FIRST DIVISION

[G.R. No. 4977. March 22, 1910. ]

DAVID TAYLOR, Plaintiff-Appellee, v. THE MANILA ELECTRIC RAILROAD AND

LIGHT COMPANY, Defendant-Appellant.

W.H. Lawrence, for Appellant.

W.L. Wright, for Appellee.

SYLLABUS

1. LIABILITY FOR DAMAGES; CONTRIBUTORY NEGLIGENCE. — When the immediate

cause of an accident resulting in an injury is the plaintiff’s own act, which contributed to
the principal occurrence as one of its determining factors, he can not recover damages
for the injury.

DECISION

CARSON, J. :

An action to recover damages for the loss of an eye and other injuries, instituted by
David Taylor, a minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and
an electric light system in the city of Manila. Its power plant is situated at the eastern
end of a small island in the Pasig River within the city of Manila, known as the Isla del
Provisor. The power plant may be reached by boat or by crossing a footbridge,
impassable for vehicles, at the westerly end of the island.

The plaintiff, David Taylor, was at the same time when he received the injuries
complained of, 15 years of age, the son of a mechanical engineer, more mature than
the average boy of his age, and having considerable aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about
12 years of age, crossed the footbridge of the Isla del Provisor, for the purpose of
visiting one Murphy, an employee of the defendant, who had promised to make them a
cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not in his
quarters, the boys, impelled apparently by youthful curiosity and perhaps by the
unusual interest which both seem to have taken in machinery, spent some time in
wandering about the company’s premises. The visit made on a Sunday afternoon, and it
does not appear that they saw or spoke to anyone after leaving the power house where
they had asked for Mr. Murphy.

After watching the operation of the traveling crane used in handling the defendant’s
coal, they walked across the open space in the neighborhood of the place where the
company dumped the cinders and ashes from its furnaces. Here they found some
twenty or thirty brass fulminating caps scattered on the ground. These caps are
approximately of the size and appearance of small pistol cartridges and each has
attached to it two long thin wires by means of which it may be discharged by the use of
electricity. They are intended for use in the explosion of blasting charges of dynamite,
and have in themselves considerable explosive power. After some discussion as to the
ownership of caps, and their right to take them, the boys picked up all they could find,
hung them of a stick, of which each took one end, and carried them home. After
crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old,
and all three went to the home of the boy Manuel. The boys then made a series of
experiments with the caps. They thrust the ends of the wires into an electric light
socket and obtained no result. They next tried to break the cap with a stone and failed.
Manuel looked for a hammer, but could not find one. They then opened one of the caps
with a knife, and finding that it was filled with a yellowish substance they got matches,
and David held the cap while Manuel applied a lighted match to the contents. An
explosion followed, causing more or less serious injuries to all three. Jessie, who, when
the boys proposed purring a match to the contents of the cap, became frightened and
started to run away, received a slight cut in the neck. Manuel had his hand burned and
wounded, and David was struck in the face by several particles of the metal capsule,
one of which injured his right eye to such an extent as to necessitate its removal by the
surgeons who were called in to care for his wounds.

The evidence does not definitely and conclusively disclose how the caps came to be on
the defendant’s premises, not how long they had been there when the boys found
them. It appeared, however, that some months before the accident, during the
construction of the defendant’s plant, detonating caps of the same kind as those found
by the boys were used in sinking a well at the power plant near the place where the
caps were found; and it also appears that at or about the time when these caps were
found, similar caps were in use in the construction of an extension of defendant’s street
car line to Fort William McKinley. The caps when found appeared to the boys who
picked them up to have been lying there for a considerable time, and from the place
where they were found would seem to have been discarded as defective or worthless
and fir only to be thrown upon the rubbish heap.

No measures seem to have been adapted by the defendant company to prohibit or

prevent visitors from entering and walking about its premises unattended, when they
felt disposed as to do. As admitted in defendant counsel’s brief, "it is undoubtedly true
that children in their play sometimes crossed the footbridge to the island;" and, we may
add, roamed about at will on the unenclosed premises of the defendant, in the
neighborhood of the place where the caps were found. There is no evidence that any
effort ever was made to forbid these children from visiting the defendant company’s
premises, although it must be assumed that the company or its employees were aware
of the fact that they not infrequently did so.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one
of the interisland transports. later he took upon work in his father’s office learning
mechanical drawing and mechanical engineering. About a month after his accident he
obtained employment as a mechanical draftsman and continued in the employment for
six months at a salary of P2.50 a day; and it appears that he was a boy of more than
average intelligence, taller and more mature both mentally and physically than most
boys of fifteen.

The facts set our in the foregoing statement are to our mind fully and conclusively
established by the evidence of record, and are substantially admitted by counsel. The
only questions of fact which are seriously disputed are plaintiff’s allegations that the
caps which were found by plaintiff on defendant company’s premises were the property
of the defendant, or that they had come from its possession and control, and that the
company or some of its employees left them exposed on its premises at the point
where they were found.

The evidence in support of these allegations is meager, and the defendant company,
apparently relying on the rule of law which places the burden of proof of such
allegations upon the plaintiff, offered no evidence in rebuttal, and insists that plaintiff
failed in his proof. We think, however, the plaintiff’s evidence is sufficient to sustain a
findings in accord with his allegations in this regard.

It was proven that caps, similar to those found by the plaintiff, were used, more or less
extensively, on the McKinley extension of the defendant company’s track; that some of
these caps were used in blasting a well on the company’s premises a few months before
the accident; that not far from the place where the caps were found the company has a
storehouse for the materials, supplies, and so forth, used by it in its operations as a
street railway and a a purveyor of electric light; and that the place, in the neighborhood
of which the caps were found, was being used by the company as a short of dumping
ground for ashes and cinders. Fulminating caps or detonators for the discharge by
electricity of blasting charges by dynamite are not articles in common use by the
average citizen, and under all the circumstances, and in the absence of all evidence to
the contrary, we thing that the discovery of twenty or thirty of these caps at the place
where they were found by the plaintiff on defendant’s premises fairly justifies the
inference that the defendant company was either the owner of the caps in question or
had these caps under its possession and control. We think also that the evidence tends
to disclose that these caps or detonators were willfully and knowingly thrown by the
company or its employees at the spot where they were found, with the expectations
that they would be buried out of sight by the ashes which it was engaged in dumping in
that neighborhood, they being old and perhaps defective; and, however this may be,
we are satisfied that the evidence is sufficient to sustained a finding that the company
or some of employees either willfully or through an oversight left them exposed at a
point on its premises which the general public including children at play, were not
prohibited from visiting, and over which the company knew or ought to have known
that young boys were likely to roam abound in pastime or in play.

Counsel for appellant endeavors to weaken or destroy the probative value of the facts
on which these conclusions are based by intimating or rather assuming that the blasting
worked on the company’s well and on its McKinley extension was done by contractors.
It was conclusively proven, however, that while the workman employed in blasting the
well was regularly employed by J.G. White & Co., a firm of contractors, he did the work
on the well directly and immediately under the supervision and control of one of
defendant company’s foremen, and there is no proof whatever in the record that the
blasting on the McKinley extension was done by independent contractors. Only one
witness testified upon this point, and while he stated that he understood that a part of
this work was done by contract, he could not say so of his own knowledge, and knew
nothing of the terms and conditions of the alleged contract, or of the relations of the
alleged contractor to the defendant company. The fact having been proven that
detonating caps were more or less extensively employed on work done by the
defendant company’s directions and on its behalf, we think that the company should
have introduced the necessary evidence to support its contention if it wished to avoid
the not unreasonable inference that it was the owner of the material used in these
operations and that it was responsible for tortious of negligent acts of the agents
employed therein, on the ground that this work had been intrusted to independent
contractors as to whose acts the maxim respondent superior should not be applied. If
the company did not in fact own or make use of caps such as those found on its
premises, as intimated by counsel, it was a very simple matter for it to prove that fact,
and in the absence of such proof we think that the other evidence in the record
sufficiently establishes the contrary, and justifies the court in drawing the reasonable
inference that the caps found on its premises were its property, and were left where
they were found by the company or some of its employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff’s
favor, upon the provisions of article 1089 of the Civil Code read together with articles
1902, 1903, and 1908 of that Code.

"ART. 1089. Obligations are created by law, by contracts, by quasi—contracts, and by

illicit acts and omissions or by those in which any kind of fault or negligence occurs." cralaw virtua1aw library

"ART. 1902. Any person who by an act or omission causes damage to another when
there is fault or negligence shall be obliged to repair the damage so done.

"ART. 1903. The obligation imposed by the preceding article is demandable, not only for
personal acts and omission, but also for those of the persons for whom they should be
responsible.

"The father, and on his death or incapacity the mother, is liable for the damages caused
by the minors who alive with them.

x x x

"Owners or directors of an establishment or enterprises are equally liable for the

damages caused by their employees in the service of the branches in which the latter
may be employed or on account of their duties.

x x x

"The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damage." cralaw virtua1aw library

"ART. 1908. The owners shall be also be liable for the damages caused —

"1. By the explosion of machines which may not have been cared for with due diligence,
and for kindling of explosive substance which may not have been placed in a safe and
proper place." cralaw virtua1aw library

Counsel for defendant and appellant rests his appeal strictly upon his contention that
the facts proven at the trial do not establish the liability of the defendant company
under the provisions of these articles, and since we agree with this view of the case, it
is not necessary for us to consider the various questions as to the form and the right of
action (analogous to those raised in the case of Rakes v. Atlantic, Gulf & Pacific Co., 7
Phil. Rep., 359), which would perhaps, be involved in a decision affirming the judgment
of the court below.

We agree with counsel for appellant that under the Civil Code, as under the generally
accepted doctrine in the United States, the plaintiff in an action such as that under
consideration, in order to establish his right to a recovery, must establish by competent
evidence: chanrob1es virtual 1aw library

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for
whose acts it must respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage.

The propositions are, or course, elementary, and do not admit of discussion, the real
difficulty arising in the application of these principles to the particular facts developed in
the case under consideration.

It is clear that the accident could not have happened had not the fulminating caps been
left exposed at the point where they were found, or if their owner had exercised due
care in keeping them in a appropriate place; but it is equally clear that plaintiff would
not have been injured had he not, for his own pleasure and convenience, entered upon
defendant’s premised, and strolled around thereon without the express permission of
the defendant, and had he not picked up and carried away the property of the
defendant which he found on its premises, and had he not thereafter deliberately cut
open one of the caps and applied a match to its contents.

But counsel for plaintiff contends that because of plaintiff’s youth and inexperience, his
entry upon defendant company’s premises, and the intervention of his action between
the negligent act of defendant in leaving the caps exposed on its premises and the
accident which resulted in his injury should not be held to have contributed in any wise
accident, which should be deemed to be the direct result of defendant’s negligence in
leaving the caps exposed at the pace where they were found by the plaintiff, and this
latter the proximate cause of the accident which occasioned the injuries sustained by
him.

In support of his contention, counsel for plaintiff relied on the doctrine laid down in
many of the courts of last result in the United States in the cases known as the
"Torpedo" and "Turntable" cases, and the cases based thereon.

In the typical cases, the question involved has been whether a railroad company is
liable for an injury received by an infant of tender years, who from mere idle curiosity,
or for purposes of amusement, enters upon the railroad company’s premises, at a place
where the railroad company’s premises, at a place where the railroad company knew,
or had a good reason to suppose, children who would likely to come, and there found
explosive signal torpedoes left exposed by the railroad company’s employees, one of
which when carried away by the visitor, exploded and injured him; or where such infant
found upon the premises a dangerous machine, such as a turntable left in such
condition as to make it probable that children in playing with it would be exposed to
accident or injury therefrom and where the infant did in fact suffer injury in playing with
such machine.

In these, and in a great variety of similar cases, the great weight of authority holds the
owner of the premises liable.

As laid down in Railroad Co. v. Stout (17 Wall. (84 U.S.) , 657), (wherein the principal
question was whether a railroad company was liable for an injury received by an infant
while upon its premises, from idle curiosity, or for purposed of amusement, if such
injury was, under the circumstances, attributable to the negligence of the company),
the principles on which these cases turn are that "while railroad company is not bound
to the same degree of care in regard to mere strangers who are unlawfully upon its
premises that it owes to passengers conveyed by it, it is not exempt from responsibility
to such strangers for injuries arising from its negligence or from its tortious acts;" and
that "the conduct of an infant of tender years is not to be judged by the same rule
which governs that of an adult. While it is the general rule in regard to an adult that to
entitle him to recover damages for an injury resulting from the fault or negligence of
another he must himself have been free from fault, such is not the rule in regard to an
infant of tender years. The care and caution required of a child is according to his
maturity and capacity only, and this is to be determined in such case by the
circumstances of the case." cralaw virtua1aw library

The doctrine of the case of Railroad Company v. Stout was vigorously controverted and
sharply criticized in severally state courts, and the supreme court of Michigan in the
case of Ryan v. Towar (128 Mich., 463) formally repudiated and disapproved the
doctrine of the Turntable cased, especially that laid down in Railroad Company v. Stout,
in a very able decision wherein it held, in the language of the syllabus: (1) That the
owner of land is not liable to trespassers thereon for injuries sustained by them, not
due to his wanton or willful acts; (2) that no exception to this rule exists in favor of
children who are injured by dangerous machinery naturally calculated to attract them to
the premises; (3) that an invitation of license to cross the premises of another can not
be predicated on the mere fact that no steps have been taken to interfere with such
practice; (4) that there is no difference between children and adults of an invitation or a
license to enter upon another’s premises.

Similar criticisms of the opinion in the case of Railroad Company v. Stout were indulged
in by the courts in Connecticut and Massachusetts. (Nolan v. Railroad Co., 53 Conn.,
461; 154 Mass., 349). And the doctrine has been questioned in Wisconsin,
Pennsylvania, New Hampshire, and perhaps in other States.

On the other hand, many if not most of the courts of last resort in the United States,
citing and approving the doctrine laid down in England in the leading case of Lynch v.
Nurding (1 Q.B., 29, 35, 36), lay down the rule in these cases in accord with that
announced in Railroad Company v. Stout (supra), and the Supreme Court of the United
States, in a unanimous opinion delivered by Justice Harlan in the case of Union Pacific
Railway Co. v. McDonald (152 U.S, 262) on the 5th of March, 1894, reexamined and
reconsidered the doctrine laid down in Railroad Co. v. Stout, and after an exhaustive
and critical analysis and review of may of the adjudged cases, both English and
America, formally declared that it adhered "to the principles announced in the case of
Railroad Co. v. Stout."cralaw virtua1aw library

In the case of Union Pacific Railway Co. v. McDonald (supra) the facts were as follows:
The plaintiff, a boy 12 years of age, our of curiosity and for his own pleasure, entered
upon and visited the defendant’s premises, without defendant’s express permission or
invitation, and, while there, was by an accident injured by failing into a burning slack
pile of whose existence he had knowledge, but which had been left by defendant on its
premises without any fence around it or anything to give warning of its dangerous
condition, although defendant knew or had reason to believe that it was in a place
where it would attract the interest or curiosity of passers-by. On these facts the court
held that the plaintiff could not be regarded as a mere trespasser, for whose safety and
protection while on the premises in question, against the unseen danger referred to,
the defendant was under no obligation to make provision.

We quote at length from the discussion by the court of the application of the principles
involved to the facts in that case, because what is said there is strikingly applicable in
the case at bar, and would seem to dispose of defendant’s contention that, the plaintiff
in this case being a trespasser, the defendant’s company owed him no duty, and in no
case could be held liable for injuries which would not have resulted but for the entry of
plaintiff on defendant’s premises.

"We adhere to the principle announced in Railroad Co., v. Stout (supra). Applied to the
case now before us, they require us to hold that the defendant was guilty of negligence
in leaving unguarded the slack pile, made by it in the vicinity of its depot building. It
could have forbidden all the persons from coming to its coal mine for purposes merely
of curiosity and pleasure. But it did not do so. On the contrary, it permitted all, without
regard to age, to visit its mine, and witness its operation. It knew that the usual
approach to the mine was by a narrow path skirting its slack pit, close to its depot
building, at which the people of the village, old and young, would often assemble. It
knew that children were in the habit of frequenting that locality and playing around the
shaft house in the immediate vicinity of the slack pit. The slightest regard for the safety
of these children would have suggested that they were in danger from being so near a
pit, beneath the surface of which was concealed (except when snow, wind, or rain
prevailed) a mass of burning coals into which a child might accidentally fall and be
burned to death. Under all the circumstances, the railroad company ought not to be
heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the
vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose
protection it was under no obligation to make provisions.

"In Townsend v. Wathen (9 East., 277, 281) it was held that if a man place dangerous
traps, baited with flesh, in his own ground, so near to a highway, or to the premises of
another, that dogs passing along the highway, or kept in his neighbors premises, would
probably be attracted by their instinct into the traps, and in consequence of such act his
neighbor’s dog be so attracted and thereby injured, an action on the case would
lie.’What difference,’ said Lord Ellenborough, C.J., ’is there a reason between drawing
the animal into the trap by means of his instinct which he can not resist, and putting
him there by manual force?’ What difference, in reason we may observe in this case, is
there between an express license to the children of this village to visit the defendant’s
coal mine, in the vicinity of its slack pile, and an implied license, resulting from the
habit of the defendant to permit them, without objection or warning, to do so at will, for
purposes of curiosity or pleasure? Referring to the case of Townsend v. Wathen, Judge
Thompson, in his work on the Law of negligence, volume 1, page 305, note, well ways:
"It would be a barbarous rule of law that would make the owner of land liable for
setting a trap thereon, baited with stinking meat, so that his neighbor’s dog attracted
by his natural instincts, might run into it and be killed, and which would exempt him
from liability for the consequences of leaving exposed and unguarded on his land a
dangerous machine, so that his neighbor’s child attracted to it and tempted to
intermeddle with it by instincts equally strong, might thereby be killed of maimed for
life."
cralaw virtua1aw library

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case
of Powers v. Marlow (53 Mich., 507), said that (p. 515): jgc:chanrobles.com.ph

"Children, wherever they go, must be expected to act upon childlike instincts and
impulses; and others who are chargeable with a duty of care and caution toward them
must calculate upon this, and take precautions accordingly. If they leave exposed to the
observation of children anything which would be tempting to them, and which they in
their immature judgment might naturally suppose they were at liberty to handle or play
with, they should expect that liberty to be taken." cralaw virtua1aw library

And the same eminent jurist in his treaties on torts, alluding to the doctrines of implied
invitations to visit the premises of another, says:
jgc:chanrobles.com.ph

"In the case of young children, and other persons not fully sui juris, an implied license
might sometimes arise when it would not on behalf of others. Thus leaving a tempting
thing for children to play with exposed, where they would be likely to gather for that
purpose, may be equivalent to an invitation to them to make use of it; and, perhaps if
one were to throw away upon his premises, near the common way, things tempting to
children, the same implication should arise." (Chap. 10, p. 303.)

