did you apply the first aid to the guy?

A The first step that I took, with the help of Mr. Luisito Vinas, was I applied back to back pressure and
took notice of the condition of the child. We placed the feet in a higher position, that of the head of the
child, sir.
 Q After you have placed the boy in that particular position, where the feet were on a higher level than that
of the head, what did you do next?

A The first thing that we did, particularly myself, was that after putting the child in that position, I applied
the back to back pressure and started to massage from the waistline up, but I noticed that the boy was
not responding, sir.

Q For how long did you apply this back to back pressure on the boy?

A About 10 seconds, sir.

Q What about Mr. Vinas?

A Almost the same a little longer, for 15 seconds, sir.

Q After you noticed that the boy was not responding, what did you do?

A When we noticed that the boy was not responding, we changed the position of the boy by placing the
child facing upwards laying on the sand then we applied the mouth to mouth resuscitation, sir. (pp. 92-93,
Rollo)

With these facts in mind, no moral nor exemplary damages may be awarded in favor of respondents-spouses. The case
at bar does not fall under any of the grounds to grant moral damages.

Art. 2217. Moral Damages include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act or
omission.

Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or negligence, hence, no moral
damages can be assessed against them.

While it is true that respondents-spouses did give their consent to their son to join the picnic, this does not mean that the
petitioners were already relieved of their duty to observe the required diligence of a good father of a family in ensuring the
safety of the children. But in the case at bar, petitioners were able to prove that they had exercised the required diligence.
Hence, the claim for moral or exemplary damages becomes baseless.

PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding petitioners herein guilty of
negligence and liable for the death of Ferdinand Castillo and awarding the respondents damages, is hereby SET ASIDE
insofar as the petitioners herein are concerned, but the portion of the said decision dismissing their counterclaim, there
being no merit, is hereby AFFIRMED.

18. G.R. No. 126297 January 31, 2007

PROFESSIONAL SERVICES, INC., Petitioner,

vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.

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

G.R. No. 126467 January 31, 2007

NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR., EMMA AGANA ANDAYA,
JESUS AGANA, and RAYMUND AGANA) and ENRIQUE AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.

x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590 January 31, 2007

MIGUEL AMPIL, Petitioner,

vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.

SANDOVAL-GUTIERREZ, J.:

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

Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals Decision 2 dated September
6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming with modification the Decision3 dated March 17,
1993 of the Regional Trial Court (RTC), Branch 96, Quezon City in Civil Case No. Q-43322 and nullifying its Order dated
September 21, 1993.

The facts, as culled from the records, are:

On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City Hospital) because of
difficulty of bowel movement and bloody anal discharge. After a series of medical examinations, Dr. Miguel Ampil,
petitioner in G.R. No. 127590, diagnosed her to be suffering from "cancer of the sigmoid."

On April 11, 1984, Dr. Ampil, assisted by the medical staff 4 of the Medical City Hospital, performed an anterior resection
surgery on Natividad. He found that the malignancy in her sigmoid area had spread on her left ovary, necessitating the
removal of certain portions of it. Thus, Dr. Ampil obtained the consent of Natividads husband, Enrique Agana, to permit
Dr. Juan Fuentes, respondent in G.R. No. 126467, to perform hysterectomy on her.

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and closed the incision.

However, the operation appeared to be flawed. In the corresponding Record of Operation dated April 11, 1984, the
attending nurses entered these remarks:

"sponge count lacking 2

"announced to surgeon searched (sic) done but to no avail continue for closure."

On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including the doctors fees,
amounted to P60,000.00.

After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted both Dr. Ampil and Dr.
Fuentes about it. They told her that the pain was the natural consequence of the surgery. Dr. Ampil then recommended
that she consult an oncologist to examine the cancerous nodes which were not removed during the operation.

On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further treatment. After four
months of consultations and laboratory examinations, Natividad was told she was free of cancer. Hence, she was advised
to return to the Philippines.

On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks thereafter, her daughter
found a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampil proceeded to her house
where he managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then assured her that the pains
would soon vanish.

Dr. Ampils assurance did not come true. Instead, the pains intensified, prompting Natividad to seek treatment at the
Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected the presence of another foreign object
in her vagina -- a foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal vault. A recto-vaginal
fistula had formed in her reproductive organs which forced stool to excrete through the vagina. Another surgical operation
was needed to remedy the damage. Thus, in October 1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a complaint for damages
against the Professional Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and Dr. Fuentes, docketed as
Civil Case No. Q-43322. They alleged that the latter are liable for negligence for leaving two pieces of gauze inside
Natividads body and malpractice for concealing their acts of negligence.

Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an administrative complaint for
gross negligence and malpractice against Dr. Ampil and Dr. Fuentes, docketed as Administrative Case No. 1690. The
PRC Board of Medicine heard the case only with respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr.
Ampil who was then in the United States.

On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly substituted by her above-
named children (the Aganas).

On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable
for negligence and malpractice, the decretal part of which reads:

WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants PROFESSIONAL SERVICES, INC.,
DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the plaintiffs, jointly and severally, except in respect of the award
for exemplary damages and the interest thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as
follows:

1. As actual damages, the following amounts:

a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of P21.60-US$1.00, as
reimbursement of actual expenses incurred in the United States of America;

b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;

c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic Hospital, medical
fees, and cost of the saline solution;

2. As moral damages, the sum of P2,000,000.00;

3. As exemplary damages, the sum of P300,000.00;

4. As attorneys fees, the sum of P250,000.00;

5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the complaint until full
payment; and

6. Costs of suit.

SO ORDERED.

Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed as CA-G.R. CV No.
42062.

Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its Decision, which was
granted in an Order dated May 11, 1993. Thereafter, the sheriff levied upon certain properties of Dr. Ampil and sold them
for P451,275.00 and delivered the amount to the Aganas.

Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr. Fuentes to indefinitely
suspend any further execution of the RTC Decision. However, not long thereafter, the Aganas again filed a motion for an
alias writ of execution against the properties of PSI and Dr. Fuentes. On September 21, 1993, the RTC granted the
motion and issued the corresponding writ, prompting Dr. Fuentes to file with the Court of Appeals a petition for certiorari
and prohibition, with prayer for preliminary injunction, docketed as CA-G.R. SP No. 32198. During its pendency, the Court
of Appeals issued a Resolution5 dated October 29, 1993 granting Dr. Fuentes prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.

Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision 6 in Administrative Case No. 1690
dismissing the case against Dr. Fuentes. The Board held that the prosecution failed to show that Dr. Fuentes was the one
who left the two pieces of gauze inside Natividads body; and that he concealed such fact from Natividad.

On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV No. 42062 and CA-
G.R. SP No. 32198, thus:

WHEREFORE, except for the modification that the case against defendant-appellant Dr. Juan Fuentes is hereby
DISMISSED, and with the pronouncement that defendant-appellant Dr. Miguel Ampil is liable to reimburse defendant-
appellant Professional Services, Inc., whatever amount the latter will pay or had paid to the plaintiffs-appellees, the
decision appealed from is hereby AFFIRMED and the instant appeal DISMISSED.

Concomitant with the above, the petition for certiorari and prohibition filed by herein defendant-appellant Dr. Juan Fuentes
in CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order of the respondent judge dated September 21,
1993, as well as the alias writ of execution issued pursuant thereto are hereby NULLIFIED and SET ASIDE. The bond
posted by the petitioner in connection with the writ of preliminary injunction issued by this Court on November 29, 1993 is
hereby cancelled.

Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.

SO ORDERED.

Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution7 dated December 19, 1996.

Hence, the instant consolidated petitions.

In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is estopped from
raising the defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil; and (3) it is not entitled to its
counterclaim against the Aganas. PSI contends that Dr. Ampil is not its employee, but a mere consultant or independent
contractor. As such, he alone should answer for his negligence.

In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes is not guilty of
negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They contend that the pieces of gauze are
prima facie proofs that the operating surgeons have been negligent.

Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for negligence and
malpractice sans evidence that he left the two pieces of gauze in Natividads vagina. He pointed to other probable causes,
such as: (1) it was Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the attending nurses failure to
properly count the gauzes used during surgery; and (3) the medical intervention of the American doctors who examined
Natividad in the United States of America.

For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr. Ampil liable for
negligence and malpractice; second, whether the Court of Appeals erred in absolving Dr. Fuentes of any liability; and
third, whether PSI may be held solidarily liable for the negligence of Dr. Ampil.

I - G.R. No. 127590

Whether the Court of Appeals Erred in Holding Dr. Ampil

Liable for Negligence and Malpractice.

Dr. Ampil, in an attempt to absolve himself, gears the Courts attention to other possible causes of Natividads detriment.
He argues that the Court should not discount either of the following possibilities: first, Dr. Fuentes left the gauzes in
Natividads body after performing hysterectomy; second, the attending nurses erred in counting the gauzes; and third, the
American doctors were the ones who placed the gauzes in Natividads body.
Dr. Ampils arguments are purely conjectural and without basis. Records show that he did not present any evidence to
prove that the American doctors were the ones who put or left the gauzes in Natividads body. Neither did he submit
evidence to rebut the correctness of the record of operation, particularly the number of gauzes used. As to the alleged
negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his (Dr. Fuentes) work and found it in order.

