negligence in a given case is not determined by reference to the

personal judgment of the actor in the situation before him. The law
NEGLIGENCE considers what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and determines liability by
that.
G.R. No. L-12219 March 15, 1918 The question as to what would constitute the conduct of a prudent man
AMADO PICART, plaintiff-appellant, in a given situation must of course be always determined in the light of
vs. human experience and in view of the facts involved in the particular
FRANK SMITH, JR., defendant-appellee. case. Abstract speculations cannot here be of much value but this
Alejo Mabanag for appellant. much can be profitably said: Reasonable men govern their conduct by
G. E. Campbell for appellee. the circumstances which are before them or known to them. They are
not, and are not supposed to be, omniscient of the future. Hence they
STREET, J.: can be expected to take care only when there is something before
them to suggest or warn of danger. Could a prudent man, in the case
In this action the plaintiff, Amado Picart, seeks to recover of the under consideration, foresee harm as a result of the course actually
defendant, Frank Smith, jr., the sum of P31,000, as damages alleged pursued? If so, it was the duty of the actor to take precautions to guard
to have been caused by an automobile driven by the defendant. From against that harm. Reasonable foresight of harm, followed by ignoring
a judgment of the Court of First Instance of the Province of La Union of the suggestion born of this prevision, is always necessary before
absolving the defendant from liability the plaintiff has appealed. negligence can be held to exist. Stated in these terms, the proper
criterion for determining the existence of negligence in a given case is
The occurrence which gave rise to the institution of this action took this: Conduct is said to be negligent when a prudent man in the
place on December 12, 1912, on the Carlatan Bridge, at San position of the tortfeasor would have foreseen that an effect harmful to
Fernando, La Union. It appears that upon the occasion in question the another was sufficiently probable to warrant his foregoing conduct or
plaintiff was riding on his pony over said bridge. Before he had gotten guarding against its consequences.
half way across, the defendant approached from the opposite direction Applying this test to the conduct of the defendant in the present case
in an automobile, going at the rate of about ten or twelve miles per we think that negligence is clearly established. A prudent man, placed
hour. As the defendant neared the bridge he saw a horseman on it and in the position of the defendant, would in our opinion, have recognized
blew his horn to give warning of his approach. He continued his course that the course which he was pursuing was fraught with risk, and would
and after he had taken the bridge he gave two more successive blasts, therefore have foreseen harm to the horse and the rider as reasonable
as it appeared to him that the man on horseback before him was not consequence of that course. Under these circumstances the law
observing the rule of the road. imposed on the defendant the duty to guard against the threatened
The plaintiff, it appears, saw the automobile coming and heard the harm.
warning signals. However, being perturbed by the novelty of the
apparition or the rapidity of the approach, he pulled the pony closely up It goes without saying that the plaintiff himself was not free from fault,
against the railing on the right side of the bridge instead of going to the for he was guilty of antecedent negligence in planting himself on the
left. He says that the reason he did this was that he thought he did not wrong side of the road. But as we have already stated, the defendant
have sufficient time to get over to the other side. The bridge is shown was also negligent; and in such case the problem always is to discover
to have a length of about 75 meters and a width of 4.80 meters. As the which agent is immediately and directly responsible. It will be noted
automobile approached, the defendant guided it toward his left, that that the negligent acts of the two parties were not contemporaneous,
being the proper side of the road for the machine. In so doing the since the negligence of the defendant succeeded the negligence of the
defendant assumed that the horseman would move to the other side. plaintiff by an appreciable interval. Under these circumstances the law
The pony had not as yet exhibited fright, and the rider had made no is that the person who has the last fair chance to avoid the impending
sign for the automobile to stop. Seeing that the pony was apparently harm and fails to do so is chargeable with the consequences, without
quiet, the defendant, instead of veering to the right while yet some reference to the prior negligence of the other party.
distance away or slowing down, continued to approach directly toward
the horse without diminution of speed. When he had gotten quite near, The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7
there being then no possibility of the horse getting across to the other Phil. Rep., 359) should perhaps be mentioned in this connection. This
side, the defendant quickly turned his car sufficiently to the right to Court there held that while contributory negligence on the part of the
escape hitting the horse alongside of the railing where it as then person injured did not constitute a bar to recovery, it could be received
standing; but in so doing the automobile passed in such close in evidence to reduce the damages which would otherwise have been
proximity to the animal that it became frightened and turned its body assessed wholly against the other party. The defendant company had
across the bridge with its head toward the railing. In so doing, it as there employed the plaintiff, as a laborer, to assist in transporting iron
struck on the hock of the left hind leg by the flange of the car and the rails from a barge in Manila harbor to the company's yards located not
limb was broken. The horse fell and its rider was thrown off with some far away. The rails were conveyed upon cars which were hauled along
violence. From the evidence adduced in the case we believe that when a narrow track. At certain spot near the water's edge the track gave
the accident occurred the free space where the pony stood between way by reason of the combined effect of the weight of the car and the
the automobile and the railing of the bridge was probably less than one insecurity of the road bed. The car was in consequence upset; the rails
and one half meters. As a result of its injuries the horse died. The slid off; and the plaintiff's leg was caught and broken. It appeared in
plaintiff received contusions which caused temporary unconsciousness evidence that the accident was due to the effects of the typhoon which
and required medical attention for several days. had dislodged one of the supports of the track. The court found that the
defendant company was negligent in having failed to repair the bed of
The question presented for decision is whether or not the defendant in the track and also that the plaintiff was, at the moment of the accident,
maneuvering his car in the manner above described was guilty of guilty of contributory negligence in walking at the side of the car
negligence such as gives rise to a civil obligation to repair the damage instead of being in front or behind. It was held that while the defendant
done; and we are of the opinion that he is so liable. As the defendant was liable to the plaintiff by reason of its negligence in having failed to
started across the bridge, he had the right to assume that the horse keep the track in proper repair nevertheless the amount of the
and the rider would pass over to the proper side; but as he moved damages should be reduced on account of the contributory negligence
toward the center of the bridge it was demonstrated to his eyes that in the plaintiff. As will be seen the defendant's negligence in that case
this would not be done; and he must in a moment have perceived that consisted in an omission only. The liability of the company arose from
it was too late for the horse to cross with safety in front of the moving its responsibility for the dangerous condition of its track. In a case like
vehicle. In the nature of things this change of situation occurred while the one now before us, where the defendant was actually present and
the automobile was yet some distance away; and from this moment it operating the automobile which caused the damage, we do not feel
was not longer within the power of the plaintiff to escape being run constrained to attempt to weigh the negligence of the respective
down by going to a place of greater safety. The control of the situation parties in order to apportion the damage according to the degree of
had then passed entirely to the defendant; and it was his duty either to their relative fault. It is enough to say that the negligence of the
bring his car to an immediate stop or, seeing that there were no other defendant was in this case the immediate and determining cause of
persons on the bridge, to take the other side and pass sufficiently far the accident and that the antecedent negligence of the plaintiff was a
away from the horse to avoid the danger of collision. Instead of doing more remote factor in the case.
this, the defendant ran straight on until he was almost upon the horse.
He was, we think, deceived into doing this by the fact that the horse A point of minor importance in the case is indicated in the special
had not yet exhibited fright. But in view of the known nature of horses, defense pleaded in the defendant's answer, to the effect that the
there was an appreciable risk that, if the animal in question was subject matter of the action had been previously adjudicated in the
unacquainted with automobiles, he might get exited and jump under court of a justice of the peace. In this connection it appears that soon
the conditions which here confronted him. When the defendant after the accident in question occurred, the plaintiff caused criminal
exposed the horse and rider to this danger he was, in our opinion, proceedings to be instituted before a justice of the peace charging the
negligent in the eye of the law. defendant with the infliction of serious injuries (lesiones graves). At the
The test by which to determine the existence of negligence in a preliminary investigation the defendant was discharged by the
particular case may be stated as follows: Did the defendant in doing magistrate and the proceedings were dismissed. Conceding that the
the alleged negligent act use that person would have used in the same acquittal of the defendant at the trial upon the merits in a criminal
situation? If not, then he is guilty of negligence. The law here in effect prosecution for the offense mentioned would be res adjudicata upon
adopts the standard supposed to be supplied by the imaginary conduct the question of his civil liability arising from negligence -- a point upon
of the discreet paterfamilias of the Roman law. The existence of which it is unnecessary to express an opinion -- the action of the

1 |TORTS AND DAMAGES

justice of the peace in dismissing the criminal proceeding upon the
preliminary hearing can have no effect. (See U. S. vs. Banzuela and No measures seems to have been adopted by the defendant company
Banzuela, 31 Phil. Rep., 564.) to prohibit or prevent visitors from entering and walking about its
From what has been said it results that the judgment of the lower court premises unattended, when they felt disposed so to do. As admitted in
must be reversed, and judgment is her rendered that the plaintiff defendant counsel's brief, "it is undoubtedly true that children in their
recover of the defendant the sum of two hundred pesos (P200), with play sometimes crossed the foot bridge to the islands;" and, we may
costs of other instances. The sum here awarded is estimated to add, roamed about at will on the uninclosed premises of the defendant,
include the value of the horse, medical expenses of the plaintiff, the in the neighborhood of the place where the caps were found. There is
loss or damage occasioned to articles of his apparel, and lawful evidence that any effort ever was made to forbid these children from
interest on the whole to the date of this recovery. The other damages visiting the defendant company's premises, although it must be
claimed by the plaintiff are remote or otherwise of such character as assumed that the company or its employees were aware of the fact
not to be recoverable. So ordered. that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a
cabin boy on one of the interisland transports. Later he took up work in
G.R. No. L-4977 March 22, 1910 his father's office, learning mechanical drawing and mechanical
DAVID TAYLOR, plaintiff-appellee, engineering. About a month after his accident he obtained employment
vs. as a mechanical draftsman and continued in that employment for six
THE MANILA ELECTRIC RAILROAD AND LIGHT months at a salary of P2.50 a day; and it appears that he was a boy of
COMPANY, defendant-appellant. more than average intelligence, taller and more mature both mentally
W. H. Lawrence, for appellant. and physically than most boys of fifteen.
W. L. Wright, for appellee. The facts set out in the foregoing statement are to our mind fully and
conclusively established by the evidence of record, and are
CARSON, J.: substantially admitted by counsel. The only questions of fact which are
seriously disputed are plaintiff's allegations that the caps which were
An action to recover damages for the loss of an eye and other injuries, found by plaintiff on defendant company's premises were the property
instituted by David Taylor, a minor, by his father, his nearest relative. of the defendant, or that they had come from its possession and
The defendant is a foreign corporation engaged in the operation of a control, and that the company or some of its employees left them
street railway and an electric light system in the city of Manila. Its exposed on its premises at the point where they were found.
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 The evidence in support of these allegations is meager, and the
power plant may be reached by boat or by crossing a footbridge, defendant company, apparently relying on the rule of law which places
impassable for vehicles, at the westerly end of the island. the burden of proof of such allegations upon the plaintiff, offered no
evidence in rebuttal, and insists that plaintiff failed in his proof. We
The plaintiff, David Taylor, was at the time when he received the think, however, that plaintiff's evidence is sufficient to sustain a finding
injuries complained of, 15 years of age, the son of a mechanical in accord with his allegations in this regard.
engineer, more mature than the average boy of his age, and having It was proven that caps, similar to those found by plaintiff, were used,
considerable aptitude and training in mechanics. more or less extensively, on the McKinley extension of the defendant
On the 30th of September, 1905, plaintiff, with a boy named Manuel company's track; that some of these caps were used in blasting a well
Claparols, about 12 years of age, crossed the footbridge to the Isla del on the company's premises a few months before the accident; that not
Provisor, for the purpose of visiting one Murphy, an employee of the far from the place where the caps were found the company has a
defendant, who and promised to make them a cylinder for a miniature storehouse for the materials, supplies and so forth, used by it in its
engine. Finding on inquiry that Mr. Murphy was not in his quarters, the operations as a street railway and a purveyor of electric light; and that
boys, impelled apparently by youthful curiosity and perhaps by the the place, in the neighborhood of which the caps were found, was
unusual interest which both seem to have taken in machinery, spent being used by the company as a sort of dumping ground for ashes and
some time in wandering about the company's premises. The visit was cinders. Fulminating caps or detonators for the discharge by electricity
made on a Sunday afternoon, and it does not appear that they saw or of blasting charges by dynamite are not articles in common use by the
spoke to anyone after leaving the power house where they had asked average citizen, and under all the circumstances, and in the absence
for Mr. Murphy. of all evidence to the contrary, we think that the discovery of twenty or
After watching the operation of the travelling crane used in handling the thirty of these caps at the place where they were found by the plaintiff
defendant's coal, they walked across the open space in the on defendant's premises fairly justifies the inference that the defendant
neighborhood of the place where the company dumped in the cinders company was either the owner of the caps in question or had the caps
and ashes from its furnaces. Here they found some twenty or thirty under its possession and control. We think also that the
brass fulminating caps scattered on the ground. These caps are evidence tends to disclose that these caps or detonators were willfully
approximately of the size and appearance of small pistol cartridges and knowingly thrown by the company or its employees at the spot
and each has attached to it two long thin wires by means of which it where they were found, with the expectation that they would be buried
may be discharged by the use of electricity. They are intended for use out of the sight by the ashes which it was engaged in dumping in that
in the explosion of blasting charges of dynamite, and have in neighborhood, they being old and perhaps defective; and, however this
themselves a considerable explosive power. After some discussion as may be, we are satisfied that the evidence is sufficient to sustain a
to the ownership of the caps, and their right to take them, the boys finding that the company or some of its employees either willfully or
picked up all they could find, hung them on stick, of which each took through an oversight left them exposed at a point on its premises
end, and carried them home. After crossing the footbridge, they met a which the general public, including children at play, where not
little girl named Jessie Adrian, less than 9 years old, and all three went prohibited from visiting, and over which the company knew or ought to
to the home of the boy Manuel. The boys then made a series of have known that young boys were likely to roam about in pastime or in
experiments with the caps. They trust the ends of the wires into an play.
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 Counsel for appellant endeavors to weaken or destroy the probative
find one. Then they opened one of the caps with a knife, and finding value of the facts on which these conclusions are based by intimidating
that it was filled with a yellowish substance they got matches, and or rather assuming that the blasting work on the company's well and on
David held the cap while Manuel applied a lighted match to the its McKinley extension was done by contractors. It was conclusively
contents. An explosion followed, causing more or less serious injuries proven, however, that while the workman employed in blasting the well
to all three. Jessie, who when the boys proposed putting a match to was regularly employed by J. G. White and Co., a firm of contractors,
the contents of the cap, became frightened and started to run away, he did the work on the well directly and immediately under the
received a slight cut in the neck. Manuel had his hand burned and supervision and control of one of defendant company's foremen, and
wounded, and David was struck in the face by several particles of the there is no proof whatever in the record that the blasting on the
metal capsule, one of which injured his right eye to such an extent as McKinley extension was done by independent contractors. Only one
to the necessitate its removal by the surgeons who were called in to witness testified upon this point, and while he stated that he
care for his wounds. 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
The evidence does definitely and conclusively disclose how the caps conditions of the alleged contract, or of the relations of the alleged
came to be on the defendant's premises, nor how long they had been contractor to the defendant company. The fact having been proven that
there when the boys found them. It appears, however, that some detonating caps were more or less extensively employed on work done
months before the accident, during the construction of the defendant's by the defendant company's directions and on its behalf, we think that
plant, detonating caps of the same size and kind as those found by the the company should have introduced the necessary evidence to
boys were used in sinking a well at the power plant near the place support its contention if it wished to avoid the not unreasonable
where the caps were found; and it also appears that at or about the inference that it was the owner of the material used in these operations
time when these caps were found, similarly caps were in use in the and that it was responsible for tortious or negligent acts of the agents
construction of an extension of defendant's street car line to Fort employed therein, on the ground that this work had been intrusted
William McKinley. The caps when found appeared to the boys who to independent contractors as to whose acts the maxim respondent
picked them up to have been lying for a considerable time, and from superior should not be applied. If the company did not in fact own or
the place where they were found would seem to have been discarded make use of caps such as those found on its premises, as intimated by
as detective or worthless and fit only to be thrown upon the rubbish counsel, it was a very simple matter for it to prove that fact, and in the
heap. absence of such proof we think that the other evidence in the record

2 |TORTS AND DAMAGES

sufficiently establishes the contrary, and justifies the court in drawing As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657),
the reasonable inference that the caps found on its premises were its wherein the principal question was whether a railroad company was
property, and were left where they were found by the company or liable for in injury received by an infant while upon its premises, from
some of its employees. idle curiosity, or for purposes of amusement, if such injury was, under
circumstances, attributable to the negligence of the company), the
Plaintiff appears to have rested his case, as did the trial judge his principles on which these cases turn are that "while a railroad company
decision in plaintiff's favor, upon the provisions of article 1089 of the is not bound to the same degree of care in regard to mere strangers
Civil Code read together with articles 1902, 1903, and 1908 of that who are unlawfully upon its premises that it owes to passengers
code. conveyed by it, it is not exempt from responsibility to such strangers for
ART. 1089 Obligations are created by law, by contracts, by quasi- injuries arising from its negligence or from its tortious acts;" and that
contracts, and illicit acts and omissions or by those in which any kind of "the conduct of an infant of tender years is not to be judged by the
fault or negligence occurs. same rule which governs that of adult. While it is the general rule in
ART. 1902 A person who by an act or omission causes damage to regard to an adult that to entitle him to recover damages for an injury
another when there is fault or negligence shall be obliged to repair the resulting from the fault or negligence of another he must himself have
damage so done. been free from fault, such is not the rule in regard to an infant of tender
ART. 1903 The obligation imposed by the preceding article is years. The care and caution required of a child is according to his
demandable, not only for personal acts and omissions, but also for maturity and capacity only, and this is to be determined in each case
those of the persons for whom they should be responsible. by the circumstances of the case."
The father, and on his death or incapacity the mother, is liable for the The doctrine of the case of Railroad Company vs. Stout was vigorously
damages caused by the minors who live with them. xxx controverted and sharply criticized in several state courts, and the
Owners or directors of an establishment or enterprise are equally liable supreme court of Michigan in the case of Ryan vs. Towar (128 Mich.,
for damages caused by their employees in the service of the branches 463) formally repudiated and disapproved the doctrine of the Turntable
in which the latter may be employed or on account of their duties. xxx cases, especially that laid down in Railroad Company vs. Stout, in a
The liability referred to in this article shall cease when the persons very able decision wherein it held, in the language of the syllabus: (1)
mentioned therein prove that they employed all the diligence of a good That the owner of the land is not liable to trespassers thereon for
father of a family to avoid the damage. 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
ART. 1908 The owners shall also be liable for the damage caused — dangerous machinery naturally calculated to attract them to the
1 By the explosion of machines which may not have been cared for premises; (3) that an invitation or license to cross the premises of
with due diligence, and for kindling of explosive substances which may another can not be predicated on the mere fact that no steps have
not have been placed in a safe and proper place. been taken to interfere with such practice; (4) that there is no
Counsel for the defendant and appellant rests his appeal strictly upon difference between children and adults as to the circumstances that
his contention that the facts proven at the trial do not established the will warrant the inference of an invitation or a license to enter upon
liability of the defendant company under the provisions of these another's premises.
articles, and since we agree with this view of the case, it is not
necessary for us to consider the various questions as to form and the Similar criticisms of the opinion in the case of Railroad Company vs.
right of action (analogous to those raised in the case of Rakes vs. Stout were indulged in by the courts in Connecticut and
Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass.,
be involved in a decision affirming the judgment of the court below. 349). And the doctrine has been questioned in Wisconsin,
We agree with counsel for appellant that under the Civil Code, as Pennsylvania, New Hampshire, and perhaps in other States.
under the generally accepted doctrine in the United States, the plaintiff On the other hand, many if not most of the courts of last resort in the
in an action such as that under consideration, in order to establish his United States, citing and approving the doctrine laid down in England
right to a recovery, must establish by competent evidence: in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down
(1) Damages to the plaintiff. the rule in these cases in accord with that announced in the Railroad
(2) Negligence by act or omission of which defendant personally, or Company vs. Stout (supra), and the Supreme Court of the United
some person for whose acts it must respond, was guilty. States, in a unanimous opinion delivered by Justice Harlan in the case
(3) The connection of cause and effect between the negligence and the of Union Pacific Railway Co. vs. McDonal and reconsidered the
damage. doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive
These proposition are, of course, elementary, and do not admit of and critical analysis and review of many of the adjudged cases, both
discussion, the real difficulty arising in the application of these English and American, formally declared that it adhered "to the
principles to the particular facts developed in the case under principles announced in the case of Railroad Co. vs. Stout."
consideration. In the case of Union Pacific Railway Co. vs. MacDonald (supra) the
It is clear that the accident could not have happened and not the facts were as follows: The plaintiff, a boy 12 years of age, out of
fulminating caps been left exposed at the point where they were found, curiosity and for his own pleasure, entered upon and visited the
or if their owner had exercised due care in keeping them in an defendant's premises, without defendant's express permission or
appropriate place; but it is equally clear that plaintiff would not have invitation, and while there, was by accident injured by falling into a
been injured had he not, for his own pleasure and convenience, burning slack pile of whose existence he had no knowledge, but which
entered upon the defendant's premises, and strolled around thereon had been left by defendant on its premises without any fence around it
without the express permission of the defendant, and had he not or anything to give warning of its dangerous condition, although
picked up and carried away the property of the defendant which he defendant knew or had reason the interest or curiosity of passers-by.
found on its premises, and had he not thereafter deliberately cut open On these facts the court held that the plaintiff could not be regarded as
one of the caps and applied a match to its contents. a mere trespasser, for whose safety and protection while on the
But counsel for plaintiff contends that because of plaintiff's youth and premises in question, against the unseen danger referred to, the
inexperience, his entry upon defendant company's premises, and the defendant was under no obligation to make provision.
intervention of his action between the negligent act of defendant in
leaving the caps exposed on its premises and the accident which We quote at length from the discussion by the court of the application
resulted in his injury should not be held to have contributed in any wise of the principles involved to the facts in that case, because what is said
to the accident, which should be deemed to be the direct result of there is strikingly applicable in the case at bar, and would seem to
defendant's negligence in leaving the caps exposed at the place where dispose of defendant's contention that, the plaintiff in this case being a
they were found by the plaintiff, and this latter the proximate cause of trespasser, the defendant company owed him no duty, and in no case
the accident which occasioned the injuries sustained by him. could be held liable for injuries which would not have resulted but for
In support of his contention, counsel for plaintiff relies on the doctrine the entry of plaintiff on defendant's premises.
laid down in many of the courts of last resort in the United States in the We adhere to the principles announced in Railroad Co. vs.
cases known as the "Torpedo" and "Turntable" cases, and the cases Stout (supra). Applied to the case now before us, they require us to
based thereon. 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
In a typical cases, the question involved has been whether a railroad have forbidden all persons from coming to its coal mine for purposes
company is liable for an injury received by an infant of tender years, merely of curiosity and pleasure. But it did not do so. On the contrary, it
who from mere idle curiosity, or for the purposes of amusement, enters permitted all, without regard to age, to visit its mine, and witness its
upon the railroad company's premises, at a place where the railroad operation. It knew that the usual approach to the mine was by a narrow
company knew, or had good reason to suppose, children would be path skirting its slack pit, close to its depot building, at which the
likely to come, and there found explosive signal torpedoes left people of the village, old and young, would often assemble. It knew
unexposed by the railroad company's employees, one of which when that children were in the habit of frequenting that locality and playing
carried away by the visitor, exploded and injured him; or where such around the shaft house in the immediate vicinity of the slack pit. The
infant found upon the premises a dangerous machine, such as a slightest regard for the safety of these children would have suggested
turntable, left in such condition as to make it probable that children in that they were in danger from being so near a pit, beneath the surface
playing with it would be exposed to accident or injury therefrom and of which was concealed (except when snow, wind, or rain prevailed) a
where the infant did in fact suffer injury in playing with such machine. mass of burning coals into which a child might accidentally fall and be
burned to death. Under all the circumstances, the railroad company
In these, and in great variety of similar cases, the great weight of ought not to be heard to say that the plaintiff, a mere lad, moved by
authority holds the owner of the premises liable. curiosity to see the mine, in the vicinity of the slack pit, was a

3 |TORTS AND DAMAGES

trespasser, to whom it owed no duty, or for whose protection it was that in which we lived to hold that parents or guardian are guilty of
under no obligation to make provisions. negligence or imprudence in every case wherein they permit growing
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man boys and girls to leave the parental roof unattended, even if in the
dangerous traps, baited with flesh, in his own ground, so near to a event of accident to the child the negligence of the parent could in any
highway, or to the premises of another, that dogs passing along the event be imputed to the child so as to deprive it a right to recover in
highway, or kept in his neighbors premises, would probably be such cases — a point which we neither discuss nor decide.
attracted by their instinct into the traps, and in consequence of such
act his neighbor's dogs be so attracted and thereby injured, an action But while we hold that the entry of the plaintiff upon defendant's
on the case would lie. "What difference," said Lord Ellenborough, C.J., property without defendant's express invitation or permission would not
"is there in reason between drawing the animal into the trap by means have relieved defendant from responsibility for injuries incurred there
of his instinct which he can not resist, and putting him there by manual by plaintiff, without other fault on his part, if such injury were
force?" What difference, in reason we may observe in this case, is attributable to the negligence of the defendant, we are of opinion that
there between an express license to the children of this village to visit under all the circumstances of this case the negligence of the
the defendant's coal mine, in the vicinity of its slack pile, and an implied defendant in leaving the caps exposed on its premises was not the
license, resulting from the habit of the defendant to permit them, proximate cause of the injury received by the plaintiff, which therefore
without objection or warning, to do so at will, for purposes of curiosity was not, properly speaking, "attributable to the negligence of the
or pleasure? Referring it the case of Townsend vs. Wathen, Judge defendant," and, on the other hand, we are satisfied that plaintiffs
Thompson, in his work on the Law of Negligence, volume 1, page 305, action in cutting open the detonating cap and putting match to its
note, well says: "It would be a barbarous rule of law that would make contents was the proximate cause of the explosion and of the resultant
the owner of land liable for setting a trap thereon, baited with stinking injuries inflicted upon the plaintiff, and that the defendant, therefore is
meat, so that his neighbor's dog attracted by his natural instinct, might not civilly responsible for the injuries thus incurred.
run into it and be killed, and which would exempt him from liability for Plaintiff contends, upon the authority of the Turntable and Torpedo
the consequence of leaving exposed and unguarded on his land a cases, that because of plaintiff's youth the intervention of his action
dangerous machine, so that his neighbor's child attracted to it and between the negligent act of the defendant in leaving the caps
tempted to intermeddle with it by instincts equally strong, might thereby exposed on its premises and the explosion which resulted in his injury
be killed or maimed for life." should not be held to have contributed in any wise to the accident; and
Chief Justice Cooley, voicing the opinion of the supreme court of it is because we can not agree with this proposition, although we
Michigan, in the case of Powers vs. Harlow (53 Mich., 507), said that accept the doctrine of the Turntable and Torpedo cases, that we have
(p. 515): thought proper to discuss and to consider that doctrine at length in this
decision. As was said in case of Railroad Co. vs. Stout (supra), "While
Children, wherever they go, must be expected to act upon childlike it is the general rule in regard to an adult that to entitle him to recover
instincts and impulses; and others who are chargeable with a duty of damages for an injury resulting from the fault or negligence of another
care and caution toward them must calculate upon this, and take he must himself have been free from fault, such is not the rule in
precautions accordingly. If they leave exposed to the observation of regard to an infant of tender years. The care and caution required of a
children anything which would be tempting to them, and which they in child is according to his maturity and capacity only, and this is to be
their immature judgment might naturally suppose they were at liberty to determined in each case by the circumstances of the case." As we
handle or play with, they should expect that liberty to be taken. think we have shown, under the reasoning on which rests the doctrine
And the same eminent jurist in his treatise or torts, alluding to the of the Turntable and Torpedo cases, no fault which would relieve
doctrine of implied invitation to visit the premises of another, says: defendant of responsibility for injuries resulting from its negligence can
In the case of young children, and other persons not fully sui juris, an be attributed to the plaintiff, a well-grown boy of 15 years of age,
implied license might sometimes arise when it would not on behalf of because of his entry upon defendant's uninclosed premises without
others. Thus leaving a tempting thing for children to play with exposed, express permission or invitation' but it is wholly different question
where they would be likely to gather for that purpose, may be whether such youth can be said to have been free from fault when he
equivalent to an invitation to them to make use of it; and, perhaps, if willfully and deliberately cut open the detonating cap, and placed a
one were to throw away upon his premises, near the common way, match to the contents, knowing, as he undoubtedly did, that his action
things tempting to children, the same implication should arise. (Chap. would result in an explosion. On this point, which must be determined
10, p. 303.) by "the particular circumstances of this case," the doctrine laid down in
The reasoning which led the Supreme Court of the United States to its the Turntable and Torpedo cases lends us no direct aid, although it is
conclusion in the cases of Railroad Co. vs. Stout (supra) and Union worthy of observation that in all of the "Torpedo" and analogous cases
Pacific Railroad Co. vs. McDonald (supra) is not less cogent and which our attention has been directed, the record discloses that the
convincing in this jurisdiction than in that wherein those cases plaintiffs, in whose favor judgments have been affirmed, were of such
originated. Children here are actuated by similar childish instincts and tender years that they were held not to have the capacity to
impulses. Drawn by curiosity and impelled by the restless spirit of understand the nature or character of the explosive instruments which
youth, boys here as well as there will usually be found whenever the fell into their hands.
public is permitted to congregate. The movement of machinery, and
indeed anything which arouses the attention of the young and inquiring In the case at bar, plaintiff at the time of the accident was a well-grown
mind, will draw them to the neighborhood as inevitably as does the youth of 15, more mature both mentally and physically than the
magnet draw the iron which comes within the range of its magnetic average boy of his age; he had been to sea as a cabin boy; was able
influence. The owners of premises, therefore, whereon things attractive to earn P2.50 a day as a mechanical draftsman thirty days after the
to children are exposed, or upon which the public are expressly or injury was incurred; and the record discloses throughout that he was
impliedly permitted to enter or upon which the owner knows or ought to exceptionally well qualified to take care of himself. The evidence of
know children are likely to roam about for pastime and in play, " must record leaves no room for doubt that, despite his denials on the
calculate upon this, and take precautions accordingly." In such cases witness stand, he well knew the explosive character of the cap with
the owner of the premises can not be heard to say that because the which he was amusing himself. The series of experiments made by
child has entered upon his premises without his express permission he him in his attempt to produce an explosion, as described by the little
is a trespasser to whom the owner owes no duty or obligation girl who was present, admit of no other explanation. His attempt to
whatever. The owner's failure to take reasonable precautions to discharge the cap by the use of electricity, followed by his efforts to
prevent the child from entering his premises at a place where he explode it with a stone or a hammer, and the final success of his
knows or ought to know that children are accustomed to roam about of endeavors brought about by the application of a match to the contents
to which their childish instincts and impulses are likely to attract them is of the caps, show clearly that he knew what he was about. Nor can
at least equivalent to an implied license to enter, and where the child there be any reasonable doubt that he had reason to anticipate that the
does enter under such conditions the owner's failure to take explosion might be dangerous, in view of the fact that the little girl, 9
reasonable precautions to guard the child against injury from unknown years of age, who was within him at the time when he put the match to
or unseen dangers, placed upon such premises by the owner, is the contents of the cap, became frightened and ran away.
clearly a breach of duty, responsible, if the child is actually injured, True, he may not have known and probably did not know the precise
without other fault on its part than that it had entered on the premises nature of the explosion which might be expected from the ignition of
of a stranger without his express invitation or permission. To hold the contents of the cap, and of course he did not anticipate the
otherwise would be expose all the children in the community to resultant injuries which he incurred; but he well knew that a more or
unknown perils and unnecessary danger at the whim of the owners or less dangerous explosion might be expected from his act, and yet he
occupants of land upon which they might naturally and reasonably be willfully, recklessly, and knowingly produced the explosion. It would be
expected to enter. going far to say that "according to his maturity and capacity" he
exercised such and "care and caution" as might reasonably be
This conclusion is founded on reason, justice, and necessity, and required of him, or that defendant or anyone else should be held civilly
neither is contention that a man has a right to do what will with his own responsible for injuries incurred by him under such circumstances.
property or that children should be kept under the care of their parents
or guardians, so as to prevent their entering on the premises of others The law fixes no arbitrary age at which a minor can be said to have the
is of sufficient weight to put in doubt. In this jurisdiction as well as in the necessary capacity to understand and appreciate the nature and
United States all private property is acquired and held under the tacit consequences of his own acts, so as to make it negligence on his part
condition that it shall not be so used as to injure the equal rights and to fail to exercise due care and precaution in the commission of such
interests of the community (see U. S. vs. Toribio,1 No. 5060, decided acts; and indeed it would be impracticable and perhaps impossible so
January 26, 1910), and except as to infants of very tender years it to do, for in the very nature of things the question of negligence
would be absurd and unreasonable in a community organized as is necessarily depends on the ability of the minor to understand the

4 |TORTS AND DAMAGES

character of his own acts and their consequences; and the age at This includes, by inference, the establishment of a relation of cause or
which a minor can be said to have such ability will necessarily depends effect between the act or omission and the damage; the latter must be
of his own acts and their consequences; and at the age at which a the direct result of one of the first two. As the decision of March 22,
minor can be said to have such ability will necessarily vary in 1881, said, it is necessary that the damages result immediately and
accordance with the varying nature of the infinite variety of acts which directly from an act performed culpably and wrongfully; "necessarily
may be done by him. But some idea of the presumed capacity of presupposing a legal ground for imputability." (Decision of October 29,
infants under the laws in force in these Islands may be gathered from 1887.)
an examination of the varying ages fixed by our laws at which minors Negligence is not presumed, but must be proven by him who alleges it.
are conclusively presumed to be capable of exercising certain rights (Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
and incurring certain responsibilities, though it can not be said that (Cf. decisions of supreme court of Spain of June 12, 1900, and June
these provisions of law are of much practical assistance in cases such 23, 1900.)
as that at bar, except so far as they illustrate the rule that the capacity Finally we think the doctrine in this jurisdiction applicable to the case at
of a minor to become responsible for his own acts varies with the bar was definitely settled in this court in the maturely considered case
varying circumstances of each case. Under the provisions of the Penal of Rakes vs. Atlantic, Gulf and Pacific Co. (supra), wherein we held
Code a minor over fifteen years of age is presumed to be capable of that while "There are many cases (personal injury cases) was
committing a crime and is to held criminally responsible therefore, exonerated," on the ground that "the negligence of the plaintiff was the
although the fact that he is less than eighteen years of age will be immediate cause of the casualty" (decisions of the 15th of January, the
taken into consideration as an extenuating circumstance (Penal Code, 19th of February, and the 7th of March, 1902, stated in Alcubilla's
arts. 8 and 9). At 10 years of age a child may, under certain Index of that year); none of the cases decided by the supreme court of
circumstances, choose which parent it prefers to live with (Code of Spain "define the effect to be given the negligence of its causes,
Civil Procedure, sec. 771). At 14 may petition for the appointment of a though not the principal one, and we are left to seek the theory of the
guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., civil law in the practice of other countries;" and in such cases we
sec. 765). And males of 14 and females of 12 are capable of declared that law in this jurisdiction to require the application of "the
contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1). principle of proportional damages," but expressly and definitely denied
We are satisfied that the plaintiff in this case had sufficient capacity the right of recovery when the acts of the injured party were the
and understanding to be sensible of the danger to which he exposed immediate causes of the accident.
himself when he put the match to the contents of the cap; that he The doctrine as laid down in that case is as follows:
was sui juris in the sense that his age and his experience qualified him Difficulty seems to be apprehended in deciding which acts of the
to understand and appreciate the necessity for the exercise of that injured party shall be considered immediate causes of the accident.
degree of caution which would have avoided the injury which resulted The test is simple. Distinction must be made between the accident and
from his own deliberate act; and that the injury incurred by him must be the injury, between the event itself, without which there could have
held to have been the direct and immediate result of his own willful and been no accident, and those acts of the victim not entering into it,
reckless act, so that while it may be true that these injuries would not independent of it, but contributing to his own proper hurt. For instance,
have been incurred but for the negligence act of the defendant in the cause of the accident under review was the displacement of the
leaving the caps exposed on its premises, nevertheless plaintiff's own crosspiece or the failure to replace it. This produces the event giving
act was the proximate and principal cause of the accident which occasion for damages—that is, the sinking of the track and the sliding
inflicted the injury. of the iron rails. To this event, the act of the plaintiff in walking by the
The rule of the Roman law was: Quod quis ex culpa sua damnum side of the car did not contribute, although it was an element of the
sentit, non intelligitur sentire. (Digest, book 50, tit. 17 rule 203.) damage which came to himself. Had the crosspiece been out of place
wholly or partly through his act or omission of duty, that would have
The Patidas contain the following provisions: been one of the determining causes of the event or accident, for which
The just thing is that a man should suffer the damage which comes to he would have been responsible. Where he contributes to the principal
him through his own fault, and that he can not demand reparation occurrence, as one of its determining factors, he can not recover.
therefor from another. (Law 25, tit. 5, Partida 3.) Where, in conjunction with the occurrence, he contributes only to his
And they even said that when a man received an injury through his own injury, he may recover the amount that the defendant responsible
own acts the grievance should be against himself and not against for the event should pay for such injury, less a sum deemed a suitable
another. (Law 2, tit. 7, Partida 2.) equivalent for his own imprudence.
According to ancient sages, when a man received an injury through his We think it is quite clear that under the doctrine thus stated, the
own acts the grievance should be against himself and not against immediate cause of the explosion, the accident which resulted in
another. (Law 2, tit. 7 Partida 2.) plaintiff's injury, was in his own act in putting a match to the contents of
And while there does not appear to be anything in the Civil Code which the cap, and that having "contributed to the principal occurrence, as
expressly lays down the law touching contributory negligence in this one of its determining factors, he can not recover."
jurisdiction, nevertheless, the interpretation placed upon its provisions We have not deemed it necessary to examine the effect of plaintiff's
by the supreme court of Spain, and by this court in the case of Rakes action in picking up upon defendant's premises the detonating caps,
vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly deny to the the property of defendant, and carrying the relation of cause and effect
plaintiff in the case at bar the right to recover damages from the between the negligent act or omission of the defendant in leaving the
defendant, in whole or in part, for the injuries sustained by him. caps exposed on its premises and the injuries inflicted upon the
The judgment of the supreme court of Spain of the 7th of March, 1902 plaintiff by the explosion of one of these caps. Under the doctrine of
(93 Jurisprudencia Civil, 391), is directly in point. In that case the court the Torpedo cases, such action on the part of an infant of very tender
said: years would have no effect in relieving defendant of responsibility, but
According to the doctrine expressed in article 1902 of the Civil Code, whether in view of the well-known fact admitted in defendant's brief
fault or negligence is a source of obligation when between such that "boys are snappers-up of unconsidered trifles," a youth of the age
negligence and the injury there exists the relation of cause and effect; and maturity of plaintiff should be deemed without fault in picking up
but if the injury produced should not be the result of acts or omissions the caps in question under all the circumstances of this case, we
of a third party, the latter has no obligation to repair the same, although neither discuss nor decide.
such acts or omission were imprudent or unlawful, and much less Twenty days after the date of this decision let judgment be entered
when it is shown that the immediate cause of the injury was the reversing the judgment of the court below, without costs to either party
negligence of the injured party himself. in this instance, and ten days thereafter let the record be returned to
The same court, in its decision of June 12, 1900, said that "the the court wherein it originated, where the judgment will be entered in
existence of the alleged fault or negligence is not sufficient without favor of the defendant for the costs in first instance and the complaint
proof that it, and no other cause, gave rise to the damage." dismissed without day. So ordered.
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), G.R. No. 129792 December 21, 1999
commenting on the decision of March 7, 1902 of the Civil Code, fault or JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE
negligence gives rise to an obligation when between it and the damage TIOPE and ELISA PANELO, petitioners,
there exists the relation of cause and effect; but if the damage caused vs.
does not arise from the acts or omissions of a third person, there is no HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and
obligation to make good upon the latter, even though such acts or CRISELDA R. AGUILAR, respondents.
omissions be imprudent or illegal, and much less so when it is shown
that the immediate cause of the damage has been the recklessness of DAVIDE, JR., J.:
the injured party himself.
In this petition for review on certiorari under Rule 45 of the Rules of
And again — Court, petitioners seek the reversal of the 17 June 1996 decision 1 of
In accordance with the fundamental principle of proof, that the burden the Court of Appeals in C.A. G.R. No. CV 37937 and the
thereof is upon the plaintiff, it is apparent that it is duty of him who shall resolution 2 denying their motion for reconsideration. The assailed
claim damages to establish their existence. The decisions of April 9, decision set aside the 15 January 1992 judgment of the Regional Trial
1896, and March 18, July, and September 27, 1898, have especially Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and
supported the principle, the first setting forth in detail the necessary ordered petitioners to pay damages and attorney's fees to private
points of the proof, which are two: An act or omission on the part of the respondents Conrado and Criselda (CRISELDA) Aguilar.
person who is to be charged with the liability, and the production of the
damage by said act or omission.

5 |TORTS AND DAMAGES

Petitioner Jarco Marketing Corporation is the owner of Syvel's and the counter was much higher and heavier than she was. Also, the
Department Store, Makati City. Petitioners Leonardo Kong, Jose Tiope testimony of one of the store's former employees, Gerardo Gonzales,
and Elisa Panelo are the store's branch manager, operations manager, who accompanied ZHIENETH when she was brought to the
and supervisor, respectively. Private respondents are spouses and the emergency room of the Makati Medical Center belied petitioners'
parents of Zhieneth Aguilar (ZHIENETH). theory that ZHIENETH climbed the counter. Gonzales claimed that
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at when ZHIENETH was asked by the doctor what she did, ZHIENETH
the 2nd floor of Syvel's Department Store, Makati City. CRISELDA was replied, "[N]othing, I did not come near the counter and the counter just
signing her credit card slip at the payment and verification counter fell on me." 9 Accordingly, Gonzales' testimony on ZHIENETH's
when she felt a sudden gust of wind and heard a loud thud. She looked spontaneous declaration should not only be considered as part of res
behind her. She then beheld her daughter ZHIENETH on the floor, her gestae but also accorded credit.
young body pinned by the bulk of the store's gift-wrapping Moreover, negligence could not be imputed to CRISELDA for it was
counter/structure. ZHIENETH was crying and screaming for help. reasonable for her to have let go of ZHIENETH at the precise moment
Although shocked, CRISELDA was quick to ask the assistance of the that she was signing the credit card slip.
people around in lifting the counter and retrieving ZHIENETH from the Finally, private respondents vigorously maintained that the proximate
floor. 3 cause of ZHIENETH's death, was petitioners' negligence in failing to
ZHIENETH was quickly rushed to the Makati Medical Center where institute measures to have the counter permanently nailed.
she was operated on. The next day ZHIENETH lost her speech and On the other hand, petitioners argued that private respondents raised
thereafter communicated with CRISELDA by writing on a magic slate. purely factual issues which could no longer be disturbed. They
The injuries she sustained took their toil on her young body. She died explained that ZHIENETH's death while unfortunate and tragic, was an
fourteen (14) days after the accident or on 22 May 1983, on the accident for which neither CRISELDA nor even ZHIENETH could
hospital bed. She was six years old. 4 entirely be held faultless and blameless. Further, petitioners adverted
to the trial court's rejection of Gonzales' testimony as unworthy of
The cause of her death was attributed to the injuries she sustained. credence.
The provisional medical certificate 5 issued by ZHIENETH's attending
doctor described the extent of her injuries: As to private respondent's claim that the counter should have been
Diagnoses: nailed to the ground, petitioners justified that it was not necessary. The
1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury counter had been in existence for several years without any prior
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe accident and was deliberately placed at a corner to avoid such
liver accidents. Truth to tell, they acted without fault or negligence for they
3. Rupture, stomach, anterior & posterior walls had exercised due diligence on the matter. In fact, the criminal
4. Complete transection, 4th position, duodenum case 10 for homicide through simple negligence filed by private
5. Hematoma, extensive, retroperitoneal respondents against the individual petitioners was dismissed; a verdict
6. Contusion, lungs, severe of acquittal was rendered in their favor.

CRITICAL The Court of Appeals, however, decided in favor of private

After the burial of their daughter, private respondents demanded upon respondents and reversed the appealed judgment. It found that
petitioners the reimbursement of the hospitalization, medical bills and petitioners were negligent in maintaining a structurally dangerous
wake and funeral expenses 6 which they had incurred. Petitioners counter. The counter was shaped like an inverted "L" 11 with a top
refused to pay. Consequently, private respondents filed a complaint for wider than the base. It was top heavy and the weight of the upper
damages, docketed as Civil Case No. 7119 wherein they sought the portion was neither evenly distributed nor supported by its narrow
payment of P157,522.86 for actual damages, P300,000 for moral base. Thus, the counter was defective, unstable and dangerous; a
damages, P20,000 for attorney's fees and an unspecified amount for downward pressure on the overhanging portion or a push from the
loss of income and exemplary damages. front could cause the counter to fall. Two former employees of
petitioners had already previously brought to the attention of the
In their answer with counterclaim, petitioners denied any liability for the management the danger the counter could cause. But the latter
injuries and consequent death of ZHIENETH. They claimed that ignored their concern. The Court of Appeals faulted the petitioners for
CRISELDA was negligent in exercising care and diligence over her this omission, and concluded that the incident that befell ZHIENETH
daughter by allowing her to freely roam around in a store filled with could have been avoided had petitioners repaired the defective
glassware and appliances. ZHIENETH too, was guilty of contributory counter. It was inconsequential that the counter had been in use for
negligence since she climbed the counter, triggering its eventual some time without a prior incident.
collapse on her. Petitioners also emphasized that the counter was
made of sturdy wood with a strong support; it never fell nor collapsed The Court of Appeals declared that ZHIENETH, who was below seven
for the past fifteen years since its construction. (7) years old at the time of the incident, was absolutely incapable of
Additionally, petitioner Jarco Marketing Corporation maintained that it negligence or other tort. It reasoned that since a child under nine (9)
observed the diligence of a good father of a family in the selection, years could not be held liable even for an intentional wrong, then the
supervision and control of its employees. The other petitioners likewise six-year old ZHIENETH could not be made to account for a mere
raised due care and diligence in the performance of their duties and mischief or reckless act. It also absolved CRISELDA of any
countered that the complaint was malicious for which they suffered negligence, finding nothing wrong or out of the ordinary in momentarily
besmirched reputation and mental anguish. They sought the dismissal allowing ZHIENETH to walk while she signed the document at the
of the complaint and an award of moral and exemplary damages and nearby counter.
attorney's fees in their favor. The Court of Appeals also rejected the testimonies of the witnesses of
petitioners. It found them biased and prejudiced. It instead gave credit
In its decision 7 the trial court dismissed the complaint and to the testimony of disinterested witness Gonzales. The Court of
counterclaim after finding that the preponderance of the evidence Appeals then awarded P99,420.86 as actual damages, the amount
favored petitioners. It ruled that the proximate cause of the fall of the representing the hospitalization expenses incurred by private
counter on ZHIENETH was her act of clinging to it. It believed respondents as evidenced by the hospital's statement of account. 12 It
petitioners' witnesses who testified that ZHIENETH clung to the denied an award for funeral expenses for lack of proof to substantiate
counter, afterwhich the structure and the girl fell with the structure the same. Instead, a compensatory damage of P50,000 was awarded
falling on top of her, pinning her stomach. In contrast, none of private for the death of ZHIENETH.
respondents' witnesses testified on how the counter fell. The trial court
also held that CRISELDA's negligence contributed to ZHIENETH's We quote the dispositive portion of the assailed decision, 13 thus:
accident. WHEREFORE, premises considered, the judgment of the lower court
In absolving petitioners from any liability, the trial court reasoned that is SET ASIDE and another one is entered against [petitioners],
the counter was situated at the end or corner of the 2nd floor as a ordering them to pay jointly and severally unto [private respondents]
precautionary measure hence, it could not be considered as an the following:
attractive nuisance. 8 The counter was higher than ZHIENETH. It has 1. P50,000.00 by way of compensatory damages for the death of
been in existence for fifteen years. Its structure was safe and well- Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April 1984;
balanced. ZHIENETH, therefore, had no business climbing on and 2. P99,420.86 as reimbursement for hospitalization expenses incurred;
clinging to it. with legal interest (6% p.a.) from 27 April 1984;
Private respondents appealed the decision, attributing as errors of the 3. P100,000.00 as moral and exemplary damages;
trial court its findings that: (1) the proximate cause of the fall of the 4. P20,000.00 in the concept of attorney's fees; and
counter was ZHIENETH's misbehavior; (2) CRISELDA was negligent 5. Costs.
in her care of ZHIENETH; (3) petitioners were not negligent in the
maintenance of the counter; and (4) petitioners were not liable for the Private respondents sought a reconsideration of the decision but the
death of ZHIENETH. same was denied in the Court of Appeals' resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals' decision and
Further, private respondents asserted that ZHIENETH should be the reinstatement of the judgment of the trial court. Petitioners primarily
entitled to the conclusive presumption that a child below nine (9) years argue that the Court of Appeals erred in disregarding the factual
is incapable of contributory negligence. And even if ZHIENETH, at six findings and conclusions of the trial court. They stress that since the
(6) years old, was already capable of contributory negligence, still it action was based on tort, any finding of negligence on the part of the
was physically impossible for her to have propped herself on the private respondents would necessarily negate their claim for damages,
counter. She had a small frame (four feet high and seventy pounds) where said negligence was the proximate cause of the injury

6 |TORTS AND DAMAGES

sustained. The injury in the instant case was the death of ZHIENETH. performed no act that facilitated her tragic death. Sadly, petitioners did,
The proximate cause was ZHIENETH's act of clinging to the counter. through their negligence or omission to secure or make stable the
This act in turn caused the counter to fall on her. This and CRISELDA's counter's base.
contributory negligence, through her failure to provide the proper care Gonzales' earlier testimony on petitioners' insistence to keep and
and attention to her child while inside the store, nullified private maintain the structurally unstable gift-wrapping counter proved their
respondents' claim for damages. It is also for these reasons that negligence, thus:
parents are made accountable for the damage or injury inflicted on
others by their minor children. Under these circumstances, petitioners Q When you assumed the position as gift wrapper at the second floor,
could not be held responsible for the accident that befell ZHIENETH. will you please describe the gift wrapping counter, were you able to
examine?
Petitioners also assail the credibility of Gonzales who was already A Because every morning before I start working I used to clean that
separated from Syvel's at the time he testified; hence, his testimony counter and since not nailed and it was only standing on the floor, it
might have been tarnished by ill-feelings against them. was shaky. x x x xxx xxx
For their part, private respondents principally reiterated their arguments Q Will you please describe the counter at 5:00 o'clock [sic] in the
that neither ZHIENETH nor CRISELDA was negligent at any time while afternoon on [sic] May 9 1983?
inside the store; the findings and conclusions of the Court of Appeals A At that hour on May 9, 1983, that counter was standing beside the
are substantiated by the evidence on record; the testimony of verification counter. And since the top of it was heavy and considering
Gonzales, who heard ZHIENETH comment on the incident while she that it was not nailed, it can collapse at anytime, since the top is heavy.
was in the hospital's emergency room should receive credence; and xxx xxx xxx
finally, ZHIENETH's part of the res gestae declaration "that she did Q And what did you do?
nothing to cause the heavy structure to fall on her" should be A I informed Mr. Maat about that counter which is [sic] shaky and since
considered as the correct version of the gruesome events. Mr. Maat is fond of putting display decorations on tables, he even told
We deny the petition. me that I would put some decorations. But since I told him that it not
[sic] nailed and it is shaky he told me "better inform also the company
The two issues to be resolved are: (1) whether the death of ZHIENETH about it." And since the company did not do anything about the
was accidental or attributable to negligence; and (2) in case of a counter, so I also did not do anything about the counter. 24 [Emphasis
finding of negligence, whether the same was attributable to private supplied]
respondents for maintaining a defective counter or to CRISELDA and Ramon Guevarra, another former employee, corroborated the
ZHIENETH for failing to exercise due and reasonable care while inside testimony of Gonzales, thus:
the store premises. Q Will you please described [sic] to the honorable Court the counter
An accident pertains to an unforeseen event in which no fault or where you were assigned in January 1983? x x x xxx xx
negligence attaches to the defendant. 15 It is "a fortuitous x
circumstance, event or happening; an event happening without any A That counter assigned to me was when my supervisor ordered me to
human agency, or if happening wholly or partly through human agency, carry that counter to another place. I told him that the counter needs
an event which under the circumstances is unusual or unexpected by nailing and it has to be nailed because it might cause injury or accident
the person to whom it happens." 16 to another since it was shaky.
Q When that gift wrapping counter was transferred at the second floor
On the other hand, negligence is the omission to do something which a on February 12, 1983, will you please describe that to the honorable
reasonable man, guided by those considerations which ordinarily Court?
regulate the conduct of human affairs, would do, or the doing of A I told her that the counter wrapper [sic] is really in good [sic]
something which a prudent and reasonable man would not condition; it was shaky. I told her that we had to nail it.
do. 17 Negligence is "the failure to observe, for the protection of the Q When you said she, to whom are you referring to [sic]?
interest of another person, that degree of care, precaution and A I am referring to Ms. Panelo, sir.
vigilance which the circumstances justly demand, whereby such other Q And what was the answer of Ms. Panelo when you told her that the
person suffers injury." 18 counter was shaky?
Accident and negligence are intrinsically contradictory; one cannot A She told me "Why do you have to teach me. You are only my
exist with the other. Accident occurs when the person concerned is subordinate and you are to teach me?" And she even got angry at me
exercising ordinary care, which is not caused by fault of any person when I told her that. x x x xxx xxx
and which could not have been prevented by any means suggested by Q From February 12, 1983 up to May 9, 1983, what if any, did Ms.
common prudence. 19 Panelo or any employee of the management do to that (sic) x x x
The test in determining the existence of negligence is enunciated in the
landmark case of Plicart v. Smith, 20 thus: Did the defendant in doing Witness:
the alleged negligent act use that reasonable care and caution which None, sir. They never nailed the counter. They only nailed the counter
an ordinarily prudent person would have used in the same situation? If after the accident happened. 25 [Emphasis supplied]
not, then he is guilty of negligence. 21 Without doubt, petitioner Panelo and another store supervisor were
We rule that the tragedy which befell ZHIENETH was no accident and personally informed of the danger posed by the unstable counter. Yet,
that ZHIENETH's death could only be attributed to negligence. neither initiated any concrete action to remedy the situation nor ensure
We quote the testimony of Gerardo Gonzales who was at the scene of the safety of the store's employees and patrons as a reasonable and
the incident and accompanied CRISELDA and ZHIENETH to the ordinary prudent man would have done. Thus, as confronted by the
hospital: situation petitioners miserably failed to discharge the due diligence
Q While at the Makati Medical Center, did you hear or notice anything required of a good father of a family.
while the child was being treated?
A At the emergency room we were all surrounding the child. And when On the issue of the credibility of Gonzales and Guevarra, petitioners
the doctor asked the child "what did you do," the child said "nothing, I failed to establish that the former's testimonies were biased and tainted
did not come near the counter and the counter just fell on me." with partiality. Therefore, the allegation that Gonzales and Guevarra's
Q (COURT TO ATTY. BELTRAN) testimonies were blemished by "ill feelings" against petitioners — since
You want the words in Tagalog to be translated? they (Gonzales and Guevarra) were already separated from the
ATTY. BELTRAN company at the time their testimonies were offered in court — was but
Yes, your Honor. mere speculation and deserved scant consideration.
COURT It is settled that when the issue concerns the credibility of witnesses,
Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta the appellate courts will not as a general rule disturb the findings of the
bumagsak." trial court, which is in a better position to determine the same. The trial
court has the distinct advantage of actually hearing the testimony of
This testimony of Gonzales pertaining to ZHIENETH's statement and observing the deportment of the witnesses. 26 However, the rule
formed (and should be admitted as) part of the res gestae under admits of exceptions such as when its evaluation was reached
Section 42, Rule 130 of the Rules of Court, thus: arbitrarily or it overlooked or failed to appreciate some facts or
Part of res gestae. Statements made by a person while a startling circumstances of weight and substance which could affect the result of
occurrence is taking place or immediately prior or subsequent thereto the case. 27 In the instant case, petitioners failed to bring their claim
with respect to the circumstances thereof, may be given in evidence as within the exception.
part of the res gestae. So, also, statements accompanying an Anent the negligence imputed to ZHIENETH, we apply the conclusive
equivocal act material to the issue, and giving it a legal significance, presumption that favors children below nine (9) years old in that they
may be received as part of the res gestae. are incapable of contributory negligence. In his book, 28 former Judge
It is axiomatic that matters relating to declarations of pain or suffering Cezar S. Sangco stated:
and statements made to a physician are generally considered
declarations and admissions. 23 All that is required for their admissibility In our jurisdiction, a person under nine years of age is conclusively
as part of the res gestae is that they be made or uttered under the presumed to have acted without discernment, and is, on that account,
influence of a startling event before the declarant had the time to think exempt from criminal liability. The same presumption and a like
and concoct a falsehood as witnessed by the person who testified in exemption from criminal liability obtains in a case of a person over nine
court. Under the circumstances thus described, it is unthinkable for and under fifteen years of age, unless it is shown that he has acted
ZHIENETH, a child of such tender age and in extreme pain, to have with discernment. Since negligence may be a felony and a quasi-
lied to a doctor whom she trusted with her life. We therefore accord delict and required discernment as a condition of liability, either
credence to Gonzales' testimony on the matter, i.e., ZHIENETH criminal or civil, a child under nine years of age is, by analogy,