The reasoning which led the Supreme Court of the United States to its conclusions in
the cases of Railroad Co., v. Stout (supra) and Union Pacific Railroad Co. v. McDonald
(supra) is not less cogent and convincing in this jurisdiction than in that than in that
wherein those cases originated. Children here are actuated by similar childish instincts
and impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here
as well as there will usually be found wherever the public permitted to congregate. The
movement of machinery, and indeed anything which arouses the attention of the young
and inquiring mind, will draw them to the neighborhood as inevitably as does the
magnet draw the iron which comes within the range of its magnetic influence. The
owners of premises, therefore, whereon things attractive to children are exposed, or
upon which the public are expressively or impliedly permitted to enter to or upon which
the owner knows or ought to know children are likely to roam about for pastime and in
play, "must calculate upon this, and take precautions accordingly." In such cases the
owner of the premises can not be heard to say that because the child has entered upon
his premises without his express permission he is a trespasser to whom the owner owes
no duty or obligation whatever. The owner’s failure to take reasonable precautions to
prevent the child form entering premises at a place where he knows or ought to know
that children are accustomed to roam about or to which their childish instincts and
impulses are likely to attract them is at least equivalent to an implied license to enter,
and where the child does not enter under such conditions the owner’s failure to make
reasonable precaution to guard the child against the injury from unknown or unseen
dangers, placed upon such premises by the owner, is clearly a breach of duty, a
negligent omission, for which he may and should be held responsible, if the child is
actually injured, without other fault on its part than that it had entered on the premises
of a stranger without his express invitation or permission. To hold otherwise would be
expose to all the children in the community to unknown perils and unnecessary danger
at the whim of the owners or occupants of land upon which they might naturally and
reasonably be expected to enter.

This conclusion is founded on reason, justice, and necessary, and neither the contention
that a man has a right to do what he will with his own property of that children should
be kept under the care of the parents or guardian, so as to prevent their entering on
the premises of others is of sufficient weight to put it in doubt. In this jurisdiction as
well as in the United States all private property is acquired and held under the tacit
condition that it shall not be so used as to injure the equal rights of others or greatly
impair the public rights and interests of the community (see U.S. v. Toribio, 1 No.
5060, decided January 26, 1910), and except as to infants of very tender years it would
be absurd and unreasonable in community organized as is that in which we live to hold
that parents or guardians are guilty of negligence or imprudence in every case wherein
they permit growing boys and girls to leave the parental roof unattended, even if in the
event of accident to the child the negligence of the parents could in any event be
imputed to the child so as to deprive it of a right to recover in such cases — a point
which we neither discuss not decide.

But while we hold that the entry of the plaintiff upon defendant’s property without
defendant’s express invitation or permission would not have relieved defendant from
responsibility for injuries incurred there by the plaintiff, without other fault on his part,
if such injury were attributable to the negligence of the defendant, we are of opinion
that under all the circumstances of this case the negligence of the defendant in leaving
the caps exposed on its premises was not the proximate cause of the injury received by
the plaintiff, which therefore was not, properly speaking, "attributable to the negligence
of the defendant," and, on the other hand, we are satisfied that plaintiff’s action in
cutting open the detonating cap and putting a match to its contents was the proximate
cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that
the defendant, therefore, is not civilly responsible for the injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because
of plaintiff’s youth the intervention of his action between the negligent act of the
defendant leaving the caps exposed on its premises and the explosion which resulted in
his injury should not be held to have contributed in any wise to the accident; and it is
because we can not agree with this proposition, although we accept the doctrine on the
Turntable and Torpedo cases, that we have thought of proper to discuss and to consider
that doctrine at length in this decision. As was said in case of Railroad Co. v. Stout
(supra), "While it is the general rule in regard to an adult that entitle him to recover
damages for an injury resulting from the fault or negligence of another he must himself
have been free from fault, such is not the rule in regard to an infant of tender years.
The care and caution required of a child is according to his maturity and capacity only,
and this is to be determined in each case by the circumstance of the case." As we think
we have shown, under the reasoning on which rests the doctrine of the Turntable and
Torpedo cases, no fault which would relieve defendant of responsibility for injuries
resulting from negligence can be attributed to the plaintiff, a well-grown boy of 15
years of age, because of his entry upon defendant’s uninclosed premises without
express permission or invitation; but it is a wholly different question whether such a
youth can be said to have been free from fault when he willfully and deliberately cut
upon the detonating cap, and placed a match to the contents, knowing, as he
undoubtedly did, that his action would result in an explosion. On this point, which must
be determined by "the particular circumstances of this case," the doctrine laid down in
the Turntable and Torpedo cases lends us no direct aid, although it is worthy of
observation that in all of the "Torpedo" and analogous cases to which our attention has
been directed, the record discloses that the plaintiffs, is whose favor judgments have
been affirmed, were of such tender years that they were held not to have the capacity
to understand the nature or character of the explosive instruments which fell into their
hands.

In the case at bar, plaintiff at the time of the accident was well—grown youth of 15,
more mature both mentally and physically than the average boy of his age; he had
been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman
thirty days after the injury was incurred; and the record discloses throughout that he
was exceptionally well qualified to take care. The evidence of record leaves no room for
doubt that, despite his denials on the witness stands, he well knew the explosive
character of the cap with which he was amusing himself. The series of experiments
made by him in his attempt to produce an explosion, as described by the little girl who
was present, admit of no other explanation. His attempt to discharge the cap by the
use of electricity, followed by his efforts to explode it with a stone or a hammer, and
the final success of his endeavors brought about by the applications of a match to the
contents of the cap, show clearly that he knew what he was about. Nor can there be
any reasonable doubt that he had reason to anticipate that the explosion might be
dangerous, in view of the fact that the little girl, 9 years of age, who was with him at
the time when he put the match to the contents of the cap, became frightened and ran
away.

True, he may not have known and probably did not know the precise nature of the
explosion which might be expected from the ignition of the contents of the cap, and of
course he did not anticipate the resultant injuries which he incurred; but he well knew
that a more or less dangerous explosion might be expected from his act, and yet he
willfully, recklessly, and knowingly produced the explosion. It would be going far to say
that "according to his maturity and capacity" he exercised such "care and caution" as
might reasonably be required of him, or that the defendant or anyone else should be
held civilly responsible for injuries incurred by him under such circumstances.

The law fixed no arbitrary age at which a minor can be said to have the necessary
capacity to understand and appreciate the nature and consequences of his own acts, so
as to make it negligence on his part to fail to exercise with due care an precaution in
the commission of such acts; and indeed it would be impracticable and perhaps
impossible so to do, for in the very nature of things the question of negligence
necessarily depends on the ability of the minor to understand the character of his own
acts and their consequences; and the age at which a minor can be said to have such
ability will necessarily vary in accordance with the varying nature of the infinite variety
of acts which may be done by him. But some idea of the presumed capacity of infants
under the laws in force in these Islands may be gathered from an examination of the
varying ages fixed by our laws at which minors are conclusively presumed to be capable
to exercising certain rights and incurring certain responsibilities, through it can not be
said that these provisions of law are of much practical assistance in cases such as that
at bar, except so far as they illustrate the rule that the capacity of a minor to become
responsible for his own acts varies with the varying circumstances of each case. Under
the provisions of the Penal code a minor over fifteen years of age is presumed to be
capable of committing a crime and is to be held criminally responsible therefore,
although the fact that he is less than eighteen years of age will be taken into
consideration as an extenuating circumstance (Penal code, arts, 8 and 9). At 10 years
of age a child may, under certain circumstances, choose which parent it prefers to live
with (Code of Civil Procedure, sec. 771). At 14 it may petition for the appointment of a
guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And
males of 14 and females of 12 are capable of contracting of legal marriage (Civil Code,
art. 83; G.O., No., 68, sec. 1).

We are satisfied that the plaintiff in this case had sufficient capacity and understanding
to be sensible to the danger to which he exposed himself when he put the match to the
contents of the cap; that he was sui juris in the sense that his age and his experience
qualified him to understand and appreciate the necessity for the exercise of that degree
of caution which would have avoided the injury which resulted from his own deliberate
act; and that the injury incurred by him must be held to have been the direct and
immediate result of his own willful and reckless act, so that while it may be true that
these injuries would not have been incurred but for the negligent act of the defendant
in leaving the caps exposed on its premises, nevertheless plaintiff’s own act was the
proximate and principal cause of the accident which inflicted the injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur
damnum sentire. (Digest, book 50, tit. 17, rule 203.)

The partidas contain the following provisions: jgc:chanrobles.com.ph

"The just thing is that a man should suffer the damage which comes to him through his
own fault, and that he can not demand reparation therefore from another." (Law 25, tit.
5 Partida 3.)

"And they even said that when a man received an injury through his own negligence he
should blame himself for it." (Rule 22, tit. 34 Partida 7.)

"According to ancient sages, when a man received an injury through his own acts the
grievance should be against himself and not against another." (Law 2, tit. 7 Partida 2.)

And while there does not appear to be anything in the Civil Code which expressly lays
down the law touching contributory negligence in this jurisdiction, nevertheless, the
interpretation placed upon its provisions by the supreme court of Spain, and by this
court in the case of Rakes v. Atlantic Gulf and Pacific Co., (7 Phil. Rep., 359), clearly
deny to the plaintiff in the case at bar the right to recover damages from the defendant,
in whole or in part, for the injuries sustained by him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93
Jurispredencia Civil, 391), is directly in point. In that case the court said: jgc:chanrobles.com.ph

"According to the doctrine expressed in article 1902 of the Civil Code, fault or
negligence is a source of obligation when between such negligence and the injury there
exists, the relation of cause and effect: but if the injury produced should not be the
result of acts or omissions of a third party, the latter has no obligation to repair the
same, although such acts or omissions were imprudent or unlawful, and much less
when it is shown that the immediate cause of the injury was the negligence of the
injured party himself." cralaw virtua1aw library

The same court, in its decision of June 12, 1900, said that "the existence of the alleged
fault or negligence is not sufficient without proof that it, and no other cause, gave rise
to the damage." cralaw virtua1aw library

See also judgment of October 21, 1903.

To similar effect Scaevola, the learned Spanish writer, writing under that title in his
Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of
March 7, 1902, says that "in accordance with the doctrine expressed by article 1902 of
the Civil Code, fault or negligence gives rise to an obligation when between it and the
damage there exists the relation of cause and effect’ but if the damage caused does not
arise from acts or omissions of a third person, there is no obligation to make good upon
the latter, even though such acts or omissions be imprudent or illegal, and much less so
when it is shown that the immediate cause of the damage has been the recklessness
the injured party himself." cralaw virtua1aw library

And again —

"In accordance with the fundamental principle of proof, that the burden thereof is upon
the plaintiff, it is apparent that it is the duty of him who shall claim damages to
establish their existence. The decisions of April 9, 1896, and March 18, July 6, and
September 27, 1898, have especially supported the principle, the first setting forth in
detail the necessary points of the proof, which are two: An act or omission on the part
of the person who is to be charged with the liability, and the production of the damage
by said act or omission.

"This includes, by inference, the establishment of a relation of cause or effect between

the act or the omission and the damage; the latter must be direct result of one of the
first two. As the decision of March 22, 1881, said, it is necessary that damages result
immediately and directly from an act performed culpably and wrongfully’ ’necessarily
presupposing a legal ground for imputability.’" (Decision of October 29, 1877.)

"Negligence is not presumed, but be proven by him who alleges it." (Scaevola,
Jurisprudencia del Codigo Civil, vol. 6, pp. 551, 552.)
(Cf. decisions of supreme court of Spain of June 12, 1900. and June 23, 1900.)

Finally, we think the doctrine is in this jurisdiction applicable to the case at bar was
definitely settled in this court in the maturely considered case of Rakes v. Atlantic, Gulf
and Pacific Co. (supra), wherein we held that while "There are many cases (personal
injury cases) in the supreme court of Spain in which the defendant was exonerated." on
the ground that "the negligence of the plaintiff was immediate cause of the casualty"
(decisions of the 15th of January, the 19th of February, and the 7th of March, 1902,
stated in Alcubilla’s Index of that year); none of the cases decided by the supreme
court of Spain "define the effect to be given the negligence of a plaintiff which
contributed to his injury as one of its causes, though not the principal one, and we left
to seek the theory of the civil law in the law in the practice of another countries;" and in
such cases we declared the law in this jurisdiction to require the application of ’the
principle of proportional damages," but expressly and definitely denied the right of
recovery when the acts of the injured party were the immediate causes of the accident.

The doctrine as laid down in that case as follows: jgc:chanrobles.com.ph

"Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be
made between the accident and the injury, between the event itself, without which
there could have been no accident, and those acts of the victim not entering into it,
independence of it, but contributing to his own proper hurt. For instance, the cause of
the accident under review was the displacement of the crosspiece or the failure to
replace it. This produced the event giving occasion for damages — that is, sinking of
the track and the sliding of the iron rails. To this event, the act of the plaintiff in
walking by the side of the car did not contribute, although it was an element of the
damage which came to himself. Had the crosspiece been out of place wholly or partly
through this act or omission of duty, that would have been one of the determining
causes of the event or accident, for which he would have been responsible. Where he
contributes to the principal occurrence, as one of its determining factors, he can not
recover. Where, in conjunction with the occurrence, he contributes only to his own
injury, he may recover the amount that the defendant responsible for the event should
pay for such injury, less a sum deemed a suitable equivalent for his own imprudence."
library
cralaw virtua1aw

We think it is quite clear that under the doctrine thus stated, the immediate cause of
the explosion , the accident which resulted in plaintiff’s injury, was his own act of
putting a match to the contents of the cap, and that having "contributed to the principal
occurrence, as one of its determining factors, he can not recover." cralaw virtua1aw library

We have not deemed it necessary to examine the effect of plaintiff’s action in picking up
upon defendant’s premises the detonating caps, the property of the defendant, and
carrying them sway to the home of his friend, as interrupting the relation of cause and
effect between the negligent act or omission of the defendant in leaving the caps
exposed on its premises and the injuries inflicted upon the plaintiff by the explosion of
one of these caps. Under the doctrine of the Torpedo cases, such action on the part of
an infant of very tender years would have no effect in relieving defendant of
responsibility, but whether in view of the well known facts admitted in defendant’s brief
that "boys are snappers-up of unconsidered trifles," a youth of the age and maturity of
plaintiff should be deemed without fault in picking up the caps in question under all the
circumstances of this case, we neither discuss not decide.

Twenty days after the date of this decision let judgment be entered reversing the
judgment of the court below, without costs to either party in this instance, and ten days
thereafter let the record be returned to the court wherein it originated, where judgment
will be entered in favor of the defendant for the costs in first instance and the complaint
dismissed without day. So ordered.

Arellano, C.J., Torres and Moreland, JJ., concur.

Johnson, J., concurs in the result.

Endnotes:

G.R. No. L-4977 March 22, 1910

Lessons Applicable:
Elements of quasi-delict (Torts and Damages)
Good Father of a Family (Torts and Damages)

FACTS:
 September 30, 1905 Sunday afternoon: David Taylor, 15 years of age,
the son of a mechanical engineer, more mature than the average boy of
his age, and having considerable aptitude and training in mechanics with
a boy named Manuel Claparols, about 12 years of age, crossed the
footbridge to the Isla del Provisor, for the purpose of visiting Murphy, an
employee of the defendant, who and promised to make them a cylinder
for a miniature engine
 After leaving the power house where they had asked for Mr.
Murphy, they walked across the open space in the neighborhood of the
place where the company dumped in the cinders and ashes from its
furnaces
 they found some twenty or thirty brass fulminating caps
scattered on the ground
 These caps are approximately of the size and appearance
of small pistol cartridges and each has attached to it 2 long thin wires by
means of which it may be discharged by the use of electricity
 They are intended for use in the explosion of blasting
charges of dynamite, and have in themselves a considerable explosive
power
 the boys picked up all they could find, hung them on stick, of which
each took end, and carried them home
 After crossing the footbridge, they met Jessie Adrian, less than 9
years old, and they went to Manuel's home
 The boys then made a series of experiments with the caps
 trust the ends of the wires into an electric light socket - no
result
 break the cap with a stone - failed
 opened one of the caps with a knife, and finding that it was filled
with a yellowish substance they got matches
 David held the cap while Manuel applied a lighted match to
the contents
 An explosion followed, causing more or less serious
injuries to all three
 Jessie, who when the boys proposed putting a
match to the contents of the cap, became frightened and started to run
away, received a slight cut in the neck
 Manuel had his hand burned and wounded
 David was struck in the face by several
particles of the metal capsule, one of which injured his right eye to such
an extent as to the necessitate its removal by the surgeons
 Trial Court: held Manila Electric Railroad And Light Company liable
ISSUE:

1. W/N the elemnents of quasi-delict to make Manila Electric Railroad And

Light Company liable - NO
2. W/N Manila Electric Railroad and Light Co. sufficiently proved that they
employed all the diligence of a good father of a family to avoid the damage -
NO

HELD: reversing the judgment of the court below

ART. 1089 Obligations are created by law, by contracts, by quasi-contracts,

and illicit acts and omissions or by those in which any kind of fault or
negligence occurs.