The glaring truth is that all the major circumstances, taken together, as specified by the Court of Appeals, directly point to
Dr. Ampil as the negligent party, thus:

First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of the patient during the
surgical operation.

Second, immediately after the operation, the nurses who assisted in the surgery noted in their report that the
sponge count (was) lacking 2; that such anomaly was announced to surgeon and that a search was done but to
no avail prompting Dr. Ampil to continue for closure x x x.

Third, after the operation, two (2) gauzes were extracted from the same spot of the body of Mrs. Agana where the
surgery was performed.

An operation requiring the placing of sponges in the incision is not complete until the sponges are properly removed, and
it is settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at
least prima facie negligence by the operating surgeon. 8 To put it simply, such act is considered so inconsistent with due
care as to raise an inference of negligence. There are even legions of authorities to the effect that such act is negligence
per se.9

Of course, the Court is not blind to the reality that there are times when danger to a patients life precludes a surgeon from
further searching missing sponges or foreign objects left in the body. But this does not leave him free from any obligation.
Even if it has been shown that a surgeon was required by the urgent necessities of the case to leave a sponge in his
patients abdomen, because of the dangers attendant upon delay, still, it is his legal duty to so inform his patient within a
reasonable time thereafter by advising her of what he had been compelled to do. This is in order that she might seek relief
from the effects of the foreign object left in her body as her condition might permit. The ruling in Smith v. Zeagler 10 is
explicit, thus:

The removal of all sponges used is part of a surgical operation, and when a physician or surgeon fails to remove a sponge
he has placed in his patients body that should be removed as part of the operation, he thereby leaves his operation
uncompleted and creates a new condition which imposes upon him the legal duty of calling the new condition to his
patients attention, and endeavoring with the means he has at hand to minimize and avoid untoward results likely to ensue
therefrom.

Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled her that the pain
she was experiencing was the ordinary consequence of her operation. Had he been more candid, Natividad could have
taken the immediate and appropriate medical remedy to remove the gauzes from her body. To our mind, what was initially
an act of negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully pursue this kind of
case, a patient must only prove that a health care provider either failed to do something which a reasonably prudent
health care provider would have done, or that he did something that a reasonably prudent provider would not have done;
and that failure or action caused injury to the patient.11 Simply put, the elements are duty, breach, injury and proximate
causation. Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividads
body before closure of the incision. When he failed to do so, it was his duty to inform Natividad about it. Dr. Ampil
breached both duties. Such breach caused injury to Natividad, necessitating her further examination by American doctors
and another surgery. That Dr. Ampils negligence is the proximate cause 12 of Natividads injury could be traced from his
act of closing the incision despite the information given by the attending nurses that two pieces of gauze were still
missing. That they were later on extracted from Natividads vagina established the causal link between Dr. Ampils
negligence and the injury. And what further aggravated such injury was his deliberate concealment of the missing gauzes
from the knowledge of Natividad and her family.

II - G.R. No. 126467

Whether the Court of Appeals Erred in Absolving

Dr. Fuentes of any Liability

The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground that it is contrary to the
doctrine of res ipsa loquitur. According to them, the fact that the two pieces of gauze were left inside Natividads body is a
prima facie evidence of Dr. Fuentes negligence.

We are not convinced.

Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a
plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation. 13 Stated differently,
where the thing which caused the injury, without the fault of the injured, is under the exclusive control of the defendant
and the injury is such that it should not have occurred if he, having such control used proper care, it affords reasonable
evidence, in the absence of explanation that the injury arose from the defendants want of care, and the burden of proof is
shifted to him to establish that he has observed due care and diligence.14

From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the
occurrence of an injury; (2) the thing which caused the injury was under the control and management of the defendant; (3)
the occurrence was such that in the ordinary course of things, would not have happened if those who had control or
management used proper care; and (4) the absence of explanation by the defendant. Of the foregoing requisites, the
most instrumental is the "control and management of the thing which caused the injury." 15

We find the element of "control and management of the thing which caused the injury" to be wanting. Hence, the doctrine
of res ipsa loquitur will not lie.

It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He requested the
assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found that the malignancy in her sigmoid
area had spread to her left ovary. Dr. Fuentes performed the surgery and thereafter reported and showed his work to Dr.
Ampil. The latter examined it and finding everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr.
Ampil then resumed operating on Natividad. He was about to finish the procedure when the attending nurses informed
him that two pieces of gauze were missing. A "diligent search" was conducted, but the misplaced gauzes were not found.
Dr. Ampil then directed that the incision be closed. During this entire period, Dr. Fuentes was no longer in the operating
room and had, in fact, left the hospital.

Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the surgery room and all
personnel connected with the operation. Their duty is to obey his orders. 16 As stated before, Dr. Ampil was the lead
surgeon. In other words, he was the "Captain of the Ship." That he discharged such role is evident from his following
conduct: (1) calling Dr. Fuentes to perform a hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order;
(3) granting Dr. Fuentes permission to leave; and (4) ordering the closure of the incision. To our mind, it was this act of
ordering the closure of the incision notwithstanding that two pieces of gauze remained unaccounted for, that caused injury
to Natividads body. Clearly, the control and management of the thing which caused the injury was in the hands of Dr.
Ampil, not Dr. Fuentes.

In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or constitute an
independent or separate ground of liability, being a mere evidentiary rule. 17 In other words, mere invocation and
application of the doctrine does not dispense with the requirement of proof of negligence. Here, the negligence was
proven to have been committed by Dr. Ampil and not by Dr. Fuentes.

III - G.R. No. 126297

Whether PSI Is Liable for the Negligence of Dr. Ampil

The third issue necessitates a glimpse at the historical development of hospitals and the resulting theories concerning
their liability for the negligence of physicians.

Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical services to the lowest
classes of society, without regard for a patients ability to pay.18 Those who could afford medical treatment were usually
treated at home by their doctors.19 However, the days of house calls and philanthropic health care are over. The modern
health care industry continues to distance itself from its charitable past and has experienced a significant conversion from
a not-for-profit health care to for-profit hospital businesses. Consequently, significant changes in health law have
accompanied the business-related changes in the hospital industry. One important legal change is an increase in hospital
liability for medical malpractice. Many courts now allow claims for hospital vicarious liability under the theories of
respondeat superior, apparent authority, ostensible authority, or agency by estoppel. 20

In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code, which reads:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.

A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of respondeat superior,
thus:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for
those of persons for whom one is responsible.

x x x x x x

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are employed or on the occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of
their assigned tasks even though the former are not engaged in any business or industry.

x x x x x x

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.

A prominent civilist commented that professionals engaged by an employer, such as physicians, dentists, and
pharmacists, are not "employees" under this article because the manner in which they perform their work is not within the
control of the latter (employer). In other words, professionals are considered personally liable for the fault or negligence
they commit in the discharge of their duties, and their employer cannot be held liable for such fault or negligence. In the
context of the present case, "a hospital cannot be held liable for the fault or negligence of a physician or surgeon in the
treatment or operation of patients."21

The foregoing view is grounded on the traditional notion that the professional status and the very nature of the physicians
calling preclude him from being classed as an agent or employee of a hospital, whenever he acts in a professional
capacity.22 It has been said that medical practice strictly involves highly developed and specialized knowledge, 23 such that
physicians are generally free to exercise their own skill and judgment in rendering medical services sans interference. 24
Hence, when a doctor practices medicine in a hospital setting, the hospital and its employees are deemed to subserve
him in his ministrations to the patient and his actions are of his own responsibility.25

The case of Schloendorff v. Society of New York Hospital26 was then considered an authority for this view. The
"Schloendorff doctrine" regards a physician, even if employed by a hospital, as an independent contractor because of the
skill he exercises and the lack of control exerted over his work. Under this doctrine, hospitals are exempt from the
application of the respondeat superior principle for fault or negligence committed by physicians in the discharge of their
profession.

However, the efficacy of the foregoing doctrine has weakened with the significant developments in medical care. Courts
came to realize that modern hospitals are increasingly taking active role in supplying and regulating medical care to
patients. No longer were a hospitals functions limited to furnishing room, food, facilities for treatment and operation, and
attendants for its patients. Thus, in Bing v. Thunig,27 the New York Court of Appeals deviated from the Schloendorff
doctrine, noting that modern hospitals actually do far more than provide facilities for treatment. Rather, they regularly
employ, on a salaried basis, a large staff of physicians, interns, nurses, administrative and manual workers. They charge
patients for medical care and treatment, even collecting for such services through legal action, if necessary. The court
then concluded that there is no reason to exempt hospitals from the universal rule of respondeat superior.
In our shores, the nature of the relationship between the hospital and the physicians is rendered inconsequential in view
of our categorical pronouncement in Ramos v. Court of Appeals 28 that for purposes of apportioning responsibility in
medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and
visiting physicians. This Court held:

"We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals)
of filling up specialist staff with attending and visiting "consultants," who are allegedly not hospital employees, presents
problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is more
apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their
work within the hospital premises. Doctors who apply for consultant slots, visiting or attending, are required to submit
proof of completion of residency, their educational qualifications, generally, evidence of accreditation by the appropriate
board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by
members of the hospital administration or by a review committee set up by the hospital who either accept or reject the
application. x x x.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-
pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient
audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital,
and/or for the privilege of admitting patients into the hospital. In addition to these, the physicians performance as a
specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls
short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff.
While consultants are not, technically employees, x x x, the control exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of
wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of
the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending and visiting physicians. "

But the Ramos pronouncement is not our only basis in sustaining PSIs liability. Its liability is also anchored upon the
agency principle of apparent authority or agency by estoppel and the doctrine of corporate negligence which have gained
acceptance in the determination of a hospitals liability for negligent acts of health professionals. The present case serves
as a perfect platform to test the applicability of these doctrines, thus, enriching our jurisprudence.