7 |TORTS AND DAMAGES

conclusively presumed to be incapable of negligence; and that the 3. Lacerated wound, left lateral aspect of penile skin with phimosis
presumption of lack of discernment or incapacity for negligence in the 4. Abrasion, gluteal region, bilateral.
case of a child over nine but under fifteen years of age is a rebuttable 5. Intraperitoneal and extrapertitoneal extravasation of blood and urine
one, under our law. The rule, therefore, is that a child under nine years about 2 liters.
of age must be conclusively presumed incapable of contributory 6. Fracture, simple, symphesis pubis
negligence as a matter of law. [Emphasis supplied] 7. Ruptured (macerated) urinary bladder with body of bladder almost
entirely separated from its neck.
Even if we attribute contributory negligence to ZHIENETH and assume REMARKS:
that she climbed over the counter, no injury should have occurred if we 1. Above were incurred by crushing injury.
accept petitioners' theory that the counter was stable and sturdy. For if 2. Prognosis very poor.
that was the truth, a frail six-year old could not have caused the (Sgd.) MELQUIADES A. BRAVO
counter to collapse. The physical analysis of the counter by both the Physician on Duty. 1
trial court and Court of Appeals and a scrutiny of the evidence 29 on Three days later, Novelito Ylarde died.
record reveal otherwise, i.e., it was not durable after all. Shaped like an Ylarde's parents, petitioners in this case, filed a suit for damages
inverted "L," the counter was heavy, huge, and its top laden with against both private respondents Aquino and Soriano. The lower court
formica. It protruded towards the customer waiting area and its base dismissed the complaint on the following grounds: (1) that the digging
was not secured. 30 done by the pupils is in line with their course called Work Education;
(2) that Aquino exercised the utmost diligence of a very cautious
CRISELDA too, should be absolved from any contributory negligence. person; and (3) that the demise of Ylarde was due to his own reckless
Initially, ZHIENETH held on to CRISELDA's waist, later to the latter's imprudence. 2
hand. 31 CRISELDA momentarily released the child's hand from her
clutch when she signed her credit card slip. At this precise moment, it On appeal, the Court of Appeals affirmed the Decision of the lower
was reasonable and usual for CRISELDA to let go of her child. Further, court.
at the time ZHIENETH was pinned down by the counter, she was just a Petitioners base their action against private respondent Aquino on
foot away from her mother; and the gift-wrapping counter was just four Article 2176 of the Civil Code for his alleged negligence that caused
meters away from CRISELDA. 32 The time and distance were both their son's death while the complaint against respondent Soriano as
significant. ZHIENETH was near her mother and did not loiter as the head of school is founded on Article 2180 of the same Code.
petitioners would want to impress upon us. She even admitted to the Article 2176 of the Civil Code provides:
doctor who treated her at the hospital that she did not do anything; the Art. 2176. Whoever by act or omission causes damage to another,
counter just fell on her. there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre- existing contractual relation
WHEREFORE, in view of all the foregoing, the instant petition is between the parties, is called a quasi-delict and is governed by the
DENIED and the challenged decision of the Court of Appeals of 17 provisions of this Chapter.
June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED. On the other hand, the applicable provision of Article 2180 states:
Costs against petitioners. SO ORDERED. Art. 2180. x x x
xxx xxx xxx
G.R. No. L-33722 July 29, 1988 Lastly, teachers or heads of establishments of arts and trades shall be
FEDERICO YLARDE and ADELAIDA DORONIO petitioners, liable for damages caused by their pupils and students or apprentices,
vs. so long as they remain in their custody. 3
EDGARDO AQUINO, MAURO SORIANO and COURT OF The issue to be resolved is whether or not under the cited provisions,
APPEALS, respondents. both private respondents can be held liable for damages.
As regards the principal, We hold that he cannot be made responsible
GANCAYCO, J.: for the death of the child Ylarde, he being the head of an academic
school and not a school of arts and trades. This is in line with Our
In this petition for review on certiorari seeking the reversal of the ruling in Amadora vs. Court of Appeals, 4 wherein this Court thoroughly
decision of the Court of Appeals in CA-G.R. No. 36390-R entitled discussed the doctrine that under Article 2180 of the Civil Code, it is
"Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a case which only the teacher and not the head of an academic school who should
originated from the Court of First Instance of Pangasinan, We are be answerable for torts committed by their students. This Court went
again caned upon determine the responsibility of the principals and on to say that in a school of arts and trades, it is only the head of the
teachers towards their students or pupils. school who can be held liable. In the same case, We explained:
In 1963, private respondent Mariano Soriano was the principal of the After an exhaustive examination of the problem, the Court has come to
Gabaldon Primary School, a public educational institution located in the conclusion that the provision in question should apply
Tayug, Pangasinan-Private respondent Edgardo Aquino was a teacher to all schools, academic as well as non-academic. Where the school is
therein. At that time, the school was fittered with several concrete academic rather than technical or vocational in nature, responsibility
blocks which were remnants of the old school shop that was destroyed for the tort committed by the student will attach to the teacher in charge
in World War II. Realizing that the huge stones were serious hazards of such student, following the first part of the provision. This is the
to the schoolchildren, another teacher by the name of Sergio Banez general rule. In the case of establishments of arts and trades, it is the
started burying them one by one as early as 1962. In fact, he was able head thereof, and only he, who shall be held liable as an exception to
to bury ten of these blocks all by himself. the general rule. In other words, teachers in general shall be liable for
the acts of their students except where the school is technical in
Deciding to help his colleague, private respondent Edgardo Aquino nature, in which case it is the head thereof who shall be answerable.
gathered eighteen of his male pupils, aged ten to eleven, after class Following the canon of reddendo singula sinquilis 'teachers' should
dismissal on October 7, 1963. Being their teacher-in-charge, he apply to the words "pupils and students' and 'heads of establishments
ordered them to dig beside a one-ton concrete block in order to make a of arts and trades to the word "apprentices."
hole wherein the stone can be buried. The work was left unfinished. Hence, applying the said doctrine to this case, We rule that private
The following day, also after classes, private respondent Aquino called respondent Soriano, as principal, cannot be held liable for the reason
four of the original eighteen pupils to continue the digging. These four that the school he heads is an academic school and not a school of
pupils — Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and arts and trades. Besides, as clearly admitted by private respondent
Novelito Ylarde, dug until the excavation was one meter and forty Aquino, private respondent Soriano did not give any instruction
centimeters deep. At this point, private respondent Aquino alone regarding the digging.
continued digging while the pupils remained inside the pit throwing out
the loose soil that was brought about by the digging. From the foregoing, it can be easily seen that private respondent
When the depth was right enough to accommodate the concrete block, Aquino can be held liable under Article 2180 of the Civil Code as the
private respondent Aquino and his four pupils got out of the hole. Then, teacher-in-charge of the children for being negligent in his supervision
said private respondent left the children to level the loose soil around over them and his failure to take the necessary precautions to prevent
the open hole while he went to see Banez who was about thirty meters any injury on their persons. However, as earlier pointed out, petitioners
away. Private respondent wanted to borrow from Banez the key to the base the alleged liability of private respondent Aquino on Article 2176
school workroom where he could get some rope. Before leaving. , which is separate and distinct from that provided for in Article 2180.
private respondent Aquino allegedly told the children "not to touch the With this in mind, the question We need to answer is this: Were there
stone." acts and omissions on the part of private respondent Aquino
amounting to fault or negligence which have direct causal relation to
A few minutes after private respondent Aquino left, three of the four the death of his pupil Ylarde? Our answer is in the affirmative. He is
kids, Alonso, Alcantara and Ylarde, playfully jumped into the pit. Then, liable for damages.
without any warning at all, the remaining Abaga jumped on top of the From a review of the record of this case, it is very clear that private
concrete block causing it to slide down towards the opening. Alonso respondent Aquino acted with fault and gross negligence when he: (1)
and Alcantara were able to scramble out of the excavation on time but failed to avail himself of services of adult manual laborers and instead
unfortunately fo Ylarde, the concrete block caught him before he could utilized his pupils aged ten to eleven to make an excavation near the
get out, pinning him to the wall in a standing position. As a result one-ton concrete stone which he knew to be a very hazardous task; (2)
thereof, Ylarde sustained the following injuries: required the children to remain inside the pit even after they had
1. Contusion with hematoma, left inguinal region and suprapubic finished digging, knowing that the huge block was lying nearby and
region. could be easily pushed or kicked aside by any pupil who by chance
2. Contusion with ecchymosis entire scrotal region. may go to the perilous area; (3) ordered them to level the soil around

8 |TORTS AND DAMAGES

the excavation when it was so apparent that the huge stone was at the CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,
brink of falling; (4) went to a place where he would not be able to check vs.
on the children's safety; and (5) left the children close to the PHILIPPINE MOTORS CORPORATION, defendant-appellant.
excavation, an obviously attractive nuisance. Gibbs and McDonough for appellant.
Benj. S. Ohnick for appellee.
The negligent act of private respondent Aquino in leaving his pupils in
such a dangerous site has a direct causal connection to the death of STREET, J.:
the child Ylarde. Left by themselves, it was but natural for the children
to play around. Tired from the strenuous digging, they just had to This action was instituted in the Court of First Instance of Manila by the
amuse themselves with whatever they found. Driven by their playful Culion Ice, Fish & Electric Co., Inc., for the purpose of recovering from
and adventurous instincts and not knowing the risk they were facing the Philippine Motors Corporation the sum of P11,350, with interest
three of them jumped into the hole while the other one jumped on the and costs. Upon hearing the cause the trial court gave judgment in
stone. Since the stone was so heavy and the soil was loose from the favor of the plaintiff to recover of the defendant the sum of P9,850, with
digging, it was also a natural consequence that the stone would fall interest at 6 per centum per annum from March 24,1927, the date of
into the hole beside it, causing injury on the unfortunate child caught by the filing of the complaint, until satisfaction of the judgment, with costs.
its heavy weight. Everything that occurred was the natural and From this judgment the defendant appealed.
probable effect of the negligent acts of private respondent Aquino.
Needless to say, the child Ylarde would not have died were it not for The plaintiff and defendant are domestic corporations; and at the time
the unsafe situation created by private respondent Aquino which of the incident with which we are here concerned, H.D. Cranston was
exposed the lives of all the pupils concerned to real danger. the representative of the plaintiff in the City of Manila. At the same time
the plaintiff was the registered owner of the motor
We cannot agree with the finding of the lower court that the injuries schooner Gwendoline, which was used in the fishing trade in the
which resulted in the death of the child Ylarde were caused by his own Philippine Islands. In January, 1925, Cranston decided, if practicable,
reckless imprudence, It should be remembered that he was only ten to have the engine on the Gwendoline changed from a gasoline
years old at the time of the incident, As such, he is expected to be consumer to a crude oil burner, expecting thereby to effect economy in
playful and daring. His actuations were natural to a boy his age. Going the cost of running the boat. He therefore made known his desire to
back to the facts, it was not only him but the three of them who jumped McLeod & Co., a firm dealing in tractors, and was told by Mc Kellar, of
into the hole while the remaining boy jumped on the block. From this, it said company, that he might make inquiries of the Philippine Motors
is clear that he only did what any other ten-year old child would do in Corporations, which had its office on Ongpin Street, in the City of
the same situation. Manila. Cranston accordingly repaired to the office of the Philippine
In ruling that the child Ylarde was imprudent, it is evident that the lower Motors Corporation and had a conference with C.E. Quest, its
court did not consider his age and maturity. This should not be the manager, who agreed to do the job, with the understanding that
case. The degree of care required to be exercised must vary with the payment should be made upon completion of the work.
capacity of the person endangered to care for himself. A minor should
not be held to the same degree of care as an adult, but his conduct The Philippine Motors Corporation was at this time engaged in
should be judged according to the average conduct of persons of his business as an automobile agency, but, under its charter, it had
age and experience. 5 The standard of conduct to which a child must authority to deal in all sorts of machinery engines and motors, as well
conform for his own protection is that degree of care ordinarily as to build, operate, buy and sell the same and the equipment therof.
exercised by children of the same age, capacity, discretion, knowledge Quest, as general manager, had full charge of the corporations in all its
and experience under the same or similar circumstances. 6 Bearing branches.
this in mind, We cannot charge the child Ylarde with reckless As a result of the aforesaid interview, Quest, in company with
imprudence. Cranston, visited the Gwendoline while it lay at anchor in the Pasig
The court is not persuaded that the digging done by the pupils can River, and the work of effecting the change in the engine was begun
pass as part of their Work Education. A single glance at the picture and conducted under the supervision of Quest, chiefly by a mechanic
showing the excavation and the huge concrete block 7 would reveal a whom Quest took with him to the boat. In this work Quest had the
dangerous site requiring the attendance of strong, mature laborers and assistance of the members of the crew of the Gwendoline, who had
not ten-year old grade-four pupils. We cannot comprehend why the been directed by Cranston to place themselves under Quest's
lower court saw it otherwise when private respondent Aquino himself directions.
admitted that there were no instructions from the principal requiring Upon preliminary inspection of the engine, Quest came to the
what the pupils were told to do. Nor was there any showing that it was conclusion that the principal thing necessary to accomplish the end in
included in the lesson plan for their Work Education. Even the Court of view was to install a new carburetor, and a Zenith carburetor was
Appeals made mention of the fact that respondent Aquino decided all chosen as the one most adapted to the purpose. After this appliance
by himself to help his co-teacher Banez bury the concrete remnants of had been installed, the engine was tried with gasoline as a fuel,
the old school shop. 8 Furthermore, the excavation should not be supplied from the tank already in use. The result of this experiment
placed in the category of school gardening, planting trees, and the like was satisfactory. The next problem was to introduce into the carburetor
as these undertakings do not expose the children to any risk that could the baser fuel, consisting of a low grade of oil mixed with distillate. For
result in death or physical injuries. this purpose a temporary tank to contain the mixture was placed on
deck above and at a short distance from the compartment covering the
The contention that private respondent Aquino exercised the utmost engine. This tank was connected with the carburetor by a piece of
diligence of a very cautious person is certainly without cogent basis. A tubing, which was apparently not well fitted at the point where it was
reasonably prudent person would have foreseen that bringing children connected with the tank. Owing to this fact the fuel mixture leaked from
to an excavation site, and more so, leaving them there all by the tank and dripped sown into the engine compartment. The new fuel
themselves, may result in an accident. An ordinarily careful human line and that already in use between the gasoline tank and carburetor
being would not assume that a simple warning "not to touch the stone" were so fixed that it was possible to change from the gasoline fuel to
is sufficient to cast away all the serious danger that a huge concrete the mixed fuel. The purpose of this arrangement was to enable the
block adjacent to an excavation would present to the children. operator to start the engine on gasoline and then, after the engine had
Moreover, a teacher who stands in loco parentis to his pupils would been operating for a few moments, to switch to the new fuel
have made sure that the children are protected from all harm in his supply. lawphil.net
company. In the course of the preliminary work upon the carburetor and its
We close by categorically stating that a truly careful and cautious connections, it was observed that the carburetor was flooding, and that
person would have acted in all contrast to the way private respondent the gasoline, or other fuel, was trickling freely from the lower part to the
Aquino did. Were it not for his gross negligence, the unfortunate carburetor to the floor. This fact was called to Quest's attention, but he
incident would not have occurred and the child Ylarde would probably appeared to think lightly of the matter and said that, when the engine
be alive today, a grown- man of thirty-five. Due to his failure to take the had gotten to running well, the flooding would disappear.
necessary precautions to avoid the hazard, Ylarde's parents suffered After preliminary experiments and adjustments had been made the
great anguish all these years. boat was taken out into the bay for a trial run at about 5 p.m. or a little
later, on the evening of January 30,1925. The first part of the course
WHEREFORE, in view of the foregoing, the petition is hereby was covered without any untoward development, other than he fact
GRANTED and the questioned judgment of the respondent court is that the engine stopped a few times, owing no doubt to the use of an
REVERSED and SET ASIDE and another judgment is hereby improper mixture of fuel. In the course of the trial Quest remained
rendered ordering private respondent Edagardo Aquino to pay outside of the engine compartment and occupied himself with making
petitioners the following: distillate, with a view to ascertaining what proportion of the two
(1) Indemnity for the death of Child Ylarde P30,000.00 elements would give best results in the engine.
(2) Exemplary damages 10,000.00
(3) Moral damages 20,000.00 As the boat was coming in from this run, at about 7:30 p.m. and when
SO ORDERED. passing near Cavite, the engine stopped, and connection again had to
be made with the gasoline line to get a new start. After this had been
done the mechanic, or engineer, switched to the tube connecting with
the new mixture. A moment later a back fire occurred in the cylinder
G.R. No. L-32611 November 3, 1930 chamber. This caused a flame to shoot back into the carburetor, and
instantly the carburetor and adjacent parts were covered with a mass
of flames, which the members of the crew were unable to subdue.

9 |TORTS AND DAMAGES

They were therefore compelled, as the fire spread, to take to a boat, THE UNITED STATES, plaintiff-appellee,
and their escape was safely effected, but the Gwendoline was reduced vs.
to a mere hulk. The salvage from, the wreck, when sold, brought only SANTIAGO PINEDA, defendant-appellant.
the sum of P150. The value of the boat, before the accident occured, Francisco and Lualhati for appellant.
as the court found, was P10,000. Acting Attorney-General Paredes for appellee.
A study of the testimony lead us to the conclusion that the loss of this
boat was chargeable to the negligence and lack of skill of Quest. The MALCOLM, J.:
temporary tank in which the mixture was prepared was apparently at
too great an elevation from the carburetor, with the result that when the This appeal requires a construction and an application, for the first
fuel line was opened, the hydrostatic pressure in the carburetor was time, of the penal provisions of the Pharmacy Law.
greater than the delicate parts of the carburetor could sustain. This Santiago Pineda, the defendant, is a registered pharmacist of long
was no doubt the cause of the flooding of the carburetor; and the result standing and the owner of a drug store located at Nos. 442, 444, Calle
was that; when the back fire occurred, the external parts of the Santo Cristo, city of Manila. One Feliciano Santos, having some sick
carburetor, already saturated with gasoline, burst into flames, whence horses, presented a copy of a prescription obtained from Dr.
the fire was quickly communicated to the highly inflammable material Richardson, and which on other occasions Santos had given to his
near-by. Ordinarily a back fire from an engine would not be followed by horses with good results, at Pineda's drug store for filling. The
any disaster, but in this case the leak along the pipe line and the prescription read — "clorato de potasa — 120 gramos — en seis
flooding of the carburetor had created a dangerous situation, which a papelitos de 20 gramos, para caballo." Under the supervision of
prudent mechanic, versed in repairs of this nature, would have taken Pineda, the prescription was prepared and returned to Santos in the
precautions to avoid. The back fire may have been due either to the form of six papers marked, "Botica Pineda — Clorato potasa — 120.00
fact that the spark was too advanced or the fuel improperly mixed. — en seis papeles — para caballo — Sto. Cristo 442, 444, Binondo,
Manila." Santos, under the belief that he had purchased the potassium
In this connection it must be remembered that when a person holds chlorate which he had asked for, put two of the packages in water the
himself out as being competent to do things requiring professional skill, doses to two of his sick horses. Another package was mixed with water
he will be held liable for negligence if he fails to exhibit the care and for another horse, but was not used. The two horses, to which had
skill of one ordinarily skilled in the particular work which he attempts to been given the preparation, died shortly afterwards. Santos,
do. The proof shows that Quest had had ample experience in fixing the thereupon, took the three remaining packages to the Bureau of
engines of automobiles and tractors, but it does not appear that he was Science for examination. Drs. Peña and Darjuan, of the Bureau of
experienced in the doing of similar work on boats. For this reason, Science, on analysis found that the packages contained not potassium
possibly the dripping of the mixture form the tank on deck and the chlorate but barium chlorate. At the instance of Santos, the two
flooding of the carburetor did not convey to his mind an adequate chemists also went to the drug store of the defendant and bought
impression of the danger of fire. But a person skilled in that particular potassium chlorate, which when analyzed was found to be barium
sort of work would, we think have been sufficiently warned from those chlorate. (Barium chlorate, it should be noted, is a poison; potassium
circumstances to cause him to take greater and adequate precautions chlorate is not.) Dr. Buencamino, a veterinarian, performed an autopsy
against the danger. In other words Quest did not use the skill that on the horses, and found that death was the result of poisoning.
would have been exhibited by one ordinarily expert in repairing
gasoline engines on boats. There was here, in our opinion, on the part Four assignments of error are made. The first is that the lower court
of Quest, a blameworthy antecedent inadvertence to possible harm, erred in admitting the testimony of the chemist Pena and Darjuan as to
and this constitutes negligence. The burning of the Gwendoline may be their purchase of potassium chlorate at the drug store of the accused,
said to have resulted from accident, but this accident was in no sense which substance proved on analysis to be barium chlorate. What the
an unavoidable accident. It would not have occured but for Quest's appellant is here relying on is the maxim res inter alios acta. As a
carelessness or lack of skill. The test of liability is not whether the general rule, the evidence of other offenses committed by a defendant
injury was accidental in a sense, but whether Quest was free from is inadmissible. But appellant has confused this maxim and this rule
blame. with certain exceptions thereto. The effort is not to convict the accused
We therefore see no escape from the conclusion that this accident is of a second offense. Nor is there an attempt to draw the mind away
chargeable to lack of skill or negligence in effecting the changes which from the point at issue and thus to prejudice defendant's case. The
Quest undertook to accomplish; and even supposing that our theory as purpose is to ascertain defendant's knowledge and intent, and to fix his
to the exact manner in which the accident occurred might appear to be negligence. If the defendant has on more than one occasion performed
in some respects incorrect, yet the origin of the fire in not so similar acts, accident in good faith is possibly excluded, negligence is
inscrutable as to enable us to say that it was casus fortuitus. intensified, and fraudulent intent may even be established. It has been
said that there is no better evidence of negligence than the frequency
The trial judge seems to have proceeded on the idea that, inasmuch as of accidents. (See 10 R. C. L., pp. 938, 940.) The United States
Quest had control of the Gwendoline during the experimental run, the Supreme Court has held that:
defendant corporation was in the position of a bailee and that, as a
consequence, the burden of proof was on the defendant to exculpate On the trial of a criminal case the question relates to the tendency of
itself from responsibility by proving that the accident was not due to the certain testimony to throw light upon a particular fact, or to explain the
fault of Quest. We are unable to accede to this point of view. Certainly, conduct of a particular person, there is a certain discretion on the part
Quest was not in charge of the navigation of the boat on this trial run. of the trial judge which a court of errors will not interfere with, unless it
His employment contemplated the installation of new parts in the manifestly appear that the testimony has no legitimate bearing upon
engine only, and it seems rather strained to hold that the defendant the question at issue, and is calculated to prejudice the accused.
corporation had thereby become bailee of the boat. As a rule workmen Whenever the necessity arises for a resort to circumstantial evidence,
who make repairs on a ship in its owner's yard, or a mechanic who either from the nature of the inquiry or the failure of direct proof,
repairs a coach without taking it to his shop, are not bailees, and their objections to the testimony on the ground of irrelevancy are not
rights and liabilities are determined by the general rules of law, under favored.
their contract. The true bailee acquires possession and what is usually Evidence is admissible in a criminal action which tends to show motive,
spoken of as special property in the chattel bailed. As a consequence although it tends to prove the commission of another offense by the
of such possession and special property, the bailee is given a lien for defendant. (Moore vs. U. S. [1893], 150 U. S., 57.)
his compensation. These ideas seem to be incompatible with the The second assignment of error is that the lower court erred in finding
situation now under consideration. But though defendant cannot be that the substance sold by the accused to Feliciano Santos on the 22d
held liable in the supposition that the burden of proof had not been of June, 1916, was barium chlorate and not potassium chlorate. The
sustained by it in disproving the negligence of its manager, we are proof demonstrates the contrary.
nevertheless of the opinion that the proof shows by a clear The third and fourth assignments of error that the lower court erred in
preponderance that the accident to the Gwendoline and the damages finding that the accused has been proved guilty beyond a reasonable
resulting therefrom are chargeable to the negligence or lack of skill of doubt of an infraction of Act No. 597, section 17, as amended. The
Quest. third assignment contains the points we should consider, including, we
may remark, a somewhat difficult question concerning which the briefs
This action was instituted about two years after the accident in have given little assistance.
question had occured, and after Quest had ceased to be manager of
the defendant corporation and had gone back to the United States. The Pharmacy Law was first enacted as Act No. 597, was later
Upon these facts, the defendant bases the contention that the action amended by Act Nos. 1921, 2236, and 2382, and is now found as
should be considered stale. It is sufficient reply to say that the action Chapter 30 of the Administrative Code. The law provides for a board of
was brought within the period limited by the statute of limitations and pharmaceutical examiners, and the examination and registration of
the situation is not one where the defense of laches can be properly pharmacists, and finally contains sundry provisions relative to the
invoked. practice of pharmacy. High qualification for applicants for the
It results that the judgment appealed from, awarding damages to the pharmaceutical; examination are established. The program of subjects
plaintiff in the amount of P9,850, with interest, must be affirmed; and it for the examination is wide. Responsibility for the quality of drugs is
is so ordered, with costs against the appellant. fixed by section 17 of the Pharmacy Law, as amended (now
Administrative Code [1917], section 751), in the following term:

G.R. No. L-12858 January 22, 1918 Every pharmacist shall be responsible for the quality of all drugs,
chemicals, medicines, and poisons he may sell or keep for sale; and it
shall be unlawful for any person whomsoever to manufacture, prepare,

10 |TORTS AND DAMAGES

sell, or administer any prescription, drug, chemical, medicine, or poison druggist filled an order for calomel tablets with morphine and placed
under any fraudulent name, direction, or pretense, or to adulterate any the morphine in a box labeled calomel, it was said:
drug, chemical, medicine, or poison so used, sold or offered for sale.
Any drug, chemical, medicine, or poison shall be held to be adulterated It is not suggested, nor can we apprehend that it is in any wise
or deteriorated within the meaning of this section if it differs from the probable, that the act of furnishing the wrong drug in this case was
standard of quality or purity given in the United States Pharmacopoeia. willful. If it was furnished by the clerk, it was undoubtedly a mistake
The same section of the Pharmacy Law also contains the following and unintentional. However, it was a mistake of the gravest kind, and
penal provision: "Any person violating the provisions of this Act shall, of the most disastrous effect. We cannot say that one holding himself
upon conviction, be punished by a fine of not more than five hundred out as competent to handle such drugs, and who does so, having
dollar." The Administrative Code, section 2676, changes the penalty rightful access to them, and relied upon by those dealing with him to
somewhat by providing that: exercise that high degree of caution and care called for by the
Any person engaging in the practice of pharmacy in the Philippine peculiarly dangerous nature of this business, can be heard to say that
Islands contrary to any provision of the Pharmacy Law or violating any his mistakes by which he furnishes a customer the most deadly of
provisions of said law for which no specific penalty s provided shall, for drugs for those comparatively harmless is not, in and of itself, gross
each offense, be punished by a fine not to exceed two hundred pesos, negligence, and that of an aggravated form. (Smith's Admrx. vs.
or by imprisonment for not more than ninety days, or both, in the Middleton [1902], 56 L. R. A., 484.)
discretion of the court. The rule of caveat emptor cannot apply to the purchase and sale of
These are the provisions of law, pursuant to which prosecution has drugs. The vendor and the vendee do not stand at arms length as in
been initiated and which it is now incumbent upon us to construe. ordinary transactions. An imperative duty is on the druggist to take
Turning to the law, certain points therein as bearing on our present precautions to prevent death or serious injury to anyone who relies on
facts must be admitted. Thus, defendant is a pharmacist. As a his absolute honesty and peculiar leaning. The nature of drugs is such
pharmacist, he is made responsible for the quality of all drugs and that examination would not avail the purchaser anything. It would be
poisons which he sells. And finally it is provided that it shall be unlawful idle mockery for the customer to make an examination of a compound
for him to sell any drug or poison under any "fraudulent name." It is the of which he can know nothing. Consequently, it must be that the
one word "fraudulent" which has given the court trouble. What did the druggist warrants that he will deliver the drug called for.
Legislature intend to convey by this restrictive adjective? In civil cases, the druggist is made liable for any injury approximately
resulting from his negligence. If B negligently sells poison under the
Were we to adhere to the technical definition of fraud, which the guise of a beneficial drug to A, he is liable for the injury done to A. In a
appellant vigorously insists upon, it would be difficult, if not impossible, case, which has repeatedly been termed the leading case on the
to convict any druggist of a violation of the law. The prosecution would subject and which has been followed by the United States Supreme
have to prove to a reasonable degree of certainty that the druggist Court, it was said, "Pharmacists or apothecaries who compound or sell
made a material representation; that it was false; that when he made it medicines, if they carelessly label a poison as a harmless medicine,
he knew that it was false or made it recklessly without any knowledge and sent it so labeled into the market, are liable to all persons who,
of its truth and as positive assertion; that he made it with the intention without fault on their part, are injured by using it as such medicine, in
that it should be acted upon by the purchaser; that the purchaser acted consequence of the false label; the rule being that the liability in such a
in reliance upon it, and that the purchased thereby suffered injury. case arises not out of any contract or direct privity between the wrong-
Such a construction with a literal following of well-known principles on doer and the person injured, but out of the duty which the law imposes
the subject of fraud would strip the law of at least much of its force. It on him to avoid acts in their nature dangerous to the lives of others."
would leave the innocent purchaser of drugs, who must blindly trust in (Nat. Savings Bank vs. Ward [1879], 100 U. S., 195, following Thomas
the good faith and vigilance of the pharmacist, at the mercy of any vs. Winchester [1852], 2 Seld. [N. Y.], 387.) In reality, for the druggist,
unscrupulous vendor. We should not, therefore, without good reason mistake is negligence and care is no defense. Throughout the criminal
so devitalize the law. law, run the same rigorous rules. For example, apothecaries or
The profession of pharmacy, it has been said again and again, is one apothecary clerks, who are guilty of negligence in the sale of medicine
demanding care and skill. The responsibility of the druggist to use care when death ensues in consequence, have been held guilty of
has been variously qualified as "ordinary care," "care of a special high manslaughter. (See Tessymond's Case [1828], 1 Lewin, C. C., 169.)
degree," "the highest degree of care known to practical men." Even Bearing these general principles in mind, and remembering particularly
under the first conservative expression, "ordinary care" with reference the care and skill which are expected of druggist, that in some
to the business of a druggist, the Supreme Court of Connecticut has jurisdictions they are liable even for their mistake and in others have
said must be held to signify "the highest practicable degree of the burden placed upon them to establish that they were not negligent,
prudence, thoughtfulness, and vigilance, and most exact and reliable it cannot be that the Philippine Legislature intended to use the word
safeguards consistent with the reasonable conduct of the business, in "fraudulent" in all its strictness. A plea of accident and mistake cannot
order that human life may not be constantly be exposed to the danger excuse for they cannot take place unless there be wanton and criminal
flowing from the substitution of deadly poisons for harmless medicine." carelessness and neglect. How the misfortune occurs is unimportant, if
(Tombari vs. Connors [1912], 85 Conn., 235. See also Willson vs. under all the circumstances the fact of occurrence is attributed to the
Faxon, Williams and Faxon [1913], 208 N. Y., 108; Knoefel vs. Atkins druggist as a legal fault. Rather considering the responsibility for the
[1907], 81 N. E., 600.) The "skill" required of a druggist is denominated quality of drugs which the law imposes on druggists and the position of
as "high" or "ample." (Peters vs. Jackson [1902], 50 W. Va., 644; 57 L. the word "fraudulent" in juxtaposition to "name," what is made unlawful
R. A., 428.) In other words, the care required must be commensurate is the giving of a false name to the drug asked for. This view is borne
with the danger involved, and the skill employed must correspond with out by Spanish translation, which we are permitted to consult to explain
the superior knowledge of the business which the law demands. the English text. In the Spanish "supuesto" is used, and this word is
Under one conception, and it should not be forgotten that the case we certainly not synonymous with "fraudulent." The usual badges of fraud,
consider are civil in nature, the question of negligence or ignorance is falsify, deception, and injury must be present-but not scienter.
irrelevant. The druggist is responsible as an absolute guarantor of what
he sells. In a decision which stands alone, the Supreme Court of In view of the tremendous an imminent danger to the public from the
Kentucky said: careless sale of poisons and medicines, we do not deem it too rigid a
rule to hold that the law penalizes any druggist who shall sell one drug
As applicable to the owners of drug stores, or persons engaged in for another whether it be through negligence or mistake.
vending drugs and medicines by retail, the legal maxim should be The judgment of the lower court, sentencing the defendant to pay a
reversed. Instead of caveat emptor, it should be caveat venditor. That fine of P100, with subsidiary imprisonment in case of insolvency, and
is to say, let him be certain that he does not sell to a purchaser or send to pay the costs, is affirmed with the cost of this instance against the
to a patient one drug for another, as arsenic for calomel, cantharides appellant, without prejudice to any civil action which may be instituted.
for or mixed with snakeroot and Peruvian bark, or even one innocent So ordered.
drug, calculated to produce a certain effect, in place of another sent for
and designed to produce a different effect. If he does these things, he
cannot escape civil responsibility, upon the alleged pretext that it was G.R. No. 102383 November 26, 1992
an accidental or an innocent mistake; that he had been very careful BANK OF THE PHILIPPINE ISLANDS, petitioner,
and particular, and had used extraordinary care and diligence in vs.
preparing or compounding the medicines as required, etc. Such THE HON. COURT OF APPEALS (SEVENTH JUDICIAL), HON.
excuses will not avail him. (Fleet vs. Hollenkemp [1852], 56 Am. Dec., JUDGE REGIONAL TRIAL COURT OF MAKATI, BRANCH 59,
563.) CHINA BANKING CORP., and PHILIPPINE CLEARING HOUSE
Under the other conception, in which the proof of negligence is CORPORATION, respondents.
considered as material, where a customer calls upon a druggist for a
harmless remedy, delivery of a poisonous drug by mistake by the GUTIERREZ, JR., J.:
druggist is prima facie negligence, placing the burden on him to show
that the mistake was under the circumstances consistent with the The present petition asks us to set aside the decision and resolution of
exercise of due care. (See Knoefel vs. Atkins, supra,) The druggist the Court of Appeals in CA-G.R. SP No. 24306 which affirmed the
cannot, for example in filling a prescription calling for potassium earlier decision of the Regional Trial Court of Makati, Branch 59 in Civil
chlorate give instead to the customer barium chlorate, a poison, place Case No. 14911 entitled Bank of the Philippine Islands v. China
this poison in a package labeled "potassium chlorate," and expect to Banking Corporation and the Philippine Clearing House
escape responsibility on plea of mistake. His mistake, under the most Corporation, the dispositive portion of which reads:
favorable aspect for himself, was negligence. So in a case where a

11 |TORTS AND DAMAGES

WHEREFORE, premises considered, judgment is hereby rendered order slip, writing thereon "Rosemarie Fernando release only with
dismissing petitioner-appellant's (BPI's) appeal and affirming the authority to pick up.
appealed order of August 26, 1986 (Annex B of BPI's Petition) with
modification as follows: It was, in fact Rosemarie Fernando who got the two checks from the
1. Ordering the petitioner-appellant (BPI) to pay respondent-appellee dispatcher, as shown by the delivery receipt. Actually, as it turned out,
(CBC): the same impersonated both Eligia G. Fernando and Rosemarie
(a) the amount of One Million Two Hundred Six Thousand, Six Fernando. Although the checks represented the termination proceeds
Hundred Seven Pesos and Fifty Eight Centavos (P1,206,607.58) with of Eligia G. Fernando's placement, not just a roll-over of the placement,
interest at the legal rate of twelve percent (12%) per annum starting the dispatcher failed to get or to require the surrender of the
August 26, 1986, the date when the order of the PCHC Board of promissory note evidencing the placement. There is also no showing
Directors was issued until the full amount is finally paid; and that Eligia G. Fernando's purported signature on the letter requesting
(b) the amount of P150,000.00 representing attorney's fees; the pretermination and the latter authorizing Rosemarie Fernando to
2. BPI shall also bear 75% or P5,437.50 and CBC, 25% or P1,812.50 pick up the two checks, both of which letters were presumably handed
of the cost of the arbitration proceedings amounting to P7,250.00; to the dispatcher by Rosemarie Fernando, was compared or verified
3. The ownership of respondent-appellee (CBC) of the other sum of with Eligia G. Fernando's signature in BPI's file. Such purported
One Million Two Hundred Six Thousand Six Hundred Seven Pesos signature has been established to be forged although it has a "close
and Fifty Eight Centavos (P1,206,607.58) previously credited to its similarity" to the real signature of Eligia G. Fernando (TSN of January
clearing account on August 12, 1983 per PCHC Stockholders' 15, 1985, pp. 24 and 26).
Resolution No. 6083 dated April 6, 1983, is hereby confirmed.
4. The PCHC is hereby directed to immediately debit the clearing The story's scene now shifted when, in the afternoon of October 13,
account of BPI the sum of One Million Two Hundred Six Thousand Six 1981, a woman who represented herself to be Eligia G. Fernando
Hundred Pesos and Fifty Eight Centavos (P1,206,607.58) together applied at CBC's Head Office for the opening of a current account.
with its interest as decreed in paragraph 1 (a) herein above stated and She was accompanied and introduced to Emily Sylianco Cuaso, Cash
credit the same to the clearing account of CBC; Supervisor, by Antonio Concepcion whom Cuaso knew to have
5. The PCHC's counterclaim and cross-claim are dismissed for lack of opened, earlier that year, an account upon the introduction of Valentin
merit; and Co, a long-standing "valued client" of CBC. What Cuaso indicated in
6. With costs against the petitioner-appellant. (Rollo, pp. 161-162) the application form, however, was that the new client was introduced
The controversy in this case arose from the following facts as found by by Valentin Co, and with her initials on the form signifying her approval,
the Arbitration Committee of respondent Philippine Clearing House she referred the application to the New Accounts Section for
Corporation in Arbicom Case No. 83-029 entitled Bank of the processing. As finally proceeds, the application form shows the
Philippine Island v. China Banking Corporation: signature of "Eligia G. Fernando", "her" date of birth, sex, civil status,
The story underlying this case began in the afternoon of October 9, nationality, occupation ("business woman"), tax account number, and
1981 with a phone call to BPI's Money Market Department by a woman initial deposit of P10,000.00. This final approval of the new current
who identified herself as Eligia G. Fernando who had a money market account is indicated on the application form by the initials of Regina G.
placement as evidenced by a promissory note with a maturity date of Dy, Cashier, who did not interview the new client but affixed her initials
November 11, 1981 and a maturity value of P2,462,243.19. The caller on the application form after reviewing it. The new current account was
wanted to preterminate the placement, but Reginaldo Eustaquio, given the number: 26310-3.
Dealer Trainee in BPI's Money Market Department, who received the The following day, October 14, 1981, the woman holding herself out as
call and who happened to be alone in the trading room at the time, told Eligia G. Fernando deposited the two checks in controversy with
her "trading time" was over for the day, which was a Friday, and Current Account No. 126310-3. Her endorsement on the two checks
suggested that she call again the following week. The promissory note was found to conform with the depositor's specimen signature. CBC's
the caller wanted to preterminate was a roll-over of an earlier 50-day guaranty of prior endorsements and/or lack of endorsement was then
money market placement that had matured on September 24, 1981. stamped on the two checks, which CBC forthwith sent to clearing and
Later that afternoon, Eustaquio conveyed the request for which BPI cleared on the same day.
pretermination to the officer who before had handled Eligia G.
Fernando's account, Penelope Bulan, but Eustaquio was left to attend Two days after, withdrawals began on Current Account No. 26310-3:
to the pretermination process. On October 16, 1981, by means of Check No. 240005 dated the same
The next Monday, October 12, 1981, in the morning, the caller of the day for P1,000,000.00, payable to "cash", which the woman holding
previous Friday followed up with Eustaquio, merely by phone again, on herself out as Eligia G. Fernando encashed over the counter, and
the pretermination of the placement. Although not familiar with the Check No. 240003 dated October 15, 1981 for P48,500.00, payable to
voice of the real Eligia G. Fernando, Eustaquio "made certain" that the "cash" which was received through clearing from PNB Pasay Branch;
caller was the real Eligia G. Fernando by "verifying" that the details the on October 19, 1981, by means of Check No. 240006 dated the same
caller gave about the placement tallied with the details in "the day for P1,000,000.00, payable to "cash," which the woman identifying
ledger/folder" of the account. Eustaquio knew the real Eligia G. herself as Eligia G. Fernando encashed over the counter; on October
Fernando to be the Treasurer of Philippine American Life Insurance 22, 1981, by means of Check No. 240007 dated the same day for
Company (Philamlife) since he was handling Philamlife's corporate P370,000.00, payable to "cash" which the woman herself also
money market account. But neither Eustaquio nor Bulan who originally encashed over the counter; and on November 4, 1981, by means of
handled Fernando's account, nor anybody else at BPI, bothered to call Check No. 240001 dated November 3, 1981 for P4,100.00, payable to
up Fernando at her Philamlife office to verify the request for "cash," which was received through clearing from Far East Bank.
pretermination. All these withdrawals were allowed on the basis of the verification of
the drawer's signature with the specimen signature on file and the
Informed that the placement would yield less than the maturity value sufficiency of the funds in the account. However, the balance shown in
because of its pretermination, the caller insisted on the pretermination the computerized teller terminal when a withdrawal is serviced at the
just the same and asked that two checks be issued for the proceeds, counter, unlike the ledger or usual statement prepared at month-end,
one for P1,800,000.00 and the second for the balance, and that the does not show the account's opening date, the amounts and dates of
checks be delivered to her office at Philamlife. deposits and withdrawals. The last withdrawal on November 4, 1981
Eustaquio, thus, proceeded to prepare the "purchase order slip" for the left Current Account No. 26310-3 with a balance of only P571.61.
requested pretermination as required by office procedure, and from his The day of reckoning came on November 11, 1981, the maturity date
desk, the papers, following the processing route, passed through the of Eligia G. Fernado's money market placement with BPI, when the
position analyst, securities clerk, verifier clerk and documentation clerk, real Eligia G. Fernando went to BPI for the roll-over of her placement.
before the two cashier's checks, nos. 021759 and 021760 for She disclaimed having preterminated her placement on October 12,
P1,800,000.00 and P613,215.16, respectively, both payable to Eligia 1981. She executed an affidavit stating that while she was the payee of
G. Fernando, covering the preterminated placement, were prepared. the two checks in controversy, she never received nor endorsed them
The two cashier's checks, together with the papers consisting of the and that her purported signature on the back of the checks was not
money market placement was to be preterminated and the promissory hers but forged. With her surrender of the original of the promissory
note (No. 35623) to be preterminated, were sent to Gerlanda E. de note (No. 35623 with maturity value of P2,462,243.19) evidencing the
Castro and Celestino Sampiton, Jr., Manager and Administrative placement which matured that day, BPI issued her a new promissory
Assistant, respectively, in BPI's Treasury Operations Department, both note (No. 40314 with maturity date of December 23, 1981 and maturity
authorized signatories for BPI, who signed the two checks that very value of P2,500.266.77) to evidence a roll-over of the placement.
morning. Having been singed, the checks now went to the dispatcher On November 12, 1981, supported by Eligia G. Fernando's affidavit,
for delivery. BPI returned the two checks in controversy to CBC for the reason
Later in the same morning, however, the same caller changed the "Payee's endorsement forged". A ping-pong started when CBC, in turn,
delivery instructions; instead of the checks being delivered to her office returned the checks for reason "Beyond Clearing Time", and the
at Philamlife, she would herself pick up the checks or send her niece, stoppage of this ping-pong, as we mentioned at the outset, prompted
Rosemarie Fernando, to pick them up. Eustaquio then told her that if it the filing of this case.
were her niece who was going to get the checks, her niece would have
to being a written authorization from her to pick up the checks. This Investigation of the fraud by the Presidential Security Command led to
telephone conversation ended with the caller's statement that the filing of criminal actions for "Estafa Thru Falsification of
"definitely" it would be her niece, Rosemarie Fernando, who would pick Commercial Documents" against four employees of BPI, namely
up the checks. Thus, Eustaquio had to hurriedly go to the dispatcher, Quirino Victorio, Virgilio Gayon, Bernardo Laderas and Jorge Atayan,
Bernardo Laderas, to tell him of the new delivery instructions for the and the woman who impersonated Eligia G. Fernando, Susan Lopez
checks; in fact, he changed the delivery instruction on the purchase San Juan. Victorio and Gayon were both bookkeepers in BPI's Money

12 |TORTS AND DAMAGES

Market Operations Department, Laderas was a dispatcher in the same Petitioner BPI first returned to CBC the two (2) checks on the ground
department. . . . (Rollo, pp. 74-79) that "Payee's endorsement (was) forged" on November 12, 1981. At
The Arbitration Committee ruled in favor of petitioner BPI. The that time the clearing regulation then in force under PCHC's Clearing
dispositive portion of the decision reads: House Rules and Regulations as revised on September 19, 1980
WHEREFORE, we adjudge in favor of the Bank of the Philippine provides:
Islands and hereby order China Banking Corporation to pay the former Items which have been the subject of material alteration or items
the amount of P1,206,607.58 with interest thereon at 12% per bearing a forged endorsement when such endorsement is necessary
annum from August 12, 1983, or the date when PCHC, pursuant to its for negotiation shall be returned within twenty four (24) hours after
procedure for compulsory arbitration of the ping-pong checks under discovery of the alteration or the forgery, but in no event beyond the
Stockholders' Resolution No. 6-83 was implemented, up to the date of period prescribed by law for the filing of a legal action by the returning
actual payment. bank/branch institution or entity against the bank/branch, institution or
Costs of suit in the total amount of P7,250.00 are to be assessed the entity sending the same. (Section 23)
litigant banks in the following proportion: In the case of Banco de Oro Savings and Mortgage Bank v. Equitable
a) Plaintiff BPI —– P1,812.50 Banking Corporation (157 SCRA 188 [1988]) the clearing regulation
b) Defendant China — P5,437.50 (this is the present clearing regulation) at the time the parties' dispute
Total Assessment — P7,250.00 occurred was as follows:
conformably with PCHC Resolution Nos. 46-83 dated October 25,
1983 and 4-85 dated February 25, 1985. Sec. 21. . . . .
The PCHC is hereby directed to effect the corresponding entries to the Items which have been the subject of material alteration or items
litigant banks' clearing accounts in accordance with the foregoing bearing forged endorsement when such endorsement is necessary for
decision. (Rollo, pp. 97-98) negotiation shall be returned by direct presentation or demand to the
However, upon motion for reconsideration filed by respondent CBC, Presenting Bank and not through the regular clearing house facilities
the Board of Directors of the PCHC reversed the Arbitration within the period prescribed by law for the filing of a legal action by the
Committee's decision in its Order, the dispositive portion of which returning bank/branch, institution or entity sending the same.
reads: It is to be noted that the above-cited clearing regulations are
substantially the same in that it allows a return of a check "bearing
WHEREFORE, the Board hereby reconsiders the Decision of the forged endorsement when such endorsement is necessary for
Arbitration Committee dated March 24, 1986 in Arbicom Case No. 183- negotiation" even beyond the next regular clearing although not
029 and in lieu thereof, one is rendered modifying the decision so that beyond the prescriptive period "for the filing of a legal action by the
the Complaint of BPI is dismissed, and on the Counterclaim of CBC, returning bank."
BPI is sentenced to pay CBC the sum of P1,206,607.58. In view of the Bearing in mind this similarity in the clearing regulation in force at the
facts, no interest nor attorney's fees are awarded. BPI shall also bear time the forged checks in the present case and the Banco de Oro case
75% or P5,437.50 and CBC, 25% or P1,812.50 of the cost of the were dishonored and returned to the presenting or collecting banks, we
Arbitration proceedings amounting to P7,250.00. can be guided by the principles enunciated in the Banco de Oro case
The PCHC is hereby directed to debit the clearing account of the BPI on the relevance of negligence of the drawee vis-a-vis the forged
the sum of P1,206,607.58 and credit the same to that of CBC. The cost checks.
of Arbitration proceedings are to be debited from the accounts of the The facts in the Banco de Oro case are as follows: Sometime in March,
parties in the proportion above stated. (Rollo, pp. 112-113) April, May and August 1983 Equitable Banking Corporation through its
BPI then filed a petition for review of the abovestated order with the Visa Card Department drew six (6) crossed Manager's check with the
Regional Trial Court of Makati. The trial court dismissed the petition but total amount of Forty Five Thousand Nine Hundred and Eighty Two
modified the order as can be gleaned from the dispositive portion of its Pesos and Twenty Three Centavos (P45,982.23) and payable to
decision quoted earlier. certain member establishments of Visa Card. Later, the checks were
Not satisfied with the trial court's decision petitioner BPI filed with us a deposited with Banco de Oro to the credit of its depositor, a certain
petition for review on certiorari under Rule 45 of the Rules of Court. Aida Trencio. Following normal procedures, and after stamping at the
The case was docketed as G.R. No. 96376. However, in a Resolution back of the checks the endorsements: "All prior and/or lack of
dated February 6, 1991, we referred the case to the Court of Appeals endorsements guaranteed" Banco de Oro sent the checks for clearing
for proper determination and disposition. The appellate court affirmed through the PCHC. Accordingly, Equitable Banking Corporation paid
the trial court's decision. the checks; its clearing amount was debited for the value of the checks
Hence, this petition. and Banco de Oro's clearing account was credited for the same
In a resolution dated May 20, 1992 we gave due course to the petition: amount. When Equitable Banking Corporation discovered that the
Petitioner BPI now asseverates: endorsements at the back of the checks and purporting to be that of
I.THE DECISION AND RESOLUTION OF THE RESPONDENT the payees were forged it presented the checks directly to Banco de
COURT LEAVES THE UNDESIRABLE RESULT OF RENDERING Oro for reimbursement. Banco de Oro refused to reimburse Equitable
NUGATORY THE VERY PURPOSE FOR THE UNIFORM BANKING Banking Corporation for the value of the checks. Equitable Banking
PRACTICE OF REQUIRING THE CLEARING GUARANTEE OF Corporation then filed a complaint with the Arbitration Committees of
COLLECTING BANKS. the PCHC. The Arbiter, Atty. Ceasar Querubin, ruled in favor of
II.CONTRARY TO THE RULING OF THE RESPONDENT COURT, Equitable Banking Corporation. The Board of Directors of the PCHC
THE PROXIMATE CAUSE FOR THE LOSS OF THE PROCEEDS OF affirmed the Arbiter's decision. A petition for review of the decision filed
THE TWO CHECKS IN QUESTION WAS THE NEGLIGENCE OF THE by Banco de Oro with the Regional Trial Court of Quezon City was
EMPLOYEES OF CBC AND NOT BPI; CONSEQUENTLY, EVEN dismissed. The decision of the PCHC was affirmed in toto.
UNDER SECTION 23 OF THE NEGOTIABLE INSTRUMENTS LAW, One of the main issues threshed out in this case centered on the effect
BPI WAS NOT PRECLUDED FROM RAISING THE DEFENSE OF of Banco de Oro's (representing or collecting bank) guarantee of "all
FORGERY. prior endorsements and/or lack of endorsements" at the back of the
III.THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR checks. A corollary issue was the effect of the forged endorsements of
IN FAILING TO APPRECIATE THE FACT THAT CBC HAD THE the payees which were late discovered by the Equitable Banking
"LAST CLEAR CHANCE" OF AVOIDING THE LOSS OCCASIONED Corporation (drawee bank) resulting in the latter's claim for
BY THE FRAUDULENT ACTS INVOLVED IN THE INSTANT CASE. reimbursement of the value of checks after it paid the proceeds of the
checks.
The main issues raised in the assignment of errors are: When a bank
(in this case CBC) presents checks for clearing and payment, what is We agreed with the following disquisition of the Regional Trial Court, to
the extent of the bank's warranty of the validity of all prior wit:
endorsements stamped at the back of the checks? In the event that the Anent petitioner's liability on said instruments, this court is in full accord
payee's signature is forged, may the drawer/drawee bank (in this case with the ruling of the PCHC Board of Directors that:
BPI) claim reimbursement from the collecting bank [CBC] which earlier In presenting the checks for clearing and for payment, the defendant
paid the proceeds of the checks after the same checks were cleared made an express guarantee on the validity of "all prior endorsements."
by petitioner BPI through the PCHC? Thus, stamped at the back of the checks are the defendant's clear
Anent the first issue, petitioner BPI contends that respondent CBC's warranty: ALL PRIOR ENDORSEMENTS AND/OR LACK OF
clear warranty that "all prior endorsements and/or lack of ENDORSEMENTS GUARANTEED. Without such warranty, plaintiff
endorsements guaranteed" stamped at the back of the checks was an would not have paid on the checks.
unrestrictive clearing guaranty that all prior endorsements in the No amount of legal jargon can reverse the clear meaning of
checks are genuine. Under this premise petitioner BPI asserts that the defendant's warranty. As the warranty has proven to be false and
presenting or collecting bank, respondent CBC, had an unquestioned inaccurate, the defendant is liable for any damage arising out of the
liability when it turned out that the payee's signature on the checks falsity of its representation.
were forged. With these circumstances, petitioner BPI maintains that The principle of estoppel, effectively prevents the defendant from
considerations of relative negligence becomes totally irrelevant. denying liability for any damage sustained by the plaintiff which, relying
upon an action or declaration of the defendant, paid on the checks.
In sum, petitioner BPI theorizes that the Negotiable Instruments Law, The same principle of estoppel effectively prevents the defendant from
specifically Section 23 thereof is not applicable in the light of the denying the existence of the checks. (pp. 10-11, Decision, pp. 43-
absolute liability of the representing or collecting bank as regards 44, Rollo) (at pp. 194-195)
forged endorsements in consonance with the clearing guarantee
requirement imposed upon the presenting or collecting banks "as it is We also ruled:
worded today."