ART. 1902 A person who by an act or omission causes damage to another

when there is fault or negligence shall be obliged to repair the damage so
done.

ART. 1903 The obligation imposed by the preceding article is demandable,

not only for personal acts and omissions, but also for those of the persons
for whom they should be responsible.

The father, and on his death or incapacity the mother, is liable for the
damages caused by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable for
damages caused by their employees in the service of the branches in which
the latter may be employed or on account of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a good
father of a family to avoid the damage.

ART. 1908 The owners shall also be liable for the damage caused —
1 By the explosion of machines which may not have been cared for with due
diligence, and for kindling of explosive substances which may not have been
placed in a safe and proper place.

 in order to establish his right to a recovery, must establish by

competent evidence:
1. Damages to the plaintiff
2. Negligence by act or omission of which defendant personally, or some person for
whose acts it must respond, was guilty.
3. The connection of cause and effect between the negligence and the damage.
 while we hold that the entry upon the property without express
invitation or permission would not have relieved Manila Electric from
responsibility for injuries incurred, without other fault on his part, if such
injury were attributable to his negligence, the negligence in leaving the
caps exposed on its premises was not the proximate cause of the injury
received
 cutting open the detonating cap and putting match to its
contents was the proximate cause of the explosion and of the resultant
injuries inflicted
 Manila Electric is not civilly responsible for the injuries thus
incurred
 2 years before the accident, David spent 4 months at sea, as a cabin
boy on one of the interisland transports. Later he took up work in his
father's office, learning mechanical drawing and mechanical engineering.
About a month after his accident he obtained employment as a
mechanical draftsman and continued in that employment for 6 months at
a salary of P2.50 a day; and it appears that he was a boy of more than
average intelligence, taller and more mature both mentally and physically
than most boys of 15
 The series of experiments made by him in his attempt to
produce an explosion, as described by Jessie who even ran away
 True, he may not have known and probably did not know the precise nature of
the explosion which might be expected from the ignition of the contents of the cap,
and of course he did not anticipate the resultant injuries which he incurred; but he
well knew that a more or less dangerous explosion might be expected from his act,
and yet he willfully, recklessly, and knowingly produced the explosion. It would be
 going far to say that "according to his maturity and capacity" he exercised such and
"care and caution" as might reasonably be required of him, or that defendant or
anyone else should be held civilly responsible for injuries incurred by him under
such circumstances.
 The law fixes no arbitrary age at which a minor can be said to have the
necessary capacity to understand and appreciate the nature and
consequences of his own acts, so as to make it negligence on his part to
fail to exercise due care and precaution in the commission of such acts;
and indeed it would be impracticable and perhaps impossible so to do, for
in the very nature of things the question of negligence necessarily
depends on the ability of the minor to understand the character of his
own acts and their consequences
 he was sui juris in the sense that his age and his experience qualified
him to understand and appreciate the necessity for the exercise of that
degree of caution which would have avoided the injury which resulted
from his own deliberate act; and that the injury incurred by him must be
held to have been the direct and immediate result of his own willful and
reckless act, so that while it may be true that these injuries would not
have been incurred but for the negligence act of the defendant in leaving
the caps exposed on its premises, nevertheless plaintiff's own act was the
proximate and principal cause of the accident which inflicted the injury
 rule of the Roman law was: Quod quis ex culpa sua damnum sentit,
non intelligitur sentire
 just thing is that a man should suffer the damage which comes
to him through his own fault, and that he can not demand reparation
therefor from another
 Negligence is not presumed, but must be proven by him who alleges
it.

[G.R. No. 70890. September 18, 1992.]

CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON. INTERMEDIATE

APPELLATE COURT, FELIPE GOTIONG and SHIRLEY GOTIONG, Respondents.

Alex Y. Tan, for Petitioners.

Mario D. Ortiz and Danilo V. Ortiz for Private Respondents.

SYLLABUS
1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY ARISING
FROM CRIMINAL OFFENSES COMMITTED BY THEIR MINOR CHILDREN; RULE. — The
parents are and should be held primarily liable for the civil liability arising from criminal
offenses committed by their minor children under their legal authority or control, or
who live in their company, unless it is proven that the former acted with the diligence of
a good father of a family to prevent such damages. That primary liability is premised on
the provisions of Article 101 of the Revised Penal Code with respect to damages ex
delicto caused by their children 9 years of age or under, or over 9 but under 15 years of
age who acted without discernment; and, with regard to their children over 9 but under
15 years of age who acted with discernment, or 15 years or over but under 21 years of
age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code.
Under said Article 2180, the enforcement of such liability shall be effected against the
father and, in case of his death or incapacity, the mother. This was amplified by the
Child and Youth Welfare Code which provides that the same shall devolve upon the
father and, in case of his death or incapacity, upon the mother or, in case of her death
or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a
relative or family friend of the youthful offender. However, under the Family Code, this
civil liability is now, without such alternative qualification, the responsibility of the
parents and those who exercise parental authority over the minor offender. For civil
liability arising from quasi-delicts committed by minors, the same rules shall apply in
accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

DECISION

REGALADO, J.:

One of the ironic verities of life, it has been said, is that sorrow is sometimes a
touchstone of love. A tragic illustration is provided by the instant case, wherein two
lovers died while still in the prime of their years, a bitter episode for those whose lives
they have touched. While we cannot expect to award complete assuagement to their
families through seemingly prosaic legal verbiage, this disposition should at least
terminate the acrimony and rancor of an extended judicial contest resulting from the
unfortunate occurrence.

In this final denouement of the judicial recourse the stages whereof were alternately
initiated by the parties, petitioners are now before us seeking the reversal of the
judgment of respondent court promulgated on January 2, 1985 in AC-G.R. CV No.
69060 with the following decretal portion: jgc:chanrobles.com.ph

"WHEREFORE, the decision of the lower court dismissing plaintiff’s complaint is hereby
reversed; and instead, judgment is hereby rendered sentencing defendants, jointly and
solidarily, to pay to plaintiffs the following amounts: chanrobles.com : virtual law library

1. Moral damages, P30,000.000;

2. Exemplary damages, P10,000.00;

3. Attorney’s fees, P20,000.00, and costs.

However, denial of defendants-appellees’ counterclaims is affirmed." 1

Synthesized from the findings of the lower courts, it appears that respondent spouses
are the legitimate parents of Julie Ann Gotiong who, at the time of the deplorable
incident which took place and from which she died on January 14, 1979, was an 18-
year old first year commerce student of the University of San Carlos, Cebu City; while
petitioners are the parents of Wendell Libi, then a minor between 18 and 19 years of
age living with his aforesaid parents, and who also died in the same event on the same
date.

For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi
were sweethearts until December, 1978 when Julie Ann broke up her relationship with
Wendell after she supposedly found him to be sadistic and irresponsible. During the first
and second weeks of January, 1979, Wendell kept pestering Julie Ann with demands for
reconciliation but the latter persisted in her refusal, prompting the former to resort to
threats against her. In order to avoid him, Julie Ann stayed in the house of her best
friend, Malou Alfonso, at the corner of Maria Cristina and Juana Osmeña Streets, Cebu
City, from January 7 to 13, 1978.

On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound
inflicted with the same firearm, a Smith and Wesson revolver licensed in the name of
petitioner Cresencio Libi, which was recovered from the scene of the crime inside the
residence of private respondents at the corner of General Maxilom and D. Jakosalem
streets of the same city.

Due to the absence of an eyewitness account of the circumstances surrounding the

death of both minors, their parents, who are the contending parties herein, posited
their respective theories drawn from their interpretation of circumstantial evidence,
available reports, documents and evidence of physical facts.

Private respondents, bereaved over the death of their daughter, submitted that Wendell
caused her death by shooting her with the aforesaid firearm and, thereafter, turning the
gun on himself to commit suicide. On the other hand, Petitioners, puzzled and likewise
distressed over the death of their son, rejected the imputation and contended that an
unknown third party, whom Wendell may have displeased or antagonized by reason of
his work as a narcotics informer of the Constabulary Anti-Narcotics Unit (CANU), must
have caused Wendell’s death and then shot Julie Ann to eliminate any witness and
thereby avoid identification.
chanrobles.com:cralaw:red

As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the
then Court of First Instance of Cebu against the parents of Wendell to recover damages
arising from the latter’s vicarious liability under Article 2180 of the Civil Code. After
trial, the court below rendered judgment on October 20, 1980 as follows: jgc:chanrobles.com.ph

"WHEREFORE, premises duly considered, judgment is hereby rendered dismissing

plaintiffs’ complaint for insufficiency of the evidence. Defendants’ counterclaim is
likewise denied for lack of sufficient merit." 2

On appeal to respondent court, said judgment of the lower court dismissing the
complaint of therein plaintiffs-appellants was set aside and another judgment was
rendered against defendants-appellees who, as petitioners in the present appeal
by certiorari, now submit for resolution the following issues in this case:
chanrob1es virtual 1aw library

1. Whether or not respondent court correctly reversed the trial court in accordance with
established decisional laws; and

2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent
court to make petitioners liable for vicarious liability. 3

In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer
of Cebu, submitted his findings and opinions on some postulates for determining
whether or not the gunshot wound was inflicted on Wendell Libi by his own suicidal act.
However, undue emphasis was placed by the lower court on the absence of gunpowder
or tattooing around the wound at the point of entry of the bullet. It should be
emphasized, however, that this is not the only circumstance to be taken into account in
the determination of whether it was suicide or not.

It is true that said witness declared that he found no evidence of contact or close-
contact of an explosive discharge in the entrance wound. However, as pointed out by
private respondents, the body of deceased Wendell Libi must have been washed at the
funeral parlor, considering the hasty interment thereof a little after eight (8) hours from
the occurrence wherein he died. Dr. Cerna himself could not categorically state that the
body of Wendell Libi was left untouched at the funeral parlor before he was able to
conduct his autopsy. It will also be noted that Dr. Cerna was negligent in not
conducting a paraffin test on Wendell Libi, hence possible evidence of gunpowder
residue on Wendell’s hands was forever lost when Wendell was hastily buried. cralawnad

More specifically, Dr. Cerna testified that he conducted an autopsy on the body of
Wendell Libi about eight (8) hours after the incident or, to be exact, eight (8) hours and
twenty (20) minutes based on the record of death; that when he arrived at the
Cosmopolitan Funeral Homes, the body of the deceased was already on the autopsy
table and in the stage of rigor mortis; and that said body was not washed, but it was
dried. 4 However, on redirect examination, he admitted that during the 8-hour interval,
he never saw the body nor did he see whether said body was wiped or washed in the
area of the wound on the head which he examined because the deceased was inside
the morgue. 5 In fact, on cross-examination, he had earlier admitted that as far as the
entrance of the wound, the trajectory of the bullet and the exit of the wound are
concerned, it is possible that Wendell Libi shot himself. 6

He further testified that the muzzle of the gun was not pressed on the head of the
victim and that he found no burning or singeing of the hair or extensive laceration on
the gunshot wound of entrance which are general characteristics of contact or near-
contact fire. On direct examination, Dr. Cerna nonetheless made these clarification: jgc:chanrobles.com.ph

"Q Is it not a fact that there are certain guns which are so made that there would be no
black residue or tattooing that could result from these guns because they are what we
call clean?

A Yes, sir. I know that there are what we call smokeless powder.

ATTY. ORTIZ: chanrob1es virtual 1aw library

Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those
indications that you said may not rule out the possibility that the gun was closer than
24 inches, is that correct?

A If the . . . assuming that the gun used was .. the bullet used was a smokeless
powder.

Q At any rate, doctor, from . . . disregarding those other matters that you have noticed,
the singeing, etc., from the trajectory, based on the trajectory of the bullet as shown in
your own sketch, is it not a fact that the gun could have been fired by the person
himself, the victim himself, Wendell Libi, because it shows a point of entry a little above
the right ear and point of exit a little above that, to be very fair and on your oath?

A As far as the point of entrance is concerned and as far as the trajectory of the bullet
is concerned and as far as the angle or the manner of fire is concerned, it could have
been fired by the victim." 7

As shown by the evidence, there were only two used bullets 8 found at the scene of the
crime, each of which were the bullets that hit Julie Ann Gotiong and Wendell Libi,
respectively. Also, the sketch prepared by the Medico-Legal Division of the National
Bureau of Investigation, 9 shows that there is only one gunshot wound of entrance
located at the right temple of Wendell Libi. The necropsy report prepared by Dr. Cerna
states:chanrob1es virtual 1aw library

x x x

"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest
inferiorly by 0.2 cm., edges inverted, oriented upward, located at the head, temporal
region, right, 2.8 cms. behind and 5.5 cms. above right external auditory meatus,
directed slightly forward, upward and to the left, involving skin and soft tissues, making
a punch-in fracture on the temporal bone, right, penetrating cranial cavity, lacerating
extensively along its course the brain tissues, fracturing parietal bone, left, and finally
making an EXIT wound, irregular, 2.0 x 1.8 cms., edges (e)verted, parietal region, left,
2.0 cms. behind and 12.9 cms. above left external auditory meatus. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

x x x

"Evidence of contact or close-contact fire, such as burning around the gunshot wound of
entrance, gunpowder tatooing (sic), smudging, singeing of hair, extensive laceration or
bursting of the gunshot wound of entrance, or separation of the skin from the
underlying tissue, are absent." 10
On cross-examination, Dr. Cerna demonstrated his theory which was made of record,
thus: jgc:chanrobles.com.ph

"Q Now, will you please use yourself as Wendell Libi, and following the entrance of the
wound, the trajectory of the bullet and the exit of the wound, and measuring yourself
24 inches, will you please indicate to the Honorable Court how would it have been
possible for Wendell Libi to kill himself? Will you please indicate the 24 inches?

WITNESS: chanrob1es virtual 1aw library

A Actually, sir, the 24 inches is approximately one arm’s length.

ATTY. SENINING: chanrob1es virtual 1aw library

I would like to make of record that the witness has demonstrated by extending his right
arm almost straight towards his head." 11

Private respondents assail the fact that the trial court gave credence to the testimonies
of defendants’ witnesses Lydia Ang and James Enrique Tan, the first being a resident of
an apartment across the street from the Gotiongs and the second, a resident of the
house adjacent to the Gotiong residence, who declared having seen a "shadow" of a
person at the gate of the Gotiong house after hearing shots therefrom.

On cross-examination, Lydia Ang testified that the apartment where she was staying
faces the gas station; that it is the second apartment; that from her window she can
see directly the gate of the Gotiongs and, that there is a firewall between her
apartment and the gas station. 12 After seeing a man jump from the gate of the
Gotiongs to the rooftop of the Tans, she called the police station but the telephone lines
were busy. Later on, she talked with James Enrique Tan and told him that she saw a
man leap from the gate towards his rooftop. 13

However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the
Gotiongs, but denied having talked with anyone regarding what he saw. He explained
that he lives in a duplex house with a garden in front of it; that his house is next to
Felipe Gotiong’s house; and he further gave the following answers to these questions:
virtual law library
chanrobles.com :

"ATTY. ORTIZ: (TO WITNESS).

Q What is the height of the wall of the Gotiong’s in relation to your house?

WITNESS: chanrob1es virtual 1aw library

A It is about 8 feet.

ATTY. ORTIZ: (TO WITNESS)

Q And where were you looking from?

WITNESS: chanrob1es virtual 1aw library

A From upstairs in my living room.

ATTY. ORTIZ (TO WITNESS)

Q From Your living room window, is that correct?

WITNESS: chanrob1es virtual 1aw library

A Yes, but not very clear because the wall is high." 14

Analyzing the foregoing testimonies, we agree with respondent court that the same do
not inspire credence as to the reliability and accuracy of the witnesses’ observations,
since the visual perceptions of both were obstructed by high walls in their respective
houses in relation to the house of herein private respondents. On the other hand,
witness Manolo Alfonso, testifying on rebuttal, attested without contradiction that he
and his sister, Malou Alfonso, were waiting for Julie Ann Gotiong when they heard her
scream; that when Manolo climbed the fence to see what was going on inside the
Gotiong house, he heard the first shot; and, not more than five (5) seconds later, he
heard another shot. Consequently, he went down from the fence and drove to the
police station to report the incident. 15 Manolo’s direct and candid testimony
establishes and explains the fact that it was he whom Lydia Ang and James Enrique Tan
saw as the "shadow" of a man at the gate of the Gotiong house.

We have perforce to reject petitioners’ effete and unsubstantiated pretension that it

was another man who shot Wendell and Julie Ann. It is significant that the Libi family
did not even point to or present any suspect in the crime nor did they file any case
against any alleged "John Doe." Nor can we sustain the trial court’s dubious theory that
Wendell Libi did not die by his own hand because of the overwhelming evidence —
testimonial, documentary and pictorial — the confluence of which point to Wendell as
the assailant of Julie Ann, his motive being revenge for her rejection of his persistent
pleas for a reconciliation. chanrobles.com:cralaw:red

Petitioners’ defense that they had exercised the due diligence of a good father of a
family, hence they should not be civilly liable for the crime committed by their minor
son, is not borne out by the evidence on record either.

Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio
Libi, owns a gun which he kept in a safety deposit box inside a drawer in their bedroom.
Each of these petitioners holds a key to the safety deposit box and Amelita’s key is
always in her bag, all of which facts were known to Wendell. They have never seen
their son Wendell taking or using the gun. She admitted, however, that on that fateful
night the gun was no longer in the safety deposit box. 16 We, accordingly, cannot but
entertain serious doubts that petitioner spouses had really been exercising the diligence
of a good father of a family by safely locking the fatal gun away. Wendell could not
have gotten hold thereof unless one of the keys to the safety deposit box was
negligently left lying around or he had free access to the bag of his mother where the
other key was.