Apparent authority, or what is sometimes referred to as the "holding

out" theory, or doctrine of ostensible agency or agency by estoppel,29 has its origin from the law of agency. It imposes
liability, not as the result of the reality of a contractual relationship, but rather because of the actions of a principal or an
employer in somehow misleading the public into believing that the relationship or the authority exists. 30 The concept is
essentially one of estoppel and has been explained in this manner:

"The principal is bound by the acts of his agent with the apparent authority which he knowingly permits the agent to
assume, or which he holds the agent out to the public as possessing. The question in every case is whether the principal
has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business
usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the
particular act in question.31

The applicability of apparent authority in the field of hospital liability was upheld long time ago in Irving v. Doctor Hospital
of Lake Worth, Inc.32 There, it was explicitly stated that "there does not appear to be any rational basis for excluding the
concept of apparent authority from the field of hospital liability." Thus, in cases where it can be shown that a hospital, by
its actions, has held out a particular physician as its agent and/or employee and that a patient has accepted treatment
from that physician in the reasonable belief that it is being rendered in behalf of the hospital, then the hospital will be liable
for the physicians negligence.

Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack of action, or his
failure to repudiate the agency, knowing that another person is acting on his behalf without authority.

In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and specializations of the physicians
associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur with the Court of Appeals
conclusion that it "is now estopped from passing all the blame to the physicians whose names it proudly paraded in the
public directory leading the public to believe that it vouched for their skill and competence." Indeed, PSIs act is
tantamount to holding out to the public that Medical City Hospital, through its accredited physicians, offers quality health
care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their qualifications, the hospital created
the impression that they were its agents, authorized to perform medical or surgical services for its patients. As expected,
these patients, Natividad being one of them, accepted the services on the reasonable belief that such were being
rendered by the hospital or its employees, agents, or servants. The trial court correctly pointed out:

x x x regardless of the education and status in life of the patient, he ought not be burdened with the defense of absence of
employer-employee relationship between the hospital and the independent physician whose name and competence are
certainly certified to the general public by the hospitals act of listing him and his specialty in its lobby directory, as in the
case herein. The high costs of todays medical and health care should at least exact on the hospital greater, if not
broader, legal responsibility for the conduct of treatment and surgery within its facility by its accredited physician or
surgeon, regardless of whether he is independent or employed."33

The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable of acting only
through other individuals, such as physicians. If these accredited physicians do their job well, the hospital succeeds in its
mission of offering quality medical services and thus profits financially. Logically, where negligence mars the quality of its
services, the hospital should not be allowed to escape liability for the acts of its ostensible agents.

We now proceed to the doctrine of corporate negligence or corporate responsibility.

One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI as owner, operator
and manager of Medical City Hospital, "did not perform the necessary supervision nor exercise diligent efforts in the
supervision of Drs. Ampil and Fuentes and its nursing staff, resident doctors, and medical interns who assisted Drs. Ampil
and Fuentes in the performance of their duties as surgeons."34 Premised on the doctrine of corporate negligence, the trial
court held that PSI is directly liable for such breach of duty.

We agree with the trial court.

Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem of allocating hospitals
liability for the negligent acts of health practitioners, absent facts to support the application of respondeat superior or
apparent authority. Its formulation proceeds from the judiciarys acknowledgment that in these modern times, the duty of
providing quality medical service is no longer the sole prerogative and responsibility of the physician. The modern
hospitals have changed structure. Hospitals now tend to organize a highly professional medical staff whose competence
and performance need to be monitored by the hospitals commensurate with their inherent responsibility to provide quality
medical care.35

The doctrine has its genesis in Darling v. Charleston Community Hospital. 36 There, the Supreme Court of Illinois held that
"the jury could have found a hospital negligent, inter alia, in failing to have a sufficient number of trained nurses attending
the patient; failing to require a consultation with or examination by members of the hospital staff; and failing to review the
treatment rendered to the patient." On the basis of Darling, other jurisdictions held that a hospitals corporate negligence
extends to permitting a physician known to be incompetent to practice at the hospital.37 With the passage of time, more
duties were expected from hospitals, among them: (1) the use of reasonable care in the maintenance of safe and
adequate facilities and equipment; (2) the selection and retention of competent physicians; (3) the overseeing or
supervision of all persons who practice medicine within its walls; and (4) the formulation, adoption and enforcement of
adequate rules and policies that ensure quality care for its patients.38 Thus, in Tucson Medical Center, Inc. v. Misevich,39 it
was held that a hospital, following the doctrine of corporate responsibility, has the duty to see that it meets the standards
of responsibilities for the care of patients. Such duty includes the proper supervision of the members of its medical staff.
And in Bost v. Riley,40 the court concluded that a patient who enters a hospital does so with the reasonable expectation
that it will attempt to cure him. The hospital accordingly has the duty to make a reasonable effort to monitor and oversee
the treatment prescribed and administered by the physicians practicing in its premises.