13 |TORTS AND DAMAGES

Apropos the matter of forgery in endorsements, this Court has under such forged signature, unless the party against whom it is
presently succintly emphasized that the collecting bank or last sought to enforce such right is precluded from setting up the forgery or
endorser generally suffers the loss because it has the duty to ascertain want of authority.
the genuineness of all prior endorsements considering that the act of
presenting the check for payment to the drawee is an assertion that the There are two (2) parts of the provision. The first part states the
party making the presentment has done its duty to ascertain the general rule while the second part states the exception to the general
genuineness of the endorsements. This is laid down in the case of rule. The general rule is to the effect that a forged signature is "wholly
PNB v. National City Bank. (63 Phil. 1711) In another case, this court inoperative", and payment made "through or under such signature" is
held that if the drawee-bank discovers that the signature of the payee ineffectual or does not discharge the instrument. The exception to this
was forged after it has paid the amount of the check to the holder rule is when the party relying in the forgery is "precluded from setting
thereof, it can recover the amount paid from the collecting bank. xxx up the forgery or want of authority. In this jurisdiction we
xxx xxx recognize negligence of the party invoking forgery as an exception to
The point that comes uppermost is whether the drawee bank was the general rule. (See Banco de Oro Savings and Mortgage Bank v.
negligent in failing to discover the alteration or the forgery. (Emphasis Equitable Banking Corporation supra; Philippine National Bank v.
supplied) xxx xxx xxx Quimpo, 158 SCRA 582 [1988]; Philippine National Bank v. Court of
The court reproduces with approval the following disquisition of the Appeals, 25 SCRA 693 [1968]; Republic v. Equitable Banking
PCHC in its decision. xxx xxx xxx Corporation, 10 SCRA 8 [1964]; National Bank v. National City Bank of
New York, 63 Phil. 711 [1936]; San Carlos Milling Co. v. Bank of P.I.,
III. Having Violated Its Warranty On Validity Of All Endorsements, 59 Phil. 59 [1933]). In these cases we determined the rights and
Collecting Bank Cannot Deny Liability To Those Who Relied On Its liabilities of the parties under a forged endorsement by looking at the
Warranty. xxx xxx xxx legal effects of the relative negligence of the parties thereto.
The damage that will result if judgment is not rendered for the plaintiff In the present petition the payee's names in the two (2) subject checks
is irreparable. The collecting bank has privity with the depositor who is were forged. Following the general rule, the checks are "wholly
the principal culprit in this case. The defendant knows the inoperative" and of no effect. However, the underlying circumstances
depositor; her address and her history. Depositor is defendant's of the case show that the general rule on forgery is not applicable. The
client. It has taken a risk on its depositor when it allowed her to collect issue as to who between the parties should bear the loss in the
on the crossed-checks. payment of the forged checks necessities the determination of the
Having accepted the crossed checks from persons other than the rights and liabilities of the parties involved in the controversy in relation
payees, the defendant is guilty of negligence; the risk of wrongful to the forged checks.
payment has to be assumed by the defendant. (Emphasis supplied, at
pp. 198-202) The records show that petitioner BPI as drawee bank and respondent
As can be gleaned from the decision, one of the main considerations in CBC as representing or collecting bank were both negligent resulting in
affirming the PCHC's decision was the finding that as between the the encashment of the forged checks.
drawee bank (Equitable Bank) and the representing or collecting bank The Arbitration Committee in its decision analyzed the negligence of
(Banco de Oro) the latter was negligent and thus responsible for undue the employees of petitioner BPI involved in the processing of the pre-
payment. termination of Eligia G. Fernando's money market placement and in
Parenthetically, petitioner BPI's theory that the present clearing the issuance and delivery of the subject checks in this wise:
guarantee requirement imposed on the representing or collecting bank a) The impostor could have been readily unmasked by a mere
under the PCHC rules and regulations is independent of the telephone call, which nobody in BPI bothered to make to Eligia G.
Negotiable Instruments Law is not in order. Fernando, a vice-president of Philamlife (Annex C, p. 13).
Another reason why the petitioner's theory is uncalled for is the fact b) It is rather curious, too, that the officer who used to handle Eligia G.
that the Negotiable Instruments Law (Act No. 2031) applied to Fernando's account did not do anything about the account's pre-
negotiable instruments as defined under section one thereof. termination (Ibid, p. 13).
Undeniably, the present case involves checks as defined by and under c) Again no verification appears to have been made by (sic) Eligia G.
the coverage of the Negotiable Instruments Law. To affirm the theory Fernando's purported signature on the letter requesting the pre-
of the petitioner would, therefore, violate the rule that rules and termination and the letter authorizing her niece to pick-up the checks,
regulations implementing the law should conform to the law, otherwise yet, her signature was in BPI's file (Ibid., p. 13).
the rules and regulations are null and void. Thus, we held Shell d) Another step that could have foiled the fraud, but which BPI
Philippines, Inc. v. Central Bank of the Philippines (162 SCRA 628 neglected to take, was requiring before the two checks in controversy
[1988]): were delivered, the surrender of the promissory note evidencing the
. . . while it is true that under the same law the Central Bank was given money market placement that was supposedly pre-terminated. (Rollo,
the authority to promulgate rules and regulations to implement the p. 13).
statutory provision in question, we reiterate the principle that this The Arbitration Committee, however, belittled petitioner BPI's
authority is limited only to carrying into effect what the law being negligence compared to that of respondent CBC which it declared as
implemented provides. graver and the proximate cause of the loss of the subject checks to the
impostor who impersonated Eligia G. Fernando. Petitioner BPI now
In People v. Maceren (79 SCRA 450, 458 and 460), this Court ruled insists on the adoption of the Arbitration Committee's evaluation of the
that: negligence of both parties, to wit:
Administrative regulations adopted under legislative authority by a
particular department must be in harmony with the provisions of the a) But what about the lapses of BPI's employees who processed the
law, and should be for the sole purpose of carrying into effect its pretermination of Eligia G. Fernando's placement and issued the
general provisions. By such regulations, of course, the law itself cannot checks? We do not think it was a serious lapse not to confirm the
be extended. (U.S. v. Tupasi Molina, supra). An administrative agency telephone request for pretermination purportedly made by Eligia G.
cannot amend an act of Congress (Santos v. Estenzo, 109 Phil. 419, Fernando, considering that it is common knowledge that business in
422; Teoxon v. Members of the Board of Administrators, L-25619, the money market is done mostly by telephone. Then, too, the initial
June 30, 1970, 33 SCRA 585; Manuel v. General Auditing Office, L- request of the caller was for the two checks representing the
28952, December 29, 1971, 42 SCRA 660; Deluao v. Casteel, L- pretermination proceeds to be delivered to "her" office, meaning Eligia
21906, August 29, 1969, 29 SCRA 350). G. Fernando's office at Philamlife, this clever ruse must have put off
The rule-making power must be confined to details for regulating the guard the employee preparing the "purchase order slip", enough at
mode or proceeding to carry into effect the law as it has been enacted. least for him to do away with having to call Eligia G. Fernando at her
The power cannot be extended to amending or expanding the statutory office. (Annex C at p. 17).
requirements or to embrace matters not covered by the statute. Rules
that subvert the statute cannot be sanctioned. (University of Santo b) We also do not think it unusual that Penelope Bulan, who used to
Tomas v. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J. 845- handle Eligia G. Fernando's account, should do nothing about the
46. as to invalid regulations, see Collector of Internal Revenue v. request for pretermination and leave it to Eustaquio to process the
Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v. pretermination. In a bank the of BPI, it would be quite normal for an
Phil. Veterans Administration, L-27299, June 27, 1973, 51 SCRA 340, officer to take over from another the handling of an account. (Ibid. p.
349). xxx xxx xxx 17)
c) The failure to verify or compare Eligia G. Fernando's purported
. . . The rule or regulation should be within the scope of the statutory signature on the letter requesting the pretermination and the letter
authority granted by the legislature to the administrative agency. authorizing the pick-up of the checks in controversy with her signature
(Davis, Administrative Law, p. 194, 197, cited in Victorias Milling Co., in BPI's file showed lack of care and prudence required by the
Inc. v. Social Security Commission, 114 Phil. 555, 558). circumstances, although it is doubtful that such comparison would
In case of discrepancy between the basic law and a rule or regulation have disclosed the deception considering the "close similarity"
issued to implement said law the basic law prevails because said rule between her purported signature and her signature in BPI's file.
or regulation cannot go beyond the terms and provisions of the basic (Ibid., p. 17).
law (People v. Lim 108 Phil. 1091). (at pp. 633-634) d) A significant lapse was, however, committed when the two checks in
Section 23 of the Negotiable Instruments Law states: controversy were delivered without requiring the surrender of the
When signature is forged or made without the authority of the person promissory note evidencing the placement that was supposedly
whose signature it purports to be, it is wholly inoperative and no right to preterminated. Although, as we already said, it is hard to determine
retain the instrument, or to give discharge therefore, or to enforce whether the failure to require the surrender of the promissory note was
payment thereof, against any party thereto, can be acquired through or a deliberate act of Laderas, the dispatcher, or simply because the

14 |TORTS AND DAMAGES

"purchase order slip" note, (sic) the fact remains that such failure 2. The act of BPI's dealer-trainee Eustaquio of disclosing information
contributed to the consummation of the fraud. (Ibid., p. 17-18) about the money market placement of its client over the telephone is a
The Arbitration Committee Decision's conclusion was expressed thus violation, if not of Republic Act 1405, of Sec. 87 (a) of the General
— Banking Act which penalizes any officer-employee or agent of any
Except for Laderas, not one of the BPI personnel tasked with the banking institution who discloses to any unauthorized person any
pretermination of Eligia G. Fernando's placement and the issuance of information relative to the funds or properties in the custody of the
the pretermination checks colluded in the fraud, although there may bank belonging to private individual, corporations, or any other entity;
have been lapses of negligence on their part which we shall discuss and the bland excuse given by the decision that "business in the
later. The secreting out of BPI of Fernando's specimen signature, money market is done mostly by the telephone" cannot be accepted
which, as admitted by the impostor herself (Exhibit E-2, page 5), nor tolerated for it is an elementary rule of law that no custom or usage
helped her in forging Fernando's signature was no doubt an "inside of business can override what a law specifically provides. (Ang Tek v.
job" but done by any of the four employees colluding in the fraud, not CA, 87 Phil. 383).
by the personnel directly charged with the custody of Fernando's 3. The failure of BPI employees to verify or compare Eligia G.
records. Fernando's purported signature on the letter requesting for pre-
With respect to the negligence of the CBC employees in the payment termination and the letter authorizing the pick-up of the checks in
of the two (2) BPI cashier's checks involved in this case, the Arbitration controversy with the signatures on file is not even justified but admitted
Committee's Decision made incontrovertible findings undisputed in the in the decision as showing lack of care and prudence required by the
statement of facts found in the Court of Appeals' decision of 8 August circumstances. The conjectural excuse made in the decision that "it is
1991, the Regional Trial Court decision of 28 November 1990 and the doubtful that such comparison would have disclosed the deception"
PCHC Board of Directors' Order of 26 August 1986 (Annexes A, E, D, does not give an excuse for the omission by BPI employees of the act
respectively). These findings point to negligence of the CBC of verifying the signature, a duty which is the basic requirement of all
employees which led to: (a) the opening of the impostor's current acts in the bank. From the very first time an employee enters the
account in the name of Eligia G. Fernando; (b) the deposit of said services of a bank up to the time he becomes the highest officer
account of the two (2) checks in controversy and (c) the withdrawal of thereof, the cautionary rule is drilled on him to always be sure that
their proceeds from said account. when he acts on the basis of any signature presented before him, the
signature is to be verified as genuine and that if the bank acts on the
The Arbitration Committee found that — basis of a forgery of such signature, the bank will be held liable. There
1. Since the impostor presented only her tax account number as a can be no excuse therefore for such an omission on the part of BPI
means of identification, we feel that Emily Sylianco Cuaso, Cash employees.
Supervisor, approved the opening of her current account in the name
of Eligia G. Fernando on the strength of the introduction of Antonio 4. The decision admits that:
Concepcion who had himself opened an account earlier that year. That A significant lapse was, however, committed when the two checks in
Mrs. Cuaso was not comfortable with the introduction of the new controversy were delivered without requiring the surrender of the
depositor by Concepcion is betrayed by the fact that she made it promissory note evidencing the placement that was supposedly
appear in the application form that the new depositor was introduced preterminated.
by Valentin Co a long-standing valued client of CBC who had This omission of the BPI to require the surrender of the promissory
introduced Concepcion when he opened his account. We find this notes evidencing the placement is justified by the decision by saying
misrepresentation significant because when she reviewed the that Sec. 74 of the Negotiable Instrument Law is not violated by this
application form she assumed that the new client was introduced by omission of the BPI employees because said provision is intended for
Valentin Co as indicated in the application form (tsn of March 19, 1985, the benefit of the person paying (in this case the BPI) so that since the
page 13). Thus we find that the impostor was able to open with CBC's omission to surrender having been waived by BPI, so the non-
current account in the name of Eligia G. Fernando due to the surrender does not invalidate the payment. The fallacy of this
negligence, if not misrepresentation, of its Cash Supervisor, (Annex C, argument is that the in this case is: whether or not such non-surrender
p. 18). is a necessary ingredient in the cause of the success of the fraud and
2. Even with negligence attending the impostor's opening of a current not whether or not the payment was valid. This excuse may perhaps
account, her encashment of the two checks in controversy could still be acceptable if the omission did not cause damage to any other
have been prevented if only the care and diligence demanded by the person. In this case, however, it did cause tremendous damage.
circumstances were exercised. On October 14, 1981, just a day after Moreover, this statement obviously overlooks the provision in Art. 1240
she opened her account, the impostor deposited the two checks which of the Civil Code requiring the payor (which in this case is the BPI) to
had an aggregate value of P2,413,215.16, which was grossly be sure he pays to the right person and as Art. 1242 states, he can
disproportionate to her initial deposit of P10,000. The very date of both claim good faith in paying to the right person only if he pays to the
checks, October 12, 1981, should have tipped off the real purpose of person possession of the credit (which in this case is the promissory
the opening of the account on October 13, 1981. But what surely can note evidencing the money market placement). Clearly therefore, the
be characterized only as abandonment of caution was allowing the excuse given in the decision for the non-surrender of this promissory
withdrawal of the checks' proceeds which started on October 16, 1981 note evidencing the money market placement cannot be accepted. xxx
only two days after the two checks were deposited; by October 22, xxx xxx
1981, the account had been emptied of the checks' proceeds. (Annex
C, p. 19). The decision, however, discusses in detail the negligent acts of the
3. We cannot accept CBC's contention that "big withdrawals" are CBC in its lapses or certain requirements in the opening of the account
"usual business" with it. Huge withdrawals might be a matter of course and in allowing withdrawals against the deposited checks soon after
with an established account but not for a newly opened account, the deposit thereof. As stated by the decision however, in
especially since the supposed check proceeds being withdrawn were computerized banks the history of the account is not shown in the
grossly disproportionate to the initial cash deposit. (Annex C, p. 19). computer terminal whenever a withdrawal is made.
As intimated earlier, the foregoing findings of fact were not materially The Board therefore believes that these withdrawals, without any
disputed either by the respondent PCHC Board of Directors or by the further showing that the CBC employees "had actual knowledge of the
respondent courts (compare statement of facts of respondent court as infirmity or defect, or knowledge of such facts" (Sec. 56, Negotiable
reproduced in pp. 9-11 of this petition). Instruments Law) that their action in accepting their checks for deposit
Having seen the negligence of the employees of both Banks, the and allowing the withdrawals against the same "amounted to bad faith"
relevant question is: which negligence was graver. The Arbitration cannot be considered as basis for holding CBC liable. (Rollo, pp. 107-
Committee's Decision found and concluded thus — 111)
Since there were lapses by both BPI and CBC, the question is: whose Banks handle daily transactions involving millions of pesos. By the very
negligence was the graver and which was the proximate cause of the nature of their work the degree of responsibility, care and
loss? Even viewing BPI's lapses in the worst light, it can be said that trustworthiness expected of their employees and officials is far greater
while its negligence may have introduced the two checks in than those of ordinary clerks and employees. For obvious reasons, the
controversy into the commercial stream. CBC's lack of care in banks are expected to exercise the highest degree of diligence in the
approving the opening with it of the impostor's current account, and its selection and supervision of their employees.
allowing the withdrawal's of the checks' proceeds, the aggregate value In the present case, there is no question that the banks were negligent
of which was grossly disproportionate to the initial cash deposit, so in the selection and supervision of their employees. The Arbitration
soon after such checks were deposited, caused the "payment" of the Committee, the PCHC Board of Directors and the lower court, however
checks. Being closest to the vent of loss, therefore, CBC's negligence disagree in the evaluation of the degree of negligence of the banks.
must be held to be proximate cause of the loss. (Annex C, pp. 19-20) While the Arbitration Committee declared the negligence of respondent
(Rollo, pp. 38-41) CBC graver, the PCHC Board of Directors and the lower courts
While it is true that the PCHC Board of Directors, and the lower courts declared that petitioner BPI's negligence was graver. To the extent that
did not dispute the findings of facts of the Arbitration Committee, the the degree of negligence is equated to the proximate cause of the loss,
PCHC Board of Directors evaluated the negligence of the parties, to we rule that the issue as to whose negligence is graver is relevant. No
wit: matter how many justifications both banks present to avoid
The Board finds the ruling that the negligence of the employees of responsibility, they cannot erase the fact that they were both guilty in
CBC is graver than that of the BPI not warranted by the facts because: not exercising extraordinary diligence in the selection and supervision
1. The acts and omissions of which BPI employees are guilty are not of their employees. The next issue hinges on whose negligence was
only negligent but criminal as found by the decision. the proximate cause of the payment of the forged checks by an
impostor.

15 |TORTS AND DAMAGES

Petitioner BPI accuses the Court of Appeals of inconsistency when it could have decided to desist from completing the same plan and could
affirmed the PCHC's Board of Directors' Order but in the same breath have held to the checks without negotiating them.
declared that the negligent acts of the CBC employees occurred
immediately before the actual loss. We are not persuaded.
In the case of Vda. de Bataclan, et al, v. Medina (102 Phil. 181 [1957]),
In this regard petitioner BPI insists that the doctrine of last clear chance we had occasion to discuss the doctrine of proximate cause.
enunciated in the case of Picart v. Smith (37 Phil. 809 [1918]) should Briefly, the facts of this case are as follows:
have been applied considering the circumstances of the case. At about 2:00 o'clock in the morning of September 13, 1952 a bus
In the Picart case, Amado Picart was then riding on his pony over the carrying about eighteen (18) passengers on its way to Amandeo,
Carlatan Bridge at San Fernando, La Union when Frank Smith Cavite figured in an accident. While the bus was running, one of the
approached from the opposite direction in a car. As Smith neared the front tires burst and the bus began to zigzag until it fell into a canal on
bridge he saw Picart and blew his horn to give warning of his the right side of the road and turned turtle. Some passengers managed
approach. When he was already on the bridge Picart gave two more to get out from the overturned bus except for four (4) passengers,
successive blasts as it appeared to him that Picart was not observing among them, Bataclan. The passengers who got out heard shouts for
the rule of the road. Picart saw the car coming and heard the warning help from Bataclan and another passenger Lara who said they could
signals. An accident then ensued resulting in the death of the horse not get out from the bus. After half an hour, about ten men came, one
and physical injuries suffered by Picart which caused him temporary of them carrying a lighted torch made of bamboo with a wick on one
unconsciousness and required medical attention for several days. end fueled with petroleum. These men approached the overturned bus,
Thereafter, Picart sued Smith for damages. and almost immediately, a fierce fire started burning and all but
consuming the bus including the four (4) passengers trapped inside. It
We ruled: turned out that as the bus overturned, gasoline began to leak and
The question presented for decision is whether or not the defendant in escape from the gasoline tank on the side of the chassis spreading
maneuvering his car in the manner above described was guilty of over and permeating the body of the bus and the ground under and
negligence such as gives rise to a civil obligation to repair the damage around it. The lighted torch brought by one of the men who answered
done; and we are of the opinion that he is so liable. As the defendant the call for help set it on fire. On the same day, the charred bodies of
started across the bridge, he had the right to assume that the horse the trapped passengers were removed and identified. By reason of his
and rider would pass over to the proper side; but as he moved toward death, Juan Bataclan's wife and her children filed a suit for damages
the center of the bridge it was demonstrated to his eyes that this would against Maximo Medina, the operator and owner of the bus in the then
not be done; and he must in a moment have perceived that it was too Court of First Instance of Cavite. The trial court ruled in favor of the
late for the horse to cross with safety in front of the moving vehicle. In defendant. However, we reversed and set aside the trial court's
the nature of things this change of situation occurred while the decision and said:
automobile was yet some distance away; and from this moment it was There is no question that under the circumstances, the defendant
no longer within the power of the plaintiff to escape being run down by carrier is liable. The only question is to what degree. The trial court
going to a place of greater safety. The control of the situation had then was of the opinion that the proximate cause of the death of Bataclan
passed entirely to the defendant; and it was his duty to either to bring was not the overturning of the bus, but rather the fire that burned the
his car to an immediate stop or, seeing that there were no other bus, including himself and his co-passengers who were unable to
persons on the bridge, to take the other side and pass sufficiently far leave it; that at the time the fire started, Bataclan, though the must
away from the horse to avoid the danger of collision. Instead of doing have suffered, physical injuries, perhaps serious, was still alive and so
this, the defendant ran starlight on until he was almost upon the horse. damages were awarded, not for his death, but for the physical
He was, we think, deceived into doing this by the fact that the horse satisfactory definition of promote cause is found in Volume 38, pages
had not yet exhibited fright. But in view of the known nature of horses, 695-696 of American Jurisprudence, cited by plaintiffs-appellants in
there was an appreciable risk that, if the animal in question was their brief. It is as follows:
unacquainted with automobiles, he might get excited and jump under . . . that cause, which, in natural and continuous sequence, unbroken
the conditions which here confronted him. When the defendant by any efficient intervening cause, produces the injury, and without
exposed the horse and rider to this danger he was, in our opinion, which the result would not have occurred. And more comprehensively,
negligent in the eyes of the law. the proximate legal cause in that acting first and producing the injury,
The test by which by which to determine the existence of negligence in either immediately or by setting other events in motion, all constituting
a particular case may be stated as follows: Did the defendant in doing a natural and continuous chain of events, each having a close causal
the alleged negligent act use that reasonable care and caution which connection with its immediate predecessor, the final event in the chain
an ordinarily prudent person would have used in the same situation? If immediately effecting the injury as natural and probable result of the
not, then he is guilty of negligence. xxx xxx xxx cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent and
It goes without saying that the plaintiff himself was not free from fault, intelligent person, have reasonable ground to expect at the moment of
for he was guilty of antecedent negligence in planting himself on the his act or default that an injury to some person might probably result
wrong side of the road. But as we have already stated, the defendant therefrom.
was also negligent; and in such case the problem always is to discover It may be that ordinarily, when a passenger bus overturns, and pins
which agent is immediately and directly responsible. It will be noted down a passenger, merely causing him physical injuries, if through
that the negligent acts of the two parties were not contemporaneous, some event, unexpected and extraordinary, the overturned bus is set
since the negligence of the defendant succeeded the negligence of the on fire, say, by lightning, or if some highwaymen after looting the
plaintiff by an appreciable interval. Under these circumstances the law vehicle sets it on fire, and the passenger is burned to death, on might
is that the person who has the last fair chance to avoid the impending still contend that the proximate cause of his death was the fire and not
harm and fails to do so is chargeable with the consequences, without the overturning of the vehicle. But in the present case and under the
reference to the prior negligence of the other party." circumstances obtaining in the same, we do not hesitate to hold that
Applying these principles, petitioner BPI's reliance on the doctrine of the proximate cause of the death of Bataclan was the overturning of
last clear chance to clear it from liability is not well-taken. CBC had the bus, this for the reason that when the vehicle turned not only on its
no prior notice of the fraud perpetrated by BPI's employees on the side but completely on its back, the leaking of the gasoline from the
pretermination of Eligia G. Fernando's money market placement. tank was not unnatural or unexpected; that the coming of the men with
Moreover, Fernando is not a depositor of CBC. Hence, a comparison a lighted torch was in response to the call for help, made not only by
of the signature of Eligia G. Fernando with that of the impostor Eligia the passengers, but most probably, by the driver and the conductor
G. Fernando, which respondent CBC did, could not have resulted in themselves, and that because it was very dark (about 2:30 in the
the discovery of the fraud. Hence, unlike in the Picart case herein the morning), the rescuers had to carry a light with them; and coming as
defendant, had he used reasonable care and caution, would have they did from a rural area where lanterns and flashlights were not
recognized the risk he was taking and would have foreseen harm to available, they had to use a torch, the most handy and available; and
the horse and the plaintiff but did not, respondent CBC had no way to what was more natural than that said rescuers should innocently
discover the fraud at all. In fact the records fail to show that respondent approach the overturned vehicle to extend the aid and effect the
CBC had knowledge, actual or implied, of the fraud perpetrated by the rescue requested from them. In other words, the coming of the men
impostor and the employees of BPI. with the torch was to be expected and was natural sequence of the
overturning of the bus, the trapping of some of its passengers and the
However, petitioner BPI insists that even if the doctrine of proximate call for outside help. (Emphasis Supplied, at pp. 185-187)
cause is applied, still, respondent CBC should be held responsible for Again, applying the doctrine of proximate cause, petitioner BPI's
the payment to the impostor of the two (2) checks. It argues that the contention that CBC alone should bear the loss must fail. The gap of
acts and omissions of respondent CBC are the cause "that set into one (1) day between the issuance and delivery of the checks bearing
motion the actual and continuous sequence of events that produced the impostor's name as payee and the impostor's negotiating the said
the injury and without which the result would not have occurred." On forged checks by opening an account and depositing the same with
the other hand, it assets that its acts and omissions did not end in a respondent CBC is not controlling. It is
loss. Petitioner BPI anchors its argument on its stance that there was not unnatural or unexpected that after taking the risk of impersonating
"a gap, a hiatus, an interval between the issuance and delivery of said Eligia G. Fernando with the connivance of BPI's employees, the
checks by petitioner BPI to the impostor and their actual payment of impostor would complete her deception by encashing the forged
CBC to the impostor. Petitioner BPI points out that the gap of one (1) checks. There is therefore, greater reason to rule that the proximate
day that elapsed from its issuance and delivery of the checks to the cause of the payment of the forged checks by an impostor was due to
impostor is material on the issue of proximate cause. At this stage, the negligence of petitioner BPI. This finding, notwithstanding, we are
according to petitioner BPI, there was yet no loss and the impostor not inclined to rule that petitioner BPI must solely bear the loss of

16 |TORTS AND DAMAGES

P2,413,215.16, the total amount of the two (2) forged checks. Due care court was right in apportioning the damages, but if there was no
on the part of CBC could have prevented any loss. negligence on the part of the plaintiff, then he should be awarded
The Court cannot ignore the fact that the CBC employees closed their damages adequates to the injury sustained."
eyes to the suspicious circumstances of huge over-the-counter In support of the defendant's contention counsel says: "Defendant's
withdrawals made immediately after the account was opened. The negligence was its failure properly to maintain the track; plaintiff's
opening of the account itself was accompanied by inexplicable acts negligence was his intoxication; the 'principal occurrence' was plaintiff's
clearly showing negligence. And while we do not apply the last clear fall from his calesa. It seems clear that plaintiff's intoxication
chance doctrine as controlling in this case, still the CBC employees contributed to the fall; if he had been sober, it can hardly be doubted
had ample opportunity to avoid the harm which befell both CBC and that he would have crossed the track safely, as he had done a hundred
BPI. They let the opportunity slip by when the ordinary prudence times before."
expected of bank employees would have sufficed to seize it. While both parties appealed from the decision, the defendant on the
Both banks were negligent in the selection and supervision of their ground that it was not liable and the plaintiff on the ground that the
employees resulting in the encashment of the forged checks by an damages were insufficient according to the evidence, and while the
impostor. Both banks were not able to overcome the presumption of plaintiff made a motion for a new trial upon the statutory grounds and
negligence in the selection and supervision of their employees. It was took proper exception to the denial thereof, thus conferring upon this
the gross negligence of the employees of both banks which resulted in court jurisdiction to determine the question of fact, nevertheless, not all
the fraud and the subsequent loss. While it is true that petitioner BPI's of the testimony taken on the trial, so far as can be gathered from the
negligence may have been the proximate cause of the loss, record, has been brought to this court. There seems to have been two
respondent CBC's negligence contributed equally to the success of the hearings, one on the 31st of August and the other on the 28th of
impostor in encashing the proceeds of the forged checks. Under these September. The evidence taken on the first hearing is here; that taken
circumstances, we apply Article 2179 of the Civil Code to the effect on the second is not. Not all the evidence taken on the hearings being
that while respondent CBC may recover its losses, such losses are before the court, we must refuse, under our rules, to consider even that
subject to mitigation by the courts. (See Phoenix Construction Inc. v. evidence which is here; and, in the decision of this case, we are,
Intermediate Appellate Courts, 148 SCRA 353 [1987]). therefore, relegated to the facts stated in the opinion of the court and
Considering the comparative negligence of the two (2) banks, we rule the pleadings filed.
that the demands of substantial justice are satisfied by allocating the
loss of P2,413,215.16 and the costs of the arbitration proceeding in the A careful reading of the decision of the trial court leads us to the
amount of P7,250.00 and the cost of litigation on a 60-40 ratio. conclusion that there is nothing in the opinion which sustains the
Conformably with this ruling, no interests and attorney's fees can be conclusion of the court that the plaintiff was negligent with reference to
awarded to either of the parties. the accident which is the basis of this action. Mere intoxication
establish a want of ordinary care. It is but a circumstance to be
WHEREFORE, the questioned DECISION and RESOLUTION of the considered with the other evidence tending to prove negligence. It is
Court of Appeals are MODIFIED as outlined above. Petitioner Bank of the general rule that it is immaterial whether a man is drunk or sober if
the Philippine Islands shall be responsible for sixty percent (60%) while no want of ordinary care or prudence can be imputed to him, and no
respondent China Banking Corporation shall share forty percent (40%) greater degree of care is required than by a sober one. If one's conduct
of the loss of TWO MILLION FOUR HUNDRED THIRTEEN is characterized by a proper degree of care and prudence, it is
THOUSAND, TWO HUNDRED FIFTEEN PESOS and SIXTEEN immaterial whether he is drunk or sober. (Ward vs. Chicago etc., R. R.
CENTAVOS (2,413,215.16) and the arbitration costs of SEVEN Co., 85 Wis., 601; H & T. C. R. Co. vs. Reason, 61 Tex., 613; Alger vs.
THOUSAND, TWO HUNDRED FIFTY PESOS (7,250.00). The Lowell, 3 Allen, Mass., 402; Central R. R. Co. vs. Phinazee, 93 Ga.,
Philippine Clearing House Corporation is hereby directed to effect the 488; Maguire vs. Middlesex R. R. Co., 115 Mass., 239; Meyer vs.
corresponding entries to the banks' clearing accounts in accordance Pacific R. R. Co., 40 Mo., 151., Chicago & N. W. R. R. Co. vs. Drake,
with this decision. Costs in the same proportion against the Bank of the 33 Ill. App., 114.)
Philippine Islands and the China Banking Corporation. SO ORDERED If intoxication is not in itself negligence, what are the facts found by the
trial court and stated in its opinion upon which may be predicated the
finding that the plaintiff did not use ordinary care and prudence and
G.R. No. L-7760 October 1, 1914 that the intoxication contributed to the injury complained of? After
E. M. WRIGHT, plaintiff-appellant, showing clearly and forcibly the negligence of the defendant in leaving
vs. its tracks in the condition in which they were on the night of the injury,
MANILA ELECTRIC R.R. & LIGHT CO., defendant-appellant. the court has the following to say, and it is all that can be found in its
W. A. Kincaid, Thomas L. Hartigan, and Jose Robles Lahesa for opinion, with reference to the negligence of the plaintiff: "With respect
plaintiff. to the condition in which Mr. Wright was on returning to his house on
Bruce, Lawrence, Ross & Block for defendant. the night in question, the testimony of Doctor Kneedler, who was the
physician who attended him an hour after the accident, demonstrates
MORELAND, J.: that he was intoxicated. . . . .
If the defendant or its employees were negligent by reason of having
This is an action brought to recover damages for injuries sustained in left the rails and a part of the ties uncovered in a street where there is
an accident which occurred in Caloocan on the night of August 8, a large amount of travel, the plaintiff was no less negligent, he not
1909. having abstained from his custom of taking more wine than he could
The defendant is a corporation engaged in operating an electric street carry without disturbing his judgment and his self-control, he knowing
railway in the city of Manila and its suburbs, including the municipality that he had to drive a horse and wagon and to cross railroad tracks
of Caloocan. The plaintiff's residence in Caloocan fronts on the street which were to a certain extent dangerous by reason of the rails being
along which defendant's tracks run, so that to enter his premises from elevated above the level of the street.
the street plaintiff is obliged to cross defendant's tracks. On the night If the plaintiff had been prudent on the night in question and had not
mentioned plaintiff drove home in a calesa and in crossing the tracks to attempted to drive his conveyance while in a drunken condition, he
enter his premises the horse stumbled, leaped forward, and fell, would certainly have avoided the damages which he received,
causing the vehicle with the rails, resulting in a sudden stop, threw although the company, on its part, was negligent in maintaining its
plaintiff from the vehicle and caused the injuries complained of. tracks in a bad condition for travel.
It is undisputed that at the point where plaintiff crossed the tracks on
the night in question not only the rails were above-ground, but that the Both parties, therefore, were negligent and both contributed to the
ties upon which the rails rested projected from one-third to one-half of damages resulting to the plaintiff, although the plaintiff, in the judgment
their depth out of the ground, thus making the tops of the rails some 5 of the court, contributed in greater proportion to the damages that did
or 6 inches or more above the level of the street. the defendant.
It is admitted that the defendant was negligent in maintaining its tracks As is clear from reading the opinion, no facts are stated therein which
as described, but it is contended that the plaintiff was also negligent in warrant the conclusion that the plaintiff was negligent. The conclusion
that he was intoxicated to such an extent at the time of the accident that if he had been sober he would not have been injured is not
that he was unable to take care of himself properly and that such warranted by the facts as found. It is impossible to say that a sober
intoxication was the primary cause of the accident. man would not have fallen from the vehicle under the conditions
The trial court held that both parties were negligent, but that the described. A horse crossing the railroad tracks with not only the rails
plaintiff's negligence was not as great as defendant's and under the but a portion of the ties themselves aboveground, stumbling by reason
authority of the case of Rakes vs. A. G. & P. Co. (7 Phil. Rep., 359) of the unsure footing and falling, the vehicle crashing against the rails
apportioned the damages and awarded plaintiff a judgment of P1,000. with such force as to break a wheel, this might be sufficient to throw a
The question before us is stated by the defendant thus: "Accepting the person from the vehicle no matter what his condition; and to conclude
findings of the trial court that both plaintiff and defendant were guilty of that, under such circumstances, a sober man would not have fallen
negligence, the only question to be considered is whether the while a drunken man did, is to draw a conclusion which enters the
negligence of plaintiff contributed t the 'principal occurrence' or 'only to realm of speculation and guesswork.
his own injury.' If the former, he cannot recover; if the latter, the trial It having been found that the plaintiff was not negligent, it is
court was correct in apportioning the damages." unnecessary to discuss the question presented by the appellant
The questioned as stated by plaintiff is as follows: "The main question company with reference to the applicability of the case of Rakes vs. A.
at issue is whether or not the plaintiff was negligent, and, if so, to what G. & P. Co., above; and we do not find facts in the opinion of the court
extent. If the negligence of the plaintiff was the primary cause of the below which justify a larger verdict than the one found.
accident then, of course, he cannot recover; if his negligence had
nothing to do with the accident but contributed to his injury, then the

17 |TORTS AND DAMAGES

 [G.R. No. 6659. September 1, 1911.] notification of the foregoing and in compliance therewith, the judge by
order of November 22 admitted the appeal filed by counsel for the
THE UNITED STATES, Plaintiff-Appellee, v. BAGGAY, defense both in the cause for murder and in that for lesiones.
JR., Defendant-Appellant.Roman Lacson, for Appellant. The question raised on the appeal filed in this case by counsel for the
Acting Attorney-General Harvey, for Appellee. insane defendant, Baggay, jr., is solely whether he, notwithstanding
that he was held exempt from criminal liability, has nevertheless
SYLLABUS incurred civil liability, with obligation to indemnify the heirs of the
1. CIVIL LIABILITY IN CRIME; INSANE PERSONS. — Civil liability murdered woman and to pay the costs.
generally accompanies criminal liability, because every person liable
criminally is also liable for reparation of damage and for indemnification Article 17 of the Penal Code states:
for the harm done; but by express provision of the penal laws there "Every person criminally liable for a crime or misdemeanor is also
may be civil liability even when the perpetrator is held to be exempt civilly liable." virtua1aw library
from criminal liability. Such is the case of a lunatic or demented person Article 18 of the same code says:
who, in spite of his deranged mind is still-reasonably and justly liable "The exemption from criminal liability declared in Nos. 1, 2, 3, 7, and 10
with his property for the consequences of his acts, even though they of article 8 does not include exemption from civil liability, which shall be
be performed unwittingly. Law and society are under obligation to enforced, subject to the following:
protect him, and, when so declared liable with his property for "(1) In cases 1, 2, and 3, the persons who are civilly liable for acts
reparation and indemnification, he is still entitled to reservation of what committed by a lunatic or imbecile, or a person under 9 years of age,
is necessary for his decent maintenance, but this protection does not or over this age and under 15, who has not acted with the exercise of
exclude liability for damages caused to those who may have the judgment, are those who have them under their authority, legal
misfortune to suffer the consequences of his acts. guardianship or power, unless they prove that there was no blame or
negligence on their part.
TORRES, J.: "Should there be no person having them under his authority, legal
guardianship, or power, or if such person be insolvent, the said
This is an appeal by the defendant from the judgment rendered on lunatics, imbeciles, or minors shall answer with their own property,
April 28, 1910, whereby he was declared exempt from criminal liability excepting that part which is exempted for their support in accordance
but was obligated to indemnify the heirs of the murdered woman, Bil- with the civil law." virtua1aw library
liingan, in the sum of P1,000, to pay the costs in the case and to be True it is that civil liability accompanies criminal-liability, because every
confined in an institution for the insane until further order of the court. person liable criminally for a crime or misdemeanor is also liable for
reparation of damage and for indemnification of the harm done, but
About the 4th of October, 1909, several persons were assembled in there may be civil liability because of acts ordinarily punishable,
the defendant’s house in the township of Peñarrubia, Abra, Province of although the law has declared their perpetrators exempt from criminal
Ilocos Sur, for the purpose of holding a song service called "buni" liability. Such is the case of a lunatic or insane person who, in spite of
according to the Tinguian custom, when he, the non-Christian Baggay, his irresponsibility on account of the deplorable condition of his
without provocation suddenly attacked the woman Bil-liingan with a deranged mind, is still reasonably and justly liable with his property for
bolo, inflicting a serious wound on her head from which she expired the consequences of his acts, even though they be performed
immediately; and with the same bolo he likewise inflicted various unwittingly, for the reason that his fellows ought not to suffer from the
wounds on the women named Calbayan, Agueng, Quisamay, Calapini, disastrous results of his harmful acts more than is necessary, in spite
and on his own mother, named Dioalan. For this reason the provincial of his unfortunate condition. Law and society are under obligation to
fiscal filed a complaint in the court of Ilocos Sur, dated February 15, protect him during his illness and so when he is declared to be liable
charging the non-Christian Baggay, jr., with murder, because of the with his property for reparation and indemnification, he is still entitled to
violent death of the woman Bil-liingan. This cause was instituted the benefit of what is necessary for his decent maintenance, but this
separately from the other, No. 1109, for lesiones. After trial and proof protection does not exclude liability for damage caused to those who
that the defendant was suffering from mental aberration, the judge on may have the misfortune to suffer the consequences of his acts.
April 28 rendered the judgment cited above, whereupon the According to the law, the persons in the first place liable. are those who
defendant’s colmsel appealed to this court. By another writing of June have the insane party under their care or guardianship, unless they
27, the same counsel asked for immediate suspension of execution of prove that there was no blame or negligence on their part; but if the
the judgment, because it had been appealed and had not become demented person or imbecile lack a guardian or some person charged
final. He also requested annulment of the sale at public auction of the with his care, or if the latter be insolvent, then his own property must
property attached by the sheriff or his deputy under order of the court, meet the civil liability of indemnifying or repairing the damage done,
for making indemnification with the defendant’s property in accordance and for this reason judges and courts in rendering judgment in a
with said judgment, as the attachment had been executed upon the criminal cause prosecuted against an insane or demented person,
property of the non-Christian woman named Dioalan and of other even when they hold the accused exempt from criminal liability, must
persons and not upon that of the defendant. In opposition thereto, the fix the civil liability of the persons charged with watching over and
provincial fiscal on the 30th of the same month requested in writing caring for him or the liability of the demented person himself with his
that the appeal from this judgment filed by the counsel for the defense property for reparation of the damage and indemnification for the harm
be not admitted or carried forward, representing that it was out of order done, unless the offended party or the heirs of the person murdered
as having been submitted beyond the time limit; for on the very day expressly renounce such reparation or indemnification.
said judgment was rendered, April 28, 1910, the accused’s counsel, Therefore, the judgment appealed from being in accordance with law,
Sotero Serrano, was verbally notified thereof, and it is therefore untrue affirmation thereof is proper, and it is hereby affirmed, with costs
that he was notified only on June 17 of said year, on which date he against the Appellant.
read and examined the case and without the clerk’s knowledge signed
the same, making it appear that he was notified on that date, June 17,
when he had known since April 28 of the judgment, of which the judge [G.R. No. L-8110. June 30, 1956.]
had verbally informed him, although the latter did not then have him MARINDUQUE IRON MINES AGENTS, INC., Petitioner, vs. THE
sign it. In reply to this motion of the provincial fiscal, the defense WORKMEN’S COMPENSATION COMMISSION, THE HEIRS OF
requested that the appeal filed be admitted and carried for ward, PEDRO MAMADOR and GERONIMO MA. COLL, Respondents.
representing that, when the court verbally announced his decision to
defendant’s counsel, the judgment had not yet been entered, and BENGZON, J.:
therefore neither the defendant nor his counsel could be notified
thereof in legal form until said date, June 17. The Marinduque Iron Mines Agents Inc. questions by certiorari the
order of the Workmen’s Compensation Commissioner confirming the
Passing upon this motion on August 2, 1910, the court declared said referee’s award of compensation to the heirs of Pedro Mamador for his
appeal out of order and dismissed it; and furthermore, denied the accidental death.
petition for suspension of judgment, as said Judgment had become Only the right to compensation is disputed;not the amount. “It appears,”
final. Thereupon, counsel for the defendant resorted to this court with a says the award, “that on August 23, 1951, at 6:00 a.m. in Bo.
petition praying that a writ be issued directing said judge, Chanco, to Sumangga, Mogpog, Marinduque, the deceased Mamador together
admit the appeal and forward it, at the same time annulling all action with other laborers of the Respondent-corporation, (Marinduque Iron
taken for execution of the judgments rendered in the causes for murder Mines Agents Inc.) boarded a truck belonging to the latter, which was
and for lesiones. After consideration thereof, the Attorney-General on then driven by one Procopio Macunat, also employed by the
behalf of said judge and of the provincial fiscal, requested that this corporation, and on its way to their place of work at the mine camp at
remedy be declared out of order, as the issuance of such a writ against Talantunan, while trying to overtake another truck on the company
the judge of the Court of First Instance of Ilocos Sur, and much more road, it turned over and hit a coconut tree, resulting in the death of said
against the provincial fiscal, was not in accordance with law; but this Mamador and injury to the others.”
court by order of November 15 saw fit to declare said remedy of Procopio Macunat was prosecuted, convicted and sentenced to
mandamus to be in order and issued a written order directing the judge indemnify the heirs of the deceased. (Criminal Case No. 1491). He has
of the Court of First Instance to immediately admit the appeal filed in paid nothing however, to the latter.
these two causes and to forward all the records to this higher court. At In his first proposition Petitioner challenges the validity of the
the same time he was instructed to refrain absolutely from executing proceedings before the Commission, asserting it had not been given
said judgments or causing them to be executed while said appeals the opportunity to cross-examine the opposing witnesses. According
were pending, a prohibition that was extended to the provincial sheriff, to Respondents.
his agents and representatives, until further order from this court. Upon

18 |TORTS AND DAMAGES

“The records show that pursuant to a request made by this However there is practical unanimity in the proposition that violation of
Commission on March 28, 1953 to investigate the above-entitled case, a rule promulgated by a Commission or board is not negligence per
the Public Defender of Boac, Marinduque, se; but it may be evidence of negligence. (C.J.S., Vol. 65, p. 427.)
notified Respondent Geronimo Ma. Coll and the general manager of This order of the employer (prohibition rather) couldn’t be of a greater
the Respondent company, Mr. Eric Lenze, to appear before him in an obligation than the rule of a Commission or board. And the referee
investigation, first on May 12, 1953, when neither of them appeared, correctly considered this violation as possible evidence of negligence;
and the second on May 29, 1953, when only Mr. Geronimo Ma. Coll. but it declared that under the circumstance, the laborer could not be
appeared. The sworn testimony of Mr. Ma. Coll was then taken down declared to have acted with negligence. Correctly, it is believed, since
in a question and answer method. On August 18, 1953, thru Referee the prohibition had nothing to do with personal safety of the riders.
Ramon Villaflor, this Commission wrote the Respondent company to Such finding is virtually a finding of fact which we may not overrule in
comment on the enclosed copy of the sworn declaration of Ma. Coll. this certiorari proceeding.
The Respondent company, thru its Vice President, denied its liability Nevertheless, even granting there was negligence, it surely was not
under the Workmen’s Compensation Act, as amended. In an “notorious” negligence, which we have interpreted to mean the same
investigation conducted on February 8, 1954 by the undersigned thing as “gross” negligence 3 — implying “conscious indifference to
referee, the Respondent company thru Mr. Lenze who was assisted by consequences” “pursuing a course of conduct which would naturally
counsel, was allowed to examine the records of the case including the and probably result in injury” “utter disregard of consequences.” (38
sworn declaration of Ma. Coll and was given all the opportunity to rebut Am. Jur., 691) Getting or accepting a free ride on the company’s
the same by additional evidence.” haulage truck couldn’t be gross negligence, because as the referee
In our opinion, Petitioner’s grievance does not rest on any sound basis, found, “no danger or risk was apparent.”
because it was given notice, and therefore had the chance, to examine There being no other material point raised in the petition for review, the
(and cross-examine) the witnesses against it. The statute even permits award of compensation is hereby affirmed, with costs
the Commissioner (or his referee) to take testimony without notice against Petitioner.
(section 48 Act 3428 as amended) provided of course such ex parte
evidence is reduced to writing, and the adverse party is afforded
opportunity to examine and rebut the same which was done in this G.R. No. 73998 November 14, 1988
instance. PEDRO T. LAYUGAN, petitioner,
Anyway we are not shown how its failure to cross-examine the vs.
witnesses prejudiced the Petitioner’s position. INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and
In its second proposition, Petitioner maintains that this claim is barred TRAVELLERS MULTI-INDEMNITY CORPORATION, respondents.
by section 6 of the Workmen’s Compensation Law, because (a) Edralin S. Mateo for petitioner.
Macunat was prosecuted and required to indemnify the heirs of the Orlando L. Espinas for respondent Travellers Multi-Indemnity
deceased and (b) an amicable settlement was concluded between said Corp.
heirs and Macunat. Roberto T. Vallarta for respondent Godofredo Isidro.
Section 6 provides as follows:
“Sec. 6. Liability of third parties. — In case an employee suffers an SARMIENTO, J.:
injury for which compensation is due under this Act by any other
person besides his employer, it shall be optional with such injured Assailed in this petition for review on certiorari are 1) the decision 1 of
employee either to claim compensation from his employer, under this the then Intermediate Appellate Court 2 in AC-G.R. CV No. 01055,
Act, or sue such other person for damages, in accordance with law;and entitled "Pedro T. Layugan, Plaintiff-Appellee, versus Godofredo Isidro,
in case compensation is claimed and allowed in accordance with this Defendant-Appellant and Third-Party Plaintiff-Appellee, versus
Act, the employer who paid such compensation or was found liable to Travellers Multi-Indemnity Corporation, Third Party Defendant-
pay the same, shall succeed the injured employee to the right of Appellant, "which reversed and set aside the decision 3 of the Regional
recovering from such person what he paid:Provided, That in case the Trial Court, Third Judicial Region, Branch XXVI, Cabanatuan City, and
employer recovers from such third person damages in excess of those also dismissed the complaint, third party complaint, and the counter
paid or allowed under this Act, such excess shall be delivered to the claims of the parties and 2) the resolution 4 denying the plaintiff-
injured employee or any other person entitled thereto, after deduction appellee's (herein petitioner) motion for reconsideration, for lack of
of the expenses of the employer and the costs of the proceedings. The merit.
sum paid by the employer for compensation or the amount of
compensation to which the employee or his dependents are entitled, The findings of fact by the trial court which were adopted by the
shall not be admissible as evidence in any damage suit or action.” appellate court are as follows: 5xxx xxx xxx
It is the Petitioner’s contention that Criminal Case No. 1491 and its Pedro T. Layugan filed an action for damages against Godofredo
outcome constituted an election by the employee (or his heirs) to sue Isidro, alleging that on May 15, 1979 while at Baretbet, Bagabag,
the third person, such election having the effect of releasing the Nueva Vizcaya, the Plaintiff and a companion were repairing the tire of
employer. However, Criminal Case No. 1491 was not a suit for their cargo truck with Plate No. SU-730 which was parked along the
damages against the third person, it being alleged, without right side of the National Highway; that defendant's truck bearing Plate
contradiction that the heirs did not intervene therein and have not so No. PW-583, driven recklessly by Daniel Serrano bumped the plaintiff,
far received the indemnity ordered by the court. At any rate, we have that as a result, plaintiff was injured and hospitalized at Dr. Paulino J.
already decided in Nava vs. Inchausti Co. 1 that the indemnity granted Garcia Research and Medical Center and the Our Lady of Lourdes
the heirs in a criminal prosecution of the “other person” does not affect Hospital; that he spent TEN THOUSAND PESOS (Pl0,000.00) and will
the liability of the employer to pay compensation. incur more expenses as he recuperates from said injuries; that
because of said injuries he would be deprived of a lifetime income in
As to the alleged “amicable settlement,” it consists of an affidavit the sum of SEVENTY THOUSAND PESOS (P70,000.00); and that he
wherein, for the sum of 150 pesos, Mamador’s widow promised “to agreed to pay his lawyer the sum of TEN THOUSAND PESOS
forgive Macunat for the wrong committed and not to bring him before (Pl0,000.00).
the authorities for prosecution.” Upon making such promise — As prayed for by the plaintiffs counsel, the Court declared the
Petitioner argues — she elected one of the remedies, (against the defendant in default on October 12, 1979, and plaintiff's evidence was
third person) and is barred from the other remedy (against the received ex-parte on January 11, 1978 and February 19, 1980. The
employer). The contention may not be sustained, inasmuch as all the decision on behalf of the plaintiff was set aside to give a chance to the
widow promised was to forego the offender’s criminal prosecution. defendant to file his answer and later on, a third-party complaint.
Note further that a question may be raised whether she could bind the Defendant admitted his ownership of the vehicle involved in the
other heirs of the deceased. accident driven by Daniel Serrano. Defendant countered that the
The most important aspect of this appeal, is the effect of the plaintiff was merely a bystander, not a truck helper being a brother-in-
deceased’s having violated the employer’s prohibition against laborers law law of the driver of said truck; that the truck allegedly being
riding the haulage trucks. Petitioner claims such violation was the repaired was parked, occupying almost half of the right lane towards
laborer’s “notorious negligence” which, under the law, precludes Solano, Nueva Vizcaya, right after the curve; that the proximate cause
recovery. The Commission has not declared that the prohibition was of the incident was the failure of the driver of the parked truck in
known to Mamador. Yet the employer does not point out in the record installing the early warning device, hence the driver of the parked car
evidence to that effect. Supposing Mamador knew the prohibition, said should be liable for damages sustained by the truck of the herein
the referee, “can we truthfully say that he boarded the fatal truck with defendant in the amount of more than P20,000.00; that plaintiff being a
full apprehension of the existence of the danger, if any at all, that an mere bystander and hitchhiker must suffer all the damages he
ordinary prudent man would try to avoid? I do not believe so, and even incurred. By way of counterclaim defendant alleged that due to
in the presence of doubt, the same must be resolved in his favor. plaintiffs baseless complaint he was constrained to engage the
Unless of course, we can attribute to him a desire to end his life. services of counsel for P5,000.00 and P200.00 per court appearance;
Nowhere in the records of this case can we find the slightest that he suffered sleepless nights, humiliation, wounded feelings which
insinuation of that desire.” may be estimated at P30.000.00.
There is no doubt that mere riding on haulage truck or stealing a ride On May 29, 1981, a third-party complaint was filed by the defendant
thereon is not negligence, ordinarily. It couldn’t be, because against his insurer, the Travellers Multi Indemnity Corporation; that the
transportation by truck is not dangerous per se. It is argued that there third-party plaintiff, without admitting his liability to the plaintiff, claimed
was notorious negligence in this particular instance because there was that the third-party defendant is liable to the former for contribution,
the employer’s prohibition. Does violation of this order constitute indemnity and subrogation by virtue of their contract under Insurance
negligence? Many courts hold that violation of a statute or ordinance Policy No. 11723 which covers the insurer's liability for damages
constitutes negligence per se. Others consider the circumstances. arising from death, bodily injuries and damage to property.