The diligence of a good father of a family required by law in a parent and child
relationship consists, to a large extent, of the instruction and supervision of the child.
Petitioners were gravely remiss in their duties as parents in not diligently supervising
the activities of their son, despite his minority and immaturity, so much so that it was
only at the time of Wendell’s death that they allegedly discovered that he was a CANU
agent and that Cresencio’s gun was missing from the safety deposit box. Both parents
were sadly wanting in their duty and responsibility in monitoring and knowing the
activities of their children who, for all they know, may be engaged in dangerous work
such as being drug informers, 17 or even drug users. Neither was a plausible
explanation given for the photograph of Wendell, with a handwritten dedication to Julie
Ann at the back thereof, 18 holding upright what clearly appears as a revolver and on
how or why he was in possession of that firearm.

In setting aside the judgment of the court a quo and holding petitioners civilly liable, as
explained at the start of this opinion, respondent court waved aside the protestations of
diligence on the part of petitioners and had this to say: jgc:chanrobles.com.ph

". . . It is still the duty of parents to know the activity of their children who may be
engaged in this dangerous activity involving the menace of drugs. Had the defendants-
appellees been diligent in supervising the activities of their son, Wendell, and in keeping
said gun from his reach, they could have prevented Wendell from killing Julie Ann
Gotiong. Therefore, appellants are liable under Article 2180 of the Civil Code which
provides: chanrob1es virtual 1aw library

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

"Having been grossly negligent in preventing Wendell Libi from having access to said
gun which was allegedly kept in a safety deposit box, defendants-appellees are
subsidiarily liable for the natural consequence of the criminal act of said minor who was
living in their company. This vicarious liability of herein defendants-appellees has been
reiterated by the Supreme Court in many cases, prominent of which is the case of
Fuellas v. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held that:
1aw library
chanrob1es virtual

‘The subsidiary liability of parents for damages caused by their minor children imposed
by Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts
and criminal offenses.’

‘The subsidiary liability of parent’s arising from the criminal acts of their minor children
who acted with discernment is determined under the provisions of Article 2180, N.C.C.
and under Article 101 of the Revised Penal Code, because to hold that the former only
covers obligations which arise from quasi-delicts and not obligations which arise from
criminal offenses, would result in the absurdity that while for an act where mere
negligence intervenes the father or mother may stand subsidiarily liable for the
damages caused by his or her son, no liability would attach if the damage is caused
with criminal intent.’ (3 SCRA 361-362).

". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi
somehow got hold of the key to the drawer where said gun was kept under lock without
defendant-spouses ever knowing that said gun had been missing from that safety box
since 1978 when Wendell Libi had) a picture taken wherein he proudly displayed said
gun and dedicated this picture to his sweetheart, Julie Ann Gotiong; also since then,
Wendell Libi was said to have kept said gun in his car, in keeping up with his supposed
role of a CANU agent . . ." chanrobles lawlibrary : rednad

x x x

"Based on the foregoing discussions of the assigned errors, this Court holds that the
lower court was not correct in dismissing herein plaintiffs-appellants’ complaint because
as preponderantly shown by evidence, defendants-appellees utterly failed to exercise all
the diligence of a good father of the family in preventing their minor son from
committing this crime by means of the gun of defendants-appellees which was freely
accessible to Wendell Libi for they have not regularly checked whether said gun was still
under lock, but learned that it was missing from the safety deposit box only after the
crime had been committed." (Emphases ours.) 19

We agree with the conclusion of respondent court that petitioners should be held liable
for the civil liability based on what appears from all indications was a crime committed
by their minor son. We take this opportunity, however, to digress and discuss its
ratiocination therefor on jurisprudential dicta which we feel require clarification.

In imposing sanctions for the so-called vicarious liability of petitioners, respondent court
cites Fuellas v. Cadano, Et. Al. 20 which supposedly holds that" (t)he subsidiary liability
of parents for damages caused by their minor children imposed by Article 2180 of the
New Civil Code covers obligations arising from both quasi-delicts and criminal offenses,"
followed by an extended quotation ostensibly from the same case explaining why under
Article 2180 of the Civil Code and Article 101 of the Revised Penal Code parents should
assume subsidiary liability for damages caused by their minor children. The quoted
passages are set out two paragraphs back, with pertinent underscoring for purposes of
the discussion hereunder. chanrobles law library

Now, we do not have any objection to the doctrinal rule holding, the parents liable, but
the categorization of their liability as being subsidiary, and not primary, in nature
requires a hard second look considering previous decisions of this court on the matter
which warrant comparative analyses. Our concern stems from our readings that if the
liability of the parents for crimes or quasi-delicts of their minor children is subsidiary,
then the parents can neither invoke nor be absolved of civil liability on the defense that
they acted with the diligence of a good father of a family to prevent damages. On the
other hand, if such liability imputed to the parents is considered direct and primary,
that diligence would constitute a valid and substantial defense.

We believe that the civil liability of parents for quasi-delicts of their minor children, as
contemplated in Article 2180 of the Civil Code, is primary and not subsidiary. In fact, if
we apply Article 2194 of said code which provides for solidary liability of joint
tortfeasors, the persons responsible for the act or omission, in this case the minor and
the father and, in case of his death of incapacity, the mother, are solidarily liable.
Accordingly, such parental liability is primary and not subsidiary, hence the last
paragraph of Article 2180 provides that" (t)he 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 damages." cralaw virtua1aw library
We are also persuaded that the liability of the parents for felonies committed by their
minor children is likewise primary, not subsidiary. Article 101 of the Revised Penal Code
provides:jgc:chanrobles.com.ph

"ARTICLE 101. Rules regarding civil liability in certain cases. —

x x x

First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts
committed by . . . a person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment, shall devolve upon those
having such person under their legal authority or control, unless it appears that there
was no fault or negligence on their part." (Emphasis supplied.) 21

Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing
provision the civil liability of the parents for crimes committed by their minor children is
likewise direct and primary, and also subject to the defense of lack of fault or
negligence on their part, that is, the exercise of the diligence of a good father of a
family.

That in both quasi-delicts and crimes the parents primarily respond for such damages is
buttressed by the corresponding provisions in both codes that the minor transgressor
shall be answerable or shall respond with his own property only in the absence or in
case of insolvency of the former. Thus, for civil liability ex quasi delicto of minors,
Article 2182 of the Civil Code states that" (i)f the minor causing damage has no parents
or guardian, the minor . . . shall be answerable with his own property in an action
against him where a guardian ad litem shall be appointed." For civil liability ex delicto of
minors, an equivalent provision is found in the third paragraph of Article 101 of the
Revised Penal Code, to wit: jgc:chanrobles.com.ph

"Should there be no person having such . . . minor under his authority, legal
guardianship or control, or if such person be insolvent, said . . . minor shall respond
with (his) own property, excepting property exempt from execution, in accordance with
civil law."
cralaw virtua1aw library

The civil liability of parents for felonies committed by their minor children contemplated
in the aforesaid rule in Article 101 of the Revised Penal Code in relation to Article 2180
of the Civil Code has, aside from the aforecited case of Fuellas, been the subject of a
number of cases adjudicated by this Court, viz.: Exconde v. Capuno, Et Al., 22 Araneta
v. Arreglado, 23 Salen, Et. Al. v. Balce, 24 Paleyan, etc., Et. Al. v. Bangkili, Et Al., 25
and Elcano, et al, v. Hill, Et. Al. 26 Parenthetically, the aforesaid cases were basically
on the issue of the civil liability of parents for crimes committed by their minor children
over 9 but under 15 years of age, who acted with discernment, and also of minors 15
years of aye or over, since these situations are not covered by Article 101, Revised
Penal Code. In both instances, this Court held that the issue of parental civil liability
should be resolved in accordance with the provisions of Article 2180 of the Civil Code
for the reasons well expressed in Salen and adopted in the cases hereinbefore
enumerated that to hold that the civil liability under Article 2180 would apply only to
quasi-delicts and not to criminal offenses would result in the absurdity that in an act
involving mere negligence the parents would be liable but not where the damage is
caused with criminal intent. In said cases, however, there are unfortunate variances
resulting in a regrettable inconsistency in the Court’s determination of whether the
liability of the parents, in cases involving either crimes or quasi-delicts of their minor
children, is primary or subsidiary.

In Exconde, where the 15-year old minor was convicted of double homicide through
reckless imprudence, in a separate civil action arising from the crime the minor and his
father were held jointly and severally liable for failure of the latter to prove the
diligence of a good father of a family. The same liability in solidum and, therefore,
primary liability was imposed in a separate civil action in Araneta on the parents and
their 14-year old son who was found guilty of frustrated homicide, but on the authority
of Article 2194 of the Civil Code providing for solidary responsibility of two or more
persons who are liable for a quasi-delict.

However, in Salen, the father was declared subsidiarily liable for damages arising from
the conviction of his son, who was over 15 but less than 18 years of age, by applying
Article 2180 but, this time, disregarding Article 2194 of the Civil Code. In the present
case, as already explained, the petitioners herein were also held liable but supposedly
in line with Fuellas which purportedly declared the parents subsidiarily liable for the civil
liability for serious physical injuries committed by their 13-year old son. On the other
hand, in Paleyan, the mother and her 19-year old son were adjudged solidarily liable for
damages arising from his conviction for homicide by the application of Article 2180 of
the Civil Code since this is likewise not covered by Article 101 of the Revised Penal
Code. Finally, in Elcano, although the son was acquitted in a homicide charge due to
"lack of intent, coupled with mistake," it was ruled that while under Article 2180 of the
Civil Code there should be solidary liability for damages, since the son, "although
married, was living with his father and getting subsistence from him at the time of the
occurrence," but "is now of age, as a matter of equity" the father was only held
subsidiarily liable.

It bears stressing, however, that the Revised Penal Code provides for subsidiary liability
only for persons causing damages under the compulsion of irresistible force or under
the impulse of an uncontrollable fear; 27 innkeepers, tavernkeepers and proprietors of
establishments; 28 employers, teachers, persons and corporations engaged in industry;
29 and principals, accomplices and accessories for the unpaid civil liability of their co-
accused in the other classes. 30

Also, coming back to respondent court’s reliance on Fuellas in its decision in the present
case, it is not exactly accurate to say that Fuellas provided for subsidiary liability of the
parents therein. A careful scrutiny shows that what respondent court quoted verbatim
in its decision now on appeal in the present case, and which it attributed to Fuellas, was
the syllabus on the law report of said case which spoke of "subsidiary" liability.
However, such categorization does not specifically appear in the text of the decision in
Fuellas. In fact, after reviewing therein the cases of Exconde, Araneta and Salen and
the discussions in said cases of Article 101 of the Revised Penal Code in relation to
Article 2180 of the Civil Code, this Court concluded its decision in this wise: jgc:chanrobles.com.ph

"Moreover, the case at bar was decided by the Court of Appeals on the basis of
evidence submitted therein by both parties, independent of the criminal case. And
responsibility for fault or negligence under Article 2176 upon which the present action
was instituted, is entirely separate and distinct from the civil liability arising from fault
or negligence under the Penal Code (Art. 2177), and having in mind the reasons behind
the law as heretofore stated, any discussion as to the minor’s criminal responsibility is
of no moment." cralaw virtua1aw library

Under the foregoing considerations, therefore, we hereby rule that the parents are and
should be held primarily liable for the civil liability arising from criminal offenses
committed by their minor children under their legal authority or control, or who live in
their company, unless it is proven that the former acted with the diligence of a good
father of a family to prevent such damages. That primary liability is premised on the
provisions of Article 101 of the Revised Penal Code with respect to damages ex delicto
caused by their children 9 years of age or under, or over 9 but under 15 years of age
who acted without discernment; and, with regard to their children over 9 but under 15
years of age who acted with discernment, or 15 years or over but under 21 years of
age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code.
31

Under said Article 2180, the enforcement of such liability shall be effected against the
father and, in case of his death or incapacity, the mother. This was amplified by the
Child and Youth Welfare Code which provides that the same shall devolve upon the
father and, in case of his death or incapacity, upon the mother or, in case of her death
or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a
relative or family friend of the youthful offender. 32 However, under the Family Code,
this civil liability is now, without such alternative qualification, the responsibility of the
parents and those who exercise parental authority over the minor offender. 33 For civil
liability arising from quasi-delicts committed by minors, the same rules shall apply in
accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a
felony or a quasi-delict committed by Wendell Libi, respondent court did not err in
holding petitioners liable for damages arising therefrom. Subject to the preceding
modifications of the premises relied upon by it therefor and on the bases of the legal
imperatives herein explained, we conjoin in its findings that said petitioners failed to
duly exercise the requisite diligentissimi patris familias to prevent such damages.

ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of respondent
Court of Appeals is hereby AFFIRMED, with costs against petitioners.

SO ORDERED.

Libi v. Intermediate Appellate Court

G.R. No. 70890,18 September 1992

FACTS:
Julie Ann Gotiong and Wendell Libi were sweethearts until the former broke up with the latter after
she found out the Wendell were irresponsible and sadistic. Wendell wanted reconciliation but was
not granted by Julie so it prompted him to resort to threats. One day, they were found dead from a
single gunshot wound each coming from the same gun. The parents of Julie herein private
respondents filed a civil case against the parents of Wendell to recover damages. Trial court
dismissed the complaint for insufficiency of evidence but was set aside by CA.

ISSUE:

WON the parents should be held liable for such damages.

RULING:

Yes. The parents are and should be held primarily liable for the civil liability arising from criminal
offenses committed by their minor children under their legal authority or control, or who live in their
company, unless it is proven that the former acted with the diligence of a good father of a family to
prevent such damages.

Under the Family Code, this civil liability is now, without such alternative qualification, the
responsibility of the parents and those who exercise parental authority over the minor offender. For
civil liability arising from quasi-delicts committed by minors, the same rules shall apply in accordance
with Articles 2180 and 2182 of the Civil Code, as so modified.

Since the parents failed to establish in its defense, the exercise of the diligence of a good father of a
family to prevent such damage, the court held that the civil liability of the parents for quasi-delict of
their minor children is primary and not subsidiary.

G.R. No. 184905 August 28, 2009

LAMBERT S. RAMOS, Petitioner,

vs.
C.O.L. REALTY CORPORATION, Respondent.

DECISION

YNARES-SANTIAGO, J.:

The issue for resolution is whether petitioner can be held solidarily liable with his driver, Rodel
Ilustrisimo, to pay respondent C.O.L. Realty the amount of P51,994.80 as actual damages suffered
in a vehicular collision.

The facts, as found by the appellate court, are as follows:

On or about 10:40 o’clock in the morning of 8 March 2004, along Katipunan (Avenue), corner Rajah
Matanda (Street), Quezon City, a vehicular accident took place between a Toyota Altis Sedan
bearing Plate Number XDN 210, owned by petitioner C.O.L. Realty Corporation, and driven by
Aquilino Larin ("Aquilino"), and a Ford Expedition, owned by x x x Lambert Ramos (Ramos) and
driven by Rodel Ilustrisimo ("Rodel"), with Plate Number LSR 917. A passenger of the sedan, one
Estela Maliwat ("Estela") sustained injuries. She was immediately rushed to the hospital for
treatment.

(C.O.L. Realty) averred that its driver, Aquilino, was slowly driving the Toyota Altis car at a speed of
five to ten kilometers per hour along Rajah Matanda Street and has just crossed the center lane of
Katipunan Avenue when (Ramos’) Ford Espedition violently rammed against the car’s right rear door
and fender. With the force of the impact, the sedan turned 180 degrees towards the direction where
it came from.

Upon investigation, the Office of the City Prosecutor of Quezon City found probable cause to indict
Rodel, the driver of the Ford Expedition, for Reckless Imprudence Resulting in Damage to Property.
In the meantime, petitioner demanded from respondent reimbursement for the expenses incurred in
the repair of its car and the hospitalization of Estela in the aggregate amount of P103,989.60. The
demand fell on deaf ears prompting (C.O.L. Realty) to file a Complaint for Damages based on quasi-
delict before the Metropolitan Trial Court of Metro Manila (MeTC), Quezon City, docketed as Civil
Case No. 33277, and subsequently raffled to Branch 42.

As could well be expected, (Ramos) denied liability for damages insisting that it was the negligence
of Aquilino, (C.O.L. Realty’s) driver, which was the proximate cause of the accident. (Ramos)
maintained that the sedan car crossed Katipunan Avenue from Rajah Matanda Street despite the
concrete barriers placed thereon prohibiting vehicles to pass through the intersection.

(Ramos) further claimed that he was not in the vehicle when the mishap occurred. He asserted that
he exercised the diligence of a good father of a family in the selection and supervision of his driver,
Rodel.

Weighing the respective evidence of the parties, the MeTC rendered the Decision dated 1 March
2006 exculpating (Ramos) from liability, thus:

"WHEREFORE, the instant case is DISMISSED for lack of merit. The Counterclaims of the
defendant are likewise DISMISSED for lack of sufficient factual and legal basis.

SO ORDERED."

The aforesaid judgment did not sit well with (C.O.L. Realty) so that he (sic) appealed the same
before the RTC of Quezon City, raffled to Branch 215, which rendered the assailed Decision dated 5
September 2006, affirming the MeTC’s Decision. (C.O.L. Realty’s) Motion for Reconsideration met
the same fate as it was denied by the RTC in its Order dated 5 June 2007. 1

C.O.L. Realty appealed to the Court of Appeals which affirmed the view that Aquilino was negligent
in crossing Katipunan Avenue from Rajah Matanda Street since, as per Certification of the
Metropolitan Manila Development Authority (MMDA) dated November 30, 2004, such act is
specifically prohibited. Thus:

This is to certify that as per records found and available in this office the crossing of vehicles at
Katipunan Avenue from Rajah Matanda Street to Blue Ridge Subdivision, Quezon City has (sic) not
allowed since January 2004 up to the present in view of the ongoing road construction at the
area.2 (Emphasis supplied)
Barricades were precisely placed along the intersection of Katipunan Avenue and Rajah Matanda
Street in order to prevent motorists from crossing Katipunan Avenue. Nonetheless, Aquilino crossed
Katipunan Avenue through certain portions of the barricade which were broken, thus violating the
MMDA rule.3

However, the Court of Appeals likewise noted that at the time of the collision, Ramos’ vehicle was
moving at high speed in a busy area that was then the subject of an ongoing construction (the
Katipunan Avenue-Boni Serrano Avenue underpass), then smashed into the rear door and fender of
the passenger’s side of Aquilino’s car, sending it spinning in a 180-degree turn. 4 It therefore found
the driver Rodel guilty of contributory negligence for driving the Ford Expedition at high speed along
a busy intersection.