In the present case, it was duly established that PSI operates the Medical City Hospital for the purpose and under the
concept of providing comprehensive medical services to the public. Accordingly, it has the duty to exercise reasonable
care to protect from harm all patients admitted into its facility for medical treatment. Unfortunately, PSI failed to perform
such duty. The findings of the trial court are convincing, thus:

x x x PSIs liability is traceable to its failure to conduct an investigation of the matter reported in the nota bene of the count
nurse. Such failure established PSIs part in the dark conspiracy of silence and concealment about the gauzes. Ethical
considerations, if not also legal, dictated the holding of an immediate inquiry into the events, if not for the benefit of the
patient to whom the duty is primarily owed, then in the interest of arriving at the truth. The Court cannot accept that the
medical and the healing professions, through their members like defendant surgeons, and their institutions like PSIs
hospital facility, can callously turn their backs on and disregard even a mere probability of mistake or negligence by
refusing or failing to investigate a report of such seriousness as the one in Natividads case.

It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the Medical City Hospitals
staff, composed of resident doctors, nurses, and interns. As such, it is reasonable to conclude that PSI, as the operator of
the hospital, has actual or constructive knowledge of the procedures carried out, particularly the report of the attending
nurses that the two pieces of gauze were missing. In Fridena v. Evans, 41 it was held that a corporation is bound by the
knowledge acquired by or notice given to its agents or officers within the scope of their authority and in reference to a
matter to which their authority extends. This means that the knowledge of any of the staff of Medical City Hospital
constitutes knowledge of PSI. Now, the failure of PSI, despite the attending nurses report, to investigate and inform
Natividad regarding the missing gauzes amounts to callous negligence. Not only did PSI breach its duties to oversee or
supervise all persons who practice medicine within its walls, it also failed to take an active step in fixing the negligence
committed. This renders PSI, not only vicariously liable for the negligence of Dr. Ampil under Article 2180 of the Civil
Code, but also directly liable for its own negligence under Article 2176. In Fridena, the Supreme Court of Arizona held:

x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded. The emerging trend is
to hold the hospital responsible where the hospital has failed to monitor and review medical services being provided within
its walls. See Kahn Hospital Malpractice Prevention, 27 De Paul . Rev. 23 (1977).

Among the cases indicative of the emerging trend is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972). In
Purcell, the hospital argued that it could not be held liable for the malpractice of a medical practitioner because he was an
independent contractor within the hospital. The Court of Appeals pointed out that the hospital had created a professional
staff whose competence and performance was to be monitored and reviewed by the governing body of the hospital, and
the court held that a hospital would be negligent where it had knowledge or reason to believe that a doctor using the
facilities was employing a method of treatment or care which fell below the recognized standard of care.

Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain inherent responsibilities
regarding the quality of medical care furnished to patients within its walls and it must meet the standards of responsibility
commensurate with this undertaking. Beeck v. Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This
court has confirmed the rulings of the Court of Appeals that a hospital has the duty of supervising the competence of the
doctors on its staff. x x x.

x x x x x x

In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital with its knowledge, aid,
and assistance, and that the negligence of the defendants was the proximate cause of the patients injuries. We find that
such general allegations of negligence, along with the evidence produced at the trial of this case, are sufficient to support
the hospitals liability based on the theory of negligent supervision."

Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for damages, let it be emphasized that PSI, apart
from a general denial of its responsibility, failed to adduce evidence showing that it exercised the diligence of a good
father of a family in the accreditation and supervision of the latter. In neglecting to offer such proof, PSI failed to discharge
its burden under the last paragraph of Article 2180 cited earlier, and, therefore, must be adjudged solidarily liable with Dr.
Ampil. Moreover, as we have discussed, PSI is also directly liable to the Aganas.

One final word. Once a physician undertakes the treatment and care of a patient, the law imposes on him certain
obligations. In order to escape liability, he must possess that reasonable degree of learning, skill and experience required
by his profession. At the same time, he must apply reasonable care and diligence in the exercise of his skill and the
application of his knowledge, and exert his best judgment.

WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of Appeals in CA-G.R. CV
No. 42062 and CA-G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.

SO ORDERED.

19. 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 mag-alaala, darating na iyon" (Ibid.).

Thereafter, Herminda went out of the operating room and informed the patient's husband, Rogelio, that
the doctor was not yet around (id., p. 13). When she returned to the operating room, the patient told her,
"Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor." So, she went out again and told Rogelio
about what the patient said (id., p. 15). Thereafter, she returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival of the doctor"
even as he did his best to find somebody who will allow him to pull out his wife from the operating room
(TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife, who was inside the
operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who
remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking to
Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those words, he went down to the lobby
and waited for the operation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard
somebody say that "Dr. Hosaka is already here." She then saw people inside the operating room
"moving, doing this and that, [and] preparing the patient for the operation" (TSN, January 13, 1988, p. 16).
As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She
thereafter heard Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan" (id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention on what Dr.
Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left hand of the
hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for
someone to call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the
operating room, she saw this anesthesiologist trying to intubate the patient. The 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. 9 Meanwhile, petitioners engaged the services of
another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for
reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to the counsel
on record. Despite this explanation, the appellate court still denied the motion to admit the motion for reconsideration of
petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a
motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be
extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted
in the latter Motion that plaintiffs/appellees received a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for Reconsideration expired on June 24. The Motion for
Reconsideration, in turn, was received by the Court of Appeals already on July 4, necessarily, the 15-day
period already passed. For that alone, the latter should be denied.

Even assuming admissibility of the Motion for 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:

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 facie case, and present a
question of fact for defendant to meet with an explanation. 13 Where the thing which caused the injury complained of is
shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of
things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in
the absence of explanation by the defendant, that the accident arose from or was caused by the 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. 22 Such
element of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a
plaintiff, in addition to proving injury or damage, must show a situation where it is applicable, and must establish that the
essential elements of the doctrine were present in a particular incident. 23

Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied
when the circumstances attendant upon the harm are themselves of such a character as to justify an inference of
negligence as the cause of that harm. 25 The application of res ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of law,
permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof
of negligence. 27 The reason is that the general rule on the necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which
may be testified to by anyone familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and experience
are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and
care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest
conditions which are observable by any one may be given by non-expert witnesses. 29 Hence, in cases where the res
ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient,
without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper
standard of care. 30 Where common knowledge and experience teach that a resulting injury would not have occurred to
the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how
and why it occurred. 31 When the doctrine is appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained while under the custody and management of the
defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur
is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for
injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the
body of the patient after an operation, 32 injuries sustained on a healthy part of the body which was not under, or in the
area, of treatment, 33 removal of the wrong part of the body when another part was intended, 34 knocking out a tooth
while a 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
exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of something more
unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that
particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a
physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. 38 The physician or surgeon is
not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment
did not produce the desired result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is
that the desired result of an operation or treatment was not accomplished. 40 The real question, therefore, is whether or
not in the process of the operation any extraordinary incident or unusual event outside of the routine performance
occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained
would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence.
41 If there was such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called
upon to explain the matter, by evidence of exculpation, if he could. 42

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage
sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res ipsa
loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court in applying the res
ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care,
custody and control of his physician who had complete and exclusive control over him, but the operation
was never performed. At the time of submission he was neurologically sound and physically fit in mind
and body, but he suffered irreparable damage and injury rendering him decerebrate and totally
incapacitated. The injury was one which does not ordinarily occur in the process of a mastoid operation or
in the absence of negligence in the administration of an anesthetic, and in the use and employment of an
endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia in the absence of negligence. Upon these facts and under
these circumstances a layman would be able to say, as a matter of common knowledge and observation,
that the consequences of professional treatment were not as such as would ordinarily have followed if
due care had been exercised.

Here the plaintiff could not have been guilty of contributory negligence because he was under the
influence of anesthetics and unconscious, and the circumstances are such that the true explanation of
event is more accessible to the defendants than to the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is
stated under the doctrine of res ipsa loquitur. 44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case, Erlinda
submitted herself for cholecystectomy and expected a routine general surgery to be performed on her gall bladder. On
that fateful day she delivered her person over to the care, custody and control of private respondents who exercised
complete and exclusive control over her. At the time of submission, Erlinda was neurologically sound and, except for a
few minor discomforts, was likewise physically fit in mind and body. However, during the administration of anesthesia and
prior to the performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing
surgery, she went out of the operating room already decerebrate and totally incapacitated. Obviously, brain damage,
which Erlinda sustained, is an injury which does not normally occur in the process of a gall bladder operation. In fact, this
kind of situation does not 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. 50 Reviewing witness Cruz' statements, we find that
the same were delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity which
would have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she experienced
difficulty in inserting the tube into Erlinda's trachea, to wit:

ATTY. LIGSAY:

Q: In this particular case, Doctora, while you were intubating at your first attempt (sic),
you did not immediately see the trachea?