19 |TORTS AND DAMAGES

 1) when the conclusion is a finding grounded entirely on speculation,
Third-party defendant answered that, even assuming that the subject surmise, or conjecture; 2) the inference made is manifestly mistaken;
matter of the complaint is covered by a valid and existing insurance 3) there is grave abuse of discretion; 4) the judgment is based on
policy, its liability shall in no case exceed the limit defined under the misapprehension of facts; 5) the Court of Appeals went beyond the
terms and conditions stated therein; that the complaint is premature as issues of the case if the findings are contrary to the admission of both
no claim has been submitted to the third party defendant as prescribed the appellant and the appellee; 6) the findings of the Court of Appeals
under the Insurance Code; that the accident in question was are contrary to those of the trial court; 7) the said findings of fact are
approximately caused by the carelessness and gross negligence of the conclusions without citation of specific evidence on which they are
plaintiff-, that by reason of the third-party complaint, third-party based; 8) the facts set forth in the petition as well as in the petitioner's
defendant was constrained to engage the services of counsel for a fee main and reply briefs are not disputed by the respondents; and 9)
of P3,000.00. when the findings of fact of the Court of Appeals are premised on the
absence of evidence and are contradicted on record.
Pedro Layugan declared that he is a married man with one (1) child. Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a
He was employed as security guard in Mandaluyong, Metro Manila, deviation from the general rule.
with a salary of SIX HUNDRED PESOS (600.00) a month. When he is From its finding that the parked truck was loaded with ten (10) big
off-duty, he worked as a truck helper and while working as such, he round logs 13 the Court of Appeals inferred that because of its weight
sustained injuries as a result of the bumping of the cargo truck they the truck could not have been driven to the shoulder of the road and
were repairing at Baretbet, Bagabag, Nueva Vizcaya by the driver of concluded that the same was parked on a portion of the road 14 at the
the defendant. He used to earn TWO HUNDRED PESOS (P200.00) to time of the accident. Consequently, the respondent court inferred that
THREE HUNDRED PESOS (P300.00) monthly, at the rate of ONE the mishap was due to the negligence of the driver of the parked
HUNDRED PESOS (Pl00.00) per trip. Due to said injuries, his left leg truck.15 The inference or conclusion is manifestly erroneous. In a large
was amputated so he had to use crutches to walk. Prior to the incident, measure, it is grounded on speculation, surmise, or conjecture. How
he supported his family sufficiently, but after getting injured, his family the respondent court could have reversed the finding of the trial court
is now being supported by his parents and brother. that a warning device was installed 16 escapes us because it is evident
GODOFREDO ISIDRO, defendant/third-party plaintiff, testified that his from the record that really such a device, in the form of a lighted
truck involved in this vehicular accident is insured with the Travellers kerosene lamp, was installed by the driver of the parked truck three to
Multi Indemnity Corporation covering own damage and third-party four meters from the rear of his parked truck.17 We see this negative
liability, under vehicle policy No. 11723 (Exh. "1") dated May 30, 1978; finding of the respondent appellate court as a misreading of the facts
that after he filed the insurance claim the insurance company paid him and the evidence on record and directly contravening the positive
the sum of P18,000.00 for the damages sustained by this truck but not finding of the trial court that an early warning device was in proper
the third party liability. place when the accident happened and that the driver of the private
DANIEL SERRANO, defendant driver, declared that he gave a respondent was the one negligent. On the other hand, the respondent
statement before the municipal police of Bagabag, Nueva Vizcaya on court, in refusing to give its "imprimatur to the trial court's finding and
May 16, 1979; that he knew the responsibilities of a driver; that before conclusion that Daniel Serrano (private respondent Isidro's driver) was
leaving, he checked the truck. The truck owner used to instruct him to negligent in driving the truck that bumped the parked truck", did not cite
be careful in driving. He bumped the truck being repaired by Pedro specific evidence to support its conclusion. In cavalier fashion, it simply
Layugan, plaintiff, while the same was at a stop position. From the and nebulously adverted to unspecified "scanty evidence on record." 18
evidence presented, it has been established clearly that the injuries
sustained by the plaintiff was caused by defendant's driver, Daniel On the technical aspect of the case, the respondent corporation would
Serrano. The police report confirmed the allegation of the plaintiff and want us to dismiss this petition on the ground that it was filed out of
admitted by Daniel Serrano on cross-examination. The collision time. It must be noted that there was a motion for extension, 19 albeit
dislodged the jack from the parked truck and pinned the plaintiff to the filed erroneously with the respondent court, dated March 19, 1986,
ground. As a result thereof, plaintiff sustained injuries on his left requesting for 30 days from March 20, 1986, to file the necessary
forearm and left foot. The left leg of the plaintiff from below the knee petition or pleading before the Supreme Court". Also, on April 1, 1986,
was later on amputated (Exh. "C") when gangrene had set in, thereby an appearance of a new lawyer for the petitioner before the Supreme
rendering him incapacitated for work depriving him of his income. (pp. Court" with motion 20 was filed, again erroneously, with the Court of
118 to 120, Record on Appeal.) xxx xxx xxx Appeals, requesting for 20 days extension "to file the Petition for
Upon such findings, amply supported by the evidence on record, the Review on Certiorari." Likewise a similar motion 21 was filed with this
trial court rendered its decision, the dispositive part of which reads as Court also on April 1, 1986. On the other hand, the instant petition for
follows: 6 review was filed on April 17, 1986 22 but it was only after three months,
on August 1, 1986, in its comment 23 that the respondent corporation
WHEREFORE, premises considered, the defendant is hereby ordered: raised the issue of tardiness. The respondent corporation should not
a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS have waited in ambush before the comment was required and before
actual and compensatory damages; due course was given. In any event, to exact its "a pound of flesh", so
b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees; to speak, at this very late stage, would cause a grave miscarriage of
c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and justice. Parenthetically, it must be noted that private respondent Isidro
d) To pay the costs of this suit. On the third-party complaint, the third- did not raise this issue of late filing.
party defendant is ordered to indemnify the defendant/third party
plaintiff-. We now come to the merits of this petition.
a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual and The question before us is who was negligent? Negligence is the
compensatory damages; and omission to do something which a reasonable man, guided by those
b) The costs of this suit. considerations which ordinarily regulate the conduct of human affairs,
The Intermediate Appellate Court as earlier stated reversed the would do, or the doing of something which a prudent and reasonable
decision of the trial court and dismissed the complaint, the third-party man would not do24 or as Judge Cooley defines it, "(T)he failure to
complaint, and the counter- claims of both appellants. 7 observe for the protection of the interests of another person, that
degree of care, precaution, and vigilance which the circumstances
Hence, this petition. justly demand, whereby such other person suffers injury. 25
The petitioner alleges the following errors. 8 In Picart vs. Smith, 26 decided more than seventy years ago but still a
1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE sound rule, we held:
APPELLATE COURT ACTED CORRECTLY IN REVERSING AND
SETTING ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S The test by which to determine the existence of negligence in a
COMPLAINT. particular case may be stated as follows: Did the defendant in doing
2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED the alleged negligent act use that reasonable care and caution which
CORRECTLY IN APPLYING THE DOCTRINE OF "RES IPSA an ordinarily prudent person would have used in the same situation? If
LOQUITUR" WITH PROPER JURIS- PRUDENTIAL (sic) BASIS. not, then he is guilty of negligence. The law here in effect adopts the
The crux of the controversy lies in the correctness or error of the standard supposed to be supplied by the imaginary conduct of the
decision of the respondent court finding the petitioner negligent under discreet paterfamilias of the Roman law. The existence of negligence
the doctrine of Res ipsa loquitur (The thing speaks for itself).Corollary in a given case is not determined by reference to the personal
thereto, is the question as to who is negligent, if the doctrine is judgment of the actor in the situation before him. The Law considers
inapplicable. what would be reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines liability by that.
The respondent corporation stresses that the issues raised in the Respondent Isidro posits that any immobile object along the highway,
petition being factual, the same is not reviewable by this Court in a like a parked truck, poses serious danger to a moving vehicle which
petition for review by certiorari. 9 has the right to be on the highway. He argues that since the parked
Indeed, it is an elementary rule in the review of decisions of the Court cargo truck in this case was a threat to life and limb and property, it
of Appeals that its findings of fact are entitled to great respect and will was incumbent upon the driver as well as the petitioner, who claims to
not ordinarily be disturbed by this Court. 10 For if we have to review be a helper of the truck driver, to exercise extreme care so that the
every question of fact elevated to us, we would hardly have any more motorist negotiating the road would be properly forewarned of the peril
time left for the weightier issues compelling and deserving our of a parked vehicle. Isidro submits that the burden of proving that care
preferential attention.11 Be that as it may, this rule is not inflexible. and diligence were observed is shifted to the petitioner, for, as
Surely there are established exceptions 12 —when the Court should previously claimed, his (Isidro's) Isuzu truck had a right to be on the
review and rectify the findings of fact of the lower court, such as: road, while the immobile cargo truck had no business, so to speak, to

20 |TORTS AND DAMAGES

be there. Likewise, Isidro proffers that the petitioner must show to the In this jurisdiction we have applied this doctrine in quite a number of
satisfaction of a reasonable mind that the driver and he (petitioner) cases, notably in Africa et al. vs. Caltex, Inc., et al., 35 and the latest is
himself, provided an early warning device, like that required by law, or, in the case of F.F. Cruz and Co., Inc. vs. CA.36
by some other adequate means that would properly forewarn vehicles The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the
of the impending danger that the parked vehicle posed considering the law of negligence which recognizes that prima facie negligence may be
time, place, and other peculiar circumstances of the occasion. Absent established without direct proof and furnishes a substitute for specific
such proof of care, as in the case at bar, Isidro concludes, would, proof of negligence. 37 The doctrine is not a rule of substantive
under the doctrine of Res ipsa loquitur, evoke the presumption of law 38 but merely a mode of proof or a mere procedural
negligence on the part of the driver of the parked cargo truck as well as convenience. 39 The rule, when applicable to the facts and
his helper, the petitioner herein, who was fixing the flat tire of the said circumstances of a particular case, is not intended to and does not
truck. 27 dispense with the requirement of proof of culpable negligence on the
part of the party charged. 40 It merely determines and regulates what
Respondent Isidro's contention is untenable. shall be prima facie evidence thereof and facilitates the burden of
The evidence on record discloses that three or four meters from the plaintiff of proving a breach of the duty of due care. 41 The doctrine can
rear of the parked truck, a lighted kerosene lamp was be invoked when and only when, under the circumstances involved,
placed.28 Moreover, there is the admission of respondent Isidro's direct evidence is absent and not readily available. 42 Hence, it has
driver, Daniel Serrano, to Wit: 29 generally been held that the presumption of inference arising from the
Question No. 8 (by Patrolman Josefino Velasco)—Will you narrate to doctrine cannot be availed of, or is overcome, where plaintiff has
me in brief how the accident happens (sic) if you can still remember? knowledge and testifies or presents evidence as to the specific act of
Answer: (by Daniel Serrano) negligence which is the cause of the injury complained of or where
That on or about 10:40 p.m., 15 May 1979 while driving Isuzu truck at there is direct evidence as to the precise cause of the accident and all
Baretbet, Bagabag, Nueva Vizcaya and at KM 285, I met another the facts and circumstances attendant on the occurrence clearly
vehicle who (sic) did not dim his (sic) lights which cause (sic) me to be appear. 43 Finally, once the actual cause of injury is established beyond
blinded with intense glare of the light that's why I did not notice a controversy, whether by the plaintiff or by the defendant, no
parked truck who (sic) was repairing a front flat tire. When I was a few presumptions will be involved and the doctrine becomes inapplicable
meters away, I saw the truck which was loaded with round logs. I when the circumstances have been so completely eludicated that no
step (sic) on my foot brakes but it did not function with my many inference of defendant's liability can reasonably be made, whatever the
attempts. I have (sic) found out later that the fluid pipe on the rear right source of the evidence, 44 as in this case.
was cut that's why the breaks did not function. (Emphasis supplied). The private respondent is sued under Art. 2176 in relation to Art. 2180,
Whether the cargo truck was parked along the road or on half the paragraph 5, of the Civil Code. In the latter, when an injury is caused
shoulder of the right side of the road would be of no moment taking by the negligence of a servant or employee there instantly arises a
into account the warning device consisting of the lighted kerosene presumption of law that there was negligence on the part of the master
lamp placed three or four meters from the back of the truck. 30 But or employer either in the selection of the servant or employee, or in
despite this warning which we rule as sufficient, the Isuzu truck driven supervision over him after selection, or both. Such presumption is juris
by Daniel Serrano, an employee of the private respondent, still tantum and not juris et de jure and consequently, may be rebutted. If
bumped the rear of the parked cargo truck. As a direct consequence of follows necessarily that if the employer shows to the satisfaction of the
such accident the petitioner sustained injuries on his left forearm and court that in the selection and in the supervision he has exercised the
left foot. His left leg was later amputated from below the knee when care and diligence of a good father of a family, the presumption is
gangrene had set in. 31 overcome and he is relieved from liability. 45 In disclaiming liability for
It is clear from the foregoing disquisition that the absence or want of the incident, the private respondent stresses that the negligence of his
care of Daniel Serrano has been established by clear and convincing employee has already been adequately overcome by his driver's
evidence. It follows that in stamping its imprimatur upon the invocation statement that he knew his responsibilities as a driver and that the
by respondent Isidro of the doctrine of Res ipsa loquitur to escape truck owner used to instruct him to be careful in driving. 46
liability for the negligence of his employee, the respondent court
committed reversible error. We do not agree with the private respondent in his submission. In the
The respondent court ruled: 32xxx xxx xxx first place, it is clear that the driver did not know his responsibilities
In addition to this, we agree with the following arguments of appellant because he apparently did not check his vehicle before he took it on
Godofredo Isidro which would show that the accident was caused due the road. If he did he could have discovered earlier that the brake fluid
to the negligence of the driver of the cargo truck: xxx xxx xxx pipe on the right was cut, and could have repaired it and thus the
... In the case at bar the burden of proving that care and diligence was accident could have been avoided. Moveover, to our mind, the fact that
(sic) observed is shifted evidently to the plaintiff, for, as adverted to, the private respondent used to intruct his driver to be careful in his
the motorists have the right to be on the road, while the immobile truck driving, that the driver was licensed, and the fact that he had no record
has no business, so to speak, to be there. It is thus for the plaintiff to of any accident, as found by the respondent court, are not sufficient to
show to the satisfaction of a reasonable mind that the driver and he destroy the finding of negligence of the Regional Trial Court given the
himself did employ early warning device such as that required by law facts established at the trial 47 The private respondent or his mechanic,
or by some other adequate means or device that would properly who must be competent, should have conducted a thorough inspection
forewarn vehicles of the impending danger that the parked vehicle of his vehicle before allowing his driver to drive it. In the light of the
posed considering the time, place and other peculiar circumstances of circumstances obtaining in the case, we hold that Isidro failed to prove
the occasion. Absent such proof of care, as in the case at bar, will that the diligence of a good father of a family in the supervision of his
evoke the presumption of negligence under the doctrine of res ipsa employees which would exculpate him from solidary liability with his
loquitur, on the part of the driver of the parked cargo truck as well as driver to the petitioner. But even if we concede that the diligence of a
plaintiff who was fixing the flat tire of said truck. (pp. 14-17, Appellant's good father of a family was observed by Isidro in the supervision of his
Brief). (Emphasis supplied). driver, there is not an iota of evidence on record of the observance by
At this juncture, it may be enlightening and helpful in the proper Isidro of the same quantum of diligence in the supervision of his
resolution of the issue of negligence to examine the doctrine of Res mechanic, if any, who would be directly in charge in maintaining the
ipsa loquitur. road worthiness of his (Isidro's) truck. But that is not all. There is
paucity of proof that Isidro exercised the diligence of a good father of a
This doctrine is stated thus: "Where the thing which causes injury is family in the selection of his driver, Daniel Serrano, as well as in the
shown to be under the management of the defendant, and the accident selection of his mechanic, if any, in order to insure the safe operation
is such as in the ordinary course of things does not happen if those of his truck and thus prevent damage to others. Accordingly, the
who have the management use proper care, it affords reasonable responsibility of Isidro as employer treated in Article 2180, paragraph
evidence, in the absence of an explanation by the defendant, that the 5, of the Civil Code has not ceased.
accident arose from want of care. 33 Or as Black's Law
Dictionary 34 puts it: WHEREFORE, the petition is hereby GRANTED. The Decision of the
Res ipsa loquitur. The thing speaks for itself Rebuttable presumption or respondent court as well as its Resolution denying the petitioner's
inference that defendant was negligent, which arises upon proof that motion for reconsideration are hereby SET ASIDE and the decision of
instrumentality causing injury was in defendant's exclusive control, and the trial court, dated January 20, 1983, is hereby REINSTATED in toto.
that the accident was one which ordinarily does not happen in absence With costs against the private respondents. SO ORDERED.
of negligence. Res ipsa loquitur is rule of evidence whereby negligence
of alleged wrongdoer may be inferred from mere fact that accident
happened provided character of accident and circumstances attending G.R. No. 124354 December 29, 1999
it lead reasonably to belief that in absence of negligence it would not ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf
have occurred and that thing which caused injury is shown to have and as natural guardians of the minors, ROMMEL RAMOS, ROY
been under management and control of alleged wrongdoer. Hillen v. RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
Hooker Const. Co., Tex. Civ. App., 484 S.W. 2d 133, 155. Under vs.
doctrine of "res ipsa loquitur" the happening of an injury permits an COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR.
inference of negligence where plaintiff produces substantial evidence ORLINO HOSAKA and DRA. PERFECTA
that injury was caused by an agency or instrumentality under exclusive GUTIERREZ, respondents.
control and management of defendant, and that the occurrence was
such that in the ordinary course of things would not happen if KAPUNAN, J.:
reasonable care had been used.

21 |TORTS AND DAMAGES

The Hippocratic Oath mandates physicians to give primordial words, he went down to the lobby and waited for the operation to be
consideration to the health and welfare of their patients. If a doctor fails completed (id., pp. 16, 29-30).
to live up to this precept, he is made accountable for his acts. A At about 12:15 P.M., Herminda Cruz, who was inside the operating
mistake, through gross negligence or incompetence or plain human room with the patient, heard somebody say that "Dr. Hosaka is already
error, may spell the difference between life and death. In this sense, here." She then saw people inside the operating room "moving, doing
the doctor plays God on his patient's fate. 1 this and that, [and] preparing the patient for the operation" (TSN,
In the case at bar, the Court is called upon to rule whether a surgeon, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos, she
an anesthesiologist and a hospital should be made liable for the then saw Dr. Gutierrez intubating the hapless patient. She thereafter
unfortunate comatose condition of a patient scheduled for heard Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang
cholecystectomy. 2 pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the
Petitioners seek the reversal of the decision 3 of the Court of Appeals, remarks of Dra. Gutierrez, she focused her attention on what Dr.
dated 29 May 1995, which overturned the decision 4 of the Regional Gutierrez was doing. She thereafter noticed bluish discoloration of the
Trial Court, dated 30 January 1992, finding private respondents liable nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka
for damages arising from negligence in the performance of their approached her. She then heard Dr. Hosaka issue an order for
professional duties towards petitioner Erlinda Ramos resulting in her someone to call Dr. Calderon, another anesthesiologist (id., p. 19).
comatose condition. After Dr. Calderon arrived at the operating room, she saw this
anesthesiologist trying to intubate the patient. The patient's nailbed
The antecedent facts as summarized by the trial court are reproduced became bluish and the patient was placed in a trendelenburg position
hereunder: — a position where the head of the patient is placed in a position lower
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47- than her feet which is an indication that there is a decrease of blood
year old (Exh. "A") robust woman (TSN, October 19, 1989, p. 10). supply to the patient's brain (Id., pp. 19-20). Immediately thereafter,
Except for occasional complaints of discomfort due to pains allegedly she went out of the operating room, and she told Rogelio E. Ramos
caused by the presence of a stone in her gall bladder (TSN, January "that something wrong was . . . happening" (Ibid.). Dr. Calderon was
13, 1988, pp. 4-5), she was as normal as any other woman. Married to then able to intubate the patient.
Rogelio E. Ramos, an executive of Philippine Long Distance
Telephone Company, she has three children whose names are Meanwhile, Rogelio, who was outside the operating room, saw a
Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos respiratory machine being rushed towards the door of the operating
(TSN, October 19, 1989, pp. 5-6). room. He also saw several doctors rushing towards the operating
Because the discomforts somehow interfered with her normal ways, room. When informed by Herminda Cruz that something wrong was
she sought professional advice. She was advised to undergo an happening, he told her (Herminda) to be back with the patient inside
operation for the removal of a stone in her gall bladder (TSN, January the operating room (TSN, October 19, 1989, pp. 25-28).
13, 1988, p. 5). She underwent a series of examinations which Herminda Cruz immediately rushed back, and saw that the patient was
included blood and urine tests (Exhs. "A" and "C") which indicated she still in trendelenburg position (TSN, January 13, 1988, p. 20). At almost
was fit for surgery. 3:00 P.M. of that fateful day, she saw the patient taken to the Intensive
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, Care Unit (ICU).
January 13, 1988, p. 7), she and her husband Rogelio met for the first About two days thereafter, Rogelio E. Ramos was able to talk to Dr.
time Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20, Hosaka. The latter informed the former that something went wrong
1990, p. 3), one of the defendants in this case, on June 10, 1985. They during the intubation. Reacting to what was told to him, Rogelio
agreed that their date at the operating table at the DLSMC (another reminded the doctor that the condition of his wife would not have
defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka happened, had he (Dr. Hosaka) looked for a good anesthesiologist
decided that she should undergo a "cholecystectomy" operation after (TSN, October 19, 1989, p. 31).
examining the documents (findings from the Capitol Medical Center, Doctors Gutierrez and Hosaka were also asked by the hospital to
FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos, explain what happened to the patient. The doctors explained that the
however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. patient had bronchospasm (TSN, November 15, 1990, pp. 26-27).
Hosaka, in turn, assured Rogelio that he will get a good Erlinda Ramos stayed at the ICU for a month. About four months
anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was thereafter or on November 15, 1985, the patient was released from the
to include the anesthesiologist's fee and which was to be paid after the hospital.
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, During the whole period of her confinement, she incurred hospital bills
17). amounting to P93,542.25 which is the subject of a promissory note and
A day before the scheduled date of operation, she was admitted at one affidavit of undertaking executed by Rogelio E. Ramos in favor of
of the rooms of the DLSMC, located along E. Rodriguez Avenue, DLSMC. Since that fateful afternoon of June 17, 1985, she has been in
Quezon City (TSN, October 19,1989, p. 11). a comatose condition. She cannot do anything. She cannot move any
At around 7:30 A.M. of June 17, 1985 and while still in her room, she part of her body. She cannot see or hear. She is living on mechanical
was prepared for the operation by the hospital staff. Her sister-in-law, means. She suffered brain damage as a result of the absence of
Herminda Cruz, who was the Dean of the College of Nursing at the oxygen in her brain for four to five minutes (TSN, November 9, 1989,
Capitol Medical Center, was also there for moral support. She pp. 21-22). After being discharged from the hospital, she has been
reiterated her previous request for Herminda to be with her even during staying in their residence, still needing constant medical attention, with
the operation. After praying, she was given injections. Her hands were her husband Rogelio incurring a monthly expense ranging from
held by Herminda as they went down from her room to the operating P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was
room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was also diagnosed to be suffering from "diffuse cerebral parenchymal
also with her (TSN, October 19, 1989, p. 18). At the operating room, damage"
Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, Thus, on 8 January 1986, petitioners filed a civil case 6 for damages
the other defendant, who was to administer anesthesia. Although not a with the Regional Trial Court of Quezon City against herein private
member of the hospital staff, Herminda introduced herself as Dean of respondents alleging negligence in the management and care of
the College of Nursing at the Capitol Medical Center who was to Erlinda Ramos.
provide moral support to the patient, to them. Herminda was allowed to During the trial, both parties presented evidence as to the possible
stay inside the operating room. cause of Erlinda's injury. Plaintiff presented the testimonies of Dean
Herminda Cruz and Dr. Mariano Gavino to prove that the sustained by
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Erlinda was due to lack of oxygen in her brain caused by the faulty
Dr. Hosaka who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. management of her airway by private respondents during the
Gutierrez thereafter informed Herminda Cruz about the prospect of a anesthesia phase. On the other hand, private respondents primarily
delay in the arrival of Dr. Hosaka. Herminda then went back to the relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist,
patient who asked, "Mindy, wala pa ba ang Doctor"? The former to the effect that the cause of brain damage was Erlinda's allergic
replied, "Huwag kang mag-alaala, darating na iyon" (Ibid.). reaction to the anesthetic agent, Thiopental Sodium (Pentothal).
Thereafter, Herminda went out of the operating room and informed the After considering the evidence from both sides, the Regional Trial
patient's husband, Rogelio, that the doctor was not yet around (id., p. Court rendered judgment in favor of petitioners, to wit:
13). When she returned to the operating room, the patient told her, After evaluating the evidence as shown in the finding of facts set forth
"Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor." So, she earlier, and applying the aforecited provisions of law and jurisprudence
went out again and told Rogelio about what the patient said (id., p. 15). to the case at bar, this Court finds and so holds that defendants are
Thereafter, she returned to the operating room. liable to plaintiffs for damages. The defendants were guilty of, at the
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] very least, negligence in the performance of their duty to plaintiff-
waiting for the arrival of the doctor" even as he did his best to find patient Erlinda Ramos.
somebody who will allow him to pull out his wife from the operating On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted
room (TSN, October 19, 1989, pp. 19-20). He also thought of the to exercise reasonable care in not only intubating the patient, but also
feeling of his wife, who was inside the operating room waiting for the in not repeating the administration of atropine (TSN, August 20, 1991,
doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who pp. 5-10), without due regard to the fact that the patient was inside the
remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka operating room for almost three (3) hours. For after she committed a
to arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., mistake in intubating [the] patient, the patient's nailbed became bluish
he came to know that Dr. Hosaka arrived as a nurse remarked, and the patient, thereafter, was placed in trendelenburg position,
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those because of the decrease of blood supply to the patient's brain. The
evidence further shows that the hapless patient suffered brain damage

22 |TORTS AND DAMAGES

because of the absence of oxygen in her (patient's) brain for the resolution of the Court of Appeals within which to submit the
approximately four to five minutes which, in turn, caused the patient to petition. The due date fell on 27 May 1996. The petition was filed on 9
become comatose. May 1996, well within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for grounds:
the acts of Dr. Perfecta Gutierrez whom he had chosen to administer I.IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF
anesthesia on the patient as part of his obligation to provide the patient RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR.
a good anesthesiologist', and for arriving for the scheduled operation JAMORA;
almost three (3) hours late. II.IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS
On the part of DLSMC (the hospital), this Court finds that it is liable for DID NOT CAUSE THE UNFORTUNATE COMATOSE CONDITION
the acts of negligence of the doctors in their "practice of medicine" in OF PETITIONER ERLINDA RAMOS;
the operating room. Moreover, the hospital is liable for failing through III.IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11
its responsible officials, to cancel the scheduled operation after Dr. Before we discuss the merits of the case, we shall first dispose of the
Hosaka inexcusably failed to arrive on time. procedural issue on the timeliness of the petition in relation to the
In having held thus, this Court rejects the defense raised by defendants motion for reconsideration filed by petitioners with the Court of
that they have acted with due care and prudence in rendering medical Appeals. In their
services to plaintiff-patient. For if the patient was properly intubated as Comment, 12 private respondents contend that the petition should not
claimed by them, the patient would not have become comatose. And, be given due course since the motion for reconsideration of the
the fact that another anesthesiologist was called to try to intubate the petitioners on the decision of the Court of Appeals was validly
patient after her (the patient's) nailbed turned bluish, belie their claim. dismissed by the appellate court for having been filed beyond the
Furthermore, the defendants should have rescheduled the operation to reglementary period. We do not agree.
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 A careful review of the records reveals that the reason behind the
emergency case. x x x xxx xxx 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
WHEREFORE, and in view of the foregoing, judgment is rendered in on record of petitioners, the Coronel Law Office. In fact, a copy of the
favor of the plaintiffs and against the defendants. Accordingly, the latter decision of the appellate court was instead sent to and received by
are ordered to pay, jointly and severally, the former the following sums petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly
of money, to wit: addressed as Atty. Rogelio Ramos. Based on the other
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff communications received by petitioner Rogelio Ramos, the appellate
Erlinda Ramos reckoned from November 15, 1985 or in the total sum court apparently mistook him for the counsel on record. Thus, no copy
of P632,000.00 as of April 15, 1992, subject to its being updated; of the decision of the counsel on record. Petitioner, not being a lawyer
2) the sum of P100,000.00 as reasonable attorney's fees; and unaware of the prescriptive period for filing a motion for
3) the sum of P800,000.00 by way of moral damages and the further reconsideration, referred the same to a legal counsel only on 20 June
sum of P200,000,00 by way of exemplary damages; and, 1995.
4) the costs of the suit. SO ORDERED. 7 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
Private respondents seasonably interposed an appeal to the Court of exceptions, notice to a litigant without notice to his counsel on record is
Appeals. The appellate court rendered a Decision, dated 29 May 1995, no notice at all. In the present case, since a copy of the decision of the
reversing the findings of the trial court. The decretal portion of the appellate court was not sent to the counsel on record of petitioner,
decision of the appellate court reads: there can be no sufficient notice to speak of. Hence, the delay in the
filing of the motion for reconsideration cannot be taken against
WHEREFORE, for the foregoing premises the appealed decision is petitioner. Moreover, since the Court of Appeals already issued a
hereby REVERSED, and the complaint below against the appellants is second Resolution, dated 29 March 1996, which superseded the
hereby ordered DISMISSED. The counterclaim of appellant De Los earlier resolution issued on 25 July 1995, and denied the motion for
Santos Medical Center is GRANTED but only insofar as appellees are reconsideration of petitioner, we believed that the receipt of the former
hereby ordered to pay the unpaid hospital bills amounting to should be considered in determining the timeliness of the filing of the
P93,542.25, plus legal interest for justice must be tempered with present petition. Based on this, the petition before us was submitted on
mercy. time.
SO ORDERED. 8
After resolving the foregoing procedural issue, we shall now look into
The decision of the Court of Appeals was received on 9 June 1995 by the merits of the case. For a more logical presentation of the
petitioner Rogelio Ramos who was mistakenly addressed as "Atty. discussion we shall first consider the issue on the applicability of the
Rogelio Ramos." No copy of the decision, however, was sent nor doctrine of res ipsa loquitur to the instant case. Thereafter, the first two
received by the Coronel Law Office, then counsel on record of assigned errors shall be tackled in relation to the res ipsa
petitioners. Rogelio referred the decision of the appellate court to a loquitur doctrine.
new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before Res ipsa loquitur is a Latin phrase which literally means "the thing or
the expiration of the reglementary period for filing a motion for the transaction speaks for itself." The phrase "res ipsa loquitur'' is a
reconsideration. On the same day, Atty. Ligsay, filed with the appellate maxim for the rule that the fact of the occurrence of an injury, taken
court a motion for extension of time to file a motion for reconsideration. with the surrounding circumstances, may permit an inference or raise a
The motion for reconsideration was submitted on 4 July 1995. presumption of negligence, or make out a plaintiff's prima facie case,
However, the appellate court denied the motion for extension of time in and present a question of fact for defendant to meet with an
its Resolution dated 25 July 1995. 9 Meanwhile, petitioners engaged explanation. 13 Where the thing which caused the injury complained of
the services of another counsel, Atty. Sillano, to replace Atty. Ligsay. is shown to be under the management of the defendant or his servants
Atty. Sillano filed on 7 August 1995 a motion to admit the motion for and the accident is such as in ordinary course of things does not
reconsideration contending that the period to file the appropriate happen if those who have its management or control use proper care,
pleading on the assailed decision had not yet commenced to run as it affords reasonable evidence, in the absence of explanation by the
the Division Clerk of Court of the Court of Appeals had not yet served a defendant, that the accident arose from or was caused by the
copy thereof to the counsel on record. Despite this explanation, the defendant's want of care. 14
appellate court still denied the motion to admit the motion for The doctrine of res ipsa loquitur is simply a recognition of the postulate
reconsideration of petitioners in its Resolution, dated 29 March 1996, that, as a matter of common knowledge and experience, the very
primarily on the ground that the fifteen-day (15) period for filing a nature of certain types of occurrences may justify an inference of
motion for reconsideration had already expired, to wit: negligence on the part of the person who controls the instrumentality
We said in our Resolution on July 25, 1995, that the filing of a Motion causing the injury in the absence of some explanation by the
for Reconsideration cannot be extended; precisely, the Motion for defendant who is charged with negligence. 15 It is grounded in the
Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted superior logic of ordinary human experience and on the basis of such
in the latter Motion that plaintiffs/appellees received a copy of the experience or common knowledge, negligence may be deduced from
decision as early as June 9, 1995. Computation wise, the period to file the mere occurrence of the accident itself. 16 Hence, res ipsa loquitur is
a Motion for Reconsideration expired on June 24. The Motion for applied in conjunction with the doctrine of common knowledge.
Reconsideration, in turn, was received by the Court of Appeals already However, much has been said that res ipsa loquitur is not a rule of
on July 4, necessarily, the 15-day period already passed. For that substantive law and, as such, does not create or constitute an
alone, the latter should be denied. independent or separate ground of liability. 17 Instead, it is considered
Even assuming admissibility of the Motion for the Reconsideration, but as merely evidentiary or in the nature of a procedural rule. 18 It is
after considering the Comment/Opposition, the former, for lack of regarded as a mode of proof, or a mere procedural of convenience
merit, is hereby DENIED. SO ORDERED. 10 since it furnishes a substitute for, and relieves a plaintiff of, the burden
of producing specific proof of negligence. 19 In other words, mere
A copy of the above resolution was received by Atty. Sillano on 11 April invocation and application of the doctrine does not dispense with the
1996. The next day, or on 12 April 1996, Atty. Sillano filed before this requirement of proof of negligence. It is simply a step in the process of
Court a motion for extension of time to file the present petition such proof, permitting the plaintiff to present along with the proof of the
for certiorari under Rule 45. The Court granted the motion for accident, enough of the attending circumstances to invoke the
extension of time and gave petitioners additional thirty (30) days after doctrine, creating an inference or presumption of negligence, and to
the expiration of the fifteen-day (15) period counted from the receipt of thereby place on the defendant the burden of going forward with the

23 |TORTS AND DAMAGES

proof. 20 Still, before resort to the doctrine may be allowed, the performance occurred which is beyond the regular scope of customary
following requisites must be satisfactorily shown: professional activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the negligent
1. The accident is of a kind which ordinarily does not occur in the cause or causes of the untoward consequence. 41 If there was such
absence of someone's negligence; extraneous interventions, the doctrine of res ipsa loquitur may be
2. It is caused by an instrumentality within the exclusive control of the utilized and the defendant is called upon to explain the matter, by
defendant or defendants; and evidence of exculpation, if he could. 42
3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated. 21 We find the doctrine of res ipsa loquitur appropriate in the case at bar.
In the above requisites, the fundamental element is the "control of As will hereinafter be explained, the damage sustained by Erlinda in
instrumentality" which caused the damage. 22 Such element of control her brain prior to a scheduled gall bladder operation presents a case
must be shown to be within the dominion of the defendant. In order to for the application of res ipsa loquitur.
have the benefit of the rule, a plaintiff, in addition to proving injury or A case strikingly similar to the one before us is Voss
damage, must show a situation where it is applicable, and must vs. Bridwell, 43 where the Kansas Supreme Court in applying the res
establish that the essential elements of the doctrine were present in a ipsa loquitur stated:
particular incident. 23
Medical malpractice 24 cases do not escape the application of this The plaintiff herein submitted himself for a mastoid operation and
doctrine. Thus, res ipsa loquitur has been applied when the delivered his person over to the care, custody and control of his
circumstances attendant upon the harm are themselves of such a physician who had complete and exclusive control over him, but the
character as to justify an inference of negligence as the cause of that operation was never performed. At the time of submission he was
harm. 25 The application of res ipsa loquitur in medical negligence neurologically sound and physically fit in mind and body, but he
cases presents a question of law since it is a judicial function to suffered irreparable damage and injury rendering him decerebrate and
determine whether a certain set of circumstances does, as a matter of totally incapacitated. The injury was one which does not ordinarily
law, permit a given inference. 26 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
Although generally, expert medical testimony is relied upon in employment of an endoctracheal tube. Ordinarily a person being put
malpractice suits to prove that a physician has done a negligent act or under anesthesia is not rendered decerebrate as a consequence of
that he has deviated from the standard medical procedure, when the administering such anesthesia in the absence of negligence. Upon
doctrine of res ipsa loquitur is availed by the plaintiff, the need for these facts and under these circumstances a layman would be able to
expert medical testimony is dispensed with because the injury itself say, as a matter of common knowledge and observation, that the
provides the proof of negligence. 27 The reason is that the general rule consequences of professional treatment were not as such as would
on the necessity of expert testimony applies only to such matters ordinarily have followed if due care had been exercised.
clearly within the domain of medical science, and not to matters that Here the plaintiff could not have been guilty of contributory negligence
are within the common knowledge of mankind which may be testified because he was under the influence of anesthetics and unconscious,
to by anyone familiar with the facts. 28 Ordinarily, only physicians and and the circumstances are such that the true explanation of event is
surgeons of skill and experience are competent to testify as to whether more accessible to the defendants than to the plaintiff for they had the
a patient has been treated or operated upon with a reasonable degree exclusive control of the instrumentalities of anesthesia.
of skill and care. However, testimony as to the statements and acts of Upon all the facts, conditions and circumstances alleged in Count II it is
physicians and surgeons, external appearances, and manifest held that a cause of action is stated under the doctrine of res ipsa
conditions which are observable by any one may be given by non- loquitur. 44
expert witnesses. 29 Hence, in cases where the res ipsa loquitur is
applicable, the court is permitted to find a physician negligent upon Indeed, the principles enunciated in the aforequoted case apply with
proper proof of injury to the patient, without the aid of expert testimony, equal force here. In the present case, Erlinda submitted herself for
where the court from its fund of common knowledge can determine the cholecystectomy and expected a routine general surgery to be
proper standard of care. 30 Where common knowledge and experience performed on her gall bladder. On that fateful day she delivered her
teach that a resulting injury would not have occurred to the patient if person over to the care, custody and control of private respondents
due care had been exercised, an inference of negligence may be who exercised complete and exclusive control over her. At the time of
drawn giving rise to an application of the doctrine of res ipsa submission, Erlinda was neurologically sound and, except for a few
loquitur without medical evidence, which is ordinarily required to show minor discomforts, was likewise physically fit in mind and body.
not only what occurred but how and why it occurred. 31 When the However, during the administration of anesthesia and prior to the
doctrine is appropriate, all that the patient must do is prove a nexus performance of cholecystectomy she suffered irreparable damage to
between the particular act or omission complained of and the injury her brain. Thus, without undergoing surgery, she went out of the
sustained while under the custody and management of the defendant operating room already decerebrate and totally incapacitated.
without need to produce expert medical testimony to establish the Obviously, brain damage, which Erlinda sustained, is an injury which
standard of care. Resort to res ipsa loquitur is allowed because there is does not normally occur in the process of a gall bladder operation. In
no other way, under usual and ordinary conditions, by which the fact, this kind of situation does not in the absence of negligence of
patient can obtain redress for injury suffered by him. someone in the administration of anesthesia and in the use of
endotracheal tube. Normally, a person being put under anesthesia is
Thus, courts of other jurisdictions have applied the doctrine in the not rendered decerebrate as a consequence of administering such
following situations: leaving of a foreign object in the body of the anesthesia if the proper procedure was followed. Furthermore, the
patient after an operation, 32 injuries sustained on a healthy part of the instruments used in the administration of anesthesia, including the
body which was not under, or in the area, of treatment, 33 removal of endotracheal tube, were all under the exclusive control of private
the wrong part of the body when another part was respondents, who are the physicians-in-charge. Likewise, petitioner
intended, 34 knocking out a tooth while a patient's jaw was under Erlinda could not have been guilty of contributory negligence because
anesthetic for the removal of his tonsils, 35 and loss of an eye while the she was under the influence of anesthetics which rendered her
patient plaintiff was under the influence of anesthetic, during or unconscious.
following an operation for appendicitis, 36 among others. Considering that a sound and unaffected member of the body (the
Nevertheless, despite the fact that the scope of res ipsa loquitur has brain) is injured or destroyed while the patient is unconscious and
been measurably enlarged, it does not automatically apply to all cases under the immediate and exclusive control of the physicians, we hold
of medical negligence as to mechanically shift the burden of proof to that a practical administration of justice dictates the application of res
the defendant to show that he is not guilty of the ascribed ipsa loquitur. Upon these facts and under these circumstances the
negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be Court would be able to say, as a matter of common knowledge and
perfunctorily used but a rule to be cautiously applied, depending upon observation, if negligence attended the management and care of the
the circumstances of each case. It is generally restricted to situations patient. Moreover, the liability of the physicians and the hospital in this
in malpractice cases where a layman is able to say, as a matter of case is not predicated upon an alleged failure to secure the desired
common knowledge and observation, that the consequences of results of an operation nor on an alleged lack of skill in the diagnosis or
professional care were not as such as would ordinarily have followed if treatment as in fact no operation or treatment was ever performed on
due care had been Erlinda. Thus, upon all these initial determination a case is made out
exercised. 37 A distinction must be made between the failure to secure for the application of the doctrine of res ipsa loquitur.
results, and the occurrence of something more unusual and not
ordinarily found if the service or treatment rendered followed the usual Nonetheless, in holding that res ipsa loquitur is available to the present
procedure of those skilled in that particular practice. It must be case we are not saying that the doctrine is applicable in any and all
conceded that the doctrine of res ipsa loquitur can have no application cases where injury occurs to a patient while under anesthesia, or to
in a suit against a physician or surgeon which involves the merits of a any and all anesthesia cases. Each case must be viewed in its own
diagnosis or of a scientific treatment. 38 The physician or surgeon is not light and scrutinized in order to be within the res ipsa
required at his peril to explain why any particular diagnosis was not loquitur coverage.
correct, or why any particular scientific treatment did not produce the Having in mind the applicability of the res ipsa loquitur doctrine and the
desired result. 39 Thus, res ipsa loquitur is not available in a presumption of negligence allowed therein, the Court now comes to
malpractice suit if the only showing is that the desired result of an the issue of whether the Court of Appeals erred in finding that private
operation or treatment was not accomplished. 40 The real question, respondents were not negligent in the care of Erlinda during the
therefore, is whether or not in the process of the operation any anesthesia phase of the operation and, if in the affirmative, whether the
extraordinary incident or unusual event outside of the routine alleged negligence was the proximate cause of Erlinda's comatose

24 |TORTS AND DAMAGES

condition. Corollary thereto, we shall also determine if the Court of any type of examination to check if the endotracheal tube was in its
Appeals erred in relying on the testimonies of the witnesses for the proper place, and to determine the condition of the heart, lungs, and
private respondents. other organs. Thus, witness Cruz's categorical statements that
In sustaining the position of private respondents, the Court of Appeals appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos
relied on the testimonies of Dra. Gutierrez, Dra. Calderon and Dr. and that it was Dra. Calderon who succeeded in doing so clearly suffer
Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court from lack of sufficient factual bases. 47
of Appeals rationalized that she was candid enough to admit that she In other words, what the Court of Appeals is trying to impress is that
experienced some difficulty in the endotracheal intubation 45 of the being a nurse, and considered a layman in the process of intubation,
patient and thus, cannot be said to be covering her negligence with witness Cruz is not competent to testify on whether or not the
falsehood. The appellate court likewise opined that private intubation was a success.
respondents were able to show that the brain damage sustained by We do not agree with the above reasoning of the appellate court.
Erlinda was not caused by the alleged faulty intubation but was due to Although witness Cruz is not an anesthesiologist, she can very well
the allergic reaction of the patient to the drug Thiopental Sodium testify upon matters on which she is capable of observing such as, the
(Pentothal), a short-acting barbiturate, as testified on by their expert statements and acts of the physician and surgeon, external
witness, Dr. Jamora. On the other hand, the appellate court rejected appearances, and manifest conditions which are observable by any
the testimony of Dean Herminda Cruz offered in favor of petitioners one. 48 This is precisely allowed under the doctrine of res ipsa
that the cause of the brain injury was traceable to the wrongful loquitur where the testimony of expert witnesses is not required. It is
insertion of the tube since the latter, being a nurse, was allegedly not the accepted rule that expert testimony is not necessary for the proof
knowledgeable in the process of intubation. In so holding, the appellate of negligence in non-technical matters or those of which an ordinary
court returned a verdict in favor of respondents physicians and hospital person may be expected to have knowledge, or where the lack of skill
and absolved them of any liability towards Erlinda and her family. or want of care is so obvious as to render expert testimony
We disagree with the findings of the Court of Appeals. We hold that unnecessary. 49 We take judicial notice of the fact that anesthesia
private respondents were unable to disprove the presumption of procedures have become so common, that even an ordinary person
negligence on their part in the care of Erlinda and their negligence was can tell if it was administered properly. As such, it would not be too
the proximate cause of her piteous condition. difficult to tell if the tube was properly inserted. This kind of
In the instant case, the records are helpful in furnishing not only the observation, we believe, does not require a medical degree to be
logical scientific evidence of the pathogenesis of the injury but also in acceptable.
providing the Court the legal nexus upon which liability is based. As will At any rate, without doubt, petitioner's witness, an experienced clinical
be shown hereinafter, private respondents' own testimonies which are nurse whose long experience and scholarship led to her appointment
reflected in the transcript of stenographic notes are replete of signposts as Dean of the Capitol Medical Center School at Nursing, was fully
indicative of their negligence in the care and management of Erlinda. capable of determining whether or not the intubation was a success.
With regard to Dra. Gutierrez, we find her negligent in the care of She had extensive clinical experience starting as a staff nurse in
Erlinda during the anesthesia phase. As borne by the records, Chicago, Illinois; staff nurse and clinical instructor in a teaching
respondent Dra. Gutierrez failed to properly intubate the patient. This hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in
fact was attested to by Prof. Herminda Cruz, Dean of the Capitol San Pablo City; and then Dean of the Capitol Medical Center School of
Medical Center School of Nursing and petitioner's sister-in-law, who Nursing. 50 Reviewing witness Cruz' statements, we find that the same
was in the operating room right beside the patient when the tragic were delivered in a straightforward manner, with the kind of detail,
event occurred. Witness Cruz testified to this effect: clarity, consistency and spontaneity which would have been difficult to
ATTY. PAJARES: fabricate. With her clinical background as a nurse, the Court is satisfied
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the that she was able to demonstrate through her testimony what truly
patient? transpired on that fateful day.
A: In particular, I could see that she was intubating the patient. Most of all, her testimony was affirmed by no less than respondent Dra.
Q: Do you know what happened to that intubation process Gutierrez who admitted that she experienced difficulty in inserting the
administered by Dra. Gutierrez? tube into Erlinda's trachea, to wit:
ATTY. ALCERA: ATTY. LIGSAY:
She will be incompetent Your Honor. Q: In this particular case, Doctora, while you were intubating at your
COURT: first attempt (sic), you did not immediately see the trachea?
Witness may answer if she knows. DRA. GUTIERREZ:
A: As have said, I was with the patient, I was beside the stretcher A: Yes sir.
holding the left hand of the patient and all of a sudden heard some Q: Did you pull away the tube immediately?
remarks coming from Dra. Perfecta Gutierrez herself. She was saying A: You do not pull the . . .
"Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki Q: Did you or did you not?
ang tiyan. A: I did not pull the tube.
xxx xxx xxx Q: When you said "mahirap yata ito," what were you referring to?
ATTY. PAJARES: A: "Mahirap yata itong i-intubate," that was the patient.
Q: From whom did you hear those words "lumalaki ang tiyan"? Q: So, you found some difficulty in inserting the tube?
A: From Dra. Perfecta Gutierrez. A: Yes, because of (sic) my first attempt, I did not see right away. 51
xxx xxx xxx Curiously in the case at bar, respondent Dra. Gutierrez made the
Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on haphazard defense that she encountered hardship in the insertion of
the person of the patient? the tube in the trachea of Erlinda because it was positioned more
A: I notice (sic) some bluish discoloration on the nailbeds of the left anteriorly (slightly deviated from the normal anatomy of a
hand where I was at. person) 52 making it harder to locate and, since Erlinda is obese and
Q: Where was Dr. Orlino Ho[s]aka then at that particular time? has a short neck and protruding teeth, it made intubation even more
A: I saw him approaching the patient during that time. difficult.
Q: When he approached the patient, what did he do, if any? The argument does not convince us. If this was indeed observed,
A: He made an order to call on the anesthesiologist in the person of Dr. private respondents adduced no evidence demonstrating that they
Calderon. proceeded to make a thorough assessment of Erlinda's airway, prior to
Q: Did Dr. Calderon, upon being called, arrive inside the operating the induction of anesthesia, even if this would mean postponing the
room? procedure. From their testimonies, it appears that the observation was
A: Yes sir. made only as an afterthought, as a means of defense.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient. The pre-operative evaluation of a patient prior to the administration of
Q: What happened to the patient? anesthesia is universally observed to lessen the possibility of
A: When Dr. Calderon try (sic) to intubate the patient, after a while the anesthetic accidents. Pre-operative evaluation and preparation for
patient's nailbed became bluish and I saw the patient was placed in anesthesia begins when the anesthesiologist reviews the patient's
trendelenburg position. medical records and visits with the patient, traditionally, the day before
xxx xxx xxx elective surgery. 53 It includes taking the patient's medical history,
Q: Do you know the reason why the patient was placed in that review of current drug therapy, physical examination and interpretation
trendelenburg position? of laboratory data. 54 The physical examination performed by the
A: As far as I know, when a patient is in that position, there is a anesthesiologist is directed primarily toward the central nervous
decrease of blood supply to the brain. 46 system, cardiovascular system, lungs and upper airway. 55 A thorough
xxx xxx xxx analysis of the patient's airway normally involves investigating the
The appellate court, however, disbelieved Dean Cruz's testimony in the following: cervical spine mobility, temporomandibular mobility,
trial court by declaring that: prominent central incisors, diseased or artificial teeth, ability to
A perusal of the standard nursing curriculum in our country will show visualize uvula and the thyromental distance. 56 Thus, physical
that intubation is not taught as part of nursing procedures and characteristics of the patient's upper airway that could make tracheal
techniques. Indeed, we take judicial notice of the fact that nurses do intubation difficult should be studied. 57 Where the need arises, as
not, and cannot, intubate. Even on the assumption that she is fully when initial assessment indicates possible problems (such as the
capable of determining whether or not a patient is properly intubated, alleged short neck and protruding teeth of Erlinda) a thorough
witness Herminda Cruz, admittedly, did not peep into the throat of the examination of the patient's airway would go a long way towards
patient. (TSN, July 25, 1991, p. 13). More importantly, there is no decreasing patient morbidity and mortality.
evidence that she ever auscultated the patient or that she conducted

25 |TORTS AND DAMAGES

In the case at bar, respondent Dra. Gutierrez admitted that she saw Q: But not in particular when you practice pulmonology?
Erlinda for the first time on the day of the operation itself, on 17 June A: No.
1985. Before this date, no prior consultations with, or pre-operative Q: In other words, your knowledge about pentothal is based only on
evaluation of Erlinda was done by her. Until the day of the operation, what you have read from books and not by your own personal
respondent Dra. Gutierrez was unaware of the physiological make-up application of the medicine pentothal?
and needs of Erlinda. She was likewise not properly informed of the A: Based on my personal experience also on pentothal.
possible difficulties she would face during the administration of Q: How many times have you used pentothal?
anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her A: They used it on me. I went into bronchospasm during my
patient for the first time only an hour before the scheduled operative appendectomy.
procedure was, therefore, an act of exceptional negligence and Q: And because they have used it on you and on account of your own
professional irresponsibility. The measures cautioning prudence and personal experience you feel that you can testify on pentothal here
vigilance in dealing with human lives lie at the core of the physician's with medical authority?
centuries-old Hippocratic Oath. Her failure to follow this medical A: No. That is why I used references to support my claims. 61
procedure is, therefore, a clear indicia of her negligence. An anesthetic accident caused by a rare drug-induced bronchospasm
properly falls within the fields of anesthesia, internal medicine-allergy,
Respondent Dra. Gutierrez, however, attempts to gloss over this and clinical pharmacology. The resulting anoxic encephalopathy
omission by playing around with the trial court's ignorance of clinical belongs to the field of neurology. While admittedly, many
procedure, hoping that she could get away with it. Respondent Dra. bronchospastic-mediated pulmonary diseases are within the expertise
Gutierrez tried to muddle the difference between an elective surgery of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-
and an emergency surgery just so her failure to perform the required induced, allergic mediated bronchospasm alleged in this case is within
pre-operative evaluation would escape unnoticed. In her testimony she the disciplines of anesthesiology, allergology and pharmacology. On
asserted: the basis of the foregoing transcript, in which the pulmonologist himself
admitted that he could not testify about the drug with medical authority,
ATTY. LIGSAY: it is clear that the appellate court erred in giving weight to Dr. Jamora's
Q: Would you agree, Doctor, that it is good medical practice to see the testimony as an expert in the administration of Thiopental Sodium.
patient a day before so you can introduce yourself to establish good
doctor-patient relationship and gain the trust and confidence of the The provision in the rules of evidence 62 regarding expert witnesses
patient? states:
DRA. GUTIERREZ: Sec. 49. Opinion of expert witness. — The opinion of a witness on a
A: As I said in my previous statement, it depends on the operative matter requiring special knowledge, skill, experience or training which
procedure of the anesthesiologist and in my case, with elective cases he is shown to possess, may be received in evidence.
and normal cardio-pulmonary clearance like that, I usually don't do it Generally, to qualify as an expert witness, one must have acquired
except on emergency and on cases that have an abnormalities special knowledge of the subject matter about which he or she is to
(sic). 58 testify, either by the study of recognized authorities on the subject or
However, the exact opposite is true. In an emergency procedure, there by practical experience. 63 Clearly, Dr. Jamora does not qualify as an
is hardly enough time available for the fastidious demands of pre- expert witness based on the above standard since he lacks the
operative procedure so that an anesthesiologist is able to see the necessary knowledge, skill, and training in the field of anesthesiology.
patient only a few minutes before surgery, if at all. Elective procedures, Oddly, apart from submitting testimony from a specialist in the wrong
on the other hand, are operative procedures that can wait for days, field, private respondents' intentionally avoided providing testimony by
weeks or even months. Hence, in these cases, the anesthesiologist competent and independent experts in the proper areas.
possesses the luxury of time to be at the patient's beside to do a Moreover, private respondents' theory, that Thiopental Sodium may
proper interview and clinical evaluation. There is ample time to explain have produced Erlinda's coma by triggering an allergic mediated
the method of anesthesia, the drugs to be used, and their possible response, has no support in evidence. No evidence of stridor, skin
hazards for purposes of informed consent. Usually, the pre-operative reactions, or wheezing — some of the more common accompanying
assessment is conducted at least one day before the intended surgery, signs of an allergic reaction — appears on record. No laboratory data
when the patient is relaxed and cooperative. were ever presented to the court.
Erlinda's case was elective and this was known to respondent Dra. In any case, private respondents themselves admit that Thiopental
Gutierrez. Thus, she had all the time to make a thorough evaluation of induced, allergic-mediated bronchospasm happens only very rarely. If
Erlinda's case prior to the operation and prepare her for anesthesia. courts were to accept private respondents' hypothesis without
However, she never saw the patient at the bedside. She herself supporting medical proof, and against the weight of available evidence,
admitted that she had seen petitioner only in the operating room, and then every anesthetic accident would be an act of God. Evidently, the
only on the actual date of the cholecystectomy. She negligently failed Thiopental-allergy theory vigorously asserted by private respondents
to take advantage of this important opportunity. As such, her attempt to was a mere afterthought. Such an explanation was advanced in order
exculpate herself must fail. to advanced in order to absolve them of any and all responsibility for
Having established that respondent Dra. Gutierrez failed to perform the patient's condition.
pre-operative evaluation of the patient which, in turn, resulted to a In view of the evidence at hand, we are inclined to believe petitioners'
wrongful intubation, we now determine if the faulty intubation is truly stand that it was the faulty intubation which was the proximate cause of
the proximate cause of Erlinda's comatose condition. Erlinda's comatose condition.
Private respondents repeatedly hammered the view that the cerebral Proximate cause has been defined as that which, in natural and
anoxia which led to Erlinda's coma was due to continuous sequence, unbroken by any efficient intervening cause,
bronchospasm 59 mediated by her allergic response to the drug, produces injury, and without which the result would not have
Thiopental Sodium, introduced into her system. Towards this end, they occurred. 64 An injury or damage is proximately caused by an act or a
presented Dr. Jamora, a Fellow of the Philippine College of Physicians failure to act, whenever it appears from the evidence in the case, that
and Diplomate of the Philippine Specialty Board of Internal Medicine, the act or omission played a substantial part in bringing about or
who advanced private respondents' theory that the oxygen deprivation actually causing the injury or damage; and that the injury or damage
which led to anoxic encephalopathy, 60 was due to an unpredictable was either a direct result or a reasonably probable consequence of the
drug reaction to the short-acting barbiturate. We find the theory of act or omission. 65 It is the dominant, moving or producing cause.
private respondents unacceptable. Applying the above definition in relation to the evidence at hand, faulty
First of all, Dr. Jamora cannot be considered an authority in the field of intubation is undeniably the proximate cause which triggered the chain
anesthesiology simply because he is not an anesthesiologist. Since Dr. of events leading to Erlinda's brain damage and, ultimately, her
Jamora is a pulmonologist, he could not have been capable of properly comatosed condition.
enlightening the court about anesthesia practice and procedure and
their complications. Dr. Jamora is likewise not an allergologist and Private respondents themselves admitted in their testimony that the
could not therefore properly advance expert opinion on allergic- first intubation was a failure. This fact was likewise observed by
mediated processes. Moreover, he is not a pharmacologist and, as witness Cruz when she heard respondent Dra. Gutierrez remarked,
such, could not have been capable, as an expert would, of explaining "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki
to the court the pharmacologic and toxic effects of the supposed ang tiyan." Thereafter, witness Cruz noticed abdominal distention on
culprit, Thiopental Sodium (Pentothal). the body of Erlinda. The development of abdominal distention, together
with respiratory embarrassment indicates that the endotracheal tube
The inappropriateness and absurdity of accepting Dr. Jamora's entered the esophagus instead of the respiratory tree. In other words,
testimony as an expert witness in the anesthetic practice of Pentothal instead of the intended endotracheal intubation what actually took
administration is further supported by his own admission that he place was an esophageal intubation. During intubation, such distention
formulated his opinions on the drug not from the practical experience indicates that air has entered the gastrointestinal tract through the
gained by a specialist or expert in the administration and use of esophagus instead of the lungs through the trachea. Entry into the
Sodium Pentothal on patients, but only from reading certain esophagus would certainly cause some delay in oxygen delivery into
references, to wit: the lungs as the tube which carries oxygen is in the wrong place. That
ATTY. LIGSAY: abdominal distention had been observed during the first intubation
Q: In your line of expertise on pulmonology, did you have any occasion suggests that the length of time utilized in inserting the endotracheal
to use pentothal as a method of management? tube (up to the time the tube was withdrawn for the second attempt)
DR. JAMORA: was fairly significant. Due to the delay in the delivery of oxygen in her
A: We do it in conjunction with the anesthesiologist when they have to lungs Erlinda showed signs of cyanosis. 66 As stated in the testimony of
intubate our patient. Dr. Hosaka, the lack of oxygen became apparent only after he noticed