Thus, on May 28, 2008, the appellate court rendered the assailed Decision, 5 the dispositive portion
of which reads, as follows:

WHEREFORE, the Decision dated 5 September 2006 of the Regional Trial Court of Quezon City,
Branch 215 is hereby MODIFIED in that respondent Lambert Ramos is held solidarily liable with
Rodel Ilustrisimo to pay petitioner C.O.L. Realty Corporation the amount of P51,994.80 as actual
damages. Petitioner C.O.L. Realty Corporation’s claim for exemplary damages, attorney’s fees and
cost of suit are DISMISSED for lack of merit.

SO ORDERED.

Petitioner filed a Motion for Reconsideration but it was denied. Hence, the instant petition, which
raises the following sole issue:

THE COURT OF APPEALS’ DECISION IS CONTRARY TO LAW AND JURISPRUDENCE, AND

THE EVIDENCE TO SUPPORT AND JUSTIFY THE SAME IS INSUFFICIENT.

We resolve to GRANT the petition.

There is no doubt in the appellate court’s mind that Aquilino’s violation of the MMDA prohibition
against crossing Katipunan Avenue from Rajah Matanda Street was the proximate cause of the
accident. Respondent does not dispute this; in its Comment to the instant petition, it even conceded
that petitioner was guilty of mere contributory negligence. 6

Thus, the Court of Appeals acknowledged that:

The Certification dated 30 November 2004 of the Metropolitan Manila Development Authority
(MMDA) evidently disproved (C.O.L. Realty’s) barefaced assertion that its driver, Aquilino, was not to
be blamed for the accident –

"TO WHOM IT MAY CONCERN:

This is to certify that as per records found and available in this office the crossing of vehicles at
Katipunan Avenue from Rajah Matanda Street to Blue Ridge Subdivision, Quezon City has (sic) not
allowed since January 2004 up to the present in view of the ongoing road construction at the area.

This certification is issued upon request of the interested parties for whatever legal purpose it may
serve."
(C.O.L. Realty) admitted that there were barricades along the intersection of Katipunan Avenue and
Rajah Matanda Street. The barricades were placed thereon to caution drivers not to pass through
the intersecting roads. This prohibition stands even if, as (C.O.L. Realty) claimed, the "barriers were
broken" at that point creating a small gap through which any vehicle could pass. What is clear to Us
is that Aquilino recklessly ignored these barricades and drove through it. Without doubt, his
negligence is established by the fact that he violated a traffic regulation. This finds support in Article
2185 of the Civil Code –

"Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating any traffic regulation."

Accordingly, there ought to be no question on (C.O.L. Realty’s) negligence which resulted in the
vehicular mishap.7

However, it also declared Ramos liable vicariously for Rodel’s contributory negligence in driving the
Ford Expedition at high speed along a busy intersection. On this score, the appellate court made the
following pronouncement:

As a professional driver, Rodel should have known that driving his vehicle at a high speed in a major
thoroughfare which was then subject of an on-going construction was a perilous act. He had no
regard to (sic) the safety of other vehicles on the road. Because of the impact of the collision,
(Aquilino’s) sedan made a 180-degree turn as (Ramos’) Ford Expedition careened and smashed into
its rear door and fender. We cannot exculpate Rodel from liability.

Having thus settled the contributory negligence of Rodel, this created a presumption of negligence
on the part of his employer, (Ramos). For the employer to avoid the solidary liability for a tort
committed by his employee, an employer must rebut the presumption by presenting adequate and
convincing proof that in the selection and supervision of his employee, he or she exercises the care
and diligence of a good father of a family. Employers must submit concrete proof, including
documentary evidence, that they complied with everything that was incumbent on them.

(Ramos) feebly attempts to escape vicarious liability by averring that Rodel was highly
recommended when he applied for the position of family driver by the Social Service Committee of
his parish. A certain Ramon Gomez, a member of the church’s livelihood program, testified that a
background investigation would have to be made before an applicant is recommended to the
parishioners for employment. (Ramos) supposedly tested Rodel’s driving skills before accepting him
for the job. Rodel has been his driver since 2001, and except for the mishap in 2004, he has not
been involved in any road accident.

Regrettably, (Ramos’) evidence which consisted mainly of testimonial evidence remained

unsubstantiated and are thus, barren of significant weight. There is nothing on the records which
would support (Ramos’) bare allegation of Rodel’s 10-year unblemished driving record. He failed to
present convincing proof that he went to the extent of verifying Rodel’s qualifications, safety record,
and driving history.

So too, (Ramos) did not bother to refute (C.O.L. Realty’s) stance that his driver was texting with his
cellphone while running at a high speed and that the latter did not slow down albeit he knew that
Katipunan Avenue was then undergoing repairs and that the road was barricaded with barriers. The
presumption juris tantum that there was negligence in the selection of driver remains unrebutted. As
the employer of Rodel, (Ramos) is solidarily liable for the quasi-delict committed by the former. 1avvphi1
Certainly, in the selection of prospective employees, employers are required to examine them as to
their qualifications, experience and service records. In the supervision of employees, the employer
must formulate standard operating procedures, monitor their implementation and impose disciplinary
measures for the breach thereof. These, (Ramos) failed to do.8

Petitioner disagrees, arguing that since Aquilino’s willful disregard of the MMDA prohibition was the
sole proximate cause of the accident, then respondent alone should suffer the consequences of the
accident and the damages it incurred. He argues:

20. It becomes apparent therefore that the only time a plaintiff, the respondent herein, can recover
damages is if its negligence was only contributory, and such contributory negligence was the
proximate cause of the accident. It has been clearly established in this case, however, that
respondent’s negligence was not merely contributory, but the sole proximate cause of the accident.

xxxx

22. As culled from the foregoing, respondent was the sole proximate cause of the accident.
Respondent’s vehicle should not have been in that position since crossing the said intersection was
prohibited. Were it not for the obvious negligence of respondent’s driver in crossing the intersection
that was prohibited, the accident would not have happened. The crossing of respondent’s vehicle in
a prohibited intersection unquestionably produced the injury, and without which the accident would
not have occurred. On the other hand, petitioner’s driver had the right to be where he was at the time
of the mishap. As correctly concluded by the RTC, the petitioner’s driver could not be expected to
slacken his speed while travelling along said intersection since nobody, in his right mind, would do
the same. Assuming, however, that petitioner’s driver was indeed guilty of any contributory
negligence, such was not the proximate cause of the accident considering that again, if respondent’s
driver did not cross the prohibited intersection, no accident would have happened. No imputation of
any lack of care on Ilustrisimo’s could thus be concluded. It is obvious then that petitioner’s driver
was not guilty of any negligence that would make petitioner vicariously liable for damages.

23. As the sole proximate cause of the accident was respondent’s own driver, respondent cannot
claim damages from petitioner.9

On the other hand, respondent in its Comment merely reiterated the appellate court’s findings and
pronouncements, conceding that petitioner is guilty of mere contributory negligence, and insisted on
his vicarious liability as Rodel’s employer under Article 2184 of the Civil Code.

Articles 2179 and 2185 of the Civil Code on quasi-delicts apply in this case, viz:

Article 2179. When the plaintiff’s own negligence was the immediate and proximate cause of his
injury, he cannot recover damages. But if his negligence was only contributory, the immediate and
proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be awarded.

Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor
vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.

If the master is injured by the negligence of a third person and by the concurring contributory
negligence of his own servant or agent, the latter’s negligence is imputed to his superior and will
defeat the superior’s action against the third person, assuming of course that the contributory
negligence was the proximate cause of the injury of which complaint is made. 10
Applying the foregoing principles of law to the instant case, Aquilino’s act of crossing Katipunan
Avenue via Rajah Matanda constitutes negligence because it was prohibited by law. Moreover, it
was the proximate cause of the accident, and thus precludes any recovery for any damages suffered
by respondent from the accident.

Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and without which the result would not have
occurred. And more comprehensively, the proximate legal cause is that acting first and producing the
injury, either immediately or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its immediate predecessor,
the final event in the chain immediately effecting the injury as a natural and probable result of the
cause which first acted, under such circumstances that the person responsible for the first event
should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might probably result therefrom. 11

If Aquilino heeded the MMDA prohibition against crossing Katipunan Avenue from Rajah Matanda,
the accident would not have happened. This specific untoward event is exactly what the MMDA
prohibition was intended for. Thus, a prudent and intelligent person who resides within the vicinity
where the accident occurred, Aquilino had reasonable ground to expect that the accident would be a
natural and probable result if he crossed Katipunan Avenue since such crossing is considered
dangerous on account of the busy nature of the thoroughfare and the ongoing construction of the
Katipunan-Boni Avenue underpass. It was manifest error for the Court of Appeals to have overlooked
the principle embodied in Article 2179 of the Civil Code, that when the plaintiff’s own negligence was
the immediate and proximate cause of his injury, he cannot recover damages.

Hence, we find it unnecessary to delve into the issue of Rodel’s contributory negligence, since it
cannot overcome or defeat Aquilino’s recklessness which is the immediate and proximate cause of
the accident. Rodel’s contributory negligence has relevance only in the event that Ramos seeks to
recover from respondent whatever damages or injuries he may have suffered as a result; it will have
the effect of mitigating the award of damages in his favor. In other words, an assertion of contributory
negligence in this case would benefit only the petitioner; it could not eliminate respondent’s liability
for Aquilino’s negligence which is the proximate result of the accident.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated May 28, 2008
in CA-G.R. SP No. 99614 and its Resolution of October 13, 2008 are hereby REVERSED and SET
ASIDE. The Decision of the Regional Trial Court of Quezon City, Branch 215 dated September 5,
2006 dismissing for lack of merit respondent’s complaint for damages is hereby REINSTATED.

SO ORDERED.

RAMOS vs. COL REALTY CORP

G. R. No. 184905 | August 28, 2009 | Ynares-Santiago, J.

c/o Aine Tawantawan

TORT: Contributory negligence as the proximate cause of the injury complained of

TORTFEASOR: Lambert RAMOS

VICTIM: C.O.L REALTY CORPORATION

TYPE OF CASE: Negligence; Contributory negligence

DOCTRINES: “If the master is injured by the negligence of a third person and by the concurring
contributory negligence of his own servant or agent, the latter’s negligence is imputed to his superior
and will defeat the superiors action against the third person, assuming of course that the contributory
negligence was the proximate cause of the injury of which complaint is made.”

“the principle embodied in Article 2179 of the Civil Code, that when the plaintiffs own negligence was
the immediate and proximate cause of his injury, he cannot recover damages.”

APPLICABLE LAW: Articles 2179 and 2185 of the Civil Code on quasi-delicts.

FACTS

 On or about 10:40am of March 8, 2004, along Katipunan Ave, corner Rajah Matanda, Q.C, a vehicular accident
between a Toyota Altis Sedan owned by C.O.L. Realty and driven by Aquilino and a Ford Expedition, owned by
Ramos and driven by Rodel took place.

 Estela, a passenger of the sedan sustained injuries and was rushed to the hospital.

 The City Prosecutor indicted Rodel, the driver of Ford Expedition, for Reckless Imprudence Resulting in Damage
to Property.

 The COL Realty demanded from Ramos reimbursement for the expenses in the repair of its car and the
hospitalization of Estela in the aggregate amount of P103,989.60.

 Demand went unheeded so that COL Realty file a Complaint for Damages based on quasi-delict before the
MeTC-Q.C.

 MeTC: Exculpated Ramos from liability.

 CA: Reversed the RTC Decision. Aquilino was negligent in crossing Katipunan Avenue from Rajah Matanda
Street since, as per Certification of the MMDA: “The crossing of vehicles at Katipunan Avenue from Rajah
Matanda Street to Blue Ridge Subdivision, Quezon City has (sic) not allowed since January 2004 up to the
present in view of the ongoing road construction at the area.”

 Barricades placed along the intersection of Katipunan Ave and Rajah Matanda St to prevent motorists
from crossing Katipunan Avenue. Nonetheless, Aquilino crossed Katipunan Avenue through certain
portions of the barricade which were broken, thus violating the MMDA rule.

 Ramos vehicle was moving at high speed in an ongoing construction (the Katipunan Avenue-Boni Serrano
Avenue underpass)

 Thus, the driver Rodel guilty of contributory negligence for driving the Ford Expedition at high speed
along a busy intersection.

 To CA’s mind, Aquilinos violation of the MMDA prohibition against crossing Katipunan Avenue from Rajah
Matanda Street was the proximate cause of the accident which was not disputed by Ramos and conceded
Ramos to be guilty of mere contributory negligence.

PETITIONER (RAMOS)’S CONTENTION:

 It denied liability or damages insisting that it was the negligence of Aquilino, (C.O.L. Realtys) driver, which was
the proximate cause of the accident when he willfully disregarded the MMDA prohibition.

 the sedan car crossed Katipunan Ave from Rajah Matanda St despite the concrete barriers placed thereon
prohibiting vehicles to pass through the intersection.
 Not in the vehicle when the mishap occurred asserting that he exercised the diligence of a good father of a
family in the selection and supervision of his driver, Rodel.

RESPONDENT (COL REALTY)’S CONTENTION:

 His driver, Aquilino, was slowly driving the Toyota car at a speed of 5-10 msper hour along Rajah Matanda St
and has just crossed the center lane of Katipunan Ave when (Ramos) Ford Espedition violently rammed against
the cars right rear door and fender. With the force of the impact, the sedan turned 180 degrees towards the
direction where it came from.

 COL Realty is guilty of mere contributory negligence, and insisted on his vicarious liability as Rodels employer
under Article 2184 of the Civil Code.

Hence, this petition.

ISSUE: Whether a contributory negligence can be attributed to Rodel. -NO

RULINGS+RATIO

 Articles 2179 and 2185 of the Civil Code on quasi-delicts apply in this case, viz:

Article 2179. When the plaintiffs own negligence was the immediate and proximate cause of his injury, he
cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause
of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded.

Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle
has been negligent if at the time of the mishap, he was violating any traffic regulation.

 If the master is injured by the negligence of a third person and by the concurring contributory negligence of
his own servant or agent, the latter’s negligence is imputed to his superior and will defeat the superiors action
against the third person, assuming of course that the contributory negligence was the proximate cause of the
injury of which complaint is made.

 Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result would not have occurred.

 Proximate legal cause is that acting first and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground
to expect at the moment of his act or default that an injury to some person might probably result therefrom.

 In this case, Aquilino’s act of crossing Katipunan Avenue via Rajah Matanda constitutes negligence because it
was prohibited by law. Moreover, it was the proximate cause of the accident, and thus precludes any recovery
for any damages suffered by respondent from the accident.

 If Aquilino heeded the MMDA prohibition against crossing Katipunan Avenue from Rajah Matanda, the accident
would not have happened. This specific untoward event is exactly what the MMDA prohibition was intended
for. Thus, a prudent and intelligent person who resides within the vicinity where the accident occurred,
Aquilino had reasonable ground to expect that the accident would be a natural and probable result if he
crossed Katipunan Avenue since such crossing is considered dangerous because of the busy nature of the
thoroughfare and the ongoing construction of the Katipunan-Boni Avenue underpass.
 A manifest error for the CA to have overlooked the principle embodied in Article 2179 of the Civil Code, that
when the plaintiffs own negligence was the immediate and proximate cause of his injury, he
cannot recover damages.

 Unnecessary to delve into the issue of Rodel’s contributory negligence, since it cannot overcome or defeat
Aquilino’s recklessness which is the immediate and proximate cause of the accident.
 Rodel’s contributory negligence has relevance only in the event that Ramos seeks to recover from respondent
whatever damages or injuries he may have suffered as a result; it will have the effect of mitigating the award
of damages in his favor. In other words, an assertion of contributory negligence in this case would benefit only
the petitioner; it could not eliminate respondent’s liability for Aquilino’s negligence which is the proximate
result of the accident.
FALLO: WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated May 28,
2008 in CA-G.R. SP No. 99614 and its Resolution of October 13, 2008 are hereby REVERSED and SET
ASIDE. The Decision of the Regional Trial Court of Quezon City, Branch 215 dated September 5, 2006
dismissing for lack of merit respondent’s complaint for damages is hereby REINSTATED.

SO ORDERED.