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

Q: When you said "mahirap yata ito," what were you referring to?

A: "Mahirap yata itong i-intubate," that was the patient.

Q: So, you found some difficulty in inserting the tube?

A: Yes, because of (sic) my first attempt, I did not see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered hardship in
the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly deviated from the
normal anatomy of a person) 52 making it harder to locate and, since Erlinda is obese and has a short neck and
protruding teeth, it made intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the procedure. From their testimonies, it appears that the observation was
made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the
possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins when the
anesthesiologist reviews the patient's medical records and visits with the patient, traditionally, the day before elective
surgery. 53 It includes taking the patient's medical history, review of current drug therapy, physical examination and
interpretation of laboratory data. 54 The physical examination performed by the anesthesiologist is directed primarily
toward the central nervous system, cardiovascular system, lungs and upper airway. 55 A thorough analysis of the
patient's airway normally involves investigating the following: cervical spine mobility, temporomandibular mobility,
prominent central incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental distance. 56 Thus,
physical characteristics of the patient's upper airway that could make tracheal intubation difficult should be studied. 57
Where the need arises, as when initial assessment indicates possible problems (such as the alleged short neck and
protruding teeth of Erlinda) a thorough examination of the patient's airway would go a long way towards decreasing
patient morbidity and mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation
itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by
her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological 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 cardio-pulmonary
clearance like that, I usually don't do it except on emergency and on cases that have an
abnormalities (sic). 58

However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the fastidious
demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a few minutes before
surgery, if at all. Elective procedures, on the other hand, are operative procedures that can wait for days, weeks or even
months. Hence, in these cases, the anesthesiologist possesses the luxury of time to 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 ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda.
The development of abdominal distention, together with respiratory embarrassment indicates that the endotracheal tube
entered the esophagus instead of the respiratory tree. In other words, instead of the intended endotracheal intubation
what actually took place was an esophageal intubation. During intubation, such distention indicates that air has entered
the gastrointestinal tract through the esophagus instead of the lungs through the trachea. Entry into the esophagus would
certainly cause some delay in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place. That
abdominal distention had been observed during the first intubation suggests that the length of time utilized in inserting the
endotracheal tube (up to the time the tube was withdrawn for the second attempt) was fairly significant. Due to the delay
in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. 66 As stated in the testimony of Dr. Hosaka, the
lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda were already blue. 67 However, private
respondents contend that a second intubation was executed on Erlinda and this one was successfully done. We do not
think so. No evidence exists on record, beyond private respondents' bare claims, which supports the contention that the
second intubation was successful. Assuming that the endotracheal tube finally found its way into the proper orifice of the
trachea, the same gave no guarantee of oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was
again observed immediately after the second intubation. Proceeding from this event (cyanosis), it could not be claimed, as
private respondents insist, that the second intubation was accomplished. Even granting that the tube was successfully
inserted during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda already suffered
brain damage as a result of the inadequate oxygenation of her brain for about four to five minutes. 68
The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for one-
third (1/3) of deaths and serious injuries associated with anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the
vast majority of difficult intubations may be anticipated by performing a thorough evaluation of the patient's airway prior to
the operation. 70 As stated beforehand, respondent Dra. Gutierrez failed to observe the proper 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. 84 The
husband and the children, all petitioners in this case, will have to live with the day to day uncertainty of the patient's
illness, knowing any hope of recovery is close to nil. They have fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into account their life with a comatose patient. They, not the respondents,
are charged with the moral responsibility of the care of the victim. The family's moral injury and suffering in this case is
clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the
length and nature of the instant suit we are of the opinion that attorney's fees valued at P100,000.00 are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers of life and,
they rarely set out to intentionally cause injury or death to their patients. However, intent is immaterial in negligence cases
because where negligence exists and is proven, the same automatically gives the injured a right to reparation for the
damage caused.

Established medical procedures and practices, though in constant flux are devised for the purpose of preventing
complications. A physician's experience with his patients would sometimes tempt him to deviate from established
community practices, and he may end a distinguished career using unorthodox methods without incident. However, when
failure to follow established procedure results in the evil precisely sought to be averted by observance of the procedure
and a nexus is made between the deviation and the injury or damage, the physician would necessarily be called to
account for it. In the case at bar, the failure to observe pre-operative assessment protocol which would have influenced
the intubation in a salutary way was fatal to private respondents' case.

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in
favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages
computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that
petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages and attorney's fees; and, 5) the costs of the suit.

SO ORDERED.