26 |TORTS AND DAMAGES

that the nailbeds of Erlinda were already blue. 67 However, private employee relationship in effect exists between hospitals and their
respondents contend that a second intubation was executed on Erlinda attending and visiting physicians. This being the case, the question
and this one was successfully done. We do not think so. No evidence now arises as to whether or not respondent hospital is solidarily liable
exists on record, beyond private respondents' bare claims, which with respondent doctors for petitioner's condition. 76
supports the contention that the second intubation was successful.
Assuming that the endotracheal tube finally found its way into the The basis for holding an employer solidarily responsible for the
proper orifice of the trachea, the same gave no guarantee of oxygen negligence of its employee is found in Article 2180 of the Civil Code
delivery, the hallmark of a successful intubation. In fact, cyanosis was which considers a person accountable not only for his own acts but
again observed immediately after the second intubation. Proceeding also for those of others based on the former's responsibility under a
from this event (cyanosis), it could not be claimed, as private relationship of patria potestas. 77 Such responsibility ceases when the
respondents insist, that the second intubation was accomplished. Even persons or entity concerned prove that they have observed the
granting that the tube was successfully inserted during the second diligence of a good father of the family to prevent damage. 78 In other
attempt, it was obviously too late. As aptly explained by the trial court, words, while the burden of proving negligence rests on the plaintiffs,
Erlinda already suffered brain damage as a result of the inadequate once negligence is shown, the burden shifts to the respondents
oxygenation of her brain for about four to five minutes. 68 (parent, guardian, teacher or employer) who should prove that they
The above conclusion is not without basis. Scientific studies point out observed the diligence of a good father of a family to prevent damage.
that intubation problems are responsible for one-third (1/3) of deaths
and serious injuries associated with anesthesia. 69 Nevertheless, In the instant case, respondent hospital, apart from a general denial of
ninety-eight percent (98%) or the vast majority of difficult intubations its responsibility over respondent physicians, failed to adduce evidence
may be anticipated by performing a thorough evaluation of the patient's showing that it exercised the diligence of a good father of a family in
airway prior to the operation. 70 As stated beforehand, respondent Dra. the hiring and supervision of the latter. It failed to adduce evidence with
Gutierrez failed to observe the proper pre-operative protocol which regard to the degree of supervision which it exercised over its
could have prevented this unfortunate incident. Had appropriate physicians. In neglecting to offer such proof, or proof of a similar
diligence and reasonable care been used in the pre-operative nature, respondent hospital thereby failed to discharge its burden
evaluation, respondent physician could have been much more under the last paragraph of Article 2180. Having failed to do this,
prepared to meet the contingency brought about by the perceived respondent hospital is consequently solidarily responsible with its
anatomic variations in the patient's neck and oral area, defects which physicians for Erlinda's condition.
would have been easily overcome by a prior knowledge of those Based on the foregoing, we hold that the Court of Appeals erred in
variations together with a change in technique. 71 In other words, an accepting and relying on the testimonies of the witnesses for the
experienced anesthesiologist, adequately alerted by a thorough pre- private respondents. Indeed, as shown by the above discussions,
operative evaluation, would have had little difficulty going around the private respondents were unable to rebut the presumption of
short neck and protruding teeth. 72 Having failed to observe common negligence. Upon these disquisitions we hold that private respondents
medical standards in pre-operative management and intubation, are solidarily liable for damages under Article 2176 79 of the Civil Code.
respondent Dra. Gutierrez' negligence resulted in cerebral anoxia and We now come to the amount of damages due petitioners. The trial
eventual coma of Erlinda. court awarded a total of P632,000.00 pesos (should be P616,000.00)
We now determine the responsibility of respondent Dr. Orlino Hosaka in compensatory damages to the plaintiff, "subject to its being updated"
as the head of the surgical team. As the so-called "captain of the covering the period from 15 November 1985 up to 15 April 1992,
ship," 73 it is the surgeon's responsibility to see to it that those under based on monthly expenses for the care of the patient estimated at
him perform their task in the proper manner. Respondent Dr. Hosaka's P8,000.00.
negligence can be found in his failure to exercise the proper authority At current levels, the P8000/monthly amount established by the trial
(as the "captain" of the operative team) in not determining if his court at the time of its decision would be grossly inadequate to cover
anesthesiologist observed proper anesthesia protocols. In fact, no the actual costs of home-based care for a comatose individual. The
evidence on record exists to show that respondent Dr. Hosaka verified calculated amount was not even arrived at by looking at the actual cost
if respondent Dra. Gutierrez properly intubated the patient. of proper hospice care for the patient. What it reflected were the actual
Furthermore, it does not escape us that respondent Dr. Hosaka had expenses incurred and proved by the petitioners after they were forced
scheduled another procedure in a different hospital at the same time to bring home the patient to avoid mounting hospital bills.
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 And yet ideally, a comatose patient should remain in a hospital or be
with his anesthesiologist regarding the anesthesia delivery. This transferred to a hospice specializing in the care of the chronically ill for
indicates that he was remiss in his professional duties towards his the purpose of providing a proper milieu adequate to meet minimum
patient. Thus, he shares equal responsibility for the events which standards of care. In the instant case for instance, Erlinda has to be
resulted in Erlinda's condition. constantly turned from side to side to prevent bedsores and hypostatic
We now discuss the responsibility of the hospital in this particular pneumonia. Feeding is done by nasogastric tube. Food preparation
incident. The unique practice (among private hospitals) of filling up should be normally made by a dietitian to provide her with the correct
specialist staff with attending and visiting "consultants," 74 who are daily caloric requirements and vitamin supplements. Furthermore, she
allegedly not hospital employees, presents problems in apportioning has to be seen on a regular basis by a physical therapist to avoid
responsibility for negligence in medical malpractice cases. However, muscle atrophy, and by a pulmonary therapist to prevent the
the difficulty is only more apparent than real. accumulation of secretions which can lead to respiratory complications.
Given these considerations, the amount of actual damages
In the first place, hospitals exercise significant control in the hiring and recoverable in suits arising from negligence should at least reflect the
firing of consultants and in the conduct of their work within the hospital correct minimum cost of proper care, not the cost of the care the family
premises. Doctors who apply for "consultant" slots, visiting or is usually compelled to undertake at home to avoid bankruptcy.
attending, are required to submit proof of completion of residency, their However, the provisions of the Civil Code on actual or compensatory
educational qualifications; generally, evidence of accreditation by the damages present us with some difficulties.
appropriate board (diplomate), evidence of fellowship in most cases, Well-settled is the rule that actual damages which may be claimed by
and references. These requirements are carefully scrutinized by the plaintiff are those suffered by him as he has duly proved. The Civil
members of the hospital administration or by a review committee set Code provides:
up by the hospital who either accept or reject the application. 75 This is
particularly true with respondent hospital. Art. 2199. — Except as provided by law or by stipulation, one is entitled
After a physician is accepted, either as a visiting or attending to an adequate compensation only for such pecuniary loss suffered by
consultant, he is normally required to attend clinico-pathological him as he has duly proved. Such compensation is referred to as actual
conferences, conduct bedside rounds for clerks, interns and residents, or compensatory damages.
moderate grand rounds and patient audits and perform other tasks and Our rules on actual or compensatory damages generally assume that
responsibilities, for the privilege of being able to maintain a clinic in the at the time of litigation, the injury suffered as a consequence of an act
hospital, and/or for the privilege of admitting patients into the hospital. of negligence has been completed and that the cost can be liquidated.
In addition to these, the physician's performance as a specialist is However, these provisions neglect to take into account those
generally evaluated by a peer review committee on the basis of situations, as in this case, where the resulting injury might be
mortality and morbidity statistics, and feedback from patients, nurses, continuing and possible future complications directly arising from the
interns and residents. A consultant remiss in his duties, or a consultant injury, while certain to occur, are difficult to predict.
who regularly falls short of the minimum standards acceptable to the
hospital or its peer review committee, is normally politely terminated. In these cases, the amount of damages which should be awarded, if
they are to adequately and correctly respond to the injury caused,
In other words, private hospitals, hire, fire and exercise real control should be one which compensates for pecuniary loss incurred and
over their attending and visiting "consultant" staff. While "consultants" proved, up to the time of trial; and one which would meet pecuniary
are not, technically employees, a point which respondent hospital loss certain to be suffered but which could not, from the nature of the
asserts in denying all responsibility for the patient's condition, the case, be made with certainty. 80 In other words, temperate damages
control exercised, the hiring, and the right to terminate consultants all can and should be awarded on top of actual or compensatory
fulfill the important hallmarks of an employer-employee relationship, damages in instances where the injury is chronic and continuing. And
with the exception of the payment of wages. In assessing whether because of the unique nature of such cases, no incompatibility arises
such a relationship in fact exists, the control test is determining. when both actual and temperate damages are provided for. The
Accordingly, on the basis of the foregoing, we rule that for the purpose reason is that these damages cover two distinct phases.
of allocating responsibility in medical negligence cases, an employer-

27 |TORTS AND DAMAGES

As it would not be equitable — and certainly not in the best interests of intent is immaterial in negligence cases because where negligence
the administration of justice — for the victim in such cases to exists and is proven, the same automatically gives the injured a right to
constantly come before the courts and invoke their aid in seeking reparation for the damage caused.
adjustments to the compensatory damages previously awarded —
temperate damages are appropriate. The amount given as temperate Established medical procedures and practices, though in constant flux
damages, though to a certain extent speculative, should take into are devised for the purpose of preventing complications. A physician's
account the cost of proper care. experience with his patients would sometimes tempt him to deviate
In the instant case, petitioners were able to provide only home-based from established community practices, and he may end a distinguished
nursing care for a comatose patient who has remained in that condition career using unorthodox methods without incident. However, when
for over a decade. Having premised our award for compensatory failure to follow established procedure results in the evil precisely
damages on the amount provided by petitioners at the onset of sought to be averted by observance of the procedure and a nexus is
litigation, it would be now much more in step with the interests of made between the deviation and the injury or damage, the physician
justice if the value awarded for temperate damages would allow would necessarily be called to account for it. In the case at bar, the
petitioners to provide optimal care for their loved one in a facility which failure to observe pre-operative assessment protocol which would have
generally specializes in such care. They should not be compelled by influenced the intubation in a salutary way was fatal to private
dire circumstances to provide substandard care at home without the respondents' case.
aid of professionals, for anything less would be grossly inadequate.
Under the circumstances, an award of P1,500,000.00 in temperate WHEREFORE, the decision and resolution of the appellate court
damages would therefore be reasonable. 81 appealed from are hereby modified so as to award in favor of
petitioners, and solidarily against private respondents the following: 1)
In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a P1,352,000.00 as actual damages computed as of the date of
situation where the injury suffered by the plaintiff would have led to promulgation of this decision plus a monthly payment of P8,000.00 up
expenses which were difficult to estimate because while they would to the time that petitioner Erlinda Ramos expires or miraculously
have been a direct result of the injury (amputation), and were certain to survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
be incurred by the plaintiff, they were likely to arise only in the future. temperate damages; 4) P100,000.00 each as exemplary damages and
We awarded P1,000,000.00 in moral damages in that case. attorney's fees; and, 5) the costs of the suit. SO ORDERED.
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 G.R. No. 118231 July 5, 1996
just above the knee. Because of this, Valenzuela will forever be DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners,
deprived of the full ambulatory functions of her left extremity, even with vs.
the use of state of the art prosthetic technology. Well beyond the COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and
period of hospitalization (which was paid for by Li), she will be required FLOTILDE G. VILLEGAS, respondents.
to undergo adjustments in her prosthetic devise due to the shrinkage of
the stump from the process of healing. DAVIDE, JR., J.:

These adjustments entail costs, prosthetic replacements and months of Throughout history, patients have consigned their fates and lives to the
physical and occupational rehabilitation and therapy. During the skill of their doctors. For a breach of this trust, men have been quick to
lifetime, the prosthetic devise will have to be replaced and readjusted demand retribution. Some 4,000 years ago, the Code of
to changes in the size of her lower limb effected by the biological Hammurabi1 then already provided: "If a physician make a deep
changes of middle-age, menopause and aging. Assuming she reaches incision upon a man with his bronze lancet and cause the man's death,
menopause, for example, the prosthetic will have to be adjusted to or operate on the eye socket of a man with his bronze lancet and
respond to the changes in bone resulting from a precipitate decrease destroy the man's eyes, they shall cut off his hand." 2 Subsequently,
in calcium levels observed in the bones of all post-menopausal Hippocrates3 wrote what was to become part of the healer's oath: "I will
women. In other words, the damage done to her would not only be follow that method of treatment which according to my ability and
permanent and lasting, it would also be permanently changing and judgment, I consider for the benefit of my patients, and abstain from
adjusting to the physiologic changes which her body would normally whatever is deleterious and mischievous. . . . While I continue to keep
undergo through the years. The replacements, changes, and this oath unviolated may it be granted me to enjoy life and practice the
adjustments will require corresponding adjustive physical and art, respected by all men at all times but should I trespass and violate
occupational therapy. All of these adjustments, it has been this oath, may the reverse be my lot." At present, the primary objective
documented, are painful.x x x xxx xxx of the medical profession if the preservation of life and maintenance of
the health of the people.4
A prosthetic devise, however technologically advanced, will only allow
a reasonable amount of functional restoration of the motor functions of Needless to say then, when a physician strays from his sacred duty
the lower limb. The sensory functions are forever lost. The resultant and endangers instead the life of his patient, he must be made to
anxiety, sleeplessness, psychological injury, mental and physical pain answer therefor. Although society today cannot and will not tolerate the
are inestimable. 83 punishment meted out by the ancients, neither will it and this Court, as
The injury suffered by Erlinda as a consequence of private this case would show, let the act go uncondemned.
respondents' negligence is certainly much more serious than the The petitioners appeal from the decision5 of the Court of Appeals of 11
amputation in the Valenzuela case. May 1994 in CA-G.R. CV No. 30851, which reversed the decision6 of
Petitioner Erlinda Ramos was in her mid-forties when the incident 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of
occurred. She has been in a comatose state for over fourteen years Negros Oriental in Civil Case No. 9492.
now. The burden of care has so far been heroically shouldered by her The facts, as found by the trial court, are as follows:
husband and children, who, in the intervening years have been Dr. Batiquin was a Resident Physician at the Negros Oriental
deprived of the love of a wife and a mother. Provincial Hospital, Dumaguete City from January 9, 1978 to
Meanwhile, the actual physical, emotional and financial cost of the care September 1989. Between 1987 and September, 1989 she was also
of petitioner would be virtually impossible to quantify. Even the the Actg. Head of the Department of Obstetrics and Gynecology at the
temperate damages herein awarded would be inadequate if petitioner's said Hospital.
condition remains unchanged for the next ten years. Mrs. Villegas is a married woman who submitted to Dr. Batiquin for
prenatal care as the latter's private patient sometime before September
We recognized, in Valenzuela that a discussion of the victim's actual 21, 1988.
injury would not even scratch the surface of the resulting moral
damage because it would be highly speculative to estimate the amount In the morning of September 21, 1988 Dr. Batiquin, with the assistance
of emotional and moral pain, psychological damage and injury suffered of Dr. Doris Teresita Sy who was also a Resident Physician at the
by the victim or those actually affected by the victim's condition. 84 The same Hospital, C.I. and O.R. Nurse Arlene Diones and some student
husband and the children, all petitioners in this case, will have to live nurses performed a simple caesarean section on Mrs. Villegas at the
with the day to day uncertainty of the patient's illness, knowing any Negros Oriental Provincial Hospital and after 45 minutes Mrs. Villegas
hope of recovery is close to nil. They have fashioned their daily lives delivered her first child, Rachel Acogido, at about 11:45 that morning.
around the nursing care of petitioner, altering their long term goals to Thereafter, Plaintiff remained confined at the Hospital until September
take into account their life with a comatose patient. They, not the 27, 1988 during which period of confinement she was regularly visited
respondents, are charged with the moral responsibility of the care of by Dr. Batiquin. On September 28, 1988 Mrs. Villegas checked out of
the victim. The family's moral injury and suffering in this case is clearly the Hospital. . . and on that same day she paid Dr. Batiquin, thru the
a real one. For the foregoing reasons, an award of P2,000,000.00 in latter's secretary, the amount of P1,500.00 as "professional fee". . . .
moral damages would be appropriate. Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal
pains and complained of being feverish. She also gradually lost her
Finally, by way of example, exemplary damages in the amount of appetite, so she consulted Dr. Batiquin at the latter's polyclinic who
P100,000.00 are hereby awarded. Considering the length and nature prescribed for her certain medicines. . . which she had been taking up
of the instant suit we are of the opinion that attorney's fees valued at to December, 1988.
P100,000.00 are likewise proper. In the meantime, Mrs. Villegas was given a Medical Certificate by Dr.
Our courts face unique difficulty in adjudicating medical negligence Batiquin on October 31, 1988. . . certifying to her physical fitness to
cases because physicians are not insurers of life and, they rarely set return to her work on November 7, 1988. So, on the second week of
out to intentionally cause injury or death to their patients. However,

28 |TORTS AND DAMAGES

November, 1988 Mrs. Villegas returned to her work at the Rural Bank the amount of P20,000.00 and attorney's fees in the amount of
of Ayungon, Negros Oriental. P25,000.00.
The abdominal pains and fever kept on recurring and bothered Mrs. The fact that appellant Flotilde can no longer bear children because
Villegas no end despite the medications administered by Dr. Batiquin. her uterus and ovaries were removed by Dr. Kho is not taken into
When the pains became unbearable and she was rapidly losing weight consideration as it is not shown that the removal of said organs were
she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in the direct result of the rubber left by appellee Dr. Batiquin near the
Dumaguete City on January 20, 1989. uterus. What is established is that the rubber left by appellee caused
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined infection, placed the life of appellant Flotilde in jeopardy and caused
Mrs. Villegas at the Holy Child's Hospital on January 20, 1989 she appellant fear, worry and anxiety. . . .
found Mrs. Villegas to be feverish, pale and was breathing fast. Upon
examination she felt an abdominal mass one finger below the WHEREFORE, the appealed judgment, dismissing the complaint for
umbilicus which she suspected to be either a tumor of the uterus or an damages is REVERSED and SET ASIDE. Another judgment is hereby
ovarian cyst, either of which could be cancerous. She had an x-ray entered ordering defendants-appellees to pay plaintiffs-appellants the
taken of Mrs. Villegas' chest, abdomen and kidney. She also took amounts of P17,000.00 as and for actual damages; P100,000.00 as
blood tests of Plaintiff. A blood count showed that Mrs. Villegas had and for moral damages; P20,000.00 as and for exemplary damages;
[an] infection inside her abdominal cavity. The results of all those and P25,000.00 as and for attorney's fees plus the costs of litigation.
examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to SO ORDERED.21
another surgery to which the latter agreed.
From the above judgment, the petitioners appealed to this Court
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish- claiming that the appellate court: (1) committed grave abuse of
yellow discharge inside, an ovarian cyst on each of the left and right discretion by resorting to findings of fact not supported by the evidence
ovaries which gave out pus, dirt and pus behind the uterus, and a on record, and (2) exceeded its discretion, amounting to lack or excess
piece of rubber material on the right side of the uterus embedded on of jurisdiction, when it gave credence to testimonies punctured with
[sic] the ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber contradictions and falsities.
material which Dr. Kho described as a "foreign body" looked like a The private respondents commented that the petition raised only
piece of a "rubber glove". . . and which is [sic] also "rubber-drain like". . questions of fact, which were not proper for review by this Court.
. . It could have been a torn section of a surgeon's gloves or could While the rule is that only questions of law may be raised in a petition
have come from other sources. And this foreign body was the cause of for review on certiorari, there are exceptions, among which are when
the infection of the ovaries and consequently of all the discomfort the factual findings of the trial court and the appellate court conflict,
suffered by Mrs. Villegas after her delivery on September 21, 1988. 7 when the appealed decision is clearly contradicted by the evidence on
The piece of rubber allegedly found near private respondent Flotilde record, or when the appellate court misapprehended the facts.22
Villegas's uterus was not presented in court, and although Dr. Ma. After deciphering the cryptic petition, we find that the focal point of the
Salud Kho Testified that she sent it to a pathologist in Cebu City for instant appeal is the appreciation of Dr. Kho's testimony. The
examination,8 it was not mentioned in the pathologist's Surgical petitioners contend that the Court of Appeals misappreciated the
Pathology Report.9 following portion of Dr. Kho's testimony:
Aside from Dr. Kho's testimony, the evidence which mentioned the Q What is the purpose of the examination?
piece of rubber are a Medical Certificate,10 a Progress Record,11 an A Just in case, I was just thinking at the back of my mind, just in case
Anesthesia Record,12 a Nurse's Record,13 and a Physician's Discharge this would turn out to be a medico-legal
Summary.14 The trial court, however, regarded these documentary case, I have heard somebody that [sic] says [sic] there is [sic] a
evidence as mere hearsay, "there being no showing that the person or foreign body that goes with the tissues but unluckily I don't know where
persons who prepared them are deceased or unable to testify on the the rubber was. It was not in the Lab, it was not in Cebu. 23 (emphasis
facts therein stated. . . . Except for the Medical Certificate (Exhibit "F"), supplied)
all the above documents were allegedly prepared by persons other The petitioners prefer the trial court's interpretation of the above
than Dr. Kho, and she merely affixed her signature on some of them to testimony, i.e., that Dr. Kho's knowledge of the piece of rubber was
express her agreement thereto. . . ."15 The trial court also refused to based on hearsay. The Court of Appeals, on the other hand, concluded
give weight to Dr. Kho's testimony regarding the subject piece of that the underscored phrase was taken out of context by the trial court.
rubber as Dr. Kho "may not have had first-hand knowledge" According to the Court of Appeals, the trial court should have likewise
thereof,16 as could be gleaned from her statement, thus: considered the other portions of Dr. Kho's testimony, especially the
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign following:
body that goes with the tissues but unluckily I don't know where the Q So you did actually conduct the operation on her?
rubber was. 1 A Yes, I did.
Q And what was the result?
The trial court deemed vital Dr. Victoria Batiquin's testimony that when A Opening up her abdomen, there was whitish-yellow discharge inside
she confronted Dr. Kho regarding the piece of rubber, "Dr. Kho the abdomen, there was an ovarian cyst on the left and side and there
answered that there was rubber indeed but that she threw it was also an ovarian cyst on the right which, on opening up or freeing it
away."18 This statement, the trial court noted, was never denied nor up from the uterus, turned out to be pus. Both ovaries turned out. . . to
disputed by Dr. Kho, leading it to conclude: have pus. And then, cleaning up the uterus, at the back of the uterus it
There are now two different versions on the whereabouts of that was very dirty, it was full of pus. And there was a [piece of] rubber, we
offending "rubber" — (1) that it was sent to the Pathologist in Cebu as found a [piece of] rubber on the right
testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away as side.
told by her to Defendant. The failure of the Plaintiffs to reconcile these
two different versions serve only to weaken their claim against We agree with the Court of Appeals. The phrase relied upon by the trial
Defendant Batiquin.19 court does not negate the fact that Dr. Kho saw a piece of rubber in
All told, the trial court held in favor of the petitioners herein. private respondent Villegas's abdomen, and that she sent it to a
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, laboratory and then to Cebu City for examination by a
even without admitting the private respondents' documentary evidence, pathologist.25 Not even the Pathologist's Report, although devoid of
deemed Dr. Kho's positive testimony to definitely establish that a piece any mention of a piece of rubber, could alter what Dr. Kho saw.
of rubber was found near private respondent Villegas's uterus. Thus, Furthermore, Dr. Kho's knowledge of the piece of rubber could not be
the Court of Appeals reversed the decision of the trial court, holding: based on other than first-hand knowledge for, as she asserted before
4. The fault or negligence of appellee Dr. Batiquin is established by the trial court:
preponderance of evidence. The trial court itself had narrated what Q But you are sure you have seen [the piece of rubber]?
happened to appellant Flotilde after the caesarean operation made by A Oh yes. I was not the only one who saw it. 26
appellee doctor. . . . After the second operation, appellant Flotilde The petitioners emphasize that the private respondents never
became well and healthy. Appellant Flotilde's troubles were caused by reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the witness
the infection due to the "rubber" that was left inside her abdomen. Both stand that when Dr. Batiquin confronted Dr. Kho about the foreign
appellant; testified that after the operation made by appellee doctor, body, the latter said that there was a piece of rubber but that she threw
they did not go to any other doctor until they finally decided to see it away. Although hearsay, Dr. Batiquin's claim was not objected to,
another doctor in January, 1989 when she was not getting any better and hence, the same is admissible27 but it carries no probative
under the care of appellee Dr. Batiquin. . . . Appellee Dr. Batiquin value.28 Nevertheless, assuming otherwise, Dr. Batiquin's statement
admitted on the witness stand that she alone decided when to close cannot belie the fact that Dr. Kho found a piece of rubber near private
the operating area; that she examined the portion she operated on respondent Villegas's uterus. And even if we were to doubt Dr. Kho as
before closing the same. . . Had she exercised due diligence, appellee to what she did to the piece of rubber, i.e., whether she threw it away
Dr. Batiquin would have found the rubber and removed it before or sent it to Cebu City, we are not justified in distrusting her as to her
closing the operating area.20 recovery of a piece of rubber from private respondent Villegas's
The appellate court then ruled: abdomen. On this score, it is perfectly reasonable to believe the
Appellants' evidence show[s] that they paid a total of P17,000.00 testimony of a witness with respect to some facts and disbelieve his
[deposit of P7,100.00 (Exh. G-1-A) plus hospital and medical expenses testimony with respect to other facts. And it has been aptly said that
together with doctor's fees in the total amount P9,900.00 (Exhs. G and even when a witness is found to have deliberately falsified in some
G-2)] for the second operation that saved her life. material particulars, it is not required that the whole of his
For the miseries appellants endured for more than three (3) months, uncorroborated testimony be rejected, but such portions thereof
due to the negligence of appellee Dr. Batiquin they are entitled to deemed worthy of belief may be credited.29
moral damages in the amount of P100,000.00; exemplary damages in

29 |TORTS AND DAMAGES

It is here worth noting that the trial court paid heed to the following compelling interest to enact measures to protect the public from "the
portions of Dr. Batiquin's testimony: that no rubber drain was used in potentially deadly effects of incompetence and ignorance in those who
the operation,30 and that there was neither any tear on Dr. Batiquin's would undertake to treat our bodies and minds for disease or
gloves after the operation nor blood smears on her hands upon trauma."38 Indeed, a physician is bound to serve the interest of his
removing her gloves.31 Moreover, the trial court pointed out that the patients "with the greatest of solicitude, giving them always his best
absence of a rubber drain was corroborated by Dr. Doris Sy, Dr. talent and skill."39 Through her tortious conduct, the petitioner
Batiquin's assistant during the operation on private respondent endangered the life of Flotilde Villegas, in violation of her profession's
Villegas.32 But the trial court failed to recognize that the assertions of rigid ethical code and in contravention of the legal standards set forth
Drs. Batiquin and Sy were denials or negative testimonies. Well-settled for professionals, in general,40 and members of the medical
is the rule that positive testimony is stronger than negative profession,41 in particular.
testimony.33 Of course, as the petitioners advocate, such positive
testimony must come from a credible source, which leads us to the WHEREFORE, the challenged decision of 11 May 1994 of the Court of
second assigned error. Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto.
While the petitioners claim that contradictions and falsities punctured Costs against the petitioners. SO ORDERED.
Dr. Kho's testimony, a regarding of the said testimony reveals no such
infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was
frank throughout her turn on the witness stand. Furthermore, no motive G.R. No. 137873 April 20, 2001
to state any untruth was ever imputed against Dr. Kho, leaving her D. M. CONSUNJI, INC., petitioner,
trustworthiness unimpaired.34 The trial court's following declaration vs.
shows that while it was critical of the lack of care with which Dr. Kho COURT OF APPEALS and MARIA J. JUEGO, respondents.
handled the piece of rubber, it was not prepared to doubt Dr. Kho's
credibility, thus only supporting our appraisal of Dr. Kho's KAPUNAN, J.:
trustworthiness:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction
This is not to say that she was less than honest when she testified worker of D. M. Consunji, Inc., fell 14 floors from the Renaissance
about her findings, but it can also be said that she did not take the Tower, Pasig City to his death.
most appropriate precaution to preserve that "piece of rubber" as an PO3 Rogelio Villanueva of the Eastern Police District investigated the
eloquent evidence of what she would reveal should there be a "legal tragedy and filed a report dated November 25, 1990, stating that:
problem" which she claim[s] to have anticipated.35 x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig,
Considering that we have assessed Dr. Kho to be a credible witness, Metro Manila where he was pronounced dead on arrival (DOA) by the
her positive testimony [that a piece of rubber was indeed found in attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of the
private respondent Villega's abdomen] prevails over the negative same date.
testimony in favor of the petitioners. Investigation disclosed that at the given time, date and place, while
As such, the rule of res ipsa loquitur comes to fore. This Court has had victim Jose A. Juego together with Jessie Jaluag and Delso Destajo
occasion to delve into the nature and operation of this doctrine: [were] performing their work as carpenter[s] at the elevator core of the
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which 14th floor of the Tower D, Renaissance Tower Building on board a
causes injury is shown to be under the management of the defendant, [p]latform made of channel beam (steel) measuring 4.8 meters by 2
and the accident is such as in the ordinary course of things does not meters wide with pinulid plywood flooring and cable wires attached to
happen in those who have the management use proper care, it affords its four corners and hooked at the 5 ton chain block, when suddenly,
reasonable evidence, in the absence of an explanation by the the bolt or pin which was merely inserted to connect the chain block
defendant, that the accident arose from want of care." Or with the [p]latform, got loose xxx causing the whole [p]latform
as Black's Law Dictionary puts it: assembly and the victim to fall down to the basement of the elevator
Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption core, Tower D of the building under construction thereby crushing the
or inference that defendant was negligent, which arises upon proof that victim of death, save his two (2) companions who luckily jumped out for
[the] instrumentality causing injury was in defendant's exclusive safety.
control, and that the accident was one which ordinary does not happen It is thus manifest that Jose A. Juego was crushed to death when the
in absence of negligence. Res ipsa loquitur is [a] rule of evidence [p]latform he was then on board and performing work, fell. And the
whereby negligence of [the] alleged wrongdoer may be inferred from falling of the [p]latform was due to the removal or getting loose of the
[the] mere fact that [the] accident happened provided [the] character of pin which was merely inserted to the connecting points of the chain
[the] accident and circumstances attending it lead reasonably to belief block and [p]latform but without a safety lock.1
that in [the] absence of negligence it would not have occurred and that On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial
thing which caused injury is shown to have been under [the] Court (RTC) of Pasig a complaint for damages against the deceased’s
management and control of [the] alleged wrongdoer. . . . Under [this] employer, D.M. Consunji, Inc. The employer raised, among other
doctrine defenses, the widow’s prior availment of the benefits from the State
. . . the happening of an injury permits an inference of negligence Insurance Fund.
where plaintiff produces substantial evidence that [the] injury was After trial, the RTC rendered a decision in favor of the widow Maria
caused by an agency or instrumentality under [the] exclusive control Juego. The dispositive portion of the RTC decision reads:
and management of defendant, and that the occurrence [sic] was such WHEREFORE, judgment is hereby rendered ordering defendant to pay
that in the ordinary course of things would not happen if reasonable plaintiff, as follows:
care had been used. x x x xxx xxx 1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to 3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.
the law of negligence which recognizes that prima facie negligence 4. P100,000.00 as moral damages.
may be established without direct proof and furnishes a substitute for 5. P20,000.00 as attorney’s fees, plus the costs of suit.
specific proof of negligence. The doctrine is not a rule of substantive SO ORDERED.2
law, but merely a mode of proof or a mere procedural convenience. On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the
The rule, when applicable to the facts and circumstances of a decision of the RTC in toto.
particular case, is not intended to and does not dispense with the D. M. Consunji now seeks the reversal of the CA decision on the
requirement of proof of culpable negligence on the party charged. It following grounds:
merely determines and regulates what shall be prima facie evidence
thereof and facilitates the burden of plaintiff of proving a breach of the THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE
duty of due care. The doctrine can be invoked when and only when, REPORT WAS ADMISSIBLE EVIDENCE OF THE ALLEGED
under the circumstances involved, direct evidence is absent and not NEGLIGENCE OF PETITIONER.
readily available.36 THE APPELLATE COURT ERRED IN HOLDING THAT THE
In the instant case, all the requisites for recourse to the doctrine are DOCTRINE OF RES IPSA LOQUITOR [sic] IS APPLICABLE TO
present. First, the entire proceedings of the caesarean section were PROVE NEGLIGENCE ON THE PART OF PETITIONER.
under the exclusive control of Dr. Batiquin. In this light, the private THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER
respondents were bereft of direct evidence as to the actual culprit or IS PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL
the exact cause of the foreign object finding its way into private CODE, AND
respondent Villegas's body, which, needless to say, does not occur THE APPELLATE COURT ERRED IN HOLDING THAT
unless through the intersection of negligence. Second, since aside RESPONDENT IS NOT PRECLUDED FROM RECOVERING
from the caesarean section, private respondent Villegas underwent no DAMAGES UNDER THE CIVIL CODE.3
other operation which could have caused the offending piece of rubber Petitioner maintains that the police report reproduced above is hearsay
to appear in her uterus, it stands to reason that such could only have and, therefore, inadmissible. The CA ruled otherwise. It held that said
been a by-product of the caesarean section performed by Dr. Batiquin. report, being an entry in official records, is an exception to the hearsay
The petitioners, in this regard, failed to overcome the presumption of rule.
negligence arising from resort to the doctrine of res ipsa loquitur. Dr. The Rules of Court provide that a witness can testify only to those facts
Batiquin is therefore liable for negligently leaving behind a piece of which he knows of his personal knowledge, that is, which are derived
rubber in private respondent Villegas's abdomen and for all the from his perception.4 A witness, therefore, may not testify as what he
adverse effects thereof. merely learned from others either because he was told or read or
As a final word, this Court reiterates its recognition of the vital role the heard the same. Such testimony is considered hearsay and may not
medical profession plays in the lives of the people, 3 7 and the State's

30 |TORTS AND DAMAGES

be received as proof of the truth of what he has learned. 5 This is known showing that, at the very least, they were under a duty to give the
as the hearsay rule. statements for record.
Hearsay is not limited to oral testimony or statements; the general rule Similarly, the police report in this case is inadmissible for the purpose
that excludes hearsay as evidence applies to written, as well as oral of proving the truth of the statements contained therein but is
statements.6 admissible insofar as it constitutes part of the testimony of PO3
The theory of the hearsay rule is that the many possible deficiencies, Villanueva.
suppressions, sources of error and untrustworthiness, which lie In any case, the Court holds that portions of PO3 Villanueva’s
underneath the bare untested assertion of a witness, may be best testimony which were of his personal knowledge suffice to prove that
brought to light and exposed by the test of cross-examiantion.7 The Jose Juego indeed died as a result of the elevator crash. PO3
hearsay rule, therefore, excludes evidence that cannot be tested by Villanueva had seen Juego’s remains at the morgue, 12 making the
cross-examination.8 latter’s death beyond dispute. PO3 Villanueva also conducted an
The Rules of Court allow several exceptions to the rule,9 among which ocular inspection of the premises of the building the day after the
are entries in official records. Section 44, Rule 130 provides: incident13 and saw the platform for himself.14 He observed that the
Entries in official records made in the performance of his duty made in platform was crushed15 and that it was totally damaged.16 PO3
the performance of his duty by a public officer of the Philippines, or by Villanueva also required Garcia and Fabro to bring the chain block to
a person in the performance of a duty specially enjoined by law the police headquarters. Upon inspection, he noticed that the chain
are prima facie evidence of the facts therein stated. was detached from the lifting machine, without any pin or bolt.17
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work What petitioner takes particular exception to is PO3 Villanueva’s
of Chief Justice Moran, enumerated the requisites for admissibility testimony that the cause of the fall of the platform was the loosening of
under the above rule: the bolt from the chain block. It is claimed that such portion of the
(a) that the entry was made by a public officer or by another person testimony is mere opinion. Subject to certain exceptions, 18 the opinion
specially enjoined by law to do so; of a witness is generally not admissible.19
(b) that it was made by the public officer in the performance of his Petitioner’s contention, however, loses relevance in the face of the
duties, or by such other person in the performance of a duty specially application of res ipsa loquitur by the CA. The effect of the doctrine is
enjoined by law; and to warrant a presumption or inference that the mere fall of the elevator
(c) that the public officer or other person had sufficient knowledge of was a result of the person having charge of the instrumentality was
the facts by him stated, which must have been acquired by him negligent. As a rule of evidence, the doctrine of res ipsa loquitur is
personally or through official information. peculiar to the law of negligence which recognizes that prima
The CA held that the police report meets all these requisites. Petitioner facie negligence may be established without direct proof and furnishes
contends that the last requisite is not present. a substitute for specific proof of negligence.20
The Court notes that PO3 Villanueva, who signed the report in The concept of res ipsa loquitur has been explained in this wise:
question, also testified before the trial court. In Rodriguez vs. Court of While negligence is not ordinarily inferred or presumed, and while the
Appeals,11 which involved a Fire Investigation Report, the officer who mere happening of an accident or injury will not generally give rise to
signed the fire report also testified before the trial court. This Court an inference or presumption that it was due to negligence on
held that the report was inadmissible for the purpose of proving the defendant’s part, under the doctrine of res ipsa loquitur, which means,
truth of the statements contained in the report but admissible insofar as literally, the thing or transaction speaks for itself, or in one jurisdiction,
it constitutes part of the testimony of the officer who executed the that the thing or instrumentality speaks for itself, the facts or
report. circumstances accompanying an injury may be such as to raise a
x x x. Since Major Enriquez himself took the witness stand and was presumption, or at least permit an inference of negligence on the part
available for cross-examination, the portions of the report which were of the defendant, or some other person who is charged with
of his personal knowledge or which consisted of his perceptions and negligence.
conclusions were not hearsay. The rest of the report, such as the x x x where it is shown that the thing or instrumentality which caused
summary of the statements of the parties based on their sworn the injury complained of was under the control or management of the
statements (which were annexed to the Report) as well as the latter, defendant, and that the occurrence resulting in the injury was such as
having been included in the first purpose of the offer [as part of the in the ordinary course of things would not happen if those who had its
testimony of Major Enriquez], may then be considered control or management used proper care, there is sufficient evidence,
as independently relevant statements which were gathered in the or, as sometimes stated, reasonable evidence, in the absence of
course of the investigation and may thus be admitted as such, but not explanation by the defendant, that the injury arose from or was caused
necessarily to prove the truth thereof. It has been said that: by the defendant’s want of care.21
"Where regardless of the truth or falsity of a statement, the fact that it One of the theoretical based for the doctrine is its necessity, i.e., that
has been made is relevant, the hearsay rule does not apply, but the necessary evidence is absent or not available.22
statement may be shown. Evidence as to the making of such The res ipsa loquitur doctrine is based in part upon the theory that the
statement is not secondary but primary, for the statement itself may defendant in charge of the instrumentality which causes the injury
constitute a fact in issue, or be circumstantially relevant as to the either knows the cause of the accident or has the best opportunity of
existence of such a fact." ascertaining it and that the plaintiff has no such knowledge, and
When Major Enriquez took the witness stand, testified for petitioners on therefore is compelled to allege negligence in general terms and to rely
his Report and made himself available for cross-examination by the upon the proof of the happening of the accident in order to establish
adverse party, the Report, insofar as it proved that certain utterances negligence. The inference which the doctrine permits is grounded upon
were made (but not their truth), was effectively removed from the ambit the fact that the chief evidence of the true cause, whether culpable or
of the aforementioned Section 44 of Rule 130. Properly understood, innocent, is practically accessible to the defendant but inaccessible to
this section does away with the testimony in open court of the officer the injured person.
who made the official record, considers the matter as an exception to
the hearsay rule and makes the entries in said official record It has been said that the doctrine of res ipsa loquitur furnishes a bridge
admissible in evidence as prima facie evidence of the facts therein by which a plaintiff, without knowledge of the cause, reaches over to
stated. The underlying reasons for this exceptionary rule are necessity defendant who knows or should know the cause, for any explanation of
and trustworthiness, as explained in Antillon v. Barcelon. care exercised by the defendant in respect of the matter of which the
The litigation is unlimited in which testimony by officials is daily plaintiff complains. The res ipsa loquitur doctrine, another court has
needed; the occasions in which the officials would be summoned from said, is a rule of necessity, in that it proceeds on the theory that under
his ordinary duties to declare as a witness are numberless. The public the peculiar circumstances in which the doctrine is applicable, it is
officers are few in whose daily work something is not done in which within the power of the defendant to show that there was no
testimony is not needed from official sources. Were there no exception negligence on his part, and direct proof of defendant’s negligence is
for official statements, hosts of officials would be found devoting the beyond plaintiff’s power. Accordingly, some court add to the three
greater part of their time to attending as witnesses in court or delivering prerequisites for the application of the res ipsa loquitur doctrine the
deposition before an officer. The work of administration of government further requirement that for the res ipsa loquitur doctrine to apply, it
and the interest of the public having business with officials would alike must appear that the injured party had no knowledge or means of
suffer in consequence. For these reasons, and for many others, a knowledge as to the cause of the accident, or that the party to be
certain verity is accorded such documents, which is not extended to charged with negligence has superior knowledge or opportunity for
private documents. (3 Wigmore on Evidence, Sec. 1631). explanation of the accident.23
The law reposes a particular confidence in public officers that it The CA held that all the requisites of res ipsa loquitur are present in the
presumes they will discharge their several trusts with accuracy and case at bar:
fidelity; and, therefore, whatever acts they do in discharge of their duty There is no dispute that appellee’s husband fell down from the
may be given in evidence and shall be taken to be true under such a 14th floor of a building to the basement while he was working with
degree of caution as to the nature and circumstances of each case appellant’s construction project, resulting to his death. The construction
may appear to require. site is within the exclusive control and management of appellant. It has
a safety engineer, a project superintendent, a carpenter leadman and
It would have been an entirely different matter if Major Enriquez was others who are in complete control of the situation therein. The
not presented to testify on his report. In that case the applicability of circumstances of any accident that would occur therein are peculiarly
Section 44 of Rule 143 would have been ripe for determination, and within the knowledge of the appellant or its employees. On the other
this Court would have agreed with the Court of Appeals that said report hand, the appellee is not in a position to know what caused the
was inadmissible since the aforementioned third requisite was not accident. Res ipsa loquitur is a rule of necessity and it applies where
satisfied. The statements given by the sources of information of Major evidence is absent or not readily available, provided the following
Enriquez failed to qualify as "official information," there being no requisites are present: (1) the accident was of a kind which does not

31 |TORTS AND DAMAGES

ordinarily occur unless someone is negligent; (2) the instrumentality or precautions for the protection of the employees, the heirs of the
agency which caused the injury was under the exclusive control of the deceased employees filed a complaint against Philex Mining in the
person charged with negligence; and (3) the injury suffered must not Court of First Instance (CFI). Upon motion of Philex Mining, the CFI
have been due to any voluntary action or contribution on the part of the dismissed the complaint for lack of jurisdiction. The heirs sought relief
person injured. x x x. from this Court.
No worker is going to fall from the 14th floor of a building to the Addressing the issue of whether the heirs had a choice of remedies,
basement while performing work in a construction site unless someone majority of the Court En Banc,31 following the rule in Pacaña vs. Cebu
is negligent[;] thus, the first requisite for the application of the rule Autobus Company, held in the affirmative.
of res ipsa loquitur is present. As explained earlier, the construction WE now come to the query as to whether or not the injured employee
site with all its paraphernalia and human resources that likely caused or his heirs in case of death have a right of selection or choice of action
the injury is under the exclusive control and management of between availing themselves of the worker’s right under the
appellant[;] thus[,] the second requisite is also present. No contributory Workmen’s Compensation Act and suing in the regular courts under
negligence was attributed to the appellee’s deceased husband[;] thus[,] the Civil Code for higher damages (actual, moral and exemplary) from
the last requisite is also present. All the requisites for the application of the employers by virtue of the negligence or fault of the employers or
the rule of res ipsa loquitur are present, thus a reasonable presumption whether they may avail themselves cumulatively of both actions, i.e.,
or inference of appellant’s negligence arises. x x x.24 collect the limited compensation under the Workmen’s Compensation
Petitioner does not dispute the existence of the requisites for the Act and sue in addition for damages in the regular courts.
application of res ipsa loquitur, but argues that the presumption or In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus
inference that it was negligent did not arise since it "proved that it Company, 32 SCRA 442, ruled that an injured worker has a choice of
exercised due care to avoid the accident which befell respondent’s either to recover from the employer the fixed amounts set by the
husband." Workmen’s Compensation Act or to prosecute an ordinary civil action
Petitioner apparently misapprehends the procedural effect of the against the tortfeasor for higher damages but he cannot pursue both
doctrine. As stated earlier, the defendant’s negligence is presumed or courses of action simultaneously. [Underscoring supplied.]
inferred25 when the plaintiff establishes the requisites for the application Nevertheless, the Court allowed some of the petitioners in said case to
of res ipsa loquitur. Once the plaintiff makes out a prima facie case of proceed with their suit under the Civil Code despite having availed of
all the elements, the burden then shifts to defendant to explain. 26 The the benefits provided under the Workmen’s Compensation Act. The
presumption or inference may be rebutted or overcome by other Court reasoned:
evidence and, under appropriate circumstances disputable With regard to the other petitioners, it was alleged by Philex in its
presumption, such as that of due care or innocence, may outweigh the motion to dismiss dated May 14, 1968 before the court a quo, that the
inference.27 It is not for the defendant to explain or prove its defense to heirs of the deceased employees, namely Emerito Obra, Larry Villar,
prevent the presumption or inference from arising. Evidence by the Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and
defendant of say, due care, comes into play only after the claims for compensation to the Regional Office No. 1 of the then
circumstances for the application of the doctrine has been Department of Labor and all of them have been paid in full as of
established.1âwphi1.nêt August 25, 1967, except Saturnino Martinez whose heirs decided that
In any case, petitioner cites the sworn statement of its leadman they be paid in installments x x x. Such allegation was admitted by
Ferdinand Fabro executed before the police investigator as evidence herein petitioners in their opposition to the motion to dismiss dated
of its due care. According to Fabro’s sworn statement, the company may 27, 1968 x x x in the lower court, but they set up the defense that
enacted rules and regulations for the safety and security of its workers. the claims were filed under the Workmen’s Compensation Act before
Moreover, the leadman and the bodegero inspect the chain block they learned of the official report of the committee created to
before allowing its use. investigate the accident which established the criminal negligence and
It is ironic that petitioner relies on Fabro’s sworn statement as proof of violation of law by Philex, and which report was forwarded by the
its due care but, in arguing that private respondent failed to prove Director of Mines to then Executive Secretary Rafael Salas in a letter
negligence on the part of petitioner’s employees, also assails the same dated October 19, 1967 only x x x.
statement for being hearsay. WE hold that although the other petitioners had received the benefits
Petitioner is correct. Fabro’s sworn statement is hearsay and under the Workmen’s Compensation Act, such my not preclude them
inadmissible. Affidavits are inadmissible as evidence under the from bringing an action before the regular court because they became
hearsay rule, unless the affiant is placed on the witness stand to testify cognizant of the fact that Philex has been remiss in its contractual
thereon.28 The inadmissibility of this sort of evidence is based not only obligations with the deceased miners only after receiving
on the lack of opportunity on the part of the adverse party to cross- compensation under the Act. Had petitioners been aware of said
examine the affiant, but also on the commonly known fact that, violation of government rules and regulations by Philex, and of its
generally, an affidavit is not prepared by the affiant himself but by negligence, they would not have sought redress under the Workmen’s
another who uses his own language in writing the affiant’s statements Compensation Commission which awarded a lesser amount for
which may either be omitted or misunderstood by the one writing compensation. The choice of the first remedy was based on ignorance
them.29 Petitioner, therefore, cannot use said statement as proof of its or a mistake of fact, which nullifies the choice as it was not an
due care any more than private respondent can use it to prove the intelligent choice. The case should therefore be remanded to the lower
cause of her husband’s death. Regrettably, petitioner does not cite any court for further proceedings. However, should the petitioners be
other evidence to rebut the inference or presumption of negligence successful in their bid before the lower court, the payments made
arising from the application of res ipsa loquitur, or to establish any under the Workmen’s Compensation Act should be deducted from the
defense relating to the incident. damages that may be decreed in their favor. [Underscoring supplied.]
Next, petitioner argues that private respondent had previously availed The ruling in Floresca providing the claimant a choice of remedies was
of the death benefits provided under the Labor Code and is, therefore, reiterated in Ysmael Maritime Corporation vs. Avelino,32 Vda. De
precluded from claiming from the deceased’s employer damages Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs.
under the Civil Code. Abeleda.34 In the last case, the Court again recognized that a claimant
who had been paid under the Act could still sue under the Civil Code.
Article 173 of the Labor Code states: The Court said:
Article 173. Extent of liability. – Unless otherwise provided, the liability In the Robles case, it was held that claims for damages sustained by
of the State Insurance Fund under this Title shall be exclusive and in workers in the course of their employment could be filed only under the
place of all other liabilities of the employer to the employee, his Workmen’s Compensation Law, to the exclusion of all further claims
dependents or anyone otherwise entitled to receive damages on behalf under other laws. In Floresca, this doctrine was abrogated in favor of
of the employee or his dependents. The payment of compensation the new rule that the claimants may invoke either the Workmen’s
under this Title shall not bar the recovery of benefits as provided for in Compensation Act or the provisions of the Civil Code, subject to the
Section 699 of the Revised Administrative Code, Republic Act consequence that the choice of one remedy will exclude the other and
Numbered Eleven hundred sixty-one, as amended, Republic Act that the acceptance of compensation under the remedy chosen will
Numbered Six hundred ten, as amended, Republic Act Numbered preclude a claim for additional benefits under the other remedy. The
Forty-eight hundred sixty-four as amended, and other laws whose exception is where a claimant who has already been paid under the
benefits are administered by the System or by other agencies of the Workmen’s Compensation Act may still sue for damages under the
government. Civil Code on the basis of supervening facts or developments
The precursor of Article 173 of the Labor Code, Section 5 of the occurring after he opted for the first remedy. (Underscoring supplied.)
Workmen’s Compensation Act, provided that: Here, the CA held that private respondent’s case came under the
Section 5. Exclusive right to compensation. – The rights and remedies exception because private respondent was unaware of petitioner’s
granted by this Act to an employee by reason of a personal injury negligence when she filed her claim for death benefits from the State
entitling him to compensation shall exclude all other rights and Insurance Fund. Private respondent filed the civil complaint for
remedies accruing to the employee, his personal representatives, damages after she received a copy of the police investigation report
dependents or nearest of kin against the employer under the Civil and the Prosecutor’s Memorandum dismissing the criminal complaint
Code and other laws because of said injury x x x. against petitioner’s personnel. While stating that there was no
Whether Section 5 of the Workmen’s Compensation Act allowed negligence attributable to the respondents in the complaint, the
recovery under said Act as well as under the Civil Code used to be the prosecutor nevertheless noted in the Memorandum that, "if at all," the
subject of conflicting decisions. The Court finally settled the matter "case is civil in nature." The CA thus applied the exception in Floresca:
in Floresca vs.Philex Mining Corporation,30 which involved a cave-in
resulting in the death of the employees of the Philex Mining x x x We do not agree that appellee has knowledge of the alleged
Corporation. Alleging that the mining corporation, in violation of negligence of appellant as early as November 25, 1990, the date of the
government rules and regulations, failed to take the required police investigator’s report. The appellee merely executed her sworn

32 |TORTS AND DAMAGES

statement before the police investigator concerning her personal Waiver is a defense, and it was not incumbent upon private
circumstances, her relation to the victim, and her knowledge of the respondent, as plaintiff, to allege in her complaint that she had availed
accident. She did not file the complaint for "Simple Negligence of benefits from the ECC. It is, thus, erroneous for petitioner to burden
Resulting to Homicide" against appellant’s employees. It was the private respondent with raising waiver as an issue. On the contrary, it
investigator who recommended the filing of said case and his is the defendant who ought to plead waiver, as petitioner did in pages
supervisor referred the same to the prosecutor’s office. This is a 2-3 of its Answer;41 otherwise, the defense is waived. It is, therefore,
standard operating procedure for police investigators which appellee perplexing for petitioner to now contend that the trial court had no
may not have even known. This may explain why no complainant is jurisdiction over the issue when petitioner itself pleaded waiver in the
mentioned in the preliminary statement of the public prosecutor in her proceedings before the trial court.
memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Does the evidence show that private respondent knew of the facts that
Fabro x x x are being charged by complainant of "Simple Negligence led to her husband’s death and the rights pertaining to a choice of
Resulting to Homicide." It is also possible that the appellee did not remedies?
have a chance to appear before the public prosecutor as can be It bears stressing that what negates waiver is lack of knowledge or a
inferred from the following statement in said memorandum: mistake of fact. In this case, the "fact" that served as a basis for
"Respondents who were notified pursuant to Law waived their rights to nullifying the waiver is the negligence of petitioner’s employees, of
present controverting evidence," thus there was no reason for the which private respondent purportedly learned only after the prosecutor
public prosecutor to summon the appellee. Hence, notice of appellant’s issued a resolution stating that there may be civil liability. In Floresca, it
negligence cannot be imputed on appellee before she applied for was the negligence of the mining corporation and its violation of
death benefits under ECC or before she received the first payment government rules and regulations. Negligence, or violation of
therefrom. Her using the police investigation report to support her government rules and regulations, for that matter, however, is not a
complaint filed on May 9, 1991 may just be an afterthought after fact, but a conclusion of law, over which only the courts have the final
receiving a copy of the February 6, 1991 Memorandum of the say. Such a conclusion binds no one until the courts have decreed so.
Prosecutor’s Office dismissing the criminal complaint for insufficiency It appears, therefore, that the principle that ignorance or mistake of fact
of evidence, stating therein that: "The death of the victim is not nullifies a waiver has been misapplied in Floresca and in the case at
attributable to any negligence on the part of the respondents. If at all bar.
and as shown by the records this case is civil in nature." (Underscoring In any event, there is no proof that private respondent knew that her
supplied.) Considering the foregoing, We are more inclined to believe husband died in the elevator crash when on November 15, 1990 she
appellee’s allegation that she learned about appellant’s negligence accomplished her application for benefits from the ECC. The police
only after she applied for and received the benefits under ECC. This is investigation report is dated November 25, 1990, 10 days after the
a mistake of fact that will make this case fall under the exception held accomplishment of the form. Petitioner filed the application in her
in the Floresca ruling.35 behalf on November 27, 1990.