LAMBERT S. RAMOS, - versus C.O.L. REALTY CORPORATION, G.R. No. 184905 August
28, 2009 Ynares-Santiago, J.: FACTS: On or about 10:40 o’clock in the morning of 8
March 2004, along Katipunan Avenue, Quezon City, a vehicular accident took place
between a Toyota Altis Sedan bearing Plate Number XDN 210 (owned by C.O.L. Realty
Corporation and driven by Aquilino Larin) and a Ford Expedition bearing Plate Number
LSR 917 (owned by Lambert Ramos and driven by Rodel Ilustrisimo). A passenger of
the sedan, one Estela Maliwat sustained injuries, she was immediately rushed to the
hospital for treatment. C.O.L. Realty averred that its driver, Aquilino, was slowly
driving the Toyota Altis car at a speed of five to ten kilometers per hour along Rajah
Matanda Street and has just crossed the center lane of Katipunan Avenue when
(Ramos’) Ford Espedition violently rammed against the car’s right rear door and
fender. Upon investigation, the Office of the City Prosecutor of Quezon City found
probable cause to indict Rodel, the driver of the Ford Expedition, for Reckless
Imprudence Resulting in Damage to Property. demanded from respondent
reimbursement for the expenses incurred in the repair of its car and the
hospitalization of Estela in the aggregate amount of P103,989.60. The

demand fell on deaf ears prompting (C.O.L. Realty) to file a Complaint for Damages
based on quasi-delict before the Metropolitan Trial Court of Metro Manila (MeTC),
Quezon City. Ramos denied liability for damages insisting that it was the negligence
of Aquilino, (C.O.L. Realty’s) driver, which was the proximate cause of the accident.
Ramos asserted the sedan car crossed Katipunan Avenue from Rajah Matanda Street
despite the concrete barriers placed thereon prohibiting vehicles to pass through the
intersection. The MeTC rendered the Decision dated 1 March 2006 exculpating
(Ramos) from liability. ISSUE: Whether or not Ramos is solidarily liable for the
negligence of Rodel Ilustrisimo. HELD: YES, What is clear to Us is that Aquilino
recklessly ignored these barricades and drove through it. Without doubt, his
negligence is established by the fact that he violated a traffic regulation. However, it
also declared Ramos liable vicariously for Rodel’s contributory negligence in driving
the Ford Expedition at high speed along a busy intersection. We cannot exculpate
Rodel from liability. Having thus settled the contributory negligence of Rodel, this
created a presumption of negligence on the part of Ramos. For the employer to avoid
the solidary liability for a tort committed by his employee, an employer must rebut
the presumption by presenting adequate and convincing proof that in the selection
and supervision of his employee, he or she exercises the care and diligence of a good
father of a family. Ramos’ driver was texting with his cellphone while running at a
high speed and that the latter did not slow down albeit he knew that Katipunan
Avenue was then undergoing repairs and that the road was barricaded with barriers.
As the employer of Rodel, Ramos is solidarily liable for the quasidelict committed by
the former. ** This finds support in Article 2185 of the Civil Code: “Unless there is
proof to the contrary, it is presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating any traffic regulation.”
Accordingly, there ought to be no question on (C.O.L. Realty’s) negligence which
resulted in the vehicular mishap.

Facts:
On or about 10:40 o'clock in the morning of 8 March 2004, along Katipunan (Avenue), corner
Rajah Matanda (Street), Quezon City, a vehicular accident took place between a Toyota Altis
Sedan bearing Plate Number XDN 210, owned by petitioner C.O.L. Realty Corporation,... and
driven by Aquilino Larin ("Aquilino"), and a Ford Expedition, owned by x x x Lambert Ramos
(Ramos) and driven by Rodel Ilustrisimo ("Rodel"), with Plate Number LSR 917. A passenger of
the sedan, one Estela Maliwat ("Estela") sustained injuries. She was immediately rushed to...
the hospital for treatment.
As could well be expected, (Ramos) denied liability for damages insisting that it was the
negligence of Aquilino, (C.O.L. Realty's) driver, which was the proximate cause of the
accident. (Ramos) maintained that the sedan car crossed Katipunan Avenue from Rajah
Matanda Street... despite the concrete barriers placed thereon prohibiting vehicles to pass
through the intersection.
Issues:
It therefore found the driver Rodel guilty of contributory negligence for driving the Ford
Expedition at high speed along a busy intersection.
Lambert Ramos is held solidarily liable with Rodel Ilustrisimo to pay petitioner C.O.L. Realty
Corporation the amount of
P51,994.80 as actual damages
Ruling:
There is no doubt in the appellate court's mind that Aquilino's violation of the MMDA
prohibition against crossing Katipunan Avenue from Rajah Matanda Street was the proximate
cause of the accident.
However, it also declared Ramos liable vicariously for Rodel's contributory negligence in
driving the Ford Expedition at high speed along a busy intersection.
If the master is injured by the negligence of a third person and by the concurring contributory
negligence of his own servant or agent, the latter's negligence is imputed to his superior and
will defeat the superior's action against the third person, assuming of course... that the
contributory negligence was the proximate cause of the injury of which complaint is made.
[10]
Applying the foregoing principles of law to the instant case, Aquilino's act of crossing
Katipunan Avenue via Rajah Matanda constitutes negligence because it was prohibited by
law. Moreover, it was the proximate cause of the accident, and thus precludes any recovery
for any... damages suffered by respondent from the accident.
It was manifest error for the Court of Appeals to have overlooked the principle embodied in
Article 2179 of the Civil Code, that when the plaintiff's own negligence was the immediate
and proximate cause of his injury, he... cannot recover damages.
Principles:
Hence, we find it unnecessary to delve into the issue of Rodel's contributory negligence,
since it cannot overcome or defeat Aquilino's recklessness which is the immediate and
proximate cause of the accident. Rodel's contributory negligence has relevance only in the
event that
Ramos seeks to recover from respondent whatever damages or injuries he may have suffered
as a result; it will have the effect of mitigating the award of damages in his favor.

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 of the Court of Appeals, dated 29 May 1995, which
3

overturned the decision of the Regional Trial Court, dated 30 January 1992, finding private
4

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 for damages with the Regional Trial Court of
6

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. Meanwhile, petitioners engaged the services of another counsel, Atty. Sillano, to replace Atty.
9

Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for reconsideration
contending that the period to file the appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy
thereof to the counsel on record. Despite this explanation, the appellate court still denied the motion
to admit the motion for reconsideration of petitioners in its Resolution, dated 29 March 1996,
primarily on the ground that the fifteen-day (15) period for filing a motion for reconsideration had
already expired, to wit:

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

Even assuming admissibility of the Motion for the Reconsideration, but after
considering the Comment/Opposition, the former, for lack of merit, is hereby
DENIED.

SO ORDERED. 10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12
April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the present
petition for certiorari under Rule 45. The Court granted the motion for extension of time and gave
petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period counted from
the receipt of the resolution of the Court of Appeals within which to submit the petition. The due date
fell on 27 May 1996. The petition was filed on 9 May 1996, well within the extended period given by
the Court.

Petitioners assail the decision of the Court of Appeals on the following grounds:

I
 IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE

THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA
RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the
timeliness of the petition in relation to the motion for reconsideration filed by petitioners with the
Court of Appeals. In their
Comment, private respondents contend that the petition should not be given due course since the
12

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. Where the thing which caused the injury complained of is shown to be
13
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. It is grounded in
15

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. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge.
16

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. Instead, it is
17

considered as merely evidentiary or in the nature of a procedural rule. It is regarded as a mode of

18

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. In other words, mere invocation and
19

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. Still, before resort to the doctrine may be allowed, the following requisites must be
20

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. Such element of control must be shown to be within the dominion of the defendant. In
22

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 cases do not escape the application of this doctrine. Thus, res ipsa
24

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. The application
25

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. The reason is that the
27

general rule on the necessity of expert testimony applies only to such matters clearly within the
domain of medical science, and not to matters that are within the common knowledge of mankind
which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and
28

surgeons of skill and experience are competent to testify as to whether a patient has been treated or
operated upon with a reasonable degree of skill and care. However, testimony as to the statements
and acts of physicians and surgeons, external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa
29

loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury
to the patient, without the aid of expert testimony, where the court from its fund of common
knowledge can determine the proper standard of care. Where common knowledge and experience
30

teach that a resulting injury would not have occurred to the patient if due care had been exercised,
an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily required to show not only what occurred but
how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a
31

nexus between the particular act or omission complained of and the injury sustained while under the
custody and management of the defendant without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by
him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a
foreign object in the body of the patient after an operation, injuries sustained on a healthy part of
32

the body which was not under, or in the area, of treatment, removal of the wrong part of the body
33

when another part was intended, knocking out a tooth while a patient's jaw was under anesthetic
34

for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence
35

of anesthetic, during or following an operation for appendicitis, among others.

36

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. A distinction must be made between the failure to secure results, and the occurrence of
37

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. The physician or surgeon is not required at his
38

peril to explain why any particular diagnosis was not correct, or why any particular scientific
treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a
39

malpractice suit if the only showing is that the desired result of an operation or treatment was not
accomplished. The real question, therefore, is whether or not in the process of the operation any
40

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. If there was such extraneous interventions, the doctrine of res ipsa loquitur may be
41

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, where the Kansas Supreme
43

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 of the patient and thus, cannot be said to be covering her
45

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. This is precisely allowed under the doctrine of res
48

ipsa loquitur where the testimony of expert witnesses is not required. It is the accepted rule that
expert testimony is not necessary for the proof of negligence in non-technical matters or those of
which an ordinary person may be expected to have knowledge, or where the lack of skill or want of
care is so obvious as to render expert testimony unnecessary. We take judicial notice of the fact
49

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. Reviewing witness Cruz' statements,
50

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) making it harder to locate
52

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. It includes taking the patient's medical
53
history, review of current drug therapy, physical examination and interpretation of laboratory
data. The physical examination performed by the anesthesiologist is directed primarily toward the
54

central nervous system, cardiovascular system, lungs and upper airway. A thorough analysis of the
55

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. Thus, physical characteristics of the patient's upper airway that
56

could make tracheal intubation difficult should be studied. Where the need arises, as when initial
57

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 mediated by her allergic response to the drug, Thiopental
59

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, was due to an unpredictable drug reaction to the short-acting barbiturate. We find
60

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 regarding expert witnesses states:

62

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. Clearly, Dr. Jamora does not qualify as an expert witness based on the
63

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. An injury or damage is proximately caused by an act or a failure to act, whenever it
64

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. It is the dominant, moving or
65

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. As stated in the testimony of Dr. Hosaka, the lack of oxygen became apparent
66

only after he noticed that the nailbeds of Erlinda were already blue. However, private respondents
67

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. Nevertheless, ninety-eight percent (98%) or the vast majority of difficult intubations
69

may be anticipated by performing a thorough evaluation of the patient's airway prior to the
operation. As stated beforehand, respondent Dra. Gutierrez failed to observe the proper pre-
70

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. In other words, an
71

experienced anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would

have had little difficulty going around the short neck and protruding teeth. Having failed to observe
72

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," it is the surgeon's responsibility to see to it that those
73

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," who
74

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. This is particularly true with respondent hospital.
75

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. Such responsibility ceases when the persons or entity concerned prove that they have
77

observed the diligence of a good father of the family to prevent damage. In other words, while the
78
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 of the Civil Code.
79

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. In other words, temperate
80

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, this Court was confronted with a situation where the injury
82

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. The husband and the children, all petitioners in
84

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.

6. RAMOS VS CA.

FACTS:

 June 17, 1985 afternoon: Erlinda Ramos, 47-year old robust woman underwent on
an operation to the stone at her gall bladder removed after being tested that she was fit
for "cholecystectomy" operation performed by Dr. Orlino Hozaka. 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. He assured Rogelio E. Ramos, husband that he will get a
good anesthesiologist who was Dra. Perfecta Gutierrez. Erlinda's hand was held
by Herminda Cruz, her sister -in-law who was the Dean of the College of Nursing at the
Capitol Medical Center together with her husband went down with her to the operating
room. Instead of 9:30 am, Dr. Hosaka arrived at about 12:15 P.M.Herminda noticing
what Dra. Perfecta Gutierrez was doing, saw the nailbed of Erlinda becoming bluish and Dr.
Hosaka called for another anesthesiologist Dr. Calderon. She went out of the operating
room to tell Rogelio that something is wrong. When she went back she saw Erlinda in
a trendelenburg position and at 3 p.m. she was taken to the Intensive Care Unit (ICU)
where she stayed for a month due to bronchospasm incurring P93,542.25 and she was since
then comatosed. She suffered brain damage as a result of the absence of oxygen in her
brain for four to five minutes. She was also diagnosed to be suffering from "diffuse cerebral
parenchymal damage". Monthly expenses ranged from P8,000 to P10,000. Spouses Ramos
and their minors filed against Dr. Hosaka and Dra. Perfecta Gutierrez. RTC: favored the
Ramos' awarding P8,000 as actual monthly expenses totalling to P632,000 as of April 15,
1992, P100,000 atty. fees, P800,000 moral damages,P200,000 exemplary damages and
cost of suit. Respondents appealed. CA: reversed ordering the Ramos' to pay their unpaid bills
of P93,542.25 plus interest

 ISSUE: W/N the Ramos' are entitled to damages

 HELD: YES. CA modified in favor of petitioners, and solidarily against private respondents
the following: 1) P1,352,000 actual damages computed as of the date of promulgation plus
a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or
miraculously survives; 2) P2,000,000 moral damages, 3) P1,500,000 temperate damages;
4) P100,000 exemplary damages and P100,000 attorney's fees; and, 5) the costs of the
suit.
 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.
 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 -
applicable in this case
 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
 As borne by the records, respondent Dra. Gutierrez failed to properly intubate the
patient according to witness Herminda
o With her clinical background as a nurse, the Court is satisfied with her
testimony
 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
 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.
o Dr. Jamora, not an anesthesiologist, stated that oxygen deprivation which led
to anoxic encephalopathy was due to an unpredictable drug reaction to the short-
acting barbiturate was not accepted as expert opinion
 Dr. Hosaka's negligence can be found in his failure to exercise the proper authority in
not determining if his anesthesiologist observed proper anesthesia protocols
 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
 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.
 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.
 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.
 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.
 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.
 Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a
comatose state for over fourteen years now
 Ramos' 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. Award of P2,000,000 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 are
likewise proper

Ramos v. CA
Facts:

Erlinda Ramos, a 47-year old robust woman, was normal except for her
experiencing occasional pain due to the presence of stone in her gall bladder.
She was advised to undergo an operation for its removal. The results in the
examinations she underwent indicate that she was fit for the operation. She
and her husband Rogelio met Dr. Hosaka, one of the defendants, who advised
that she should undergo cholecystectomy. Dr. Hosaka assured them that he
will get a good anaesthesiologist. At 7:30 a.m. on the day of the operation at
Delos Santos Medical Center, Herminda Cruz, Erlinda’s sister-in-law and the
dean of the College of Nursing in Capitol Medical Center, was there to provide
moral support. Dr. Perfecta Gutierrez was to administer the anaesthesia. Dr.
Hosaka arrived only at 12:15 p. m. Herminda saw Dr. Gutierrez intubating the
patient, and heard the latter say “Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O, lumalaki ang tiyan.” Herminda saw bluish discoloration of
the nailbeds of the patient. She heard Dr. Hosaka issue an order for someone
to call Dr. Calderon. The doctor arrived and placed the patient in
trendelenburg position, wherein the head of the patient is positioned lower
than the feet, which indicates a decrease of blood supply in the brain.
Herminda knew and told Rogelio that something wrong was happening. Dr.
Calderon was able to intubate the patient. Erlinda was taken to the ICU and
became comatose.

Rogelio filed a civil case for damages. The trial court ruled in his favor, finding
Dr. Gutierrez, Dr. Hosaka, and the hospital, guilty of negligence, but the Court
of Appeals reversed the decision. Hence, petitioner filed a Motion for
Reconsideration, which the Court of Appeals denied for having been filed
beyond the reglementary period. However, it was found that the notice of the
decision was never sent to the petitioner’s counsel. Rather, it was sent to the
petitioner, addressing him as Atty. Rogelio Ramos, as if he was the legal
counsel. The petitioner filed the instant petition for certiorari. On the
procedural issue, the Supreme Court rules that since the notice did not reach
the petitioner’s then legal counsel, the motion was filed on time.

Issue:

Whether a surgeon, an anaesthesiologist, and a hospital, should be made

liable for the unfortunate comatose condition of a patient scheduled for
cholecystectomy

Held:

Res Ipsa Loquitor

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. 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. 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. 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. 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. 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.

Medical malpractice 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. 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. 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. 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.

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. 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. 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.
We find the doctrine of res ipsa loquitur appropriate in the case at bar.
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.
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.

Negligence of the Anaesthesiologist

The pre-operative evaluation of a patient prior to the administration of

anesthesia is universally observed to lessen the possibility of anesthetic
accidents. 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. Her failure to
follow this medical procedure is, therefore, a clear indicia of her negligence.
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.

Opinion of Expert Witness

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. Generally, to qualify
as an expert witness, one must have acquired special knowledge of the subject
matter about which he or she is to testify, either by the study of recognized
authorities on the subject or by practical experience. Clearly, Dr. Jamora does
not qualify as an expert witness based on the above standard since he lacks the
necessary knowledge, skill, and training in the field of anesthesiology. Oddly,
apart from submitting testimony from a specialist in the wrong field, private
respondents' intentionally avoided providing testimony by competent and
independent experts in the proper areas.

Proximate Cause

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. 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. 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.
Responsibility of the Surgeon

As the so-called "captain of the ship," 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 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.

Responsibility of the Hospital

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.

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. 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.
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.

Damages

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. 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.

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.
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.

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. 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.

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.

FACTS:
Erlinda Ramos underwent a surgical procedure to remove stone from her gall bladder
(cholecystectomy). They hired Dr. Hosaka, a surgeon, to conduct the surgery at the De Los
Santos Medical Center (DLSMC). Hosaka assured them that he would find a good
anesthesiologist. But the operation did not go as planned, Dr. Hosaka arrived 3 hours late
for the operation, Dra. Gutierrez, the anesthesiologist “botched” the administration of the
anesthesia causing Erlinda to go into a coma and suffer brain damage. The botched
operation was witnessed by Herminda Cruz, sister in law of Erlinda and Dean of College of
Nursing of Capitol Medical Center.

The family of Ramos (petitioners) sued the hospital, the surgeon and the anesthesiologist
for damages. The petitioners showed expert testimony showing that Erlinda's condition was
caused by the anesthesiologist in not exercising reasonable care in “intubating” Erlinda.
Eyewitnesses heard the anesthesiologist saying “Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan.”

Diagnostic tests prior to surgery showed that Erlinda was robust and fit to undergo surgery.

The RTC held that the anesthesiologist ommitted to exercise due care in intubating the
patient, the surgeon was remiss in his obligation to provide a “good anesthesiologist” and
for arriving 3 hours late and the hospital is liable for the negligence of the doctors and for
not cancelling the operation after the surgeon failed to arrive on time. The surgeon,
anesthesiologist and the DLSMC were all held jointly and severally liable for damages to
petitioners. The CA reversed the decision of the Trial Court.