The CA further held that not only was private respondent ignorant of There is also no showing that private respondent knew of the remedies
the facts, but of her rights as well: available to her when the claim before the ECC was filed. On the
x x x. Appellee [Maria Juego] testified that she has reached only contrary, private respondent testified that she was not aware of her
elementary school for her educational attainment; that she did not rights.
know what damages could be recovered from the death of her Petitioner, though, argues that under Article 3 of the Civil Code,
husband; and that she did not know that she may also recover more ignorance of the law excuses no one from compliance therewith. As
from the Civil Code than from the ECC. x x x.36 judicial decisions applying or interpreting the laws or the Constitution
Petitioner impugns the foregoing rulings. It contends that private form part of the Philippine legal system (Article 8, Civil Code), private
respondent "failed to allege in her complaint that her application and respondent cannot claim ignorance of this Court’s ruling
receipt of benefits from the ECC were attended by ignorance or in Floresca allowing a choice of remedies.
mistake of fact. Not being an issue submitted during the trial, the trial The argument has no merit. The application of Article 3 is limited to
court had no authority to hear or adjudicate that issue." mandatory and prohibitory laws.42 This may be deduced from the
Petitioner also claims that private respondent could not have been language of the provision, which, notwithstanding a person’s
ignorant of the facts because as early as November 28, 1990, private ignorance, does not excuse his or her compliance with the laws. The
respondent was the complainant in a criminal complaint for "Simple rule in Floresca allowing private respondent a choice of remedies is
Negligence Resulting to Homicide" against petitioner’s employees. On neither mandatory nor prohibitory. Accordingly, her ignorance thereof
February 6, 1991, two months before the filing of the action in the cannot be held against her.
lower court, Prosecutor Lorna Lee issued a resolution finding that, Finally, the Court modifies the affirmance of the award of damages.
although there was insufficient evidence against petitioner’s The records do not indicate the total amount private respondent ought
employees, the case was "civil in nature." These purportedly show that to receive from the ECC, although it appears from Exhibit "K"43 that she
prior to her receipt of death benefits from the ECC on January 2, 1991 received P3,581.85 as initial payment representing the accrued
and every month thereafter, private respondent also knew of the two pension from November 1990 to March 1991. Her initial monthly
choices of remedies available to her and yet she chose to claim and pension, according to the same Exhibit "K," was P596.97 and present
receive the benefits from the ECC. total monthly pension was P716.40. Whether the total amount she will
When a party having knowledge of the facts makes an election eventually receive from the ECC is less than the sum of P644,000.00
between inconsistent remedies, the election is final and bars any in total damages awarded by the trial court is subject to speculation,
action, suit, or proceeding inconsistent with the elected remedy, in the and the case is remanded to the trial court for such determination.
absence of fraud by the other party. The first act of election acts as a Should the trial court find that its award is greater than that of the ECC,
bar.37 Equitable in nature, the doctrine of election of remedies is payments already received by private respondent under the Labor
designed to mitigate possible unfairness to both parties. It rests on the Code shall be deducted from the trial court'’ award of damages.
moral premise that it is fair to hold people responsible for their choices. Consistent with our ruling in Floresca, this adjudication aims to prevent
The purpose of the doctrine is not to prevent any recourse to any double compensation.
remedy, but to prevent a double redress for a single wrong. 38
The choice of a party between inconsistent remedies results in WHEREFORE, the case is REMANDED to the Regional Trial Court of
a waiver by election. Hence, the rule in Floresca that a claimant cannot Pasig City to determine whether the award decreed in its decision is
simultaneously pursue recovery under the Labor Code and prosecute more than that of the ECC. Should the award decreed by the trial court
an ordinary course of action under the Civil Code. The claimant, by his be greater than that awarded by the ECC, payments already made to
choice of one remedy, is deemed to have waived the other. private respondent pursuant to the Labor Code shall be deducted
Waiver is the intentional relinquishment of a known right.39 therefrom. In all other respects, the Decision of the Court of Appeals
[It] is an act of understanding that presupposes that a party has is AFFIRMED.SO ORDERED.
knowledge of its rights, but chooses not to assert them. It must be
generally shown by the party claiming a waiver that the person against
whom the waiver is asserted had at the time knowledge, actual or G.R. No. 146635 December 14, 2005
constructive, of the existence of the party’s rights or of all material facts MARCELO MACALINAO, Substituted by ESPERANZA
upon which they depended. Where one lacks knowledge of a right, MACALINAO and ANTONIO MACALINAO, Petitioners,
there is no basis upon which waiver of it can rest. Ignorance of a vs.
material fact negates waiver, and waiver cannot be established by a EDDIE MEDECIELO ONG and GENOVEVO
consent given under a mistake or misapprehension of fact. SEBASTIAN, Respondents.
A person makes a knowing and intelligent waiver when that person
knows that a right exists and has adequate knowledge upon which to Tinga, J.:
make an intelligent decision.
Waiver requires a knowledge of the facts basic to the exercise of the Before this Court is a Petition for Review on Certiorari assailing
right waived, with an awareness of its consequences. That a waiver is the Decision1 and Resolution2 of the Court of Appeals dated 31 May
made knowingly and intelligently must be illustrated on the record or by 2000 and 7 September 2000, respectively, in CA-G.R. CV No. 52963.
the evidence.40 The Court of Appeals reversed the judgment of the trial court and
dismissed the complaint for damages filed by Marcelo Macalinao
That lack of knowledge of a fact that nullifies the election of a remedy (Macalinao) against Eddie Medecielo Ong (Ong) and Genovevo
is the basis for the exception in Floresca. Sebastian (Sebastian) for insufficiency of evidence.
It is in light of the foregoing principles that we address petitioner’s
contentions. The antecedent facts follow.

33 |TORTS AND DAMAGES

Macalinao and Ong were employed as utility man and driver, "Isuzu lost control" as his opinion, with no explanation how he reached
respectively, at the Genetron International Marketing (Genetron), a it. Civil cases require evidence of a lesser degree than criminal cases,
single proprietorship owned and operated by Sebastian. On 25 April but one sentence by one who did not even witness an event, is not
1992, Sebastian instructed Macalinao, Ong and two truck helpers to conclusive proof.
deliver a heavy piece of machinery–a reactor/motor for mixing ...
chemicals, to Sebastian’s manufacturing plant in Angat, Bulacan. There was only the fact of the collision before the trial court. The
While in the process of complying with the order, the vehicle driven by attendant circumstances were not established, and no fault could be
Ong, Genetron’s Isuzu Elf truck with plate no. PMP-106 hit and determined using the evidence, both testimonial and documentary
bumped the front portion of a private jeepney with plate no. DAF-922 presented.16
along Caypombo, Sta. Maria, Bulacan at around 11:20 in the morning.3 Contrary to the above conclusion of the appellate court, the evidence
Both vehicles incurred severe damages while the passengers on record coupled with the doctrine of res ipsa loquitur sufficiently
sustained physical injuries as a consequence of the establishes Ong’s negligence.
collision.4 Macalinao incurred the most serious injuries We focus first on the evidence presented before the trial court.
among the passengers of the truck. He was initially brought to the Sta. The photographs of the accident which the appellate court cavalierly
Maria District Hospital for first aid treatment but in view of the severity brushed aside as insignificant deserve substantial cogitation. In Jose v.
of his condition, he was transferred to the Philippine Orthopedic Center Court of Appeals,17 we upheld the trial court’s reliance on photographs
at the instance of Sebastian. He was again moved to the Capitol of the accident as opposed to a party’s obviously biased testimony. In
Medical Center by his parents, petitioners herein, for medical reasons so doing, we stated:
and later to the Philippine General Hospital for financial In criminal cases such as murder or rape where the accused stands to
considerations.5 lose his liberty if found guilty, this Court has, in many occasions, relied
Macalinao’s body was paralyzed and immobilized from the neck down principally upon physical evidence in ascertaining the truth. In People
as a result of the accident and per doctor’s advice, his foot was v. Vasquez,18 where the physical evidence on record ran counter to the
amputated. He also suffered from bed sores and infection. His testimonial evidence of the prosecution witnesses, we ruled that the
immedicable condition, coupled with the doctor’s recommendation, led physical evidence should prevail.19
his family to bring him home where he died on 7 November 1992. 6 Physical evidence is a mute but an eloquent manifestation of truth
Before he died, Macalinao was able to file an action for damages which ranks high in our hierarchy of trustworthy evidence.20
against both Ong and Sebastian before the Regional Trial Court (RTC) In this case, while there is a dearth of testimonial evidence to enlighten
of Quezon City, Branch 81.7 After his death, Macalinao was substituted us about what actually happened, photographs21 depicting the relative
by his parents in the action.8 A criminal case for reckless imprudence positions of the vehicles immediately after the accident took place do
resulting to serious physical injuries9 had also been instituted earlier exist. It is well established that photographs, when duly verified and
against Ong but for reasons which do not appear in the records of this shown by extrinsic evidence to be faithful representations of the
case, trial thereon did not ensue.10 subject as of the time in question, are, in the discretion of the trial
court, admissible in evidence as aids in arriving at an understanding of
After trial in the civil action, the RTC held that based on the evidence, the evidence, the situation or condition of objects or premises or the
Ong drove the Isuzu truck in a reckless and imprudent manner thereby circumstances of an accident.22
causing the same to hit the private jeepney. It observed that while
respondents claimed that Ong was driving cautiously and prudently at According to American courts, photographs are admissible in evidence
the time of the mishap, no evidence was presented to substantiate the in motor vehicle accident cases when they appear to have been
claim.11 It declared Ong negligent and at the same time, it held that accurately taken and are proved to be a faithful and clear
Sebastian failed to exercise the diligence of a good father of a family in representation of the subject, which cannot itself be produced, and are
the selection and supervision of Ong. Consequently, the trial court of such nature as to throw light upon a disputed point. 23 Before a
pronounced the two of them jointly liable to pay actual, moral, and photograph may be admitted in evidence, however, its accuracy or
exemplary damages as well as civil indemnity for Macalinao’s death. correctness must be proved, and it must be authenticated or
The trial court subsequently increased the monetary award12 upon verified24 first. In the case at bar, the photographer testified in open
petitioners’ motion for reconsideration thereof. court and properly identified the pictures as the ones he took at the
scene of the accident.25
On appeal, the appellate court reversed the findings of the trial court. It An examination of said photographs clearly shows that the road where
held that the evidence presented by petitioners was woefully scant to the mishap occurred is marked by a line at the center separating the
support a verdict of negligence against Ong. And since respondents’ right from the left lane. Based on the motorist’s right of way rule, the
liability hinged squarely on proof of Ong’s negligence, neither of them Isuzu truck which was headed towards Norzagaray, Bulacan26 should
could be held liable for damages to petitioners.13 have been occupying the left lane while the private jeepney which was
Aggrieved at the ruling, petitioners elevated the case to this Court. traversing the road to the town proper of Sta. Maria, Bulacan27 should
They herein contend that contrary to the conclusion reached by the have been in the right lane. Exhibits "L" and "L-4" among the
Court of Appeals, the evidence conclusively establish fault or photographs, however, reveal that in the aftermath of the collision, the
negligence on the part of Ong and justify the award of damages in their Isuzu truck usurped the opposite lane to such an extent that only its
favor. right rear wheel remained in the left lane, a few inches from the
The petition is meritorious. demarcation line. Its two front wheels and left rear wheel were planted
The issue of negligence is factual and, in quasi-delicts, crucial in the squarely on the private jeepney’s lane and the Isuzu truck had rotated
award of damages.14 In the case at bar, the crux of the controversy is such that its front no longer pointed towards Norzagaray but partially
the sufficiency of the evidence presented to support a finding of faced the town proper of Sta. Maria instead.
negligence against Ong. Given the contradictory conclusions of the While ending up at the opposite lane is not conclusive proof of fault in
trial court and the appellate court on this issue, this Court is impelled to automobile collisions, the position of the two vehicles gives rise to the
ascertain for itself which court made the correct determination. conclusion that it was the Isuzu truck which hit the private jeepney
While as a rule factual findings of the Court of Appeals are deemed rather than the other way around. The smashed front of the Isuzu truck
conclusive in cases brought to us on appeal, we have also consistently is pressed against the private jeepney’s left front portion near the
pronounced that we may review its findings of fact in the following driver’s side. The private jeepney is positioned diagonally in the right
instances, among others: lane; its front at the rightmost corner of the road while its rear remained
a few feet from the demarcation line. Based on the angle at which it
(i) when the judgment of the Court of Appeals was based on a stopped, the private jeepney obviously swerved to the right in an
misapprehension of facts; (ii) when the factual findings are conflicting; unsuccessful effort to avoid the Isuzu truck. This would support the
(iii) when the Court of Appeals manifestly overlooked certain relevant statement of the police investigator that the Isuzu truck lost
facts not disputed by the parties and which, if properly considered, control28 and hit the left front portion of the private jeepney.29 It would
would justify a different conclusion; and (iv) where the findings of fact also explain why the driver of the private jeepney died immediately
of the Court of Appeals are contrary to those of the trial court, or are after being brought to the hospital,30 since in such a scenario, the brunt
mere conclusions without citation of specific evidence, or where the of the collision logically bore down on him.
facts set forth by the petitioner are not disputed by the respondent, or
where the findings of fact of the Court of Appeals are premised on the Moreover, the unequal size and weight of the two vehicles would make
absence of evidence and are contradicted by the evidence on record.15 it improbable for the relatively lighter private jeepney to have stricken
Said exceptions obtain in this case thus, a departure from the the heavier truck with such force as to push the latter to the former’s
application of the general rule is warranted. side of the road. Had that been the case, the two vehicles would have
In reversing the trial court and absolving respondents from liability, the ended up crushed together at the center of the road or at the Isuzu
appellate court made the following pronouncement: truck’s lane instead of rolling to a stop at the private jeepney’s lane.
The evidence presented is woefully scant. The pictures of the collision Another piece of evidence which supports a finding of negligence
afford no basis for concluding that it was the fault of the defendant against Ong is the police report of the incident denoted as Entry No.
driver, or that he was driving recklessly. The police report contains no 04-229 of the Sta. Maria Police Station. The report states that the
findings as to the road conditions, estimates of the relative speed of Isuzu truck was the one which hit the left front portion of the private
the vehicles, or their exact position at the time of the accident. And jeepney.31 This piece of evidence was disregarded by the Court of
even so, entries in the police blotter should not be given significance or Appeals on the ground that entries in police blotters should not be
probative value as they do not constitute conclusive proof of the truth given significance or probative value as they do not constitute
thereof. Nor were eyewitnesses presented, not even affidavits or conclusive proof of the truth thereof.
statements to give any indication as to what actually happened. The While true in most instances, it must still be remembered that although
police investigator’s findings are sketchy at best, with only the phrase police blotters are of little probative value, they are nevertheless

34 |TORTS AND DAMAGES

admitted and considered in the absence of competent evidence to during the time in question, no evidence was proffered to substantiate
refute the facts stated therein.32 Entries in police records made by a the same. In fact, Ong did not bother to testify to explain his actuations
police officer in the performance of the duty especially enjoined by law and to show that he exercised due care when the accident happened,
are prima facie evidence of the fact therein stated,33 and their probative so even this requisite is fulfilled.
value may be either substantiated or nullified by other competent
evidence.34 All the requisites for the application of the rule of res ipsa loquitur are
present, thus a reasonable presumption or inference of Ong’s
In this case, the police blotter was identified and formally offered as negligence arises. In consonance with the effect of the doctrine, the
evidence and the person who made the entries thereon was likewise burden of proving due care at the time in question shifts to
presented in court. On the other hand, aside from a blanket allegation respondents. Unfortunately, as previously discussed, aside from
that the driver of the other vehicle was the one at fault, respondents did blanket allegations that Ong exercised prudence and due care while
not present any evidence to back up their charge and show that the driving on the day of the accident, respondents proffered no other
conclusion of the police investigator was false. Given the paucity of proof. As a consequence, the prima facie finding of negligence against
details in the report, the investigator’s observation could have been Ong, remaining unexplained and/or uncontradicted, is deemed
easily refuted and overturned by respondents through the simple established. This in turn warrants a finding that Ong is liable for
expedient of supplying the missing facts and showing to the damages to petitioners.
satisfaction of the court that the Isuzu truck was blameless in the Such liability of Ong is solidary with Sebastian pursuant to Art. 2176 in
incident. Ong was driving the truck while the two other truck helpers relation to Art. 2180 of the Civil Code which provide:
also survived the accident. Any or all of them could have given their Art. 2176. Whoever by act or omission causes damage to another,
testimony to shed light on what actually transpired, yet not one of them there being fault or negligence is obliged to pay for the damage done .
was presented to substantiate the claim that Ong was not negligent. ...
Since respondents failed to refute the contents of the police blotter, the Art. 2180. The obligation imposed by Art. 2176 is demandable not only
statement therein that the Isuzu truck hit the private jeepney and not for one’s own acts or omissions but also for those of persons for whom
the other way around is deemed established. The prima facie nature of one is responsible.
the police report ensures that if it remains unexplained or ...
uncontradicted, it will be sufficient to establish the facts posited Employers shall be liable for the damage caused by their employees
therein.35 and household helpers acting within the scope of their assigned tasks
While not constituting direct proof of Ong’s negligence, the foregoing even though the former are not engaged in any business or industry.
pieces of evidence justify the application of res ipsa loquitur, a Latin ...
phrase which literally means "the thing or the transaction speaks for The responsibility treated of in this article shall cease when the
itself."36 persons herein mentioned prove that they observed all the diligence of
Res ipsa loquitur recognizes that parties may establish prima a good father of a family to prevent damage.
facie negligence without direct proof, thus, it allows the principle to Whenever an employee’s negligence causes damage or injury to
substitute for specific proof of negligence. 37 It permits the plaintiff to another, there instantly arises a presumption juris tantum that the
present along with proof of the accident, enough of the attending employer failed to exercise diligentissimi patris families in the selection
circumstances to invoke the doctrine, create an inference or (culpa in eligiendo) or supervision (culpa in vigilando) of its
presumption of negligence and thereby place on the defendant the employees.45 To avoid liability for a quasi-delict committed by his
burden of proving that there was no negligence on his part. 38 employee, an employer must overcome the presumption by presenting
The doctrine can be invoked only when under the circumstances, direct convincing proof that he exercised the care and diligence of a good
evidence is absent and not readily available.39 This is based in part father of a family in the selection and supervision of his employee.46
upon the theory that the defendant in charge of the instrumentality In an attempt to exculpate himself from liability, Sebastian claimed that
which causes the injury either knows the cause of the accident or has he exercised due care in selecting Ong as a driver. Before he hired
the best opportunity of ascertaining it while the plaintiff has no such Ong, he allegedly required him to produce police and NBI clearances
knowledge, and is therefore compelled to allege negligence in general and he took into account the recommendations of Ong’s previous
terms and rely upon the proof of the happening of the accident in order employer and friends.47 Sebastian also stressed that he instructed Ong
to establish negligence.40 The inference which the doctrine permits is to drive slowly and carefully and to take necessary precautions. 48 He
grounded upon the fact that the chief evidence of the true cause, likewise admonished Ong to be careful after the latter had some minor
whether culpable or innocent, is practically accessible to the defendant accidents in the parking area.49
but inaccessible to the injured person.41 However, Sebastian’s statements are not sufficient to prove that he
In this case, Macalinao could no longer testify as to the cause of the exercised the diligence of a good father of a family in the selection of
accident since he is dead. Petitioners, while substituting their son as Ong. His testimony is self-serving and devoid of corroboration as he
plaintiff, have no actual knowledge did not bother to support the same with document evidence. Moreover,
about the event since they were not present at the crucial moment. The Sebastian could not even remember whether the recommendation
driver of the private jeepney who could have shed light on the from Ong’s previous employer was made verbally or in writing.50
circumstances is likewise dead. The only ones left with knowledge On the other hand, due diligence in supervision requires the
about the cause of the mishap are the two truck helpers who survived, formulation of rules and regulations for the guidance of employees and
both employees of Sebastian, and Ong, who is not only Sebastian’s the issuance of proper instructions as well as actual implementation
previous employee but his co-respondent in this case as well. In the and monitoring of consistent compliance with the rules. 51 Admonitions
circumstances, evidence as to the true cause of the accident is, for all to drive carefully without the corresponding guidelines and monitoring
intents and purposes, accessible to respondents but not to petitioners. of the employee do not satisfy the due diligence required by law either.
The witnesses left are unlikely to divulge to petitioners what they knew In short, Sebastian’s claims fall short of what is required by law to
about the cause of the accident if the same militates against the overcome the presumption of negligence in the selection and
interest of their employer. This justifies the invocation of the doctrine. supervision of his employee. The trial court therefore correctly held him
Under local jurisprudence, the following are the requisites for the solidarily liable with Ong to petitioners.
application of res ipsa loquitur: In an obvious ploy to relieve himself from liability should the appellate
(1) The accident is of a kind which ordinarily does not occur in the court’s decision be reversed, Sebastian averred that Macalinao is not
absence of someone’s negligence; entitled to damages. He anchored his claim on the novel argument that
(2) It is caused by an instrumentality within the exclusive control of the the provisions of Art. 2180 apply only when the injured party is a third
defendant or defendants; and person but it has no application to an employee like Macalinao. 52 He
(3) The possibility of contributing conduct which would make the likewise postulated that recovery from the Social Security System,
plaintiff responsible is eliminated.42 State Insurance Fund, Employee’s Compensation Commission, and
We are convinced that all the above requisites are present in the case the Philippine Medical Care Act, the government agencies with which
at bar. petitioners filed a claim in view of Macalinao’s injury and subsequent
death, preclude pursuing alternate recourse or recovering from other
No two motor vehicles traversing opposite lanes will collide as a matter sources until the former claims have been rejected.53
of course unless someone is negligent, thus, the first requisite for the Sebastian is grasping at straws. Art. 2180 makes no distinction
application of the doctrine is present. Ong was driving the Isuzu truck whatsoever whether the claimant is an employee or a third person
which, from the evidence adduced, appears to have precipitated the relative to the employer. Ubi lex non distinguit nec nos distinguere
collision with the private jeepney. Driving the Isuzu truck gave Ong debemos. Where the law does not distinguish, neither should we.54
exclusive management and control over it, a fact which shows that the Moreover, petitioner’s claim against Sebastian is not based upon the
second requisite is also present. No contributory negligence could be fact of Macalinao’s previous employment with him but on the solidary
attributed to Macalinao relative to the happening of the accident since liability of the latter for the negligent act of one of his employees. Such
he was merely a passenger in the Isuzu truck. Respondents’ allegation is not precluded by prior claims with the government agencies
that Macalinao was guilty of contributory negligence for failing to take enumerated. One is based on compulsory coverage of government
the necessary precautions to ensure his safety while onboard the benefits while the other is based on a cause of action provided by law.
truck43 is too specious for belief particularly as respondents did not Additionally, respondents postulated that since it was Macalinao who
even present any evidence to prove such allegation. The last requisite sustained physical injuries and died, he was the one who suffered
is, therefore, likewise present. pain, not petitioners so moral damages are not recoverable in this
There exists a fourth requisite under American jurisprudence, that is, case.55
that the defendant fails to offer any explanation tending to show that The relatives of the victim who incurred physical injuries in a quasi-
the injury was caused by his or her want of due care.44 In this case, delict are not proscribed from recovering moral damages in meritorious
while respondents claimed that Ong drove cautiously and prudently cases. To hold otherwise would give rise to the ridiculous scenario

35 |TORTS AND DAMAGES

where a defendant may be compelled to pay moral damages in a 5. Counterclaim is ordered dismissed, for lack of merit. [CA Decision,
quasi-delict causing physical injuries but will be relieved from doing so pp. 1-2; Rollo, pp. 29-30.]
should those same injuries cause the victim’s death. On appeal, the Court of Appeals, in a decision promulgated on
In the case of Lambert v. Heirs of Ray Castillon,56 we held that in quasi- November 19, 1979, affirmed the decision of the trial court but reduced
delicts: the award of damages:
WHEREFORE, the decision declaring the defendants liable is affirmed.
. . . . the award of moral damages is aimed at a restoration, within the The damages to be awarded to plaintiff should be reduced to
limits possible, of the spiritual status quo ante; and therefore, it must P70,000.00 for the house and P50,000.00 for the furniture and other
be proportionate to the suffering inflicted. The intensity of the pain fixtures with legal interest from the date of the filing of the complaint
experienced by the relatives of the victim is proportionate to the until full payment thereof. [CA Decision, p. 7; Rollo, p. 35.]
intensity of affection for him and bears no relation whatsoever with the A motion for reconsideration was filed on December 3, 1979 but was
wealth or means of the offender.57 (Emphasis Supplied.) denied in a resolution dated February 18, 1980. Hence, petitioner filed
The trial court awarded moral damages in the amount of ₱30,000.00 the instant petition for review on February 22, 1980. After the comment
but since prevailing jurisprudence has fixed the same at and reply were filed, the Court resolved to deny the petition for lack of
₱50,000.00,58 there is a need to increase the award to reflect the merit on June 11, 1980.
recent rulings.
Lastly, respondents claim that exemplary damages is not warranted in However, petitioner filed a motion for reconsideration, which was
this case. Under the law, exemplary damages may be granted in granted, and the petition was given due course on September 12,
quasi-delicts if the defendant acted with gross negligence. 59 Gross 1980. After the parties filed their memoranda, the case was submitted
negligence has been defined as negligence characterized by the want for decision on January 21, 1981.
of even slight care, acting or omitting to act in a situation where there is Petitioner contends that the Court of Appeals erred:
duty to act, not inadvertently but willfully and intentionally, with a 1. In not deducting the sum of P35,000.00, which private respondents
conscious indifference to consequences insofar as other persons may recovered on the insurance on their house, from the award of
be affected.60 damages.
Ong’s gross negligence in driving the Isuzu truck precipitated the 2. In awarding excessive and/or unproved damages.
accident. This is lucidly portrayed in the photographs on record and it 3. In applying the doctrine of res ipsa loquitur to the facts of the instant
justifies the award of exemplary damages in petitioners’ favor. case.
However, the trial court’s award of ₱10,000.00 is insufficient, thus the The pivotal issue in this case is the applicability of the common law
Court deems it proper to increase the award to ₱25,000.00 under the doctrine of res ipsa loquitur, the issue of damages being merely
circumstances. consequential. In view thereof, the errors assigned by petitioner shall
WHEREFORE, the petition is GRANTED. The Decision of the Court of be discussed in the reverse order.
Appeals dated 31 May 2000, as well as its Resolution dated 7 1. The doctrine of res ipsa loquitur, whose application to the instant
September 2000, are hereby SET ASIDE. The Decision of the case petitioner objects to, may be stated as follows:
Regional Trial Court of Quezon City, Branch 81 dated 12 April 1996 as Where the thing which caused the injury complained of is shown to be
amended by the Order dated 23 May 1996 is hereby REINSTATED under the management of the defendant or his servants and the
with the modifications that the award for moral damages is increased accident is such as in the ordinary course of things does not happen if
to ₱50,000.00 to conform with prevailing jurisprudence anD the award those who have its management or control use proper care, it affords
for exemplary damages is increased to ₱25,000.00. Costs against reasonable evidence, in the absence of explanation by the defendant,
respondents.SO ORDERED. that the accident arose from want of care. [Africa v. Caltex (Phil.), Inc.,
G.R. No. L-12986, March 31, 1966, 16 SCRA 448.]
Thus, in Africa, supra, where fire broke out in a Caltex service station
G.R. No. L-52732 August 29, 1988 while gasoline from a tank truck was being unloaded into an
F.F. CRUZ and CO., INC., petitioner, underground storage tank through a hose and the fire spread to and
vs. burned neighboring houses, this Court, applying the doctrine of res
THE COURT OF APPEALS, GREGORIO MABLE as substituted by ipsa loquitur, adjudged Caltex liable for the loss.
his wife LUZ ALMONTE MABLE and children DOMING, The facts of the case likewise call for the application of the doctrine,
LEONIDAS, LIGAYA, ELENA, GREGORIO, JR., SALOME, considering that in the normal course of operations of a furniture
ANTONIO, and BERNARDO all surnamed MABLE, respondents. manufacturing shop, combustible material such as wood chips,
Luis S. Topacio for petitioner. sawdust, paint, varnish and fuel and lubricants for machinery may be
Mauricio M. Monta for respondents. found thereon.
It must also be noted that negligence or want of care on the part of
CORTES, J.: petitioner or its employees was not merely presumed. The Court of
Appeals found that petitioner failed to construct a firewall between its
This petition to review the decision of the Court of Appeals puts in shop and the residence of private respondents as required by a city
issue the application of the common law doctrine of res ipsa loquitur. ordinance; that the fire could have been caused by a heated motor or a
The essential facts of the case are not disputed. lit cigarette; that gasoline and alcohol were used and stored in the
The furniture manufacturing shop of petitioner in Caloocan City was shop; and that workers sometimes smoked inside the shop [CA
situated adjacent to the residence of private respondents. Sometime in Decision, p. 5; Rollo, p. 33.]
August 1971, private respondent Gregorio Mable first approached Eric Even without applying the doctrine of res ipsa loquitur, petitioner's
Cruz, petitioner's plant manager, to request that a firewall be failure to construct a firewall in accordance with city ordinances would
constructed between the shop and private respondents' residence. The suffice to support a finding of negligence.
request was repeated several times but they fell on deaf ears. In the Even then the fire possibly would not have spread to the neighboring
early morning of September 6, 1974, fire broke out in petitioner's shop. houses were it not for another negligent omission on the part of
Petitioner's employees, who slept in the shop premises, tried to put out defendants, namely, their failure to provide a concrete wall high
the fire, but their efforts proved futile. The fire spread to private enough to prevent the flames from leaping over it. As it was the
respondents' house. Both the shop and the house were razed to the concrete wall was only 2-1/2 meters high, and beyond that height it
ground. The cause of the conflagration was never discovered. The consisted merely of galvanized iron sheets, which would predictably
National Bureau of Investigation found specimens from the burned crumble and melt when subjected to intense heat. Defendant's
structures negative for the presence of inflammable substances. negligence, therefore, was not only with respect to the cause of the fire
Subsequently, private respondents collected P35,000.00 on the but also with respect to the spread thereof to the neighboring
insurance on their house and the contents thereof. houses. [Africa v. Caltex (Phil.), Inc., supra; Emphasis supplied.]
On January 23, 1975, private respondents filed an action for damages
against petitioner, praying for a judgment in their favor awarding In the instant case, with more reason should petitioner be found guilty
P150,000.00 as actual damages, P50,000.00 as moral damages, of negligence since it had failed to construct a firewall between its
P25,000.00 as exemplary damages, P20,000.00 as attorney's fees and property and private respondents' residence which sufficiently complies
costs. The Court of First Instance held for private respondents: with the pertinent city ordinances. The failure to comply with an
ordinance providing for safety regulations had been ruled by the Court
WHEREFORE, the Court hereby renders judgment, in favor of as an act of negligence [Teague v. Fernandez, G.R. No. L-29745, June
plaintiffs, and against the defendant: 4, 1973, 51 SCRA 181.]
1. Ordering the defendant to pay to the plaintiffs the amount of
P80,000.00 for damages suffered by said plaintiffs for the loss of their The Court of Appeals, therefore, had more than adequate basis to find
house, with interest of 6% from the date of the filing of the Complaint petitioner liable for the loss sustained by private respondents.
on January 23, 1975, until fully paid; 2. Since the amount of the loss sustained by private respondents
2. Ordering the defendant to pay to the plaintiffs the sum of P50,000.00 constitutes a finding of fact, such finding by the Court of Appeals
for the loss of plaintiffs' furnitures, religious images, silverwares, should not be disturbed by this Court [M.D. Transit & Taxi Co., Inc. v.
chinawares, jewelries, books, kitchen utensils, clothing and other Court of Appeals, G.R. No. L-23882, February 17, 1968, 22 SCRA
valuables, with interest of 6% from date of the filing of the Complaint 559], more so when there is no showing of arbitrariness.
on January 23, 1975, until fully paid;
3. Ordering the defendant to pay to the plaintiffs the sum of P5,000.00 In the instant case, both the CFI and the Court of Appeals were in
as moral damages, P2,000.00 as exemplary damages, and P5,000.00 agreement as to the value of private respondents' furniture and fixtures
as and by way of attorney's fees; and personal effects lost in the fire (i.e. P50,000.00). With regard to the
4. With costs against the defendant; house, the Court of Appeals reduced the award to P70,000.00 from

36 |TORTS AND DAMAGES

P80,000.00. Such cannot be categorized as arbitrary considering that for damages based on culpa aquiliana. Aside from Allan, also
the evidence shows that the house was built in 1951 for P40,000.00 impleaded therein were his alleged employers, namely, the spouses
and, according to private respondents, its reconstruction would cost Oscar del Carmen, Sr. (Oscar Sr.) and Norma del Carmen (Spouses
P246,000.00. Considering the appreciation in value of real estate and del Carmen) and the registered owner of the jeep, their son Oscar Jr.
the diminution of the real value of the peso, the valuation of the house Geronimo prayed for the reimbursement of funeral and burial
at P70,000.00 at the time it was razed cannot be said to be excessive. expenses, as well as the award of attorney’s fees, moral and
3. While this Court finds that petitioner is liable for damages to private exemplary damages resulting from the death of the three victims, and
respondents as found by the Court of Appeals, the fact that private loss of net income earnings of Emilia who was employed as a public
respondents have been indemnified by their insurer in the amount of school teacher at the time of her death.7
P35,000.00 for the damage caused to their house and its contents has Defendants refused to assume civil liability for the victims’ deaths.
not escaped the attention of the Court. Hence, the Court holds that in Oscar Sr. averred that the Monsaluds have no cause of action against
accordance with Article 2207 of the Civil Code the amount of them because he and his wife do not own the jeep and that they were
P35,000.00 should be deducted from the amount awarded as never the employers of Allan.8 For his part, Oscar Jr. claimed to be a
damages. Said article provides: victim himself. He alleged that Allan and his friends9 stole his jeep while
it was parked beside his driver’s rented house to take it for a joyride.
Art. 2207. If the plaintiffs property has been insured, and he has Both he and a vehicle mechanic testified that the subject jeep can
received indemnity from the insurance company for the injury or loss easily be started by mere pushing sans the ignition key. The vehicle’s
arising out of the wrong or breach of contract complained of, the engine shall then run but without any headlights on.10 And implying that
insurance company is subrogated to the rights of the insured against this was the manner by which the vehicle was illegally taken, Oscar Jr.
the wrongdoer or the person who violated the contract. If the amount submitted as part of his documentary evidence the statements 11 of
paid by the insurance company does not fully cover the injury or loss, Jemar Alarcon (Jemar) and Benjamin Andujar (Benjamin). The two,
the aggrieved party shall be entitled to recover the deficiency from the who were with Allan in the jeep at the time of the accident, declared
person causing the loss or injury. (Emphasis supplied.] before the investigating officer that during said time, the vehicle’s
The law is clear and needs no interpretation. Having been indemnified headlights were off. Because of this allegation, Oscar Jr. even filed
by their insurer, private respondents are only entitled to recover the before the same trial court a carnapping case against Allan and his
deficiency from petitioner. companions docketed as Criminal Case No. 93-10380.12 The case
On the other hand, the insurer, if it is so minded, may seek was, however, dismissed for insufficiency of evidence.13
reimbursement of the amount it indemnified private respondents from
petitioner. This is the essence of its right to be subrogated to the rights Oscar Jr. clarified that Allan was his jeep conductor and that it was the
of the insured, as expressly provided in Article 2207. Upon payment of latter’s brother, Rodrigo Maglasang (Rodrigo), who was employed as
the loss incurred by the insured, the insurer is entitled to be the driver.14 In any event, Allan’s employment as conductor was
subrogated pro tanto to any right of action which the insured may have already severed before the mishap occurred on January 1, 1993 since
against the third person whose negligence or wrongful act caused the he served as such conductor only from the first week of December until
loss [Fireman's Fund Insurance Co. v. Jamila & Co., Inc., G.R. No. L- December 14, 1992.15 In support of this, Oscar Jr. presented as
27427, April 7, 1976, 70 SCRA 323.] witnesses Faustino Sismundo (Faustino) and Cresencio "Junior"
Baobao (Cresencio). Faustino, a resident of Molave, testified that when
Under Article 2207, the real party in interest with regard to the he boarded the jeep heading to Sominot on December 31, 1992, it was
indemnity received by the insured is the insurer [Phil. Air Lines, Inc. v. Cresencio who was the conductor. He also believed that Crecencio
Heald Lumber Co., 101 Phil. 1031, (1957).] Whether or not the insurer started to work as such at around December 15 or 16,
should exercise the rights of the insured to which it had been 1992.16 Cresencio, for his part, testified that he worked as Oscar Jr.’s
subrogated lies solely within the former's sound discretion. Since the conductor from December 15, 1992 to January 1, 1993 and that
insurer is not a party to the case, its identity is not of record and no Rodrigo was his driver.17 He stated that upon learning that the jeep
claim is made on its behalf, the private respondent's insurer has to figured in an accident, he never bothered to verify the news. Instead,
claim his right to reimbursement of the P35,000.00 paid to the insured. he went to Midsalip to work there as a conductor for his brother’s
vehicle, thereby terminating his employment with Oscar Jr.18
WHEREFORE, in view of the foregoing, the decision of the Court of Oscar Jr. likewise testified that it was routinary that after a day’s trip,
Appeals is hereby AFFIRMED with the following modifications as to the the jeep would be parked beside Rodrigo’s rented house19 for the next
damages awarded for the loss of private respondents' house, early-morning operation.
considering their receipt of P35,000.00 from their insurer: (1) the Geronimo, on the other hand, averred that Allan was still Oscar Jr.’s
damages awarded for the loss of the house is reduced to P35,000.00; employee subsequent to December 14, 1992. To prove this, he
and (2) the right of the insurer to subrogation and thus seek presented as witnesses Saturnino Jumawan (Saturnino) and Jose
reimbursement from petitioner for the P35,000.00 it had paid private Navarro (Jose). Saturnino testified that he would pay his fare to Allan
respondents is recognized. every time he would board the jeep in going to Molave and that the last
SO ORDERED. time he rode the subject vehicle was on December 23, 1992. He also
claimed that immediately before January 1, 1993, Rodrigo and Allan
used to park the jeep at the yard of his house. 20 Jose likewise attested
G.R. No. 173870 April 25, 2012 that Allan was still the jeep conductor during the said period as he had
OSCAR DEL CARMEN, JR., Petitioner, ridden the jeep many times in mid-December of 1992.21
vs. Ruling of the Regional Trial Court
GERONIMO BACOY, Guardian and representing the children, In its Decision22 dated April 17, 2000, the RTC exculpated the spouses
namely: MARY MARJORIE B. MONSALUD, ERIC B. MONSALUD, del Carmen from civil liability for insufficiency of evidence. However,
METZIE ANN B. MONSALUD, KAREEN B. MONSALUD, their son Oscar Jr. was held civilly liable in a subsidiary capacity. The
LEONARDO B. MONSALUD, JR., and CRISTINA B. RTC anchored its ruling primarily on the principle of res ipsa loquitur,
MONSALUD, Respondents. i.e., that a presumption of negligence on the part of a defendant may
be inferred if the thing that caused an injury is shown to be under his
DEL CASTILLO, J.: management and that in the ordinary course of things, the accident
would not have happened had there been an exercise of care. Said
In this Petition for Review on Certiorari,1 the registered owner of a court ratiocinated that Oscar Jr., as the registered owner of the jeep,
motor vehicle challenges the Decision2 dated July 11, 2006 of the managed and controlled the same through his driver Rodrigo, in whose
Court of Appeals (CA) in CA-G.R. CV No. 67764 which held him liable house the jeep was usually parked. Since both Oscar Jr. and Rodrigo
for damages to the heirs of the victims who were run over by the said were well aware that the jeep could easily be started by a mere push
vehicle. even without the ignition key, they should have taken the necessary
precaution to prevent the vehicle from being used by unauthorized
Factual Antecedents persons like Allan. The RTC thus concluded that such lack of proper
At dawn on New Year’s Day of 1993, Emilia Bacoy Monsalud (Emilia), precaution, due care and foresight constitute negligence making the
along with her spouse Leonardo Monsalud, Sr. and their daughter registered owner of the vehicle civilly liable for the damage caused by
Glenda Monsalud, were on their way home from a Christmas party the same.
they attended in Poblacion, Sominot, Zamboanga Del Sur. Upon
reaching Purok Paglaom in Sominot, they were run over by a Fuso The RTC disposed of the case as follows:
passenger jeep bearing plate number UV-PEK-600 that was being Wherefore, judgment is hereby entered in favor of the plaintiffs and
driven by Allan Maglasang (Allan). The jeep was registered in the against the defendants Allan Maglasang and Oscar del Carmen, Jr.
name of petitioner Oscar del Carmen, Jr. (Oscar Jr.) and used as a ordering –
public utility vehicle plying the Molave, Zamboanga del Sur to Sominot, 1. Defendant ALLAN MAGLASANG to pay the plaintiffs, and in case of
Zamboanga del Sur and vice versa route. insolvency, for defendant OSCAR DEL CARMEN, JR., to pay the
Because of the unfortunate incident, Criminal Case No. 93-103473 for plaintiffs, the following sums:
Reckless Imprudence Resulting in Multiple Homicide was filed against a. ₱73,112.00 for their funeral and burial expenses;
Allan before the Regional Trial Court of Molave, Zamboanga del Sur, b. ₱1,000,000.00 moral damages for the death of the late Emilia
Branch 23. In a Decision dated March 13, 1997, said court declared Monsalud;
Allan guilty beyond reasonable doubt of the crime charged.4 c. ₱250,000.00 moral damages for the death of the late Leonardo
During the pendency of said criminal case, Emilia’s father, Geronimo Monsalud, Sr.;
Bacoy (Geronimo), in behalf of the six minor children5 of the d. ₱250,000.00 moral damages for the death of the late Glenda
Monsaluds, filed Civil Case No. 96-20219,6 an independent civil action Monsalud;

37 |TORTS AND DAMAGES

e. ₱40, 000.00, for exemplary damages; 3. Moral damages in the amount of Fifty Thousand Pesos (₱50,000.00)
f. ₱20,000.00 attorney’s fees; and each for the death of the Monsaluds or for a total amount of One
g. The cost of this proceedings. Hundred Fifty Thousand Pesos (₱150,000.00);
2. The dismissal of the complaint as against the spouses OSCAR DEL 4. Exemplary damages of Forty Thousand Pesos (₱40,000.00).
CARMEN SR. and NORMA DEL CARMEN. SO ORDERED.23 No pronouncement as to costs. SO ORDERED. 32

Oscar Jr. moved for reconsideration24 contending that the provision on Issues
vicarious liability of the employer under Article 2180 of the Civil As a result of the adverse judgment, Oscar Jr. filed this Petition for
Code25 requires the existence of employer-employee relationship and Review on Certiorari alleging that the CA erred in:
that the employee was acting within the scope of his employment when 1. x x x basing its conclusions and findings on speculations, surmises
the tort occurred. He stressed that even assuming that Allan was his and conjectures; misapprehension of facts which are in conflict with the
employee, he was hired not as a driver but as a conductor. Hence, findings of the trial court;
Allan acted beyond the scope of his employment when he drove the 2. x x x declaring a question of substance not in accord with law and
jeep. with the applicable decisions of the Supreme Court;
Oscar Jr. also stressed that the fact that the jeep was running without 3. x x x departing from the regular course of the judicial proceedings in
its headlights on at the time of the accident indubitably shows that the the disposition of the appeal and [in going] beyond the issues of the
same was stolen. He further alleged that the jeep could not have been case.33
taken by only one person. As Rodrigo declared in Criminal Case No. Oscar Jr. points out that the CA failed to consider the RTC’s ruling in
93-10380 (carnapping case), based on his experience, the jeep cannot its June 21, 2000 Order which was in accord with Article 2180 of the
be pushed by only one person but by at least five people in order for it Civil Code, i.e., that the tort committed by an employee should have
to start. This was due to the vehicle’s mass and the deep canal which been done ‘within the scope of his assigned tasks’ for an employer to
separates the parking area from the curved road that was obstructed be held liable under culpa aquiliana. However, the CA never touched
by a house.26 upon this matter even if it was glaring that Allan’s driving the subject
Setting aside its earlier decision, the lower court in its Order27 dated vehicle was not within the scope of his previous employment as
June 21, 2000 granted the Motion for Reconsideration and absolved conductor. Moreover, Oscar Jr. insists that his jeep was stolen and
Oscar Jr. from civil liability. It cited Article 103 of the Revised Penal stresses that the liability of a registered owner of a vehicle as to third
Code which provides that for an employer to be subsidiarily liable for persons, as well as the doctrine of res ipsa loquitur, should not apply to
the criminal acts of his employee, the latter should have committed the him. He asserts that although Allan and his companions were not
same in the discharge of his duties. The court agreed with Oscar Jr. found to have committed the crime of carnapping beyond reasonable
that this condition is wanting in Allan’s case as he was not acting in the doubt, it was nevertheless established that the jeep was illicitly taken
discharge of his duties as a conductor when he drove the jeep. by them from a well secured area. This is considering that the vehicle
The court also declared the doctrine of res ipsa loquitur inapplicable was running without its headlights on at the time of the accident, a
since the property owner cannot be made responsible for the damages proof that it was started without the ignition key.
caused by his property by reason of the criminal acts of another. It then
adjudged that only Allan should bear the consequences of his criminal Our Ruling
acts. Thus: Petitioner’s own evidence casts doubt on his claim that his jeep was
stolen by Allan and his alleged cohorts. Negligence is presumed under
WHEREFORE, premises considered, the MOTION FOR the doctrine of res ipsa loquitur.
RECONSIDERATION is granted, and defendant OSCAR DEL Oscar Jr.’s core defense to release him from responsibility for the
CARMEN JR. is hereby absolved from all civil liability arising from the death of the Monsaluds is that his jeep was stolen. He highlights that
felonious acts of convicted accused ALLAN MAGLASANG. the unauthorized taking of the jeep from the parking area was indeed
IT IS SO ORDERED.28 carried out by the clandestine and concerted efforts of Allan and his
Geronimo appealed. five companions, notwithstanding the obstacles surrounding the
parking area and the weight of the jeep.
Ruling of the Court of Appeals Notably, the carnapping case filed against Allan and his group was
In its July 11, 2006 Decision,29 the CA granted the appeal. already dismissed by the RTC for insufficiency of evidence. But even in
In resolving the case, the CA first determined the preliminary issue of this civil case and as correctly concluded by the CA, the evidentiary
whether there was an employer-employee relationship between Oscar standard of preponderance of evidence required was likewise not met
Jr. and Allan at the time of the accident. It ruled in the affirmative and to support Oscar Jr.’s claim that his jeep was unlawfully taken.
gave more credence to the testimonies of Geronimo’s witnesses than Two of Allan’s co-accused in the carnapping case, Jemar and
to those of Oscar Jr.’s witnesses, Faustino and Cresencio. The CA Benjamin, declared before the police that when Allan invited them to
ratiocinated that unlike the witness presented by Geronimo, Faustino ride with him, he was already driving the jeep:
never resided in Poblacion and thus has limited knowledge of the 04. Q- On that night, on or about 11:30 o’clock on December 31, 1992,
place. His testimony was also unreliable considering that he only rode where were you?
the subject jeep twice30 during the last two weeks of December 1992. A- I went to the disco near [the] Public Market[,] Sominot, Zamboanga
As regards Cresencio’s testimony, the appellate court found it puzzling del Sur.
why he appeared to have acted uninterested upon learning that the 05. Q- While you were in disco place, do you know if there was an
jeep was the subject of an accident when it was his bread and butter. incident [that] happened?
Said court likewise considered questionable Oscar Jr.’s asseveration A- No sir but when I was in the disco place, at about 3:30 at dawn
that Cresencio replaced Allan as conductor when Cresencio testified more or less[,] January 1, 1993, Allan Maglasang arrived driving the
that he replaced a certain Sumagang Jr.31 jeep and he invited me to ride together with Benjamin Andujar,
With regard to the main issue, the CA adjudged Oscar Jr. liable to the Dioscoro Sol, Arniel Rezada and Joven Orot.34
heirs of the victims based on the principle that the registered owner of xxxx
a vehicle is directly and primarily responsible for the injuries or death of 04. Q- On that night, on or about 9:00 o’clock in the evening more or
third parties caused by the operation of such vehicle. It disbelieved less on December 31, 1992, where were you?
Oscar Jr.’s defense that the jeep was stolen not only because the A- I went to the disco at [the] Public Market[,] Sominot, Zamboanga del
carnapping case filed against Allan and his companions was dismissed Sur.
but also because, given the circumstances, Oscar Jr. is deemed to 05. Q- While you were in the disco place, do you know if there was an
have given Allan the implied permission to use the subject vehicle. To incident [that] happened?
support its conclusion, the CA cited the following circumstances: A- No, sir, but when I was in the disco place, at about 3:30 at dawn
siblings Rodrigo and Allan were both employees assigned to the said more or less[,] January 1, 1993, Allan Maglasang arrive[d] driving the
jeep; after a day’s work, said vehicle would be parked just beside jeep and he invited me to ride together with Jemar Alarcon, Dioscoro
Rodrigo’s house where Allan also lived; the jeep could easily be Sol, Arniel Rizada and Joven Orot.35
started even without the use of an ignition key; the said parking area There were six accused in the carnapping case. If Jemar and Benjamin
was not fenced or secured to prevent the unauthorized use of the were fetched by Allan who was driving the jeep, this would mean that
vehicle which can be started even without the ignition key. only three men pushed the jeep contrary to Rodrigo’s testimony in
Criminal Case No. 93-10380 that it has to be pushed by at least five
The dispositive portion of the CA Decision reads: people so that it could start without the ignition key.
WHEREFORE, premises considered, the instant appeal is GRANTED. On direct examination,36 Oscar Jr. was asked as to what Rodrigo, his
The assailed Order dated 21 June 2000 of the Regional Trial Court driver who had informed him about the accident on January 1, 1993 at
(Branch 23), Molave, Zamboanga del Sur, in Civil Case No. 96-20,219 around 7:00 a.m., turned over to him after the incident, viz:
is SET ASIDE and a new one is hereby entered. OSCAR DEL Q: When Rodrigo Maglasang, your driver informed you about the
CARMEN, Jr. and ALLAN MAGLASANG are held primarily liable, accident, what did he carry with him if any and turned over to you?
jointly and severally, to pay plaintiffs-appellants: A: The OR (Official Receipt) and the CR (Certificate of Registration)
1. Civil indemnity for the death of Emilia Bacoy Monsalud, Leonardo Sir.
Monsalud Sr., and Glenda Monsalud in the amount of Fifty thousand Q: How about the key of the vehicle?
pesos (₱50,000.00) each or for the total amount of One hundred fifty A: It was not turned over, Sir.37
thousand pesos (₱150,000.00);
2. Temperate damages in the amount of Twenty-five Thousand Pesos Assuming arguendo that Allan stole the jeep by having the same
(₱25,000.00) each for the death of Emilia Monsalud, Leonardo pushed by a group, the ignition key should then be with Rodrigo as he
Monsalud Sr., and Glenda Monsalud (collectively the Monsaluds) or for was entrusted with the jeep’s possession. Thus, at the time Rodrigo
the total amount of Seventy-five thousand pesos (₱75,000.00); faced his employer hours after the incident, it is reasonable to expect

38 |TORTS AND DAMAGES

that the driver should have also returned the key to the operator been negligent. Second, the jeep which caused the injury was under
together with the Official Receipt and Certificate of Registration. the exclusive control of Oscar Jr. as its owner. When Oscar Jr.
Notably, Rodrigo did not do so and instead, the key was allegedly entrusted the ignition key to Rodrigo, he had the power to instruct him
handed over to the police for reasons unexplained and not available with regard to the specific restrictions of the jeep’s use, including who
from the records. Interestingly, Oscar Jr. never presented Rodrigo as or who may not drive it. As he is aware that the jeep may run without
his witness. Neither was he able to attest on cross-examination that the ignition key, he also has the responsibility to park it safely and
Allan really stole the jeep by pushing or that the key was handed over securely and to instruct his driver Rodrigo to observe the same
to him by Rodrigo: precaution. Lastly, there was no showing that the death of the victims
Q: On December 31, 1992, you did not know that it was Rodrigo was due to any voluntary action or contribution on their part.
Maglasang who gave the key to Allan Maglasang. Is that correct? The aforementioned requisites having been met, there now arises a
A: I was not there. So, I do not know but he had an affidavit to show presumption of negligence against Oscar Jr. which he could have
that he turned it over to the police. overcome by evidence that he exercised due care and diligence in
Q: What I was asking you is that, [o]n the night of December 31, 1992, preventing strangers from using his jeep. Unfortunately, he failed to do
when it was driven by Allan Maglasang, you did not know that the key so.
was voluntarily given by Rodrigo Maglasang to Allan Maglasang?
A: I was not there. What this Court instead finds worthy of credence is the CA’s
Q: So, you could not testify on that, is that correct? conclusion that Oscar Jr. gave his implied permission for Allan to use
A: Yes Sir, I was not there.38 the jeep. This is in view of Oscar Jr.’s failure to provide solid proof that
Furthermore, Oscar Jr. acknowledged the dismissal of the carnapping he ensured that the parking area is well secured and that he had
case, thus: expressly imposed restrictions as to the use of the jeep when he
Q: Now, there was a case filed against Allan Maglasang and [his] x x x entrusted the same to his driver Rodrigo. As fittingly inferred by the
co-accused x x x [n]amely: Benjamin Andojar, Dioscoro Sol, Joven CA, the jeep could have been endorsed to Allan by his brother Rodrigo
Orot, [Jemar Azarcon] and [Arniel] Rizada, for carnapping. Is that since as already mentioned, Oscar Jr. did not give Rodrigo any specific
correct? and strict instructions on matters regarding its use. Rodrigo therefore is
A: Yes Sir. deemed to have been given the absolute discretion as to the vehicle’s
Q: That case was filed by you because you alleged that on December operation, including the discretion to allow his brother Allan to use it.
31, 1992, your jeep was carnapped by Allan Maglasang and his co- The operator on record of a vehicle is primarily responsible to third
accused, the said mentioned, is that correct? persons for the deaths or injuries consequent to its operation,
A: Yes Sir. regardless of whether the employee drove the registered owner’s
Q: You testified on the case in Aurora, is that correct? vehicle in connection with his employment.
A: Yes, Sir. Without disputing the factual finding of the CA that Allan was still his
Q: And you could well remember that this representation is the counsel employee at the time of the accident, a finding which we see no reason
of the co-accused of Allan Maglasang, is that correct? to disturb, Oscar Jr. contends that Allan drove the jeep in his private
A: Yes Sir. capacity and thus, an employer’s vicarious liability for the employee’s
Q: And that case for carnapping was dismissed, is that correct? fault under Article 2180 of the Civil Code cannot apply to him.
A: Yes Sir. The contention is no longer novel. In Aguilar Sr. v. Commercial
Q: Even the case of Allan Maglasang, was also dismissed, is that Savings Bank,45 the car of therein respondent bank caused the death
correct of Conrado Aguilar, Jr. while being driven by its assistant vice
A: Yes Sir. president. Despite Article 2180, we still held the bank liable for
Q: Because there was no sufficient evidence to establish that the jeep damages for the accident as said provision should defer to the settled
was carnapped, is that correct? doctrine concerning accidents involving registered motor vehicles, i.e.,
A: Yes Sir.39 that the registered owner of any vehicle, even if not used for public
service, would primarily be responsible to the public or to third persons
While Oscar Jr. highlights that the headlights were not on to support for injuries caused the latter while the vehicle was being driven on the
his claim that his jeep was stolen, this circumstance by itself will not highways or streets.46 We have already ratiocinated that:
prove that it really was stolen. The reason why the headlights were not The main aim of motor vehicle registration is to identify the owner so
on at the time of the accident was not sufficiently established during that if any accident happens, or that any damage or injury is caused by
the trial. Besides, the fact that the headlights were not on cannot be the vehicle on the public highways, responsibility therefor can be fixed
exclusively attributed to the lack of ignition key in starting the jeep as on a definite individual, the registered owner. Instances are numerous
there may be other possibilities such as electrical problems, broken where vehicles running on public highways caused accidents or
headlights, or that they were simply turned off. injuries to pedestrians or other vehicles without positive identification of
Hence, sans the testimony of witnesses and other relevant evidence to the owner or drivers, or with very scant means of identification. It is to
support the defense of unauthorized taking, we cannot subscribe to forestall these circumstances, so inconvenient or prejudicial to the
Oscar Jr.’s claim that his jeep was stolen. The evidence on record public, that the motor vehicle registration is primarily ordained, in the
brings forth more questions than clear-cut answers. interest of the determination of persons responsible for damages or
Oscar Jr. alleges that the presumption of negligence under the doctrine injuries caused on public highways.47
of res ipsa loquitur (literally, the thing speaks for itself) should not have
been applied because he was vigilant in securing his vehicle. He Absent the circumstance of unauthorized use48 or that the subject
claims that the jeep was parked in a well secured area not remote to vehicle was stolen49 which are valid defenses available to a registered
the watchful senses of its driver Rodrigo. owner, Oscar Jr. cannot escape liability for quasi-delict resulting from
Under the doctrine of res ipsa loquitur, "[w]here the thing that caused his jeep’s use.1âwphi1
the injury complained of is shown to be under the management of the All told and considering that the amounts of damages awarded are in
defendant or his servants; and the accident, in the ordinary course of accordance with prevailing jurisprudence, the Court concurs with the
things, would not happen if those who had management or control findings of the CA and sustains the awards made. In addition, pursuant
used proper care, it affords reasonable evidence – in the absence of a to Eastern Shipping Lines, Inc. v. Court of Appeals, 50 an interest of six
sufficient, reasonable and logical explanation by defendant – that the percent (6%) per annum on the amounts awarded shall be imposed,
accident arose from or was caused by the defendant’s want of computed from the time the judgment of the RTC is rendered on April
care."40 Res ipsa loquitur is "merely evidentiary, a mode of proof, or a 17, 2000 and twelve percent (12%) per annum on such amount upon
mere procedural convenience, since it furnishes a substitute for, and finality of this Decision until the payment thereof.
relieves a plaintiff of, the burden of producing a specific proof of
negligence."41 It "recognizes that parties may establish prima facie WHEREFORE, premises considered, the instant petition is DENIED.
negligence without direct proof, thus, it allows the principle to substitute The Decision dated July 11, 2006 of the Court of Appeals in CA-G.R.
for specific proof of negligence. It permits the plaintiff to present along CV No. 67764 is hereby AFFIRMED with further MODIFICATION that
with proof of the accident, enough of the attending circumstances to an interest of six percent (6%) per annum on the amounts awarded
invoke the doctrine, create an inference or presumption of negligence shall be imposed, computed from the time the judgment of the
and thereby place on the defendant the burden of proving that there Regional Trial Court, Branch 23, Molave, Zamboanga del Sur is
was no negligence on his part."42 The doctrine is based partly on "the rendered on April 17, 2000 and twelve percent (12%) per annum on
theory that the defendant in charge of the instrumentality which causes such amount upon finality of this Decision until the payment thereof.
the injury either knows the cause of the accident or has the best SO ORDERED.
opportunity of ascertaining it while the plaintiff has no such knowledge,
and is therefore compelled to allege negligence in general terms." 43 G.R. No. L-5691 December 27, 1910
The requisites of the doctrine of res ipsa loquitur as established by S. D. MARTINEZ and his wife, CARMEN ONG DE
jurisprudence are as follows: MARTINEZ, plaintiffs-appellees,
1) the accident is of a kind which does not ordinarily occur unless vs.
someone is negligent; WILLIAM VAN BUSKIRK, defendant-appellant.
2) the cause of the injury was under the exclusive control of the person Lionel D. Hargis for appellant.
in charge and Sanz and Oppisso for appellee.
3) the injury suffered must not have been due to any voluntary action
or contribution on the part of the person injured.44 MORELAND, J.:
The above requisites are all present in this case. First, no person just
walking along the road would suddenly be sideswiped and run over by The facts found by the trial court are undisputed by either party in this
an on-rushing vehicle unless the one in charge of the said vehicle had case. They are —

39 |TORTS AND DAMAGES

That on the 11th day of September, 1908, the plaintiff, Carmen Ong de left on the day of the accident; that they had never run away up to that
Martinez, was riding in a carromata on Calle Real, district of Ermita, time and there had been, therefore, no accident due to such practice;
city of Manila, P.I., along the left-hand side of the street as she was that to leave the horses and assist in unloading the merchandise in the
going, when a delivery wagon belonging to the defendant used for the manner described on the day of the accident was the custom of all
purpose of transportation of fodder by the defendant, and to which was cochero who delivered merchandise of the character of that which was
attached a pair of horses, came along the street in the opposite being delivered by the cochero of the defendant on the day in question,
direction to that the in which said plaintiff was proceeding, and that which custom was sanctioned by their employers.
thereupon the driver of the said plaintiff's carromata, observing that the In our judgment, the cochero of the defendant was not negligent in
delivery wagon of the defendant was coming at great speed, crowded leaving the horses in the manner described by the evidence in this
close to the sidewalk on the left-hand side of the street and stopped, in case, either under Spanish or American jurisprudence.
order to give defendant's delivery wagon an opportunity to pass by, but (Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson, 58 Vt., 590;
that instead of passing by the defendant's wagon and horses ran into Drake vs. Mount, 33 N. J. L., 442; Hoboken Land and Improvement
the carromata occupied by said plaintiff with her child and overturned Co. vs. Lally, 48 N. J. L., 604; Wasmer vs. D. L. & W. R. R. Co., 80 N.
it, severely wounding said plaintiff by making a serious cut upon her Y., 212.) lawphi1.net
head, and also injuring the carromata itself and the harness upon the In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170),
horse which was drawing it. Lord Kenyon said:
xxx xxx xxx
These facts are not dispute, but the defendant presented evidence to He was performing his duty while removing the goods into the house,
the effect that the cochero, who was driving his delivery wagon at the and, if every person who suffered a cart to remain in the street while he
time the accident occurred, was a good servant and was considered a took goods out of it was obliged to employ another to look after the
safe and reliable cochero; that the delivery wagon had sent to deliver horses, it would be impossible for the business of the metropolis to go
some forage at Paco Livery Stable on Calle Herran, and that for the on.
purpose of delivery thereof the cochero driving the team as defendant's In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:
employee tied the driving lines of the horses to the front end of the The degree of care required of the plaintiff, or those in charged of his
delivery wagon and then went back inside of the wagon for the horse, at the time of the injury, is that which would be exercised by a
purpose of unloading the forage to be delivered; that while unloading person of ordinary care and prudence under like circumstances. It can
the forage and in the act of carrying some of it out, another vehicle not be said that the fact of leaving the horse unhitched is in itself
drove by, the driver of which cracked a whip and made some other negligence. Whether it is negligence to leave a horse unhitched must
noises, which frightened the horses attached to the delivery wagon and be depend upon the disposition of the horse; whether he was under
they ran away, and the driver was thrown from the inside of the wagon the observation and control of some person all the time, and many
out through the rear upon the ground and was unable to stop the other circumstances; and is a question to be determined by the jury
horses; that the horses then ran up and on which street they came into from the facts of each case.
collision with the carromata in which the plaintiff, Carmen Ong de In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it
Martinez, was riding. was error on the part of the trial court to refuse to charge that "it is not
The defendant himself was not with the vehicle on the day in question. negligence for the driver of a quite, gentle horse to leave him unhitched
Upon these facts the court below found the defendant guilty of and otherwise unattended on the side of a public highways while the
negligence and gave judgment against him for P442.50, with interest driver is upon the sidewalk loading goods on the wagon." The said
thereon at the rate of 6 per cent per annum from the 17th day of court closed its opinion with these words:
October, 1908, and for the costs of the action. The case is before us There was evidence which could have fully justified the jury in finding
on an appeal from that judgment. that the horse was quite and gentle, and that the driver was upon the
sidewalk loading goods on the wagon, at time of the alleged injury, and
There is no general law of negligence in the Philippine Islands except that the horse had been used for years in that way without accident.
that embodied in the Civil Code. The provisions of that code pertinent The refusal of the trial court to charge as requested left the jury free to
to this case are — find was verdict against the defendant, although the jury was
Art. 1902. A person who by an act or omission causes damage to convinced that these facts were proven.lawphil.net
another when there is fault or negligence shall be obliged to repair the In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:
damage so done. That evidence that a servant, whom traders employed to deliver goods,
Art. 1903. The obligation imposed by preceding article is demandable, upon stopping with his horse and wagon to deliver a parcel at a house
not only for personal acts and omissions, but also for those of the from fifty to a hundred rods from a railroad crossing, left the horse
persons for whom they should be responsible. unfastened for four or five minutes while he was in the house, knowing
The father, and on his death or incapacity the mother, is liable for the that it was not afraid of cars, and having used it for three or four
damages caused by the minors who live with them. months without ever hitching it or knowing it to start, is not conclusive,
Guardians are liable for the damages caused by minors or as a matter of law, of a want of due care on his part.
incapacitated persons who are under their authority and live with them. The duty, a violation of which is claimed to be negligence in the respect
Owners of directors of an establishment or enterprise are equally liable in question, is to exercise reasonable care and prudence. Where
for the damages caused by the employees in the service of the reasonable care is employed in doing an act not itself illegal or
branches in which the latter may be employed or on account of their inherently likely to produce damage to others, there will be no liability,
duties. although damage in fact ensues. (Milwaukee Ry. Co. vs. Arms, 91 U.
The State is liable in this sense when it acts through a special agent, S., 489; Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, 6 Cushing,
but not when the damages should have been caused by the official to 292; Jackson Architectural Iron Works vs. Hurlbut, 158 N. Y., 34
whom properly it pertained to do the act performed, in which case the Westerfield vs. Levis, 43 La. An., 63; Niosi vs. Empire Steam Laundry,
provisions of the preceding article shall be applicable. 117 Cal., 257.)
Finally, masters or directors of arts and trades are liable for the
damages caused by their pupils or apprentices while they are under The act of defendant's driver in leaving the horses in the manner
their custody. proved was not unreasonable or imprudent. Acts the performance of
The liability referred to in this article shall cease when the persons which has not proved destructive or injurious and which have,
mentioned therein prove that they employed all the diligence of a good therefore, been acquiesced in by society for so long a time that they
father of a family to avoid the damage. have ripened into custom, can not be held to be themselves
Passing the question whether or not an employer who has furnished a unreasonable or imprudent. Indeed the very reason why they have
gentle and tractable team and a trusty and capable driver is, under the been permitted by society is that they beneficial rather than prejudicial.
last paragraph of the above provisions, liable for the negligence of Accidents sometimes happen and injuries result from the most ordinary
such driver in handling the team, we are of the opinion that the acts of life. But such are not their natural or customary results. To hold
judgment must be reversed upon the ground that the evidence does that, because such an act once resulted in accident or injury, the actor
not disclose that the cochero was negligent. is necessarily negligent, is to go far. The fact that the doctrine of res
ipsa loquitur is sometimes successfully invoked in such a case, does
While the law relating to negligence in this jurisdiction may possibly be not in any sense militate against the reasoning presented. That maxim
some what different from that in Anglo-Saxon countries, a question we at most only creates a prima facie case, and that only in the absence
do not now discuss, the rules under which the fact of negligence is of proof of the circumstances under which the act complained of was
determined are, nevertheless, generally the same. That is to say, while performed. It is something invoked in favor of the plaintiff before
the law designating the person responsible for a negligent act may not defendant's case showing the conditions and circumstances under
be the same here as in many jurisdictions, the law determining which the injury occurred, the creative reason for the doctrine of res
what is a negligent act is the same here, generally speaking, as ipsa loquitur disappears. This is demonstrated by the case of Inland
elsewhere. (Supreme court of Spain, 4 December, 1903; 16 May, and Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the court
1893; 27 June, 1894; 9 April, 1896; 14 March, 1901; 2 March, 1904; 7 said (p. 554):
February, 1905; 16 June, 1905; 23 June, 1905; 13 April, 1903; 7 . . . The whole effect of the instruction in question, as applied to the
March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, case before the jury, was that if the steamboat, on a calm day and in
1901.) smooth water, was thrown with such force against a wharf properly
It appears from the undisputed evidence that the horses which caused built, as to tear up some of the planks of the flooring, this would
the damage were gentle and tractable; that the cochero was be prima facie evidence of negligence on the part of the defendant's
experienced and capable; that he had driven one of the horses several agent in making the landing, unless upon the whole evidence in the
years and the other five or six months; that he had been in the habit, case this prima facie evidence was rebutted. As such damage to a
during all that time, of leaving them in the condition in which they were wharf is not ordinarily done by a steamboat under control of her

40 |TORTS AND DAMAGES

officers and carefully managed by them, evidence that such damage and held together only by a metal fastener. Moreover, they are open to
was done in this case was prima facie, and, if unexplained, sufficient view and inspection by third parties.
evidence of negligence on their part, and the jury might properly be so It follows that the plaintiff is entitled to damages and attorney's fees.
instructed. The plaintiff is a businessman. The libelous Tagalog words must have
There was presented in this case, and by the plaintiffs themselves, not affected his business and social standing in the community. The Court
only the fact of the runway and the accident resulting therefrom, but fixes the amount of P40,000.00 as the reasonable amount of moral
also the conditions under which the runaway occurred. Those damages and the amount of P3,000.00 as attorney's fee which the
conditions showing of themselves that the defendant's cochero was not defendant should pay the plaintiff. (pp. 15-16, Record on Appeal)
negligent in the management of the horse, the prima facie case in The respondent appellate court in its assailed decision confirming the
plaintiffs' favor, if any, was destroyed as soon as made. aforegoing findings of the lower court stated:
It is a matter of common knowledge as well as proof that it is the The proximate cause, therefore, resulting in injury to appellee, was the
universal practice of merchants to deliver merchandise of the kind of failure of the appellant to take the necessary or precautionary steps to
that being delivered at the time of the injury, in the manner in which avoid the occurrence of the humiliating incident now complained of.
that was then being delivered; and that it is the universal practice to The company had not imposed any safeguard against such
leave the horses in the manner in which they were left at the time of eventualities and this void in its operating procedure does not speak
the accident. This is the custom in all cities. It has not been productive well of its concern for their clientele's interests. Negligence here is very
of accidents or injuries. The public, finding itself unprejudiced by such patent. This negligence is imputable to appellant and not to its
practice, has acquiesced for years without objection. Ought the public employees.
now, through the courts, without prior objection or notice, to be The claim that there was no publication of the libelous words in
permitted to reverse the practice of decades and thereby make Tagalog is also without merit. The fact that a carbon copy of the
culpable and guilty one who had every reason and assurance to telegram was filed among other telegrams and left to hang for the
believe that he was acting under the sanction of the strongest of all public to see, open for inspection by a third party is sufficient
civil forces, the custom of a people? We think not. publication. It would have been otherwise perhaps had the telegram
The judgement is reversed, without special finding as to costs. So been placed and kept in a secured place where no one may have had
ordered. a chance to read it without appellee's permission.

The additional Tagalog words at the bottom of the telegram are, as

G.R. No. L-44748 August 29, 1986 correctly found by the lower court, libelous per se, and from which
RADIO COMMUNICATIONS OF THE PHILS., INC. malice may be presumed in the absence of any showing of good
(RCPI). petitioner, intention and justifiable motive on the part of the appellant. The law
vs. implies damages in this instance (Quemel vs. Court of Appeals, L-
COURT OF APPEALS and LORETO DIONELA, respondents. 22794, January 16, 1968; 22 SCRA 44). The award of P40,000.00 as
O. Pythogoras Oliver for respondents. moral damages is hereby reduced to P15,000.00 and for attorney's
fees the amount of P2,000.00 is awarded. (pp. 22-23, record)
PARAS, J.: After a motion for reconsideration was denied by the appellate court,
petitioner came to Us with the following:
Before Us, is a Petition for Review by certiorari of the decision of the ASSIGNMENT OF ERRORS
Court of Appeals, modifying the decision of the trial court in a civil case I.The Honorable Court of Appeals erred in holding that Petitioner-
for recovery of damages against petitioner corporation by reducing the employer should answer directly and primarily for the civil liability
award to private respondent Loreto Dionela of moral damages from arising from the criminal act of its employee.
P40,000 to Pl5,000, and attorney's fees from P3,000 to P2,000. II.The Honorable Court of Appeals erred in holding that there was
The basis of the complaint against the defendant corporation is a sufficient publication of the alleged libelous telegram in question, as
telegram sent through its Manila Office to the offended party, Loreto contemplated by law on libel.
Dionela, reading as follows: III.The Honorable Court of Appeals erred in holding that the liability of
176 AS JR 1215PM 9 PAID MANDALUYONG JUL 22-66 LORETO petitioner-company-employer is predicated on Articles 19 and 20 of the
DIONELA CABANGAN LEGASPI CITY Civil Code, Articles on Human Relations.
WIRE ARRIVAL OF CHECK FER IV.The Honorable Court of Appeals erred in awarding Atty's. fees. (p. 4,
LORETO DIONELA-CABANGAN-WIRE ARRIVAL OF CHECK-PER Record)
115 PM
SA IYO WALANG PAKINABANG DUMATING KA DIYAN-WALA- Petitioner's contentions do not merit our consideration. The action for
KANG PADALA DITO KAHIT BULBUL MO damages was filed in the lower court directly against respondent
(p. 19, Annex "A") corporation not as an employer subsidiarily liable under the provisions
of Article 1161 of the New Civil Code in relation to Art. 103 of the
Plaintiff-respondent Loreto Dionela alleges that the defamatory words Revised Penal Code. The cause of action of the private respondent is
on the telegram sent to him not only wounded his feelings but also based on Arts. 19 and 20 of the New Civil Code (supra). As well as on
caused him undue embarrassment and affected adversely his respondent's breach of contract thru the negligence of its own
business as well because other people have come to know of said employees. 1
defamatory words. Defendant corporation as a defense, alleges that Petitioner is a domestic corporation engaged in the business of
the additional words in Tagalog was a private joke between the receiving and transmitting messages. Everytime a person transmits a
sending and receiving operators and that they were not addressed to message through the facilities of the petitioner, a contract is entered
or intended for plaintiff and therefore did not form part of the telegram into. Upon receipt of the rate or fee fixed, the petitioner undertakes to
and that the Tagalog words are not defamatory. The telegram sent transmit the message accurately. There is no question that in the case
through its facilities was received in its station at Legaspi City. Nobody at bar, libelous matters were included in the message transmitted,
other than the operator manned the teletype machine which without the consent or knowledge of the sender. There is a clear case
automatically receives telegrams being transmitted. The said telegram of breach of contract by the petitioner in adding extraneous and
was detached from the machine and placed inside a sealed envelope libelous matters in the message sent to the private respondent. As a
and delivered to plaintiff, obviously as is. The additional words in corporation, the petitioner can act only through its employees. Hence
Tagalog were never noticed and were included in the telegram when the acts of its employees in receiving and transmitting messages are
delivered. the acts of the petitioner. To hold that the petitioner is not liable directly
The trial court in finding for the plaintiff ruled as follows: for the acts of its employees in the pursuit of petitioner's business is to
There is no question that the additional words in Tagalog are libelous. deprive the general public availing of the services of the petitioner of
They clearly impute a vice or defect of the plaintiff. Whether or not they an effective and adequate remedy. In most cases, negligence must be
were intended for the plaintiff, the effect on the plaintiff is the same. proved in order that plaintiff may recover. However, since negligence
Any person reading the additional words in Tagalog will naturally think may be hard to substantiate in some cases, we may apply the doctrine
that they refer to the addressee, the plaintiff. There is no indication of RES IPSA LOQUITUR (the thing speaks for itself), by considering
from the face of the telegram that the additional words in Tagalog were the presence of facts or circumstances surrounding the injury.
sent as a private joke between the operators of the defendant. WHEREFORE, premises considered, the judgment of the appellate
The defendant is sued directly not as an employer. The business of the court is hereby AFFIRMED.
defendant is to transmit telegrams. It will open the door to frauds and SO ORDERED.
allow the defendant to act with impunity if it can escape liability by the
simple expedient of showing that its employees acted beyond the
scope of their assigned tasks.
The liability of the defendant is predicated not only on Article 33 of the
Civil Code of the Philippines but on the following articles of said Code:
CAUSATION
ART. 19.- Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and G.R. No. L-10126 October 22, 1957
observe honesty and good faith. SALUD VILLANUEVA VDA. DE BATACLAN and the minors
ART. 20.-Every person who, contrary to law, wilfully or negligently NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO
causes damage to another, shall indemnify the latter for the same. BATACLAN, represented by their Natural guardian, SALUD
There is sufficient publication of the libelous Tagalog words. The office VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants,
file of the defendant containing copies of telegrams received are open vs.
MARIANO MEDINA, defendant-appellant.

41 |TORTS AND DAMAGES

 Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for with the trial court that there was negligence on the part of the
plaintiffs-appellants. defendant, through his agent, the driver Saylon. There is evidence to
Fortunato Jose for defendant and appellant. show that at the time of the blow out, the bus was speeding, as
testified to by one of the passengers, and as shown by the fact that
MONTEMAYOR, J.: according to the testimony of the witnesses, including that of the
defense, from the point where one of the front tires burst up to the
Shortly after midnight, on September 13, 1952 bus no. 30 of the canal where the bus overturned after zig-zaging, there was a distance
Medina Transportation, operated by its owner defendant Mariano of about 150 meters. The chauffeur, after the blow-out, must have
Medina under a certificate of public convenience, left the town of applied the brakes in order to stop the bus, but because of the velocity
Amadeo, Cavite, on its way to Pasay City, driven by its regular at which the bus must have been running, its momentum carried it over
chauffeur, Conrado Saylon. There were about eighteen passengers, a distance of 150 meters before it fell into the canal and turned turtle.
including the driver and conductor. Among the passengers were Juan There is no question that under the circumstances, the defendant
Bataclan, seated beside and to the right of the driver, Felipe Lara, carrier is liable. The only question is to what degree. The trial court
sated to the right of Bataclan, another passenger apparently from the was of the opinion that the proximate cause of the death of Bataclan
Visayan Islands whom the witnesses just called Visaya, apparently not was not the overturning of the bus, but rather, the fire that burned the
knowing his name, seated in the left side of the driver, and a woman bus, including himself and his co-passengers who were unable to
named Natalia Villanueva, seated just behind the four last mentioned. leave it; that at the time the fire started, Bataclan, though he must have
At about 2:00 o'clock that same morning, while the bus was running suffered physical injuries, perhaps serious, was still alive, and so
within the jurisdiction of Imus, Cavite, one of the front tires burst and damages were awarded, not for his death, but for the physical injuries
the vehicle began to zig-zag until it fell into a canal or ditch on the right suffered by him. We disagree. A satisfactory definition of proximate
side of the road and turned turtle. Some of the passengers managed to cause is found in Volume 38, pages 695-696 of American
leave the bus the best way they could, others had to be helped or jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:
pulled out, while the three passengers seated beside the driver, named . . . 'that cause, which, in natural and continuous sequence, unbroken
Bataclan, Lara and the Visayan and the woman behind them named by any efficient intervening cause, produces the injury, and without
Natalia Villanueva, could not get out of the overturned bus. Some of which the result would not have occurred.' And more comprehensively,
the passengers, after they had clambered up to the road, heard groans 'the proximate legal cause is that acting first and producing the injury,
and moans from inside the bus, particularly, shouts for help from either immediately or by setting other events in motion, all constituting
Bataclan and Lara, who said they could not get out of the bus. There is a natural and continuous chain of events, each having a close causal
nothing in the evidence to show whether or not the passengers already connection with its immediate predecessor, the final event in the chain
free from the wreck, including the driver and the conductor, made any immediately effecting the injury as a natural and probable result of the
attempt to pull out or extricate and rescue the four passengers trapped cause which first acted, under such circumstances that the person
inside the vehicle, but calls or shouts for help were made to the houses responsible for the first event should, as an ordinary prudent and
in the neighborhood. After half an hour, came about ten men, one of intelligent person, have reasonable ground to expect at the moment of
them carrying a lighted torch made of bamboo with a wick on one end, his act or default that an injury to some person might probably result
evidently fueled with petroleum. These men presumably approach the therefrom.
overturned bus, and almost immediately, a fierce fire started, burning
and all but consuming the bus, including the four passengers trapped It may be that ordinarily, when a passenger bus overturns, and pins
inside it. It would appear that as the bus overturned, gasoline began to down a passenger, merely causing him physical injuries, if through
leak and escape from the gasoline tank on the side of the chassis, some event, unexpected and extraordinary, the overturned bus is set
spreading over and permeating the body of the bus and the ground on fire, say, by lightning, or if some highwaymen after looting the
under and around it, and that the lighted torch brought by one of the vehicle sets it on fire, and the passenger is burned to death, one might
men who answered the call for help set it on fire. still contend that the proximate cause of his death was the fire and not
That same day, the charred bodies of the four deemed passengers the overturning of the vehicle. But in the present case under the
inside the bus were removed and duly identified that of Juan Bataclan. circumstances obtaining in the same, we do not hesitate to hold that
By reason of his death, his widow, Salud Villanueva, in her name and the proximate cause was the overturning of the bus, this for the reason
in behalf of her five minor children, brought the present suit to recover that when the vehicle turned not only on its side but completely on its
from Mariano Medina compensatory, moral, and exemplary damages back, the leaking of the gasoline from the tank was not unnatural or
and attorney's fees in the total amount of P87,150. After trial, the Court unexpected; that the coming of the men with a lighted torch was in
of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 response to the call for help, made not only by the passengers, but
as attorney's fee, plus P100, the value of the merchandise being most probably, by the driver and the conductor themselves, and that
carried by Bataclan to Pasay City for sale and which was lost in the because it was dark (about 2:30 in the morning), the rescuers had to
fire. The plaintiffs and the defendants appealed the decision to the carry a light with them, and coming as they did from a rural area where
Court of Appeals, but the latter endorsed the appeal to us because of lanterns and flashlights were not available; and what was more natural
the value involved in the claim in the complaint. than that said rescuers should innocently approach the vehicle to
extend the aid and effect the rescue requested from them. In other
Our new Civil Code amply provides for the responsibility of common words, the coming of the men with a torch was to be expected and was
carrier to its passengers and their goods. For purposes of reference, a natural sequence of the overturning of the bus, the trapping of some
we are reproducing the pertinent codal provisions: of its passengers and the call for outside help. What is more, the
ART. 1733. Common carriers, from the nature of their business and for burning of the bus can also in part be attributed to the negligence of
reasons of public policy, are bound to observe extraordinary diligence the carrier, through is driver and its conductor. According to the
in the vigilance over the goods and for the safety of the passengers witness, the driver and the conductor were on the road walking back
transported by them, according to all the circumstances of each case. and forth. They, or at least, the driver should and must have known
Such extraordinary diligence in the vigilance over the goods is further that in the position in which the overturned bus was, gasoline could
expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the and must have leaked from the gasoline tank and soaked the area in
extra ordinary diligence for the safety of the passengers is further set and around the bus, this aside from the fact that gasoline when spilled,
forth in articles 1755 and 1756. specially over a large area, can be smelt and directed even from a
distance, and yet neither the driver nor the conductor would appear to
ART. 1755. A common carrier is bound to carry the passengers safely have cautioned or taken steps to warn the rescuers not to bring the
as far as human care and foresight can provide, using the utmost lighted torch too near the bus. Said negligence on the part of the
diligence of very cautious persons, with a due regard for all the agents of the carrier come under the codal provisions above-
circumstances. reproduced, particularly, Articles 1733, 1759 and 1763.
ART. 1756. In case of death of or injuries to passengers, common
carriers are presumed to have been at fault or to have acted As regard the damages to which plaintiffs are entitled, considering the
negligently, unless they prove that they observed extraordinary earning capacity of the deceased, as well as the other elements
diligence as prescribed in articles 1733 and 1755 entering into a damage award, we are satisfied that the amount of SIX
ART. 1759. Common carriers are liable for the death of or injuries to THOUSAND (P6,000) PESOS would constitute satisfactory
passengers through the negligence or willful acts of the former's compensation, this to include compensatory, moral, and other
employees, although such employees may have acted beyond the damages. We also believe that plaintiffs are entitled to attorney's fees,
scope of their authority or in violation of the order of the common and assessing the legal services rendered by plaintiffs' attorneys not
carriers. only in the trial court, but also in the course of the appeal, and not
This liability of the common carriers does not cease upon proof that losing sight of the able briefs prepared by them, the attorney's fees
they exercised all the diligence of a good father of a family in the may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of
selection and supervision of their employees. merchandise carried by the deceased in the bus, is adequate and will
not be disturbed.
ART. 1763. A common carrier responsible for injuries suffered by a There is one phase of this case which disturbs if it does not shock us.
passenger on account of the willful acts or negligence of other According to the evidence, one of the passengers who, because of the
passengers or of strangers, if the common carrier's employees through injuries suffered by her, was hospitalized, and while in the hospital, she
the exercise of the diligence of a good father of a family could have was visited by the defendant Mariano Medina, and in the course of his
prevented or stopped the act or omission. visit, she overheard him speaking to one of his bus inspectors, telling
We agree with the trial court that the case involves a breach of contract said inspector to have the tires of the bus changed immediately
of transportation for hire, the Medina Transportation having undertaken because they were already old, and that as a matter of fact, he had
to carry Bataclan safely to his destination, Pasay City. We also agree been telling the driver to change the said tires, but that the driver did

42 |TORTS AND DAMAGES

not follow his instructions. If this be true, it goes to prove that the driver indigent –– more entitled to social justice for having, in the
had not been diligent and had not taken the necessary precautions to unforgettable words of Magsaysay, "less in life," We hereby reverse
insure the safety of his passengers. Had he changed the tires, and set aside the appealed judgment and render another one:
specially those in front, with new ones, as he had been instructed to 1. Ordering the defendant to pay to the plaintiffs Dionisio Fernando,
do, probably, despite his speeding, as we have already stated, the Sofia Fernando and her minor children the following sums of money:
blow out would not have occurred. All in all, there is reason to believe a) Compensatory damages for his death P30,000.00
that the driver operated and drove his vehicle negligently, resulting in b) Moral damages P20,000.00
the death of four of his passengers, physical injuries to others, and the 2. Ordering the defendant to pay to the plaintiffs David Garcia and
complete loss and destruction of their goods, and yet the criminal case Anita Garcia the following sums of money:
against him, on motion of the fiscal and with his consent, was a) Compensatory damages for his death P30,000.00
provisionally dismissed, because according to the fiscal, the witnesses b) Moral damages P20,000.00
on whose testimony he was banking to support the complaint, either 3. Ordering the defendant to pay to the plaintiff Rosalia Bertulano (sic)
failed or appear or were reluctant to testify. But the record of the case and her minor children the following sums of money
before us shows the several witnesses, passengers, in that bus, a) Compensatory damages for his death P30,000.00
willingly and unhesitatingly testified in court to the effect of the said b) Moral damages P20,000.00
driver was negligent. In the public interest the prosecution of said 4. Ordering the defendant to pay to the plaintiff Primitiva Fajardo and
erring driver should be pursued, this, not only as a matter of justice, but her minor children the following sums of money:
for the promotion of the safety of passengers on public utility buses. a) Compensatory damages for his death P30,000.00
Let a copy of this decision be furnished the Department of Justice and b) Moral damages P20,000.00
the Provincial Fiscal of Cavite. 5. Ordering the defendant to pay to the plaintiffs Norma Liagoso,
In view of the foregoing, with the modification that the damages Nicolas Liagoso and Emeteria Liagoso and her minor grandchildren
awarded by the trial court are increased from ONE THOUSAND the following sums of money:
(P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX a) Compensatory damages for his death P30,000.00
HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the b) Moral damages P20,000.00
death of Bataclan and for the attorney's fees, respectively, the decision The death compensation is fixed at P30,000.00 in accordance with the
appealed is from hereby affirmed, with costs. rulings of the Supreme Court starting with People vs. De la
Fuente, Nos. L-63251-52, December 29, 1983, 126 SCRA 518
reiterated in the recent case of People vs. Nepomuceno, No. L-41412,
G.R. No. 92087 May 8, 1992 May 27, 1985. Attorney's fees in the amount of P10,000.00 for the
SOFIA FERNANDO, in her behalf and as the legal guardian of her handling of the case for the 5 victims is also awarded.
minor children, namely: ALBERTO & ROBERTO, all surnamed No pronouncement as to costs. SO ORDERED. (Rollo, pp. 33-34)
FERNANDO, ANITA GARCIA, NICOLAS LIAGOSO, ROSALIA
BERTULANO, in her behalf and as the legal guardian of her minor Both parties filed their separate motions for reconsideration. On
children, namely: EDUARDO, ROLANDO, DANIEL, AND JOCELYN, January 11, 1990, the Court of Appeals rendered an Amended
all surnamed BERTULANO, PRIMITIVA FAJARDO in her behalf Decision, the dispositive portion of which reads:
and as legal guardian of her minor children, namely: GILBERT, WHEREFORE, finding merit in the motion for reconsideration of the
GLEN, JOCELYN AND JOSELITO, all surnamed FAJARDO, and defendant-appellee Davao City, the same is hereby GRANTED. The
EMETERIA LIAGOSO, in her behalf and as guardian ad litem, of decision of this Court dated January 31, 1986 is reversed and set
her minor grandchildren, namely: NOEL, WILLIAM, GENEVIEVE aside and another one is hereby rendered dismissing the case. No
and GERRY, all surnamed LIAGOSO, petitioners, pronouncement as to costs.
vs. SO ORDERED. (Rollo, p. 25)
THE HONORABLE COURT OF APPEALS AND CITY OF Hence, this petition raising the following issues for resolution:
DAVAO, respondents. 1. Is the respondent Davao City guilty of negligence in the case at bar?
2. If so, is such negligence the immediate and proximate cause of
MEDIALDEA, J.: deaths of the victims hereof? (p. 72, Rollo)
Negligence has been defined as the failure to observe for the
This is a petition for review on certiorari praying that the amended protection of the interests of another person that degree of care,
decision of the Court of Appeals dated January 11, 1990 in CA-G.R. precaution, and vigilance which the circumstances justly demand,
No. C.V. 04846, entitled "Sofia Fernando, etc., et al. v. The City of whereby such other person suffers injury (Corliss v. Manila Railroad
Davao," be reversed and that its original decision dated January 31, Company, L-21291, March 28, 1969, 27 SCRA 674, 680). Under the
1986 be reinstated subject to the modification sought by the petitioners law, a person who by his omission causes damage to another, there
in their motion for partial reconsideration dated March 6, 1986. being negligence, is obliged to pay for the damage done (Article 2176,
The antecedent facts are briefly narrated by the trial court, as follows: New Civil Code). As to what would constitute a negligent act in a given
From the evidence presented we see the following facts: On November situation, the case of Picart v. Smith (37 Phil. 809, 813) provides Us
7, 1975, Bibiano Morta, market master of the Agdao Public Market filed the answer, to wit:
a requisition request with the Chief of Property of the City Treasurer's The test by which to determine the existence of negligence in a
Office for the re-emptying of the septic tank in Agdao. An invitation to particular case may be stated as follows: Did the defendant in doing
bid was issued to Aurelio Bertulano, Lito Catarsa, Feliciano Bascon, the alleged negligent act use that reasonable care and caution which
Federico Bolo and Antonio Suñer, Jr. Bascon won the bid. On an ordinarily prudent person would have used in the same situation? If
November 26, 1975 Bascon was notified and he signed the purchase not, then he is guilty of negligence. The law here in effect adopts the
order. However, before such date, specifically on November 22, 1975, standard supposed to be supplied by the imaginary conduct of the
bidder Bertulano with four other companions namely Joselito Garcia, discreet pater familias of the Roman law. The existence of negligence
William Liagoso, Alberto Fernando and Jose Fajardo, Jr. were found in a given case is not determined by reference to the personal
dead inside the septic tank. The bodies were removed by a fireman. judgment of the actor in the situation before him. The law considers
One body, that of Joselito Garcia, was taken out by his uncle, Danilo what would be reckless, blameworthy, or negligent in the man of
Garcia and taken to the Regional Hospital but he expired there. The ordinary intelligence and prudence and determines liability by that.
City Engineer's office investigated the case and learned that the five The question as to what would constitute the conduct of a prudent man
victims entered the septic tank without clearance from it nor with the in a given situation must of course be always determined in the light of
knowledge and consent of the market master. In fact, the septic tank human experience and in view of the facts involved in the particular
was found to be almost empty and the victims were presumed to be case. Abstract speculation cannot here be of much value but this much
the ones who did the re-emptying. Dr. Juan Abear of the City Health can be profitably said: Reasonable men govern their conduct by the
Office autopsied the bodies and in his reports, put the cause of death circumstances which are before them or known to them. They are not,
of all five victims as "asphyxia" caused by the diminution of oxygen and are not supposed to be, omniscient of the future. Hence they can
supply in the body working below normal conditions. The lungs of the be expected to take care only when there is something before them to
five victims burst, swelled in hemmorrhagic areas and this was due to suggest or warn of danger. Could a prudent man, in the case under
their intake of toxic gas, which, in this case, was sulfide gas produced consideration, foresee harm as a result of the course actually pursued?
from the waste matter inside the septic tank. (p. 177, Records) If so, it was the duty of the actor to take precautions to guard against
that harm. Reasonable foresight of harm, followed by the ignoring of
On August 28, 1984, the trial court rendered a decision, the dispositive the suggestion born of this provision, is always necessary before
portion of which reads: negligence can be held to exist. Stated in these terms, the proper
criterion for determining the existence of negligence in a given case is
IN VIEW OF THE FOREGOING, this case is hereby DISMISSED this: Conduct is said to be negligent when a prudent man in the
without pronouncement as to costs. position of the tortfeasor would have foreseen that an effect harmful to
SO ORDERED. (Records, p. 181) another was sufficiently probable warrant his foregoing the conduct or
From the said decision, the petitioners appealed to the then guarding against its consequences. (emphasis supplied)
Intermediate Appellate Court (now Court of Appeals). On January 3, To be entitled to damages for an injury resulting from the negligence of
1986, the appellate court issued a decision, the dispositive portion of another, a claimant must establish the relation between the omission
which reads: and the damage. He must prove under Article 2179 of the New Civil
Code that the defendant's negligence was the immediate and
WHEREFORE, in view of the facts fully established and in the liberal proximate cause of his injury. Proximate cause has been defined as
interpretation of what the Constitution and the law intended to protect that cause, which, in natural and continuous sequence unbroken by
the plight of the poor and the needy, the ignorant and the any efficient intervening cause, produces the injury, and without which

43 |TORTS AND DAMAGES

the result would not have occurred (Vda. de Bataclan, et al. v. Medina, A Around thirty (30) meters.
102 Phil. 181, 186). Proof of such relation of cause and effect is not an Q Have you ever had a chance to use that septic tank (public toilet)?
arduous one if the claimant did not in any way contribute to the A Yes, sir.
negligence of the defendant. However, where the resulting injury was Q How many times, if you could remember?
the product of the negligence of both parties, there exists a difficulty to A Many times, maybe more than 1,000 times.
discern which acts shall be considered the proximate cause of the Q Prior to November 22, 1975, have you ever used that septic tank
accident. In Taylor v. Manila Electric Railroad and Light Co. (16 Phil. 8, (public toilet)?
29-30), this Court set a guideline for a judicious assessment of the A Yes, sir.
situation: Q How many times have you gone to that septic tank (public toilet)
Difficulty seems to be apprehended in deciding which acts of the prior to that date, November 22, 1975?
injured party shall be considered immediate causes of the A Almost 1,000 times. (TSN, February 9, 1983, pp. 1-2)
accident. The test is simple. Distinction must be made between the The absence of any accident was due to the public respondent's
accident and the injury, between the event itself, without which there compliance with the sanitary and plumbing specifications in
could have been no accident, and those acts of the victim not entering constructing the toilet and the septic tank (TSN, November 4, 1983, p.
into it, independent of it, but contributing to his own proper hurt. For 51). Hence, the toxic gas from the waste matter could not have leaked
instance, the cause of the accident under review was the displacement out because the septic tank was air-tight (TSN, ibid, p. 49). The only
of the crosspiece or the failure to replace it. This produced the event indication that the septic tank in the case at bar was full and needed
giving occasion for damages — that is, the sinking of the track and the emptying was when water came out from it (TSN, September 13, 1983,
sliding of the iron rails. To this event, the act of the plaintiff in walking p. 41). Yet, even when the septic tank was full, there was no report of
by the side of the car did not contribute, although it was an element of any casualty of gas poisoning despite the presence of people living
the damage which came to himself. Had the crosspiece been out of near it or passing on top of it or using the public toilet for their personal
place wholly or partly through his act or omission of duty, that would necessities.
have been one of the determining causes of the event or accident, for Petitioners made a lot of fuss over the lack of any ventilation pipe in the
which he would have been responsible. Where he contributes to the toilet to emphasize the negligence of the city government and
principal occurrence, as one of its determining factors, he can not presented witnesses to attest on this lack. However, this strategy
recover. Where, in conjunction with the occurrence, he contributes only backfired on their faces. Their witnesses were not expert witnesses.
to his own injury, he may recover the amount that the defendant On the other hand, Engineer Demetrio Alindada of the city government
responsible for the event should pay for such injury, less a sum testified and demonstrated by drawings how the safety requirements
deemed a suitable equivalent for his own imprudence. (emphasis like emission of gases in the construction of both toilet and septic tank
Ours) have been complied with. He stated that the ventilation pipe need not
Applying all these established doctrines in the case at bar and after a be constructed outside the building as it could also be embodied in the
careful scrutiny of the records, We find no compelling reason to grant hollow blocks as is usually done in residential buildings (TSN,
the petition. We affirm. November 4, 1983, pp. 50-51). The petitioners submitted no competent
Petitioners fault the city government of Davao for failing to clean a evidence to corroborate their oral testimonies or rebut the testimony
septic tank for the period of 19 years resulting in an accumulation of given by Engr. Alindada.
hydrogen sulfide gas which killed the laborers. They contend that such We also do not agree with the petitioner's submission that warning
failure was compounded by the fact that there was no warning sign of signs of noxious gas should have been put up in the toilet in addition to
the existing danger and no efforts exerted by the public respondent to the signs of "MEN" and "WOMEN" already in place in that area. Toilets
neutralize or render harmless the effects of the toxic gas. They submit and septic tanks are not nuisances per se as defined in Article 694 of
that the public respondent's gross negligence was the proximate cause the New Civil Code which would necessitate warning signs for the
of the fatal incident. protection of the public. While the construction of these public facilities
demands utmost compliance with safety and sanitary requirements,
We do not subscribe to this view. While it may be true that the public the putting up of warning signs is not one of those requirements. The
respondent has been remiss in its duty to re-empty the septic tank testimony of Engr. Alindada on this matter is elucidative:
annually, such negligence was not a continuing one. Upon learning ATTY. ALBAY:
from the report of the market master about the need to clean the septic Q Mr. Witness, you mentioned the several aspects of the approval of
tank of the public toilet in Agdao Public Market, the public respondent the building permit which include the plans of an architect, senitary
immediately responded by issuing invitations to bid for such service. engineer and electrical plans. All of these still pass your approval as
Thereafter, it awarded the bid to the lowest bidder, Mr. Feliciano building official, is that correct?
Bascon (TSN, May 24, 1983, pp. 22-25). The public respondent, DEMETRIO ALINDADA:
therefore, lost no time in taking up remedial measures to meet the A Yes.
situation. It is likewise an undisputed fact that despite the public Q So there is the sanitary plan submitted to and will not be approved
respondent's failure to re-empty the septic tank since 1956, people in by you unless the same is in conformance with the provisions of the
the market have been using the public toilet for their personal building code or sanitary requirements?
necessities but have remained unscathed. The testimonies of Messrs. A Yes, for private building constructions.
Danilo Garcia and David Secoja (plaintiffs'-petitioners' witnesses) on Q How about public buildings?
this point are relevant, to wit: A For public buildings, they are exempted for payment of building
Atty. Mojica, counsel for defendant Davao City: permits but still they have to have a building permit.
Q But just the same, including the sanitary plans, it require your
xxx xxx xxx approval?
The place where you live is right along the Agdao creek, is that A Yes, it requires also.
correct? Q Therefore, under the National Building Code, you are empowered
DANILO GARCIA: not to approve sanitary plans if they are not in conformity with the
A Yes, sir. sanitary requirements?
Q And to be able to go to the market place, where you claim you have A Yes.
a stall,, you have to pass on the septic tank? Q Now, in private or public buildings, do you see any warning signs in
A Yes, sir. the vicinity of septic tanks?
Q Day in and day out, you pass on top of the septic tank? A There is no warning sign.
A Yes, sir. Q In residential buildings do you see any warning sign?
Q Is it not a fact that everybody living along the creek passes on top of A There is none.
this septic tank as they go out from the place and return to their place ATTY. AMPIG:
of residence, is that correct? We submit that the matter is irrelevant and immaterial, Your Honor.
And this septic tank, rather the whole of the septic tank, is covered by ATTY. ALBAY:
lead . . .? But that is in consonance with their cross-examination, your Honor.
A Yes, sir. there is cover. COURT:
Q And there were three (3) of these lead covering the septic tank? Anyway it is already answered.
A Yes, sir. ATTY. ALBAY:
Q And this has always been closed? Q These warning signs, are these required under the preparation of the
A Yes, sir. (TSN, November 26, 1979, pp. 21-23, emphasis supplied) plans?
ATTY. JOVER, counsel for the plaintiffs: A It is not required.
Q You said you are residing at Davao City, is it not? Q I will just reiterate, Mr. Witness. In residences, for example like the
DAVID SEJOYA: residence of Atty. Ampig or the residence of the honorable Judge,
A Yes, sir. would you say that the same principle of the septic tank, from the water
Q How long have you been a resident of Agdao? closet to the vault, is being followed?
A Since 1953. A Yes.
Q Where specifically in Agdao are you residing? ATTY. ALBAY:
A At the Public Market. That will be all, Your Honor. (TSN, December 6, 1983, pp. 62-63)
Q Which part of the Agdao Public Market is your house located? In view of this factual milieu, it would appear that an accident such as
A Inside the market in front of the fish section. toxic gas leakage from the septic tank is unlikely to happen unless one
Q Do you know where the Agdao septic tank is located? removes its covers. The accident in the case at bar occurred because
A Yes, sir. the victims on their own and without authority from the public
Q How far is that septic tank located from your house? respondent opened the septic tank. Considering the nature of the task

44 |TORTS AND DAMAGES

of emptying a septic tank especially one which has not been cleaned feet long, including the handle, by 2 inches wide) and hacked Javier
for years, an ordinarily prudent person should undoubtedly be aware of hitting him on the right palm of his hand, which was used in parrying
the attendant risks. The victims are no exception; more so with Mr. the bolo hack. Javier who was then unarmed ran away from Urbano
Bertulano, an old hand in this kind of service, who is presumed to know but was overtaken by Urbano who hacked him again hitting Javier on
the hazards of the job. His failure, therefore, and that of his men to the left leg with the back portion of said bolo, causing a swelling on
take precautionary measures for their safety was the proximate cause said leg. When Urbano tried to hack and inflict further injury, his
of the accident. In Culion Ice, Fish and Elect. Co., v. Phil. Motors daughter embraced and prevented him from hacking Javier.
Corporation (55 Phil. 129, 133), We held that when a person holds Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe
himself out as being competent to do things requiring professional brought Javier to his house about 50 meters away from where the
skill, he will be held liable for negligence if he fails to exhibit the care incident happened. Emilio then went to the house of Barangay Captain
and skill of one ordinarily skilled in the particular work which he Menardo Soliven but not finding him there, Emilio looked for barrio
attempts to do (emphasis Ours). The fatal accident in this case would councilman Felipe Solis instead. Upon the advice of Solis, the Erfes
not have happened but for the victims' negligence. Thus, the appellate together with Javier went to the police station of San Fabian to report
court was correct to observe that: the incident. As suggested by Corporal Torio, Javier was brought to a
. . . Could the victims have died if they did not open the septic tank physician. The group went to Dr. Guillermo Padilla, rural health
which they were not in the first place authorized to open? Who physician of San Fabian, who did not attend to Javier but instead
between the passive object (septic tank) and the active subject (the suggested that they go to Dr. Mario Meneses because Padilla had no
victims herein) who, having no authority therefore, arrogated unto available medicine.
themselves, the task of opening the septic tank which caused their own After Javier was treated by Dr. Meneses, he and his companions
deaths should be responsible for such deaths. How could the septic returned to Dr. Guillermo Padilla who conducted a medico-legal
tank which has been in existence since the 1950's be the proximate examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C"
cause of an accident that occurred only on November 22, 1975? The dated September 28, 1981) which reads:
stubborn fact remains that since 1956 up to occurrence of the accident TO WHOM IT MAY CONCERN:
in 1975 no injury nor death was caused by the septic tank. The only
reasonable conclusion that could be drawn from the above is that the This is to certify that I have examined the wound of Marcelo Javier, 20
victims' death was caused by their own negligence in opening the years of age, married, residing at Barangay Anonang, San Fabian,
septic tank. . . . (Rollo, p. 23) Pangasinan on October 23, 1980 and found the following:
Petitioners further contend that the failure of the market master to 1 -Incised wound 2 inches in length at the upper portion of the lesser
supervise the area where the septic tank is located is a reflection of the palmar prominence, right.
negligence of the public respondent. As to my observation the incapacitation is from (7-9) days period. This
We do not think so. The market master knew that work on the septic wound was presented to me only for medico-legal examination, as it
tank was still forthcoming. It must be remembered that the bidding had was already treated by the other doctor. (p. 88, Original Records)
just been conducted. Although the winning bidder was already known, Upon the intercession of Councilman Solis, Urbano and Javier agreed
the award to him was still to be made by the Committee on Awards. to settle their differences. Urbano promised to pay P700.00 for the
Upon the other hand, the accident which befell the victims who are not medical expenses of Javier. Hence, on October 27, 1980, the two
in any way connected with the winning bidder happened before the accompanied by Solis appeared before the San Fabian Police to
award could be given. Considering that the case was yet no award to formalize their amicable settlement. Patrolman Torio recorded the
commence work on the septic tank, the duty of the market master or event in the police blotter (Exhibit A), to wit: xxx xxx xxx
his security guards to supervise the work could not have started (TSN, Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both
September 13, 1983, p. 40). Also, the victims could not have been parties appeared before this Station accompanied by brgy. councilman
seen working in the area because the septic tank was hidden by a Felipe Solis and settled their case amicably, for they are neighbors and
garbage storage which is more or less ten (10) meters away from the close relatives to each other. Marcelo Javier accepted and granted
comfort room itself (TSN, ibid, pp. 38-39). The surreptitious way in forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in
which the victims did their job without clearance from the market his medical treatment, and promising to him and to this Office that this
master or any of the security guards goes against their good faith. will never be repeated anymore and not to harbour any grudge against
Even their relatives or family members did not know of their plan to each other. (p. 87, Original Records.)
clean the septic tank.
Finally, petitioners' insistence on the applicability of Article 24 of the Urbano advanced P400.00 to Javier at the police station. On
New Civil Code cannot be sustained. Said law states: November 3, 1980, the additional P300.00 was given to Javier at
Art. 24. In all contractual, property or other relations, when one of the Urbano's house in the presence of barangay captain Soliven.
parties is at a disadvantage on account of his moral dependence, At about 1:30 a.m. on November 14, 1980, Javier was rushed to the
ignorance, indigence, mental weakness, tender age or other handicap, Nazareth General Hospital in a very serious condition. When admitted
the courts must be vigilant for his protection. to the hospital, Javier had lockjaw and was having convulsions. Dr.
We approve of the appellate court's ruling that "(w)hile one of the Edmundo Exconde who personally attended to Javier found that the
victims was invited to bid for said project, he did not win the bid, latter's serious condition was caused by tetanus toxin. He noticed the
therefore, there is a total absence of contractual relations between the presence of a healing wound in Javier's palm which could have been
victims and the City Government of Davao City that could give rise to infected by tetanus.
any contractual obligation, much less, any liability on the part of Davao
City." (Rollo, p. 24) The accident was indeed tragic and We empathize On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital.
with the petitioners. However, the herein circumstances lead Us to no The medical findings of Dr. Exconde are as follows:
other conclusion than that the proximate and immediate cause of the Date Diagnosis
death of the victims was due to their own negligence. Consequently, 11-14-80 ADMITTED due to trismus
the petitioners cannot demand damages from the public respondent. adm. at DX TETANUS
ACCORDINGLY, the amended decision of the Court of Appeals dated 1:30 AM Still having frequent muscle spasm. With diffi-
January 11, 1990 is AFFIRMED. No costs. SO ORDERED. #35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-
tion of respiration and HR after muscular spasm.
G.R. No. 72964 January 7, 1988 02 inhalation administered. Ambo bag resuscita-
FILOMENO URBANO, petitioner, tion and cardiac massage done but to no avail.
vs. Pronounced dead by Dra. Cabugao at 4:18 P.M.
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PMC done and cadaver brought home by rela-
PHILIPPINES, respondents. tives. (p. 100, Original Records)

GUTIERREZ, JR., J.: In an information dated April 10, 1981, Filomeno Urbano was charged
with the crime of homicide before the then Circuit Criminal Court of
This is a petition to review the decision of the then Intermediate Dagupan City, Third Judicial District.
Appellate Court which affirmed the decision of the then Circuit Criminal Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court
Court of Dagupan City finding petitioner Filomeno Urban guilty beyond found Urbano guilty as charged. He was sentenced to suffer an
reasonable doubt of the crime of homicide. indeterminate prison term of from TWELVE (12) YEARS of prision
mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS
The records disclose the following facts of the case. and ONE (1) DAY of reclusion temporal, as maximum, together with
At about 8:00 o'clock in the morning of October 23, 1980, petitioner the accessories of the law, to indemnify the heirs of the victim, Marcelo
Filomeno Urbano went to his ricefield at Barangay Anonang, San Javier, in the amount of P12,000.00 without subsidiary imprisonment in
Fabian, Pangasinan located at about 100 meters from the tobacco case of insolvency, and to pay the costs. He was ordered confined at
seedbed of Marcelo Javier. He found the place where he stored his the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the
palay flooded with water coming from the irrigation canal nearby which decision, in view of the nature of his penalty.
had overflowed. Urbano went to the elevated portion of the canal to The then Intermediate Appellate Court affirmed the conviction of
see what happened and there he saw Marcelo Javier and Emilio Erfe Urbano on appeal but raised the award of indemnity to the heirs of the
cutting grass. He asked them who was responsible for the opening of deceased to P30,000.00 with costs against the appellant.
the irrigation canal and Javier admitted that he was the one. Urbano The appellant filed a motion for reconsideration and/or new trial. The
then got angry and demanded that Javier pay for his soaked palay. A motion for new trial was based on an affidavit of Barangay Captain
quarrel between them ensued. Urbano unsheathed his bolo (about 2 Menardo Soliven (Annex "A") which states:

45 |TORTS AND DAMAGES

 cause which first acted, under such circumstances that the person
That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, responsible for the first event should, as an ordinarily prudent and
Pangasinan, and up to the present having been re-elected to such intelligent person, have reasonable ground to expect at the moment of
position in the last barangay elections on May 17, 1982; his act or default that an injury to some person might probably result
That sometime in the first week of November, 1980, there was a therefrom." (at pp. 185-186)
typhoon that swept Pangasinan and other places of Central Luzon The issue, therefore, hinges on whether or not there was an efficient
including San Fabian, a town of said province; intervening cause from the time Javier was wounded until his death
That during the typhoon, the sluice or control gates of the Bued which would exculpate Urbano from any liability for Javier's death.
irrigation dam which irrigates the ricefields of San Fabian were closed We look into the nature of tetanus-
and/or controlled so much so that water and its flow to the canals and
ditches were regulated and reduced; The incubation period of tetanus, i.e., the time between injury and the
That due to the locking of the sluice or control gates of the dam leading appearance of unmistakable symptoms, ranges from 2 to 56 days.
to the canals and ditches which will bring water to the ricefields, the However, over 80 percent of patients become symptomatic within 14
water in said canals and ditches became shallow which was suitable days. A short incubation period indicates severe disease, and when
for catching mudfishes; symptoms occur within 2 or 3 days of injury the mortality rate
That after the storm, I conducted a personal survey in the area approaches 100 percent.
affected, with my secretary Perfecto Jaravata; Non-specific premonitory symptoms such as restlessness, irritability,
That on November 5, 1980, while I was conducting survey, I saw the and headache are encountered occasionally, but the commonest
late Marcelo Javier catching fish in the shallow irrigation canals with presenting complaints are pain and stiffness in the jaw, abdomen, or
some companions; back and difficulty swallowing. As the progresses, stiffness gives way
That few days there after,or on November l5, l980, I came to know that to rigidity, and patients often complain of difficulty opening their
said Marcelo Javier died of tetanus. (p. 33, Rollo) mouths. In fact, trismus in the commonest manifestation of tetanus and
The motion was denied. Hence, this petition. is responsible for the familiar descriptive name of lockjaw. As more
In a resolution dated July 16, 1986, we gave due course to the petition. muscles are involved, rigidity becomes generalized, and sustained
The case involves the application of Article 4 of the Revised Penal contractions called risus sardonicus. The intensity and sequence of
Code which provides that "Criminal liability shall be incurred: (1) By muscle involvement is quite variable. In a small proportion of patients,
any person committing a felony (delito) although the wrongful act done only local signs and symptoms develop in the region of the injury. In
be different from that which he intended ..." Pursuant to this provision the vast majority, however, most muscles are involved to some degree,
"an accused is criminally responsible for acts committed by him in and the signs and symptoms encountered depend upon the major
violation of law and for all the natural and logical consequences muscle groups affected.
resulting therefrom." (People v. Cardenas, 56 SCRA 631).
The record is clear that Marcelo Javier was hacked by the petitioner Reflex spasm usually occur within 24 to 72 hours of the first symptom,
who used a bolo as a result of which Javier suffered a 2-inch incised an interval referred to as the onset time. As in the case of the
wound on his right palm; that on November 14, 1981 which was the incubation period, a short onset time is associated with a poor
22nd day after the incident, Javier was rushed to the hospital in a very prognosis. Spasms are caused by sudden intensification of afferent
serious condition and that on the following day, November 15, 1981, stimuli arising in the periphery, which increases rigidity and causes
he died from tetanus. simultaneous and excessive contraction of muscles and their
Under these circumstances, the lower courts ruled that Javier's death antagonists. Spasms may be both painful and dangerous. As the
was the natural and logical consequence of Urbano's unlawful act. disease progresses, minimal or inapparent stimuli produce more
Hence, he was declared responsible for Javier's death. Thus, the intense and longer lasting spasms with increasing frequency.
appellate court said: Respiration may be impaired by laryngospasm or tonic contraction of
The claim of appellant that there was an efficient cause which respiratory muscles which prevent adequate ventilation. Hypoxia may
supervened from the time the deceased was wounded to the time of then lead to irreversible central nervous system damage and death.
his death, which covers a period of 23 days does not deserve serious
consideration. True, that the deceased did not die right away from his Mild tetanus is characterized by an incubation period of at least 14
wound, but the cause of his death was due to said wound which was days and an onset time of more than 6 days. Trismus is usually
inflicted by the appellant. Said wound which was in the process of present, but dysphagia is absent and generalized spasms are brief and
healing got infected with tetanus which ultimately caused his death. mild. Moderately severe tetanus has a somewhat shorter incubation
Dr. Edmundo Exconde of the Nazareth General Hospital testified that period and onset time; trismus is marked, dysphagia and generalized
the victim suffered lockjaw because of the infection of the wound with rigidity are present, but ventilation remains adequate even during
tetanus. And there is no other way by which he could be infected with spasms. The criteria for severe tetanus include a short incubation time,
tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, and an onset time of 72 hrs., or less, severe trismus, dysphagia and
1981). Consequently, the proximate cause of the victim's death was rigidity and frequent prolonged, generalized convulsive spasms.
the wound which got infected with tetanus. And the settled rule in this (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005;
jurisdiction is that an accused is liable for all the consequences of his Emphasis supplied)
unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; Therefore, medically speaking, the reaction to tetanus found inside a
People v. Cornel 78 Phil. 418). man's body depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right
Appellant's allegation that the proximate cause of the victim's death palm when he parried the bolo which Urbano used in hacking him. This
was due to his own negligence in going back to work without his incident took place on October 23, 1980. After 22 days, or on
wound being properly healed, and lately, that he went to catch fish in November 14, 1980, he suffered the symptoms of tetanus, like lockjaw
dirty irrigation canals in the first week of November, 1980, is an and muscle spasms. The following day, November 15, 1980, he died.
afterthought, and a desperate attempt by appellant to wiggle out of the If, therefore, the wound of Javier inflicted by the appellant was already
predicament he found himself in. If the wound had not yet healed, it is infected by tetanus germs at the time, it is more medically probable
impossible to conceive that the deceased would be reckless enough to that Javier should have been infected with only a mild cause of tetanus
work with a disabled hand. (pp. 20-21, Rollo) because the symptoms of tetanus appeared on the 22nd day after the
The petitioner reiterates his position that the proximate cause of the hacking incident or more than 14 days after the infliction of the wound.
death of Marcelo Javier was due to his own negligence, that Dr. Mario Therefore, the onset time should have been more than six days.
Meneses found no tetanus in the injury, and that Javier got infected Javier, however, died on the second day from the onset time. The
with tetanus when after two weeks he returned to his farm and tended more credible conclusion is that at the time Javier's wound was
his tobacco plants with his bare hands exposing the wound to harmful inflicted by the appellant, the severe form of tetanus that killed him was
elements like tetanus germs. not yet present. Consequently, Javier's wound could have been
The evidence on record does not clearly show that the wound inflicted infected with tetanus after the hacking incident. Considering the
by Urbano was infected with tetanus at the time of the infliction of the circumstance surrounding Javier's death, his wound could have been
wound. The evidence merely confirms that the wound, which was infected by tetanus 2 or 3 or a few but not 20 to 22 days before he
already healing at the time Javier suffered the symptoms of the fatal died.
ailment, somehow got infected with tetanus However, as to when the The rule is that the death of the victim must be the direct, natural, and
wound was infected is not clear from the record. logical consequence of the wounds inflicted upon him by the accused.
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the (People v. Cardenas, supra) And since we are dealing with a criminal
following definition of proximate cause: conviction, the proof that the accused caused the victim's death must
xxx xxx xxx convince a rational mind beyond reasonable doubt. The medical
... A satisfactory definition of proximate cause is found in Volume 38, findings, however, lead us to a distinct possibility that the infection of
pages 695-696 of American Jurisprudence, cited by plaintiffs- the wound by tetanus was an efficient intervening cause later or
appellants in their brief. It is as follows: between the time Javier was wounded to the time of his death. The
... "that cause, which, in natural and continuous sequence, unbroken infection was, therefore, distinct and foreign to the crime. (People v.
by any efficient intervening cause, produces the injury, and without Rellin, 77 Phil. 1038).
which the result would not have occurred."And more comprehensively,
"the proximate legal cause is that acting first and producing the injury, Doubts are present. There is a likelihood that the wound was but
either immediately or by setting other events in motion, all constituting the remote cause and its subsequent infection, for failure to take
a natural and continuous chain of events, each having a close causal necessary precautions, with tetanus may have been
connection with its immediate predecessor, the final event in the chain the proximate cause of Javier's death with which the petitioner had
immediately effecting the injury as a natural and probable result of the