ISSUES: Whether or not the private respondents were negligent and thereby caused the
comatose condition of Ramos.

HELD:
Yes, private respondents were all negligent and are solidarily liable for the damages.

RATIO:

Res ipsa loquitur – a procedural or evidentiary rule which means “the thing or the
transaction speaks for itself.” It 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, where ordinarily in a medical
malpractice case, the complaining party must present expert testimony to prove that the
attending physician was negligent.

This doctrine finds application in this case. On the day of the operation, Erlinda Ramos
already surrendered her person to the private respondents who had complete and exclusive
control over her. Apart from the gallstone problem, she was neurologically sound and fit.
Then, after the procedure, she was comatose and brain damaged—res ipsa loquitur!—the
thing speaks for itself!

Negligence – Private respondents were not able to disprove the presumption of negligence
on their part in the care of Erlinda and their negligence was the proximate cause of her
condition. One need not be an anesthesiologist in order to tell whether or not the intubation
was a success. [res ipsa loquitur applies here]. The Supreme Court also found that the
anesthesiologist only saw Erlinda for the first time on the day of the operation which
indicates unfamiliarity with the patient and which is an act of negligence and irresponsibility.

The head surgeon, Dr. Hosaka was also negligent. He failed to exercise the proper authority
as the “captain of the ship” in determining if the anesthesiologist observed the proper
protocols. Also, because he was late, he did not have time to confer with the
anesthesiologist regarding the anesthesia delivery.

The hospital failed to adduce evidence showing that it exercised the diligence of a good
father of the family in hiring and supervision of its doctors (Art. 2180). The hospital was
negligent since they are the one in control of the hiring and firing of their “consultants”.
While these consultants are not employees, hospitals still exert significant controls on the
selection and termination of doctors who work there which is one of the hallmarks of an
employer-employee reationship. Thus, the hospital was allocated a share in the liability.

G.R. No. 104576 January 20, 1995

MARIANO L. DEL MUNDO, petitioner,

vs.
HON. COURT OF APPEALS, JOSE U. FRANCISCO and GENOVEVA V. ROSALES, respondents.

VITUG, J.:

Mariano Del Mundo ("Del Mundo") impugns in this petition for review on certiorari the 07th April 1989
decision of the Court of appeals which has affirmed, with modification, the 29th June 1984
1

decision of the Regional Trial Court of Quezon City ordering him, together with the Republic
2

Planters bank ("RPB"), inter alia, to pay jointly and severally herein private respondents, the spouses
Jose Francisco and Genoveva Francisco ("Franciscos"), the sum of P200,000.00 by way of actual
and moral damages, as well as P6,000.00 of attorney's fees, plus litigation expenses.

The Franciscos are the owners of a parcel of land, with an area of 38,010 square meters, situated in
Barrio Anilao, Municipality of Mabini, Province of Batangas, covered by and described in Original
Certificate of title ("OCT") No. 0-3267 of the Registry of deeds of Batangas. Del Mundo, on the other
hand, is the operator of a dive camp resort adjacent to the property.

Sometime in June of 1980, Del Mundo, on the other hand, is the operator of a dive camp resort
adjacent to the property.

Sometime in June of 1980, Del Mundo proposed a corporate joint venture with the Franciscos for the
development of the latter's property. The corporation (to be named the "Anilao Development
Corporation") would have a capital stock of One Million (P1,000,000.00) Pesos to be subscribed
equally between Del Mundo and the Franciscos. To cover the proposed subscription of the
Franciscos, Del Mundo assured the couple that he could get from them a P125,000.00 loan secured
by the realty. 3
The Franciscos executed a special power of attorney ("SPA"), dated 25 July 1980, in favor of Del
4

Mundo authorizing him to obtain a bank loan. The SPA, in part, provided:

1. To negotiate for a loan with any bank or financial institution, in such amount or
amounts as our said attorney-in-fact may deem proper and expedient and under
such terms and conditions as he may also deem proper and convenient;

2. To sign, execute and deliver by way of first mortgage in favor of said bank or
financial institution on our property situated in Anilao, Mabini, Batangas, . . .

3. To receive and receipt for the proceeds of the loan, and to sign such other papers
and documents as may be necessary in connection therewith;

GIVING AND GRANTING unto our said attorney-in-fact full power and authority as
we might or could do if personally present and acting in person, and hereby
CONFIRMING all that our said attorney-in-fact may lawfully do under and by virtue of
these presents.

Only the duplicate copy of the SPA was given to Del Mundo by the Francisco. The latter kept the
original copy but agreed to have it delivered to Del Mundo once he would have been able to firm up
the P125,000.00 financing to cover their (the Franciscos) proposed subscription. Aside from the
5

special power of attorney, the Franciscos, who were then about to depart for abroad, turned over to
6

Del Mundo the physical possession of the real property along with its existing facilities and
equipment.

Del Mundo proceeded to the Republic Planters Bank ("RPB") to apply for the loan. After the loan
application was approved, Del Mundo executed a deed of real estate mortgage over the Franciscos'
property to secure a P265,000.00 loan. The mortgage, however, could not be annotated on the
owner's copy of OCT NO. 0-3267, then in the possession of the Development Bank of the
Philippines ("DBP") which had a previous mortgage lien on it. To obtain said owner's copy, the RPB
agreed to assume, and thereafter paid, Franciscos' outstanding indebtedness to the DBP. The latter,
despite the payment, refused to release the owner's copy of the certificate of title due to Franciscos'
objection. In order to allow the release of the loan proceeds, Del Mundo submitted additional
7

collaterals. The RPB then withdrew its previous payment to the DBP of P22,621.75, and the
P265,000.00 loan was forthwith released to Del Mundo. 8

The joint venture did not materialize. The Franciscos wrote a demand letter addressed to Del Mundo
for the payment of rentals for the use of their property at the rate of P3,000.00 a month (totalling
P42,000.00) and for the return of the equipment taken by Del Mundo from the bodega of the
Franciscos valued at P15,000.00. 9

Since Del Mundo failed to settle with the Franciscos, the latter sued Del Mundo, along with the RPB,
for annulment of the mortgage, as well as for damages, before the Regional Trial Court of Quezon
City. The Franciscos asserted that Del Mundo made use of their property for his sole benefit and
purpose, and that the use of the property could not have been availed by Del Mundo himself had it
not been for the latter's proposal to put up the joint venture. After trial, the trial court rendered
judgment, dated 29 June 1984, in favor of the Franciscos thusly:
10

(1) Declaring the real estate mortgage (Exh. E) executed by defendant Mariano Del
Mundo in favor of defendant Republic Planters Bank on January 10, 1981, null and
void ab initio;
 (2) Declaring the unauthorized payments made by defendant Republic Planters Bank
to the Development Bank of the Philippines for the account of plaintiffs as null and
void;

(3) Ordering defendant Mariano L. del Mundo to pay to plaintiffs the sum of
P42,000.00 as reasonable rental payment for the use and occupancy of plaintiffs'
property, plus P15,000.00 representing the value of equipment taken by said
defendant from plaintiffs;

(4) Ordering defendants jointly and severally, to pay to plaintiffs the sum of
P200,000.00 as actual and moral damages, plus P6,000.00 as attorney's fees and
litigation expenses, plus costs;

(5) Ordering plaintiffs to reimburse defendant Republic Planters Bank the sum of
P67,000.00;

(6) Dismissing defendants' counterclaims for lack of merit. 11

Both parties appealed the decision to the Court of Appeals. While the appeal was pending, Jose
Francisco died; he was substituted by his heirs. On 07 April 1989, the court of Appeals rendered its
now assailed decision which decreed:
12

WHEREFORE, the appealed decision is hereby AFFIRMED in all respects subject to

the modification that plaintiff-appellants be absolved of any liability to appellant
bank. 13

On its assumption that the decision had already become final and executory, the Court of Appeals
made an entry of judgment on 28 September 1989. Thus, RPB, sometime in October 1990, paid
14

Genoveva Francisco and the substituted heirs the amount of P209,126.00, the extent to which RPB
was held to be jointly and solidarily liable with Del Mundo conformably with the appellate court's
decision (affirming that of the trial court). The Franciscos acknowledged the payment and
15

manifested that "(t)he only amount not satisfied . . . (was) the amount due solely from defendant
Mariano L. Del Mundo" pursuant to that portion of the judgment —

3) Ordering defendant Mariano L. Del Mundo to pay plaintiffs the sum of P42,000.00
as reasonable rental payment for the use and occupancy of plaintiff's property, plus
P15,000.00 representing the value of equipment taken by said defendant from
plaintiffs; 16

When Del Mundo learned, for the first time, that a writ of execution pursuant to the appellate court's
decision was sought to be implemented against his property on 09 October 1990, he filed on the
very next day, or on 10 October 1990, an urgent manifestation with motion to lift the entry of
judgment against him alleging non-service of the assailed decision. The appellate court acted
17

favorably on Del Mundo's motion and, "in the interest of justice," he was also allowed to file his own
18

for reconsideration. He did in due time.19

After Del Mundo's motion for reconsideration was denied on 18 March 1992, the present petition was
seasonably instituted assigning three alleged errors; viz:

A.
 RESPONDENT C.A. ERRED IN AFFIRMING THE TRIAL COURT'S FINDING THAT
PRIVATE RESPONDENTS HAVE A CAUSE OF ACTION AGAINST PETITIONER
DESPITE THE TOTAL ABSENCE OF DAMAGE ON THE PART OF PRIVATE
RESPONDENTS.

B.

RESPONDENT C.A. ERRED IN AFFIRMING THE TRIAL COURT'S DECISION

DESPITE THE FACT THAT SAID DECISION DOES NOT STATE THE FACTS AND
THE LAW ON WHICH IT IS BASED IN GROSS VIOLATION OF SEC. 9, X OF THE
1973 CONSTITUTION THEN IN FORCE AND EFFECT.

C.

RESPONDENT C.A. ERRED IN AFFIRMING THE TRIAL COURT'S DECISION

ORDERING PETITIONER AND CO-DEFENDANT REPUBLIC PLANTERS BANK
("RPB") TO PAY PRIVATE RESPONDENTS, JOINTLY AND SEVERALLY, THE SUM
OF p200,000.00 AS ACTUAL AND MORAL DAMAGES PLUS ATTORNEY'S FEES,
AND COSTS/EXPENSES OF LITIGATION.

We see partial merit in the petition.

In its 29th June 1984 decision, the trial court, after summarizing the conflicting asseverations of the
parties, went on to discuss, and forthwith to conclude on, the kernel issue of the case in just two
paragraphs, to wit:

The evidence disclose that defendant RPB executed said mortgage with del Mundo,
although the original of said special power-of-attorney and the original of the owner's
duplicate certificate of title was not presented to it and without requiring its
registration. Under the circumstances, the mortgage to defendant RPB was
irregularity executed, justifying annulment of said mortgage in its favor.

However, the evidence disclose that plaintiffs has received the sum of P45,000.00
from del Mundo, and the sum of P22,300.00 was paid to DBP (Exh. F) and applied to
plaintiffs' previous loan with DBP, as part of an agreement between plaintiffs and del
Mundo, or a total of P67,300.00. Plaintiffs are, therefore, duty bound to make
reimbursement of said amount to RPB, as they cannot be allowed to enrich
themselves at RPB's expense and prejudice. 20

After that brief disquisition, the trial court disposed of the case by ordering Del Mundo and RPB, inter
alia, jointly and severally to pay the Franciscos the sum of P200,000.00 as actual and moral
damages, P6,000.00 as attorney's fees, and litigation expenses plus costs.

It is understandable that courts, with their heavy dockets and time constraints, often find themselves
with little to spare in the preparation of decisions to the extent most desirable. We have thus pointed
out that judges might learn to synthesize and to simplify their pronouncements. Nevertheless,
21

concisely written such as they may be, decisions must still distinctly and clearly express, at least in
minimum essence, its factual and legal bases. 22

The two awards — one for actual damages and the other for moral damages — cannot be dealt with
in the aggregate; neither being kindred terms nor governed by a coincident set of rules, each must
be separately identified and independently justified. A requirement common to both, of course, is that
an injury must have been sustained by the claimant. The nature of that injury, nonetheless, differs for
while it is pecuniary in actual or compensatory damages, it is, upon the other hand, non-pecuniary
23

in the case of moral damages. 24

A party is entitled to an adequate compensation for such pecuniary loss actually suffered by him as
he has duly proved. Such damages, to be recoverable, must not only be capable of proof, but must
25

actually be proved with a reasonable degree of certainty. We have emphasized that these
26

damages cannot be presumed, and courts, in making an award must point out specific facts which
27

could afford a basis for measuring whatever compensatory or actual damages are borne. 28

Moral damages, upon the other hand, may be awarded to compensate one for manifold injuries such
as physical suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and
social humiliation. These damages must be understood to be in the concept of grants, not
punitive or corrective in nature, calculated to compensate the claimant for the injury
29 30

suffered. Although incapable of exactness and no proof of pecuniary loss is necessary in order that
31

moral damages may be awarded, the amount of indemnity being left to the discretion of the court, it 32

is imperative, nevertheless, that (1) injury must have been suffered by the claimant, and (2) such
injury must have sprung from any of the cases expressed in Article 2219 and Article 2220 of the
33 34

civil Code. A causal relation, in fine, must exist between the act or omission referred to in the Code
which underlies, or gives rise to, the case or proceeding, on the one hand, and the resulting injury,
on the other hand; i.e., the first must be the proximate cause and the latter the direct consequence
thereof.

A judicious review of the records in the case at bench, indeed, fails to show that substantial legal
basis was shown to support the herein questioned collective award for the questioned damages. We
are, therefore, constrained to disregard them.

As regards the other issues raised by petitioner, the findings of the appellate court, involving such as
they do mainly factual matters that are not entirely bereft of substantial basis, must be respected and
held binding on this Court.

In passing, we have taken note of the fact that the RPB, itself a judgment co-debtor in solidum with
Del Mundo, did not join the latter in this appeal. The Court, accordingly, cannot here and now make
any pronouncement on the effects of said bank's payment to Del Mundo under and by virtue of the
appellate court's appealed decision.

WHEREFORE, the decision of the Court of Appeals is accordingly MODIFIED by deleting the award
of P200,000.00 for actual and moral damages. In all other respects, the appealed decision is
AFFIRMED. No costs.

SO ORDERED.

DEL MUNDO VS. COURT OF APPEALS

DOCTRINE/S:

1. The two awards — one for actual damages and the other for moral damages —
cannot be dealt with in the aggregate; neither being kindred terms nor governed by a
coincident set of rules, each must be separately identified and independently justified. A
requirement common to both, of course, is that an injury must have been sustained by the
claimant. The nature of that injury, nonetheless, differs for while it is pecuniary in actual or
compensatory damages, it is, upon the other hand, non-pecuniary in the case of moral
damages.

2. A party is entitled to an adequate compensation for such pecuniary loss actually

suffered by him as he has duly proved. Such damages, to be recoverable, must not only be
capable of proof, but must actually be proved with a reasonable degree of certainty. We
have emphasized that these damages cannot be presumed, and courts, in making an award
must point out specific facts which could afford a basis for measuring whatever
compensatory or actual damages are borne.

FACTS:

The Spouses Francisco are the owners of a parcel of land. Del Mundo, on the other hand, is
the operator of a dive camp resort adjacent to the property.

Sometime in June of 1980, Del Mundo proposed a corporate joint venture with the
Franciscos for the development of the latter's property. The corporation (to be named the
"Anilao Development Corporation") would have a capital stock of One Million
(P1,000,000.00) Pesos to be subscribed equally between Del Mundo and the Franciscos. To
cover the proposed subscription of the Franciscos, Del Mundo assured the couple that he
could get from them a P125,000.00 loan secured by the realty.

The Franciscos executed a special power of attorney ("SPA"), dated 25 July 1980, 4 in favor
of Del Mundo authorizing him to obtain a bank loan.

Only the duplicate copy of the SPA was given to Del Mundo by the Francisco. The latter kept
the original copy but agreed to have it delivered to Del Mundo once he would have been
able to firm up the P125,000.00 financing to cover their (the Franciscos) proposed
subscription. Aside from the special power of attorney, the Franciscos, who were then about
to depart for abroad, turned over to Del Mundo the physical possession of the real property
along with its existing facilities and equipment.

Del Mundo proceeded to the Republic Planters Bank ("RPB") to apply for the loan. After the
loan application was approved, Del Mundo executed a deed of real estate mortgage over the
Franciscos' property to secure a P265,000.00 loan. The mortgage, however, could not be
annotated on the owner's copy of OCT NO. 0-3267 (lot of Franciscos), then in the
possession of the Development Bank of the Philippines ("DBP") which had a previous
mortgage lien on it. To obtain said owner's copy, the RPB agreed to assume, and thereafter
paid, Franciscos' outstanding indebtedness to the DBP. The latter, despite the payment,
refused to release the owner's copy of the certificate of title due to Franciscos' objection. In
order to allow the release of the loan proceeds, Del Mundo submitted additional collaterals.
The RPB then withdrew its previous payment to the DBP of P22,621.75, and the
P265,000.00 loan was forthwith released to Del Mundo.

The joint venture did not materialize. The Franciscos wrote a demand letter addressed to
Del Mundo for the payment of rentals for the use of their property at the rate of P3,000.00 a
month (totalling P42,000.00) and for the return of the equipment taken by Del Mundo from
the bodega of the Franciscos valued at P15,000.00.
Since Del Mundo failed to settle with the Franciscos, the latter sued Del Mundo, along with
the RPB, for annulment of the mortgage, as well as for damages, before the Regional Trial
Court of Quezon City.
RTC- ordered Del Mundo and RPB to pay jointly and severally the Franciscos the sum of
200k by way of actual and moral damages.

CA- Affirmed trial court’s decision with certain modifications

ISSUE: W/N the award of moral and actual damages is correct.

HELD:

NO, the court modified the decision of the CA by DELETING actual and moral damages.

Actual Damages, to be recoverable, must not only be capable of proof, but must actually be
proved with a reasonable degree of certainty. We have emphasized that these damages
cannot be presumed, and courts, in making an award must point out specific facts which
could afford a basis for measuring whatever compensatory or actual damages are borne.

In this case, it fails to show that substantial legal basis was shown to support the herein
questioned collective award for the questioned damages. We are, therefore, constrained to
disregard them.

As regards the other issues raised by petitioner, the findings of the appellate court,
involving such as they do mainly factual matters that are not entirely bereft of substantial
basis, must be respected and held binding on this Court.

In passing, we have taken note of the fact that the RPB, itself a judgment co-debtor in
solidum with Del Mundo, did not join the latter in this appeal. The Court, accordingly, cannot
here and now make any pronouncement on the effects of said bank's payment to Del Mundo
under and by virtue of the appellate court's appealed decision.
 JOSE CHING SUI YONG vs. IAC, ET. AL.
GR# L-64398 November 6, 1990

DOCTRINE/S:
1. It is a settled rule that in order for damages to be recovered, the best evidence
obtainable by the injured party must be presented. Actual or compensatory damages
cannot be presumed, but must be duly proved, and proved with a reasonable degree of
certainty. A court cannot rely on speculation, conjecture or guesswork as to the fact and
amount of damages, but must depend upon competent proof that they have been suffered
and on evidence of the actual amount thereof. If the proof is flimsy and unsubstantial, no
damages will be awarded.

FACTS:

The petitioner, Jose Ching Sui Yong, bought 7 foreign cinematographic films from a certain
Norberto Concepcion, who was alleged to be an authorized agent of Intercontinental Film
Distributors. It was agreed upon, as shown in the receipts of payment, that the said films
shall be delivered directly to the petitioner upon their arrival in the Philippines. However,
the said films were not delivered to the petitioner despite repeated demands.

The petitioner then filed an action for replevin before the CFI. The court ordered the sheriff
to take immediate possession of the 7 films. Meanwhile, the Intercontinental HK filed a 3 rd
party claim, alleging ownership and asserting the right to possess the said 7 films.

RTC- The lower court, after trial, dismissed the complaint and set aside the writ of seizure it
had issued earlier. It further ordered the petitioner to pay the private respondents the sum
of P10,000 per day as damages from December 23, 1969 until the said 7 films are returned
to the private respondents, or pay the sum of P250,000 representing the value of the said
films.

CA-affirmed the decision of the lower court.

ISSUE:

W/N the award of damages of P10,000.00 a day is supported by evidence and the law on
the matter?

RULING:
 NO. The Supreme Court affirmed the decision appealed from with modification that
the award of damages in the amount of P10,000 a day for alleged unrealized profits is
eliminated.

The sole basis for the award of damages against the petitioner is the alleged
unrealized profits of private respondents for the non-screening of the seven (7) films. We
believe that respondent court committed grave abuse of discretion in arriving at the amount
of P10,000.00 a day as unrealized profits suffered by private respondents due to the filing of
the present action by the petitioner. As correctly averred by petitioner, the films had yet to
be passed by the Board of Censors and being "bold" or so called "bomba" films, there was
the probability that some scenes therein would have been cut or censored or the films
totally banned, as in the case of one of the films.

Besides, no document or proof was presented to prove that private respondents

really lost such amount daily for non-exhibition of the films to the public by reason of the
action instituted by petitioner. The amount of P10,000.00 a day as alleged unrealized profit
was arrived at by mere speculation and conjecture by respondent court. Hence, the award
of damages for the anticipated loss of profits is unwarranted.

Again, actual or compensatory damages cannot be presumed, but must be

duly proved, and proved with a reasonable degree of certainty.

PRUDENCIADO VS. ALLIANCE TRANSPORT SYSTEM

DOCTRINE/S:
1. 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 defendant's wrongful act or omission. (People v. Baylon,
129 SCRA 62 [1984]).

2. It is undisputed that the trial courts are given discretion to determine the amount of
moral damages (Alcantara v. Surro, 93 Phil. 472) and that the Court of Appeals can only
modify or change the amount awarded when they are palpably and scandalously excessive
"so as to indicate that it was the result of passion, prejudice or corruption on the part of the
trial court (Gellada v. Warner Barnes & Co., Inc., 57 O.G. (4) 7347, 7358; Sadie v.
Bachrach Motors Co., Inc., 57 O.G. (4) 636 and Adone v. Bachrach Motor Co., Inc., 57 O.G.
656). But in more recent cases where the awards of moral and exemplary damages are far
too excessive compared to the, actual losses sustained by the aggrieved party, this Court
ruled that they should be reduced to more reasonable amounts. (TEST OF
REASONABLENESS)

3. In the case of San Andres v. Court of Appeals (116 SCRA 85 [1982]) the Supreme
Court ruled that while the amount of moral damages is a matter left largely to the sound
discretion of a court, the same when found excessive should be reduced to more reasonable
amounts, considering the attendant facts and circumstances. Moral damages, though
incapable of pecuniary estimation, are in the category of an award designed to compensate
the claimant for actual injury suffered and not to impose a penalty on the wrongdoer.

4. In (Siguenza v. Court of Appeals, 137 SCRA 578-579 [1985]), the Supreme court,
reiterating the above ruling, reduced the awards of moral and exemplary damages which
were far too excessive compared to the actual losses sustained by the aggrieved parties and
where the records show that the injury suffered was not serious or gross and, therefore, out
of proportion to the amount of damages generously awarded by the trial court.

5. "Moral damages are emphatically not intended to enrich a complainant at the

expense of a defendant. They are awarded only to enable the injured party to obtain means,
diversion or amusements that will serve to alleviate the moral suffering he has undergone,
by reason of the defendants' culpable action." The award of moral damages must be
proportionate to the suffering inflicted & B Surety & Insurance Co., Inc. v. Intermediate
Appellate Court, 129 SCRA 745 [1984] citing Grand Union Supermarket, Inc. v. Espino, Jr.,
94 SCRA 966).

FACTS:

Dra. Sofia L. Prudenciado was driving her own Chevrolet Bel Air car along Arroceros Street
with the intention of crossing Taft Avenue in order to turn left, to go to the Philippine
Normal College Compound where she would hold classes. She claimed that she was driving
her car at the rate of 10 kmph; that before crossing Taft Ave. she stopped her car and
looked to the right and to the left and not noticing any on-coming vehicle on either side she
slowly proceeded on first gear to cross the same, but when she was almost at the center,
near the island thereof, Jose Leyson who was driving People's Taxicab owned and operated
by Alliance Transport System, Inc., suddenly bumped and struck Dra. Prudenciado's car,
thereby causing physical injuries in different parts of her body, suffering more particularly
brain concussion which subjected her to several physical examinations and to an
encephalograph test while her car was damaged to the extent of P2,451.27. The damage to
the taxicab amounted to P190.00.

Dra. Prudenciado filed a complaint for damages at the Court of First Instance against the
Alliance Transport System and Jose Leyson.

RTC- ordered the defendants, jointly and severally, to pay the plaintiff the sum of P2,451.27
for actual damages representing the cost for the repair of the car of plaintiff; P25,000.00
as moral damages;

CA- reduced the award of MORAL DAMAGES from 25k to 2k.

ISSUE:

W/N the CA is correct in reducing the award of moral damages from 25k to 2k.

HELD:

YES, the damages should be reduced to more reasonable levels.

It is undisputed that the trial courts are given discretion to determine the amount of moral
damages (Alcantara v. Surro, 93 Phil. 472) and that the Court of Appeals can only modify or
change the amount awarded when they are palpably and scandalously excessive "so as to
indicate that it was the result of passion, prejudice or corruption on the part of the trial
court (Gellada v. Warner Barnes & Co., Inc., 57 O.G. (4) 7347, 7358; Sadie v. Bachrach
Motors Co., Inc., 57 O.G. (4) 636 and Adone v. Bachrach Motor Co., Inc., 57 O.G. 656). But
in more recent cases where the awards of moral and exemplary damages are far too
excessive compared to the, actual losses sustained by the aggrieved party, this Court ruled
that they should be reduced to more reasonable amounts.

Further, the court cited the case of (Siguenza v. Court of Appeals, 137 SCRA 578-579
[1985]), the Supreme court, reiterating the above ruling, reduced the awards of moral and
exemplary damages which were far too excessive compared to the actual losses sustained
by the aggrieved parties and where the records show that the injury suffered was not
serious or gross and, therefore, out of proportion to the amount of damages generously
awarded by the trial court.

Coming back to the case at bar, a careful review of the records makes it readily apparent
that the injuries sustained by Dra. Prudenciado are not as serious or extensive as they were
claimed to be, to warrant the damages awarded by the trial court. In fact, a closer scrutiny
of the exhibits showing a moderate damage to the car can by no stretch of the imagination
produce a logical conclusion that such disastrous effects of the accident sought to be
established, actually took place, not to mention the fact that such were not supported by
the medical findings presented. Unquestionably, therefore, the damages imposed' by the
lower court should be reduced to more reasonable levels.

On the other hand, it will be observed that the reduction of the damages made by
the Court of Appeals is both too drastic and unrealistic, to pass the test of
reasonableness, which appears to be the underlying basis to justify such
reduction.
While the damages sought to be recovered were not satisfactorily established to the extent
desired by the petitioner, it was nonetheless not disputed that an accident occurred due to
the fault and negligence of the respondents; that Dra. Prudenciado suffered a brain
concussion which although mild can admittedly produce the effects complained of by her
and that these symptoms can develop after several years and can lead to some, serious
handicaps or predispose the patient to other sickness (TSN, July 13, 1960, pp. 52-54).
Being a doctor by profession, her fears can be more real and intense than an ordinary
person. Otherwise stated, she is undeniably a proper recipient of moral damages which are
proportionate to her suffering.

The SC MODIFIED insofar as the award of damages is concerned; and respondents are
ordered to jointly and severally pay the petitioner; sum of P15,000.00 as moral
damages.
 PHILIPPINE AIR LINES VS. COURT OF APPEALS
GR 120262, 17 JULY 1997
DOCTRINE/S:
The discriminatory act of an air carrier ineludibly makes it liable for MORAL
DAMAGES under Article 21 in relation to Article 2219 (10) of Civil Code. As held in Alitalia
Airways vs. CA, et al, such inattention to and lack of care by petitioner airline for the
interest of its passengers who are entitled to its utmost consideration, particularly as to
their convenience, amount to BAD FAITH which entitles the passenger to the AWARD OF
MORAL DAMAGES.

FACTS:

Leovigildo A. Pantejo, then City Fiscal of Surigao City, boarded a PAL plane in Manila and
disembarked in Cebu City where he was supposed to take his connecting flight to Surigao
City. However, due to typhoon Osang, the connecting flight to Surigao City was cancelled.
To accommodate the needs of its stranded passengers, PAL initially gave out cash
assistance of P 100.00 and, the next day, P200.00, for their expected stay of 2 days in
Cebu. Pantejo requested instead that he be billeted in a hotel at the PAL’s expense because
he did not have cash with him at that time, but PAL refused. Thus, Pantejo was forced to
seek and accept the generosity of a co-passenger, an engineer named Andoni Dumlao, and
he shared a room with the latter at Sky View Hotel with the promise to pay his share of the
expenses upon reaching Surigao.

On 25 October 1988 when the flight for Surigao was resumed, Pantejo came to know that
the hotel expenses of his co-passengers, one Superintendent Ernesto Gonzales and a
certain Mrs. Gloria Rocha, an Auditor of the Philippine National Bank, were reimbursed by
PAL. At this point, Pantejo informed Oscar Jereza, PAL’s Manager for Departure Services at
Mactan Airport and who was in charge of cancelled flights, that he was going to sue the
airline for discriminating against him. It was only then that Jereza offered to pay Pantejo
P300.00 which, due to the ordeal and anguish he had undergone, the latter declined.

Pantejo filed a suit for damages against PAL with the RTC of Surigao City.

RTC- The trial court rendered judgment, ordering PAL to pay Pantejo P300.00 for actual
damages,
Php 150K AS MORAL DAMAGES.

CA- affirmed the decision of the court a quo, but with the exclusion of the award of
attorney’s fees and
Litigation expenses.

The Supreme Court affirmed the challenged judgment of Court of Appeals, subject
to the modification regarding the computation of the 6% legal rate of interest on
the monetary Awards granted therein to Pantejo.

ISSUE:
W/N petitioner airlines acted in bad faith when it failed and refused to provide hotel
accommodations for respondent Pantejo or to reimburse him for hotel expenses incurred by
reason of the cancellation of its connecting flight to Surigao City due to force majeur.

HELD:

YES.

A contract to transport passengers is quite different in kind and degree from any other
contractual relation, and this is because of the relation which an air carrier sustains with the
public. Its business is mainly with the travelling public. It invites people to avail of the
comforts and advantages it offers. The contract of air carriage, therefore, generates a
relation attended with a public duty. Neglect or malfeasance of the carrier’s employees
naturally could give ground for an action for damages.

The discriminatory act of PAL against Pantejo ineludibly makes the former liable for moral
damages under Article 21 in relation to Article 2219 (10) of the Civil Code. As held in Alitalia
Airways vs. CA, et al., such inattention to and lack of care by the airline for the interest of
its passengers who are entitled to its utmost consideration, particularly as to their
convenience, amount to bad faith which entitles the passenger to the award of moral
damages.

Moral damages are emphatically not intended to enrich a plaintiff at the expense of the
defendant. They are awarded only to allow the former to obtain means, diversion, or
amusements that will serve to alleviate the moral suffering he has undergone due to the
defendant’s culpable action and must, perforce, be proportional to the suffering inflicted.
However, substantial damages do not translate into excessive damages. Herein, except for
attorney’s fees and costs of suit, it will be noted that the Courts of Appeals affirmed point by
point the factual findings of the lower court upon which the award of damages had been
based.

The interest of 6% imposed by the court should be computed from the date of rendition of
judgment and
Not from the filing of the complaint.

The rule has been laid down in Eastern Shipping Lines, Inc. vs. Court of Appeals, et. al. that
“when an obligation, not constituting a loan or forbearance of money, is breached, an
interest on the amount of damages awarded may be imposed at the discretion of the court
at the rate of 6% per annum. No interest, however, shall be adjudged on unliquidated
claims or damages except when or until the demand can be established with reasonable
certainty. Accordingly, where the demand is established with reasonable certainty, the
interest shall begin to run from the time the claim is made judicially or extrajudicially (Art.
1169, Civil Code) but when such certainty cannot be so reasonably established at the time
the demand is made, the interest shall begin to run only from the date the judgment of the
court is made (at which time the quantification of damages may be deemed to have been
reasonably ascertained). The actual base for the computation of legal interest shall, in any
case, be on the amount finally adjudged.” This is because at the time of the filling of the
complaint, the amount of the damages to which Pantejo may be entitled remains
unliquidated and not known, until it is definitely ascertained, assessed and determined by
the court, and only after the presentation of proof thereon.
 SIMEX INTERNATIONAL (MANILA) INC. VS. COURT OF APPEALS
G.R. NO. 88013, MARCH 19, 1990
DOCTRINE/S:

Moral damages are not awarded to penalize the defendant but to compensate the
plainfiff for injuries he may have suffered.

FACTS:

Simex International is a private corporation engaged in the exportation of food products. It

buys these products from various local suppliers and then sells them abroad to the Middle
East and the United States. Most of its exports are purchased by the petitioner on credit.
Simex was a depositor of the Far East Savings Bank and maintained a checking account in
its branch in Cubao, Quezon City which issued several checks against its deposit but was
surprised to learn later that they had been dishonored for insufficient funds.

As a consequence, several suppliers sent a letter of demand to the petitioner, threatening

prosecution if the dishonored check issued to it was not made good and also withheld
delivery of the order made by the petitioner. One supplier also cancelled the petitioner’s
credit line and demanded that future payments be made by it in cash or certified check. The
petitioner complained to the respondent bank. Investigation disclosed that the sum of
P100,000.00 deposited by the petitioner on May 25, 1981, had not been credited to it. The
error was rectified only a month after, and the dishonored checks were paid after they were
re-deposited.

The petitioner then filed a complaint in the then Court of First Instance of Rizal against the
bank for its gross and wanton negligence.
CFI- rendered judgment holding that moral and exemplary damages were not called for
under the circumstances. However, observing that the plaintiff’s right had been violated, he
ordered the defendant to pay nominal damages in the amount of 20k plus attorneys fees.

CA- AFFIRMED IN TOTO. The respondent court found with the trial court that the private
respondent was guilty of negligence but agreed that the petitioner was nevertheless not
entitled to moral damages.

ISSUE:

W/N the respondent court is correct in affirming in toto the decision of the trial court in
awarding nominal and not moral damages.

HELD:

NO.

As the petitioner has indeed incurred loss through private respondent’s fault, the proper
remedy is the award of moral damages.

We shall recognize that the petitioner did suffer injury because of the private respondent's
negligence that caused the dishonor of the checks issued by it. The immediate consequence
was that its prestige was impaired because of the bouncing checks and confidence in it as a
reliable debtor was diminished. The private respondent makes much of the one instance
when the petitioner was sued in a collection case, but that did not prove that it did not have
a good reputation that could not be marred, more so since that case was ultimately settled.
10 It does not appear that, as the private respondent would portray it, the petitioner is an
unsavory and disreputable entity that has no good name to protect.

Considering all this, we feel that the award of nominal damages in the sum of P20,000.00
was not the proper relief to which the petitioner was entitled. Under Article 2221 of the Civil
Code, "nominal damages are adjudicated in order that a right of the plaintiff, which has
been violated or invaded by the defendant, may be vindicated or recognized, and not for the
purpose of indemnifying the plaintiff for any loss suffered by him." As we have found that
the petitioner has indeed incurred loss through the fault of the private respondent, the
proper remedy is the award to it of moral damages, which we impose, in our discretion, in
the same amount of P20,000.00.