46 |TORTS AND DAMAGES

nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. PHOENIX CONSTRUCTION, INC. and ARMANDO U.
(99 Phil. 118). CARBONEL, petitioners,
"A prior and remote cause cannot be made the be of an action if such vs.
remote cause did nothing more than furnish the condition or give rise THE INTERMEDIATE APPELLATE COURT and LEONARDO
to the occasion by which the injury was made possible, if there DIONISIO, respondents.
intervened between such prior or remote cause and the injury a
distinct, successive, unrelated, and efficient cause of the injury, even FELICIANO, J:
though such injury would not have happened but for such condition or
occasion. If no danger existed in the condition except because of the In the early morning of 15 November 1975 — at about 1:30 a.m. —
independent cause, such condition was not the proximate cause. And private respondent Leonardo Dionisio was on his way home — he lived
if an independent negligent act or defective condition sets into in 1214-B Zamora Street, Bangkal, Makati — from a cocktails-and-
operation the instances which result in injury because of the prior dinner meeting with his boss, the general manager of a marketing
defective condition, such subsequent act or condition is the proximate corporation. During the cocktails phase of the evening, Dionisio had
cause." (45 C.J. pp. 931-932). (at p. 125) taken "a shot or two" of liquor. Dionisio was driving his Volkswagen car
It strains the judicial mind to allow a clear aggressor to go scot free of and had just crossed the intersection of General Lacuna and General
criminal liability. At the very least, the records show he is guilty of Santos Streets at Bangkal, Makati, not far from his home, and was
inflicting slight physical injuries. However, the petitioner's criminal proceeding down General Lacuna Street, when his car headlights (in
liability in this respect was wiped out by the victim's own act. After the his allegation) suddenly failed. He switched his headlights on "bright"
hacking incident, Urbano and Javier used the facilities of barangay and thereupon he saw a Ford dump truck looming some 2-1/2 meters
mediators to effect a compromise agreement where Javier forgave away from his car. The dump truck, owned by and registered in the
Urbano while Urbano defrayed the medical expenses of Javier. This name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked
settlement of minor offenses is allowed under the express provisions of on the right hand side of General Lacuna Street (i.e., on the right hand
Presidential Decree G.R. No. 1508, Section 2(3). (See also People v. side of a person facing in the same direction toward which Dionisio's
Caruncho, 127 SCRA 16). car was proceeding), facing the oncoming traffic. The dump truck was
We must stress, however, that our discussion of proximate cause and parked askew (not parallel to the street curb) in such a manner as to
remote cause is limited to the criminal aspects of this rather unusual stick out onto the street, partly blocking the way of oncoming traffic.
case. It does not necessarily follow that the petitioner is also free of There were no lights nor any so-called "early warning" reflector devices
civil liability. The well-settled doctrine is that a person, while not set anywhere near the dump truck, front or rear. The dump truck had
criminally liable, may still be civilly liable. Thus, in the recent case earlier that evening been driven home by petitioner Armando U.
of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, Carbonel, its regular driver, with the permission of his employer
1987), we said: Phoenix, in view of work scheduled to be carried out early the following
xxx xxx xxx morning, Dionisio claimed that he tried to avoid a collision by swerving
his car to the left but it was too late and his car smashed into the dump
... While the guilt of the accused in a criminal prosecution must be truck. As a result of the collision, Dionisio suffered some physical
established beyond reasonable doubt, only a preponderance of injuries including some permanent facial scars, a "nervous breakdown"
evidence is required in a civil action for damages. (Article 29, Civil and loss of two gold bridge dentures.
Code). The judgment of acquittal extinguishes the civil liability of the
accused only when it includes a declaration that the facts from which Dionisio commenced an action for damages in the Court of First
the civil liability might arise did not exist. (Padilla v. Court of Appeals, Instance of Pampanga basically claiming that the legal and proximate
129 SCRA 559). cause of his injuries was the negligent manner in which Carbonel had
The reason for the provisions of article 29 of the Civil Code, which parked the dump truck entrusted to him by his employer Phoenix.
provides that the acquittal of the accused on the ground that his guilt Phoenix and Carbonel, on the other hand, countered that the
has not been proved beyond reasonable doubt does not necessarily proximate cause of Dionisio's injuries was his own recklessness in
exempt him from civil liability for the same act or omission, has been driving fast at the time of the accident, while under the influence of
explained by the Code Commission as follows: liquor, without his headlights on and without a curfew pass. Phoenix
The old rule that the acquittal of the accused in a criminal case also also sought to establish that it had exercised due rare in the selection
releases him from civil liability is one of the most serious flaws in the and supervision of the dump truck driver.
Philippine legal system. It has given use to numberless instances of The trial court rendered judgment in favor of Dionisio and against
miscarriage of justice, where the acquittal was due to a reasonable Phoenix and Carbonel and ordered the latter:
doubt in the mind of the court as to the guilt of the accused. The (1) To pay plaintiff jointly and severally the sum of P 15,000.00 for
reasoning followed is that inasmuch as the civil responsibility is derived hospital bills and the replacement of the lost dentures of plaintiff;
from the criminal offense, when the latter is not proved, civil liability (2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as
cannot be demanded. loss of expected income for plaintiff brought about the accident in
controversy and which is the result of the negligence of the
This is one of those causes where confused thinking leads to defendants;
unfortunate and deplorable consequences. Such reasoning fails to (3) To pay the plaintiff jointly and severally the sum of P 10,000. as
draw a clear line of demarcation between criminal liability and civil moral damages for the unexpected and sudden withdrawal of plaintiff
responsibility, and to determine the logical result of the distinction. The from his lifetime career as a marketing man; mental anguish, wounded
two liabilities are separate and distinct from each other. One affects the feeling, serious anxiety, social humiliation, besmirched reputation,
social order and the other, private rights. One is for the punishment or feeling of economic insecurity, and the untold sorrows and frustration
correction of the offender while the other is for reparation of damages in life experienced by plaintiff and his family since the accident in
suffered by the aggrieved party. The two responsibilities are so controversy up to the present time;
different from each other that article 1813 of the present (Spanish) Civil (4) To pay plaintiff jointly and severally the sum of P 10,000.00 as
Code reads thus: "There may be a compromise upon the civil action damages for the wanton disregard of defendants to settle amicably this
arising from a crime; but the public action for the imposition of the legal case with the plaintiff before the filing of this case in court for a smaller
penalty shall not thereby be extinguished." It is just and proper that, for amount.
the purposes of the imprisonment of or fine upon the accused, the (5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due
offense should be proved beyond reasonable doubt. But for the as and for attorney's fees; and
purpose of indemnity the complaining party, why should the offense (6) The cost of suit. (Emphasis supplied)
also be proved beyond reasonable doubt? Is not the invasion or Phoenix and Carbonel appealed to the Intermediate Appellate Court.
violation of every private right to be proved only by a preponderance of That court in CA-G.R. No. 65476 affirmed the decision of the trial court
evidence? Is the right of the aggrieved person any less private but modified the award of damages to the following extent:
because the wrongful act is also punishable by the criminal law? 1. The award of P15,000.00 as compensatory damages was reduced
to P6,460.71, the latter being the only amount that the appellate court
"For these reasons, the Commission recommends the adoption of the found the plaintiff to have proved as actually sustained by him;
reform under discussion. It will correct a serious defect in our law. It will 2. The award of P150,000.00 as loss of expected income was reduced
close up an inexhaustible source of injustice-a cause for to P100,000.00, basically because Dionisio had voluntarily resigned his
disillusionment on the part of the innumerable persons injured or job such that, in the opinion of the appellate court, his loss of income
wronged." "was not solely attributable to the accident in question;" and
The respondent court increased the P12,000.00 indemnification 3. The award of P100,000.00 as moral damages was held by the
imposed by the trial court to P30,000.00. However, since the appellate court as excessive and unconscionable and hence reduced
indemnification was based solely on the finding of guilt beyond to P50,000.00.
reasonable doubt in the homicide case, the civil liability of the petitioner The award of P10,000.00 as exemplary damages and P4,500.00 as
was not thoroughly examined. This aspect of the case calls for fuller attorney's fees and costs remained untouched.
development if the heirs of the victim are so minded. This decision of the Intermediate Appellate Court is now before us on a
WHEREFORE, the instant petition is hereby GRANTED. The petition for review.
questioned decision of the then Intermediate Appellate Court, now
Court of Appeals, is REVERSED and SET ASIDE. The petitioner is Both the trial court and the appellate court had made fairly explicit
ACQUITTED of the crime of homicide. Costs de oficio.SO ORDERED. findings of fact relating to the manner in which the dump truck was
parked along General Lacuna Street on the basis of which both courts
G.R. No. L-65295 March 10, 1987 drew the inference that there was negligence on the part of Carbonel,
the dump truck driver, and that this negligence was the proximate

47 |TORTS AND DAMAGES

cause of the accident and Dionisio's injuries. We note, however, that We think that an automobile speeding down a street and suddenly
both courts failed to pass upon the defense raised by Carbonel and smashing into a stationary object in the dead of night is a sufficiently
Phoenix that the true legal and proximate cause of the accident was startling event as to evoke spontaneous, rather than reflective,
not the way in which the dump truck had been parked but rather the reactions from observers who happened to be around at that time. The
reckless way in which Dionisio had driven his car that night when he testimony of Patrolman Cuyno was therefore admissible as part of
smashed into the dump truck. The Intermediate Appellate Court in its the res gestae and should have been considered by the trial court.
questioned decision casually conceded that Dionisio was "in some Clearly, substantial weight should have been ascribed to such
way, negligent" but apparently failed to see the relevance of Dionisio's testimony, even though it did not, as it could not, have purported to
negligence and made no further mention of it. We have examined the describe quantitatively the precise velocity at winch Dionisio was
record both before the trial court and the Intermediate Appellate Court travelling just before impact with the Phoenix dump truck.
and we find that both parties had placed into the record sufficient A third related issue is whether Dionisio purposely turned off his
evidence on the basis of which the trial court and the appellate court headlights, or whether his headlights accidentally malfunctioned, just
could have and should have made findings of fact relating to the moments before the accident. The Intermediate Appellate Court
alleged reckless manner in which Dionisio drove his car that night. The expressly found that the headlights of Dionisio's car went off as he
petitioners Phoenix and Carbonel contend that if there was negligence crossed the intersection but was non-committal as to why they did so.
in the manner in which the dump truck was parked, that negligence It is the petitioners' contention that Dionisio purposely shut off his
was merely a "passive and static condition" and that private headlights even before he reached the intersection so as not to be
respondent Dionisio's recklessness constituted an intervening, efficient detected by the police in the police precinct which he (being a resident
cause determinative of the accident and the injuries he sustained. The in the area) knew was not far away from the intersection. We believe
need to administer substantial justice as between the parties in this that the petitioners' theory is a more credible explanation than that
case, without having to remand it back to the trial court after eleven offered by private respondent Dionisio — i.e., that he had his
years, compels us to address directly the contention put forward by the headlights on but that, at the crucial moment, these had in some
petitioners and to examine for ourselves the record pertaining to mysterious if convenient way malfunctioned and gone off, although he
Dionisio's alleged negligence which must bear upon the liability, or succeeded in switching his lights on again at "bright" split seconds
extent of liability, of Phoenix and Carbonel. before contact with the dump truck.
There are four factual issues that need to be looked into: (a) whether or
not private respondent Dionisio had a curfew pass valid and effective A fourth and final issue relates to whether Dionisio was intoxicated at
for that eventful night; (b) whether Dionisio was driving fast or speeding the time of the accident. The evidence here consisted of the testimony
just before the collision with the dump truck; (c) whether Dionisio had of Patrolman Cuyno to the effect that private respondent Dionisio
purposely turned off his car's headlights before contact with the dump smelled of liquor at the time he was taken from his smashed car and
truck or whether those headlights accidentally malfunctioned moments brought to the Makati Medical Center in an unconscious
before the collision; and (d) whether Dionisio was intoxicated at the condition. 7 This testimony has to be taken in conjunction with the
time of the accident. admission of Dionisio that he had taken "a shot or two" of liquor before
dinner with his boss that night. We do not believe that this evidence is
As to the first issue relating to the curfew pass, it is clear that no curfew sufficient to show that Dionisio was so heavily under the influence of
pass was found on the person of Dionisio immediately after the liquor as to constitute his driving a motor vehicle per se an act of
accident nor was any found in his car. Phoenix's evidence here reckless imprudence. 8 There simply is not enough evidence to show
consisted of the testimony of Patrolman Cuyno who had taken how much liquor he had in fact taken and the effects of that upon his
Dionisio, unconscious, to the Makati Medical Center for emergency physical faculties or upon his judgment or mental alertness. We are
treatment immediately after the accident. At the Makati Medical Center, also aware that "one shot or two" of hard liquor may affect different
a nurse took off Dionisio's clothes and examined them along with the people differently.
contents of pockets together with Patrolman Cuyno. 1 Private The conclusion we draw from the factual circumstances outlined above
respondent Dionisio was not able to produce any curfew pass during is that private respondent Dionisio was negligent the night of the
the trial. Instead, he offered the explanation that his family may have accident. He was hurrying home that night and driving faster than he
misplaced his curfew pass. He also offered a certification (dated two should have been. Worse, he extinguished his headlights at or near
years after the accident) issued by one Major Benjamin N. Libarnes of the intersection of General Lacuna and General Santos Streets and
the Zone Integrated Police Intelligence Unit of Camp Olivas, San thus did not see the dump truck that was parked askew and sticking
Fernando, Pampanga, which was said to have authority to issue out onto the road lane.
curfew passes for Pampanga and Metro Manila. This certification was Nonetheless, we agree with the Court of First Instance and the
to the effect that private respondent Dionisio had a valid curfew pass. Intermediate Appellate Court that the legal and proximate cause of the
This certification did not, however, specify any pass serial number or accident and of Dionisio's injuries was the wrongful — or negligent
date or period of effectivity of the supposed curfew pass. We find that manner in which the dump truck was parked in other words, the
private respondent Dionisio was unable to prove possession of a valid negligence of petitioner Carbonel. That there was a reasonable
curfew pass during the night of the accident and that the relationship between petitioner Carbonel's negligence on the one hand
preponderance of evidence shows that he did not have such a pass and the accident and respondent's injuries on the other hand, is quite
during that night. The relevance of possession or non-possession of a clear. Put in a slightly different manner, the collision of Dionisio's car
curfew pass that night lies in the light it tends to shed on the other with the dump truck was a natural and foreseeable consequence of the
related issues: whether Dionisio was speeding home and whether he truck driver's negligence.
had indeed purposely put out his headlights before the accident, in
order to avoid detection and possibly arrest by the police in the nearby The petitioners, however, urge that the truck driver's negligence was
police station for travelling after the onset of curfew without a valid merely a "passive and static condition" and that private respondent
curfew pass. Dionisio's negligence was an "efficient intervening cause and that
On the second issue — whether or not Dionisio was speeding home consequently Dionisio's negligence must be regarded as the legal and
that night — both the trial court and the appellate court were proximate cause of the accident rather than the earlier negligence of
completely silent. Carbonel. We note that the petitioners' arguments are drawn from a
reading of some of the older cases in various jurisdictions in the United
The defendants in the trial court introduced the testimony of Patrolman States but we are unable to persuade ourselves that these arguments
Cuyno who was at the scene of the accident almost immediately after it have any validity for our jurisdiction. We note, firstly, that even in the
occurred, the police station where he was based being barely 200 United States, the distinctions between "cause" and "condition" which
meters away. Patrolman Cuyno testified that people who had gathered the 'petitioners would have us adopt have already been "almost
at the scene of the accident told him that Dionisio's car was "moving entirely discredited." Professors and Keeton make this quite clear:
fast" and did not have its headlights on. 2 Dionisio, on the other hand, Cause and condition. Many courts have sought to distinguish between
claimed that he was travelling at a moderate speed at 30 kilometers the active "cause" of the harm and the existing "conditions" upon which
per hour and had just crossed the intersection of General Santos and that cause operated. If the defendant has created only a passive static
General Lacuna Streets and had started to accelerate when his condition which made the damage possible, the defendant is said not
headlights failed just before the collision took place. 3 to be liable. But so far as the fact of causation is concerned, in the
Private respondent Dionisio asserts that Patrolman Cuyno's testimony sense of necessary antecedents which have played an important part
was hearsay and did not fag within any of the recognized exceptions to in producing the result it is quite impossible to distinguish between
the hearsay rule since the facts he testified to were not acquired by active forces and passive situations, particularly since, as is invariably
him through official information and had not been given by the the case, the latter are the result of other active forces which have
informants pursuant to any duty to do so. Private respondent's gone before. The defendant who spills gasoline about the premises
objection fails to take account of the fact that the testimony of creates a "condition," but the act may be culpable because of the
Patrolman Cuyno is admissible not under the official records exception danger of fire. When a spark ignites the gasoline, the condition has
to the hearsay rule 4 but rather as part of the res gestae. 5 Testimonial done quite as much to bring about the fire as the spark; and since that
evidence under this exception to the hearsay rule consists of excited is the very risk which the defendant has created, the defendant will not
utterances made on the occasion of an occurrence or event sufficiently escape responsibility. Even the lapse of a considerable time during
startling in nature so as to render inoperative the normal reflective which the "condition" remains static will not necessarily affect
thought processes of the observer and hence made as a spontaneous liability; one who digs a trench in the highway may still be liable to
reaction to the occurrence or event, and not the result of reflective another who fans into it a month afterward. "Cause" and "condition" still
thought. 6 find occasional mention in the decisions; but the distinction is now
almost entirely discredited. So far as it has any validity at all, it must
refer to the type of case where the forces set in operation by the

48 |TORTS AND DAMAGES

defendant have come to rest in a position of apparent safety, and common law concept of contributory negligence as an absolute bar to
some new force intervenes. But even in such cases, it is not the recovery by the plaintiff, has itself been rejected, as it has been in
distinction between "cause" and "condition" which is important but the Article 2179 of the Civil Code of the Philippines. 15
nature of the risk and the character of the intervening cause. 9 Is there perhaps a general concept of "last clear chance" that may be
extracted from its common law matrix and utilized as a general rule in
We believe, secondly, that the truck driver's negligence far from being negligence cases in a civil law jurisdiction like ours? We do not believe
a "passive and static condition" was rather an indispensable and so. Under Article 2179, the task of a court, in technical terms, is to
efficient cause. The collision between the dump truck and the private determine whose negligence — the plaintiff's or the defendant's — was
respondent's car would in an probability not have occurred had the the legal or proximate cause of the injury. That task is not simply or
dump truck not been parked askew without any warning lights or even primarily an exercise in chronology or physics, as the petitioners
reflector devices. The improper parking of the dump truck created an seem to imply by the use of terms like "last" or "intervening" or
unreasonable risk of injury for anyone driving down General Lacuna "immediate." The relative location in the continuum of time of the
Street and for having so created this risk, the truck driver must be held plaintiff's and the defendant's negligent acts or omissions, is only one
responsible. In our view, Dionisio's negligence, although later in point of the relevant factors that may be taken into account. Of more
of time than the truck driver's negligence and therefore closer to the fundamental importance are the nature of the negligent act or omission
accident, was not an efficient intervening or independent cause. What of each party and the character and gravity of the risks created by such
the Petitioners describe as an "intervening cause" was no more than a act or omission for the rest of the community. The petitioners urge that
foreseeable consequent manner which the truck driver had parked the the truck driver (and therefore his employer) should be absolved from
dump truck. In other words, the petitioner truck driver owed a duty to responsibility for his own prior negligence because the unfortunate
private respondent Dionisio and others similarly situated not to impose plaintiff failed to act with that increased diligence which had become
upon them the very risk the truck driver had created. Dionisio's necessary to avoid the peril precisely created by the truck driver's own
negligence was not of an independent and overpowering nature as to wrongful act or omission. To accept this proposition is to come too
cut, as it were, the chain of causation in fact between the improper close to wiping out the fundamental principle of law that a man must
parking of the dump truck and the accident, nor to sever the juris respond for the forseeable consequences of his own negligent act or
vinculum of liability. It is helpful to quote once more from Professor and omission. Our law on quasi-delicts seeks to reduce the risks and
Keeton: burdens of living in society and to allocate them among the members
of society. To accept the petitioners' pro-position must tend to weaken
Foreseeable Intervening Causes. If the intervening cause is one which the very bonds of society.
in ordinary human experience is reasonably to be anticipated or one Petitioner Carbonel's proven negligence creates a presumption of
which the defendant has reason to anticipate under the particular negligence on the part of his employer Phoenix 16 in supervising its
circumstances, the defendant may be negligence among other employees properly and adequately. The respondent appellate court in
reasons, because of failure to guard against it; or the defendant may effect found, correctly in our opinion, that Phoenix was not able to
be negligent only for that reason. Thus one who sets a fire may be overcome this presumption of negligence. The circumstance that
required to foresee that an ordinary, usual and customary wind arising Phoenix had allowed its truck driver to bring the dump truck to his
later wig spread it beyond the defendant's own property, and therefore home whenever there was work to be done early the following
to take precautions to prevent that event. The person who leaves the morning, when coupled with the failure to show any effort on the part of
combustible or explosive material exposed in a public place may Phoenix to supervise the manner in which the dump truck is parked
foresee the risk of fire from some independent source. ... In all of these when away from company premises, is an affirmative showing of culpa
cases there is an intervening cause combining with the defendant's in vigilando on the part of Phoenix.
conduct to produce the result and in each case the defendant's Turning to the award of damages and taking into account the
negligence consists in failure to protect the plaintiff against that very comparative negligence of private respondent Dionisio on one hand
risk. and petitioners Carbonel and Phoenix upon the other hand, 17 we
Obviously the defendant cannot be relieved from liability by the fact believe that the demands of substantial justice are satisfied by
that the risk or a substantial and important part of the risk, to which the allocating most of the damages on a 20-80 ratio. Thus, 20% of the
defendant has subjected the plaintiff has indeed come to pass. damages awarded by the respondent appellate court, except the
Foreseeable intervening forces are within the scope original risk, and award of P10,000.00 as exemplary damages and P4,500.00 as
hence of the defendant's negligence. The courts are quite generally attorney's fees and costs, shall be borne by private respondent
agreed that intervening causes which fall fairly in this category will not Dionisio; only the balance of 80% needs to be paid by petitioners
supersede the defendant's responsibility. Carbonel and Phoenix who shall be solidarity liable therefor to the
Thus it has been held that a defendant will be required to anticipate the former. The award of exemplary damages and attorney's fees and
usual weather of the vicinity, including all ordinary forces of nature costs shall be borne exclusively by the petitioners. Phoenix is of course
such as usual wind or rain, or snow or frost or fog or even entitled to reimbursement from Carbonel. 18 We see no sufficient
lightning; that one who leaves an obstruction on the road or a railroad reason for disturbing the reduced award of damages made by the
track should foresee that a vehicle or a train will run into it; ... respondent appellate court.
The risk created by the defendant may include the intervention of the WHEREFORE, the decision of the respondent appellate court is
foreseeable negligence of others. ... [The standard of reasonable modified by reducing the aggregate amount of compensatory
conduct may require the defendant to protect the plaintiff against 'that damages, loss of expected income and moral damages private
occasional negligence which is one of the ordinary incidents of human respondent Dionisio is entitled to by 20% of such amount. Costs
life, and therefore to be anticipated.' Thus, a defendant who blocks the against the petitioners. SO ORDERED.
sidewalk and forces the plaintiff to walk in a street where the plaintiff
will be exposed to the risks of heavy traffic becomes liable when the
plaintiff is run down by a car, even though the car is negligently G.R. No. 105410 July 25, 1994
driven; and one who parks an automobile on the highway without lights PILIPINAS BANK, petitioner,
at night is not relieved of responsibility when another negligently drives vs.
into it. --- 10 HON. COURT OF APPEALS AND FLORENCIO
We hold that private respondent Dionisio's negligence was "only REYES, respondents.
contributory," that the "immediate and proximate cause" of the injury Gella Reyes Danguilan & Associates for petitioner.
remained the truck driver's "lack of due care" and that consequently Santos V. Pampolina, Jr. for private respondent.
respondent Dionisio may recover damages though such damages are
subject to mitigation by the courts (Article 2179, Civil Code of the PUNO, J.:
Philippines).
This is a petition for review of the Decision of the respondent court1 in
Petitioners also ask us to apply what they refer to as the "last clear CA-G.R. CV No. 29524 dated May 13, 1992 which ordered petitioner
chance" doctrine. The theory here of petitioners is that while the to pay the private respondent the sum of P50,000.00 as moral
petitioner truck driver was negligent, private respondent Dionisio had damages, P25,000.00 as attorney's fees and cost of suit.
the "last clear chance" of avoiding the accident and hence his injuries, The facts as found both by the trial court2 and the respondent court
and that Dionisio having failed to take that "last clear chance" must are:
bear his own injuries alone. The last clear chance doctrine of the As payments for the purchased shoe materials and rubber shoes,
common law was imported into our jurisdiction by Picart vs. Florencio Reyes issued postdated checks to Winner Industrial
Smith 11 but it is a matter for debate whether, or to what extent, it has Corporation for P20,927.00 and Vicente Tui, for P11,419.50, with due
found its way into the Civil Code of the Philippines. The historical dates on October 10 and 12, 1979, respectively.
function of that doctrine in the common law was to mitigate the To cover the face value of the checks, plaintiff, on October 10, 1979,
harshness of another common law doctrine or rule that of contributory requested PCIB Money Shop's manager Mike Potenciano to effect the
negligence. 12 The common law rule of contributory negligence withdrawal of P32,000.00 from his savings account therein and have it
prevented any recovery at all by a plaintiff who was also negligent, deposited with his current account with Pilipinas Bank (then Filman
even if the plaintiff's negligence was relatively minor as compared with Bank), Biñan Branch. Roberto Santos was requested to make the
the wrongful act or omission of the defendant. 13 The common law deposit.
notion of last clear chance permitted courts to grant recovery to a
plaintiff who had also been negligent provided that the defendant had In depositing in the name of FLORENCIO REYES, he inquired from the
the last clear chance to avoid the casualty and failed to do teller the current account number of Florencio Reyes to complete the
so. 14 Accordingly, it is difficult to see what role, if any, the common deposit slip he was accomplishing. He was informed that it was "815"
law last clear chance doctrine has to play in a jurisdiction where the

49 |TORTS AND DAMAGES

and so this was the same current account number he placed on the Appeal). Unfortunately, it was a "petty thing," like the incorrect account
deposit slip below the depositor's name FLORENCIO REYES. number that the bank teller wrote on the initial deposit slip for the
Nothing that the account number coincided with the name Florencio, newly-opened joint current account of the Canlas spouses that sparked
Efren Alagasi, then Current Account Bookkeeper of Pilipinas Bank, this half-a-million-peso damage suit against the bank.
thought it was for Florencio Amador who owned the listed account
number. He, thus, posted the deposted in the latter's account not While the bank's negligence may not have been attended with malice
noticing that the depositor's surname in the deposit slip was REYES. and bad faith, nevertheless, it caused serious anxiety, embarrassment
On October 11, 1979, the October 10, check in favor of Winner and humiliation to the private respondents for which they are entitled to
Industrial Corporation was presented for payment. Since the ledger of recover reasonable moral damages (American Express International,
Florencio Reyes indicated that his account had only a balance of Inc. IAC, 167 SCRA 209). The award of reasonable attorney's fees is
P4,078.43, it was dishonored and the payee was advised to try it for proper for the private respondent's were compelled to litigate to protect
next clearing. their interest (Art. 2208, Civil Code). However, the absence of malice
On October 15, 1979, the October 10, 1979 check was redeposited but and bad faith renders the award of exemplary damages improper
was again dishonored. Likewise, the October 12, 1979 check in favor (Globe Mackay Cable and Radio Corp. vs. Court of Appeals, 176
of Vicente Tui when presented for payment on that same date met the SCRA 778).
same fate but was advised to try the next clearing. Two days after the IN VIEW WHEREOF, the petition is denied there being no reversible
October 10 check was again dishonored, the payee returned the same error in the Decision of the respondent court. Cost against petitioner.
to Florencio Reyes and demanded a cash payment of its face value SO ORDERED.
which he did if only to save his name. The October 12, 1979 check
was redeposited on October 18, 1979, but again dishonored for the
reason that the check was drawn against insufficient fund. G.R. No. 150304 June 15, 2005
Furious over the incident, he immediately proceeded to the bank and QUEZON CITY GOVERNMENT and Engineer RAMIR J.
urged an immediate verification of his account. TIAMZON, Petitioners,
Upon verification, the bank noticed the error. The P32,000.00 deposit vs.
posted in the account of Florencio Amador was immediately FULGENCIO DACARA*, Respondent.
transferred to the account of Reyes upon being cleared by Florencio DECISION
Amador that he did not effect a deposit in the amount of P32,000.00.
The transfer having been effected, the bank then honored the October PANGANIBAN, J.:
12, 1979, check (Exh. "C").
The review of cases under Rule 45 of the Rules of Court is limited to
On the basis of these facts, the trial court ordered petitioner to pay to errors of law. Unless there is a showing that the findings of the lower
the private respondent: (1) P200,000.00 as compensatory damages; court are totally devoid of support or are glaringly erroneous, this Court
(2) P100,000.00 as moral damages; (3) P25,000.00 as attorney's fees, will not analyze or weigh evidence all over again. Under the
and (4) the costs of suit. On appeal to the respondent court, the circumstance, the factual findings and conclusions of the Court of
judgment was modified as aforestated. Appeals affirming those of the trial courts will be conclusive upon the
In this petition for review, petitioner argues: Supreme Court. Furthermore, well-entrenched is the rule that points of
I. Respondent Court of Appeals erred on a matter of law, in not law, theories, issues and arguments not brought to the attention of the
applying the first sentence of Article 2179, New Civil Code, in view of trial court cannot be raised for the first time on appeal or certiorari.
its own finding that respondent Reyes' own representative committed Finally, this Court reiterates the principle that moral damages are
the mistake in writing down the correct account number; designed to compensate the claimant for actual injury suffered, not to
II. Respondent Court of Appeals erred, on a matter of law, in holding impose a penalty on the wrongdoer. Hence, absent any definite finding
that respondent Reyes has the right to recover moral damages and in as to what they consist of, the alleged moral damages suffered would
awarding the amount of P50,000.00, when there is no legal nor factual become a penalty rather than a compensation for actual injury
basis for it; suffered.
III. The Honorable Court of Appeals erred, on a matter of law, in The Case
holding petitioner liable for attorney's fees in the amount of Before us is a Petition for Review1 under Rule 45 of the Rules of Court,
P20,000.00, when there is no legal nor factual basis for it. assailing the February 21, 2001 Decision2 and the October 9, 2001
We find no merit in the petition. Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 29392. The
First. For Article 21793 of the Civil Code to apply, it must be established challenged Decision disposed as follows:
that private respondent's own negligence was the immediate and "WHEREFORE, premises considered, the Decision dated June 29,
proximate cause of his injury. The concept of proximate cause is well 1990 in Civil Case No. Q-88-233 should be AFFIRMED, with costs
defined in our corpus of jurisprudence as "any cause which, in natural against the appellants."4
and continuous sequence, unbroken by any efficient intervening cause, The assailed Resolution denied petitioners' Motion for Reconsideration.
produces the result complained of and without which would not have
occurred and from which it ought to have been forseen or reasonably The Facts
anticipated by a person of ordinary case that the injury complained of The CA summarized the facts in this manner:
or some similar injury, would result therefrom as a natural and "Sometime on February 28, 1988 at about 1:00 A.M., Fulgencio
probable consequence."4 In the case at bench, the proximate cause of Dacara, Jr., son of Fulgencio P. Dacara, Sr. and owner of '87 Toyota
the injury is the negligence of petitioner's employee in erroneously Corolla 4-door Sedan with Plate No. 877 (sic), while driving the said
posting the cash deposit of private respondent in the name of another vehicle, rammed into a pile of earth/street diggings found at Matahimik
depositor who had a similar first name. As held by the trial court: St., Quezon City, which was then being repaired by the Quezon City
xxx xxx xxx government. As a result, Dacarra (sic), Jr. allegedly sustained bodily
injuries and the vehicle suffered extensive damage for it turned turtle
Applying the test, the bank employee is, on that basis, deemed to have when it hit the pile of earth.
failed to exercise the degree of care required in the performance of his "Indemnification was sought from the city government (Record, p. 22),
duties. As earlier stated, the bank employee posted the cash deposit in which however, yielded negative results. Consequently, Fulgencio P.
the account of Florencio Amador from his assumption that the name Dacara (hereinafter referred to as FULGENCIO), for and in behalf of
Florencio appearing on the ledger without, however, going through the his minor son, Jr., filed a Complaint (Record, p. 1) for damages against
full name, is the same Florencio stated in the deposit slip. He should the Quezon City and Engr. Ramir Tiamzon, as defendants, before the
have continuously gone beyond mere assumption, which was proven Regional Trial Court, National Capital Judicial Region, Branch 101,
to be erroneous, and proceeded with clear certainty, considering the Quezon City, docketed as Civil Case No. Q-88-233. FULGENCIO
amount involved and the repercussions it would create on the totality of prayed that the amount of not less than ₱20,000.00 actual or
the person notable of which is the credit standing of the person compensatory damages, ₱150,000.00 moral damages, ₱30,000.00
involved should a mistake happen. The checks issued by the plaintiff in exemplary damages, and ₱20,000.00 attorney's fees and costs of the
the course of his business were dishonored by the bank because the suit be awarded to him.
ledger of Florencio Reyes indicated a balance insufficient to cover the "In an Answer with Affirmative and/or Special Defenses (Record, p.
face value of checks. 11), defendants admitted the occurrence of the incident but alleged
Second. In light of this negligence, the liability of petitioner for moral that the subject diggings was provided with a moun[d] of soil and
damages cannot be impugned. So we held in Bank of the Philippine barricaded with reflectorized traffic paint with sticks placed before or
Islands vs. IAC, et al.5 after it which was visible during the incident on February 28, 1988 at
1:00 A.M. In short, defendants claimed that they exercised due care by
The bank is not expected to be infallible but, as correctly observed by providing the area of the diggings all necessary measures to avoid
respondent Appellate Court, in this instance, it must bear the blame for accident. Hence, the reason why Fulgencio Dacara, Jr. fell into the
not discovering the mistake of its teller despite the established diggings was precisely because of the latter's negligence and failure to
procedure requiring the papers and bank books to pass through a exercise due care."5
battery of bank personnel whose duty it is to check and countercheck After trial on the merits, the Regional Trial Court (RTC), Branch 101,
them for possible errors. Apparently, the officials and employees Quezon City, rendered its Decision6 dated June 29, 1990. The
tasked to do that did not perform their duties with due care, as may be evidence proffered by the complainant (herein respondent) was found
gathered from the testimony of the bank's lone witness, Antonio to be sufficient proof of the negligence of herein petitioners. Under
Enciso, who casually declared that "the approving officer does not Article 2189 of the Civil Code,7 the latter were held liable as follows:
have to see the account numbers and all those things. Those are very
petty things for the approving manager to look into" (p. 78, Record on

50 |TORTS AND DAMAGES

"WHEREFORE, premises above considered, based on the quantum of negligence was the proximate cause of the accident bars us from
evidence presented by the plaintiff which tilts in their favor elucidating supplanting their findings and substituting these with our own. The
the negligent acts of the city government together with its employees function of this Court is limited to the review of the appellate court's
when considered in the light of Article 2189, judgment is hereby alleged errors of law. It is not required to weigh all over again the
rendered ordering the defendants to indemnify the plaintiff the sum of factual evidence already considered in the proceedings
twenty thousand pesos as actual/compensatory damages, ₱10,000.00 below.18 Petitioners have not shown that they are entitled to an
as moral damages, ₱5,000.00 as exemplary damages, ₱10,000.00 as exception to this rule.19 They have not sufficiently demonstrated any
attorney's fees and other costs of suit."8 special circumstances to justify a factual review.
In their appeal to the CA, petitioners maintained that they had That the negligence of petitioners was the proximate cause of the
observed due diligence and care in installing preventive warning accident was aptly discussed in the lower court's finding, which we
devices, and that it was in fact the plaintiff who had failed to exercise quote:
prudence by driving too fast to avoid the diggings. Moreover, the lower "Facts obtaining in this case are crystal clear that the accident of
court allegedly erred in using Article 2189 of the Civil Code, which February 28, 1988 which caused almost the life and limb of Fulgencio
supposedly applied only to liability for the death or injuries suffered by Dacara, Jr. when his car turned turtle was the existence of a pile of
a person, not for damage to property. earth from a digging done relative to the base failure at Matahimik
Street nary a lighting device or a reflectorized barricade or sign
Ruling of the Court of Appeals perhaps which could have served as an adequate warning to motorist
The CA agreed with the RTC's finding that petitioners' negligence was especially during the thick of the night where darkness is pervasive.
the proximate cause of the damage suffered by respondent. 9 Noting "Contrary to the testimony of the witnesses for the defense that there
the failure of petitioners to present evidence to support their contention were signs, gasera which was buried so that its light could not be
that precautionary measures had indeed been observed, it ruled thus: blown off by the wind and barricade, none was ever presented to
"x x x. Sadly, the evidence indicates that [petitioners] failed to show stress the point that sufficient and adequate precautionary signs were
that they placed sufficient and adequate precautionary signs at placed at Matahimik Street. If indeed signs were placed thereat, how
Matahimik Street to minimize or prevent the dangers to life and limb then could it be explained that according to the report even of the
under the circumstances. Contrary to the testimony of the witnesses policeman which for clarity is quoted again, none was found at the
for the [petitioners], namely Engr. Ramir Tiamzon, Ernesto Landrito scene of the accident.
and Eduardo Castillo, that there were signs, gasera which was buried xxxxxxxxx
so that its light could not be blown off by the wind and barricade, none "Negligence of a person whether natural or juridical over a particular
was ever presented to stress and prove the sufficiency and adequacy set of events is transfixed by the attending circumstances so that the
of said contention."10 greater the danger known or reasonably anticipated, the greater is the
Further upholding the trial court's finding of negligence on the part of degree of care required to be observed.
herein petitioners, the CA gave this opinion: xxxxxxxxx
"x x x. As observed by the trial court, the negligence of [petitioners] "The provisions of Article 2189 of the New Civil Code capsulizes the
was clear based on the investigation report of Pfc. William P. responsibility of the city government relative to the maintenance of
Villafranca stating to the effect 'that the subject vehicle rammed into a roads and bridges since it exercises the control and supervision over
pile of earth from a deep excavation thereat without any warning the same. Failure of the defendant to comply with the statutory
devi[c]e whatsoever and as a consequence thereof, Dacara, Jr. lost provision found in the subject-article is tantamount to negligence per
control of his driven car and finally turned-turtle causing substantial se which renders the City government liable. Harsh application of the
damage to the same.' As a defense against liability on the basis of law ensues as a result thereof but the state assumed the responsibility
quasi-delict, one must have exercised the diligence of a good father of for the maintenance and repair of the roads and bridges and neither
a family which [petitioners] failed to establish in the instant case." 11 exception nor exculpation from liability would deem just and
Whether Article 2189 is applicable to cases in which there has been no equitable."20 (Emphasis supplied)
death or physical injury, the CA ruled in the affirmative: Petitioners belatedly point out that Fulgencio Jr. was driving at the
"x x x. More importantly, we find it illogical to limit the liability to death speed of 60 kilometers per hour (kph) when he met the accident. This
or personal injury only as argued by appellants in the case at bar speed was allegedly well above the maximum limit of 30 kph allowed
applying the foregoing provisions. For, injury is an act that damages, on "city streets with light traffic, when not designated 'through streets,'"
harms or hurts and mean in common as the act or result of inflicting on as provided under the Land Transportation and Traffic Code (Republic
a person or thing something that causes loss, pain, distress, or Act 4136). Thus, petitioners assert that Fulgencio Jr., having violated a
impairment. Injury is the most comprehensive, applying to an act or traffic regulation, should be presumed negligent pursuant to Article
result involving an impairment or destruction of right, health, freedom, 218521 of the Civil Code.22
soundness, or loss of something of value."12Hence, this Petition.13 These matters were, however, not raised by petitioners at any time
during the trial. It is evident from the records that they brought up for
Issues the first time the matter of violation of RA 4136 in their Motion for
Petitioners raise the following issues for our consideration: Reconsideration23 of the CA Decision dated February 21, 2001. It is too
"1. The Honorable Court of Appeals decided a question of late in the day for them to raise this new issue. It is well-settled that
law/substance contrary to applicable law and jurisprudence when it points of law, theories or arguments not brought out in the original
affirmed the award of moral damage suit (sic) the amount of proceedings cannot be considered on review or appeal. 24 To consider
₱10,000.00. their belatedly raised arguments at this stage of the proceedings would
2. The Honorable Court of Appeals decided a question of trample on the basic principles of fair play, justice, and due process. 25
law/substance contrary to applicable law and jurisprudence when it Indeed, both the trial and the appellate courts' findings, which are
affirmed the award of exemplary damage sin (sic) the amount of amply substantiated by the evidence on record, clearly point to
₱5,000.00 and attorney's fee in the [a]mount of ₱10,000.00. petitioners' negligence as the proximate cause of the damages
3. The Honorable Court of Appeals gravely erred and/;or (sic) had suffered by respondent's car. No adequate reason has been given to
acted with grave abuse of discretion amounting to lack and/or excess overturn this factual conclusion.
of jurisdiction when it refused to hold that respondent's son in the
person of Fulgencio Dacara, Jr. was negligent at the time of incident." 14 Second Issue:Moral Damages
Because the issues regarding the liability of petitioners for moral and
exemplary damages presuppose that their negligence caused the Petitioners argue that moral damages are recoverable only in the
vehicular accident, we first resolve the question of negligence or the instances specified in Article 221926 of the Civil Code. Although the
proximate cause of the incident. instant case is an action for quasi-delict, petitioners contend that moral
damages are not recoverable, because no evidence of physical injury
The Court's Ruling-The Petition is partly meritorious. were presented before the trial court.27
To award moral damages, a court must be satisfied with proof of the
First Issue:Negligence following requisites: (1) an injury -- whether physical, mental, or
psychological -- clearly sustained by the claimant; (2) a culpable act or
Maintaining that they were not negligent, petitioners insist that they omission factually established; (3) a wrongful act or omission of the
placed all the necessary precautionary signs to alert the public of a defendant as the proximate cause of the injury sustained by the
roadside construction. They argue that the driver (Fulgencio Dacara claimant; and (4) the award of damages predicated on any of the
Jr.) of respondent's car was overspeeding, and that his own negligence cases stated in Article 2219.28
was therefore the sole cause of the incident. Article 2219(2) specifically allows moral damages to be recovered for
Proximate cause is defined as any cause that produces injury in a quasi-delicts, provided that the act or omission caused physical
natural and continuous sequence, unbroken by any efficient injuries. There can be no recovery of moral damages unless the quasi-
intervening cause, such that the result would not have occurred delict resulted in physical injury.29 This rule was enunciated in Malonzo
otherwise.15 Proximate cause is determined from the facts of each v. Galang30 as follows:
case, upon a combined consideration of logic, common sense, policy
and precedent.16 "x x x. Besides, Article 2219 specifically mentions 'quasi-delicts causing
physical injuries,' as an instance when moral damages may be
What really caused the subject vehicle to turn turtle is a factual issue allowed, thereby implying that all other quasi-delicts not resulting in
that this Court cannot pass upon, absent any whimsical or capricious physical injuries are excluded, excepting of course, the special torts
exercise of judgment by the lower courts or an ample showing that referred to in Art. 309 (par. 9, Art. 2219) and in Arts. 21, 26, 27, 28, 29,
they lacked any basis for their conclusions.17 The unanimity of the CA 30, 32, 34 and 35 on the chapter on human relations (par. 10, Art.
and the trial court in their factual ascertainment that petitioners' 2219)."

51 |TORTS AND DAMAGES

In the present case, the Complaint alleged that respondent's son Article 2229 of the Civil Code provides that exemplary damages may
Fulgencio Jr. sustained physical injuries. The son testified that he be imposed by way of example or correction for the public good. The
suffered a deep cut on his left arm when the car overturned after hitting award of these damages is meant to be a deterrent to socially
a pile of earth that had been left in the open without any warning deleterious actions.45 Public policy requires such imposition to
device whatsoever. suppress wanton acts of an offender.46 It must be emphasized that
It is apparent from the Decisions of the trial and the appellate courts, local governments and their employees should be responsible not only
however, that no other evidence (such as a medical certificate or proof for the maintenance of roads and streets, but also for the safety of the
of medical expenses) was presented to prove Fulgencio Jr.'s bare public. Thus, they must secure construction areas with adequate
assertion of physical injury. Thus, there was no credible proof that precautionary measures.
would justify an award of moral damages based on Article 2219(2) of Not only is the work of petitioners impressed with public interest; their
the Civil Code. very existence is justified only by public service. Hence, local
Moreover, the Decisions are conspicuously silent with respect to the governments have the paramount responsibility of keeping the
claim of respondent that his moral sufferings were due to the interests of the public foremost in their agenda. For these reasons, it is
negligence of petitioners. The Decision of the trial court, which most disturbing to note that the present petitioners are the very parties
summarizes the testimony of respondent's four witnesses, makes no responsible for endangering the public through such a rash and
mention of any statement regarding moral suffering, such as mental reckless act.
anguish, besmirched reputation, wounded feelings, social humiliation
and the like. WHEREFORE, the Petition is hereby PARTLY GRANTED. The
Moral damages are not punitive in nature, but are designed to Decision of the Court of Appeals is AFFIRMED, with
compensate and alleviate in some way the physical suffering, mental the MODIFICATION that the award of moral damages
anguish, fright, serious anxiety, besmirched reputation, wounded is DELETED. No costs. SO ORDERED.
feelings, moral shock, social humiliation, and similar injury unjustly
inflicted on a person.31 Intended for the restoration of the psychological
or emotional status quo ante, the award of moral damages is designed G.R. No. 185891 June 26, 2013
to compensate emotional injury suffered, not to impose a penalty on CATHAY PACIFIC AIRWAYS, Petitioner,
the wrongdoer. vs.
JUANITA REYES, WILFREDO REYES, MICHAEL ROY REYES,
For the court to arrive upon a judicious approximation of emotional or SIXTA LAPUZ, and SAMPAGUITA TRAVEL CORP., Respondents.
moral injury, competent and substantial proof of the suffering DECISION
experienced must be laid before it. Essential to this approximation
are definite findings as to what the supposed moral damages suffered PEREZ, J.:
consisted of; otherwise, such damages would become a penalty rather
than a compensation for actual injury suffered.32 Assailed in this petition for review are the Decision1 dated 22 October
Furthermore, well-settled is the rule that moral damages cannot be 2008 in CA-G.R. CV. No. 86156 and the 6 January 2009 Resolution2 in
awarded -- whether in a civil33 or a criminal case34 -- in the absence of the same case of the Court of Appeals.
proof of physical suffering, mental anguish, fright, serious anxiety, This case started as a complaint for damages tiled by respondents
besmirched reputation, wounded feelings, moral shock, social against Cathay Pacific Airways (Cathay Pacific) and Sampaguita
humiliation, or similar injury.35 The award of moral damages must be Travel Corp. (Sampaguita Travel), now joined as a respondent. The
solidly anchored on a definite showing that factual backdrop leading to the filing of the complaint is as follows:
respondent actually experienced emotional and mental sufferings. Sometime in March 1997, respondent Wilfredo Reyes (Wilfredo) made
Mere allegations do not suffice; they must be substantiated by clear a travel reservation with Sampaguita Travel for his family’s trip to
and convincing proof.36 Adelaide, Australia scheduled from 12 April 1997 to 4 May 1997. Upon
booking and confirmation of their flight schedule, Wilfredo paid for the
Third Issue: airfare and was issued four (4) Cathay Pacific round-trip airplane
Exemplary Damages tickets for Manila-HongKong-Adelaide-HongKong-Manila with the
Petitioners argue that exemplary damages and attorney's fees are not following record locators:
recoverable. Allegedly, the RTC and the CA "did not find that 1âwphi1
petitioners were guilty of gross negligence in the performance of their Name of Passenger PNR OR RECORD LOCATOR NOS.3
duty and responsibilities."37
Reyes, Wilfredo J76TH
Exemplary damages cannot be recovered as a matter of right.38 While Reyes, Juanita HDWC3
granting them is subject to the discretion of the court, they can be Reyes, Michael Roy H9VZF
awarded only after claimants have shown their entitlement to moral, Lapuz, Sixta HTFMG4
temperate or compensatory damages.39 In the case before us,
On 12 April 1997, Wilfredo, together with his wife Juanita Reyes
respondent sufficiently proved before the courts a quo that petitioners' (Juanita), son Michael Roy Reyes (Michael) and mother-in-law Sixta
negligence was the proximate cause of the incident, thereby
Lapuz (Sixta), flew to Adelaide, Australia without a hitch.
establishing his right to actual or compensatory damages. He has
One week before they were scheduled to fly back home, Wilfredo
adduced adequate proof to justify his claim for the damages caused reconfirmed his family’s return flight with the Cathay Pacific office in
his car. The question that remains, therefore, is whether exemplary
Adelaide. They were advised that the reservation was "still okay as
damages may be awarded in addition to compensatory damages.
scheduled."
On the day of their scheduled departure from Adelaide, Wilfredo and
Article 2231 of the Civil Code mandates that in cases of quasi-delicts,
his family arrived at the airport on time. When the airport check-in
exemplary damages may be recovered if the defendant acted with
counter opened, Wilfredo was informed by a staff from Cathay Pacific
gross negligence.40 Gross negligence means such utter want of care that the Reyeses did not have confirmed reservations, and only Sixta’s
as to raise a presumption that the persons at fault must have been
flight booking was confirmed. Nevertheless, they were allowed to
conscious of the probable consequences of their carelessness, and
board the flight to HongKong due to adamant pleas from Wilfredo.
that they must have nevertheless been indifferent (or worse) to the When they arrived in HongKong, they were again informed of the same
danger of injury to the person or property of others. 41 The negligence
problem. Unfortunately this time, the Reyeses were not allowed to
must amount to a reckless disregard for the safety of persons or
board because the flight to Manila was fully booked. Only Sixta was
property. Such a circumstance obtains in the instant case. allowed to proceed to Manila from HongKong. On the following day,
the Reyeses were finally allowed to board the next flight bound for
A finding of gross negligence can be discerned from the Decisions of
Manila.
both the CA and the trial court. We quote from the RTC Decision: Upon arriving in the Philippines, Wilfredo went to Sampaguita Travel to
"Sad to state that the City Government through its instrumentalities
report the incident. He was informed by Sampaguita Travel that it was
have (sic) failed to show the modicum of responsibility, much less, care
actually Cathay Pacific which cancelled their bookings.
expected of them (sic) by the constituents of this City. It is even more On 16 June 1997, respondents as passengers, through counsel, sent a
deplorable that it was a case of a street digging in a side street which
letter to Cathay Pacific advising the latter of the incident and
caused the accident in the so-called 'premier city.'"421avvphi1.zw+
demanding payment of damages.
The CA reiterated the finding of the trial court that petitioners'
After a series of exchanges and with no resolution in sight,
negligence was clear, considering that there was no warning
respondents filed a Complaint for damages against Cathay Pacific and
device whatsoever43 at the excavation site.
Sampaguita Travel and prayed for the following relief: a)
₱1,000,000.00 as moral damages; b) ₱300,000.00 as actual damages;
The facts of the case show a complete disregard by petitioners of any
c) ₱100,000.00 as exemplary damages; and d) ₱100,000.00 as
adverse consequence of their failure to install even a single warning
attorney’s fees.5
device at the area under renovation. Considering further that the street
In its Answer, Cathay Pacific alleged that based on its computerized
was dimly lit,44 the need for adequate precautionary measures was
booking system, several and confusing bookings were purportedly
even greater. By carrying on the road diggings without any warning or
made under the names of respondents through two (2) travel agencies,
barricade, petitioners demonstrated a wanton disregard for public
namely: Sampaguita Travel and Rajah Travel Corporation. Cathay
safety. Indeed, the February 28, 1988 incident was bound to happen
Pacific explained that only the following Passenger Name Records
due to their gross negligence. It is clear that under the circumstances,
(PNRs) appeared on its system: PNR No. H9V15, PNR No. HTFMG,
there is sufficient factual basis for a finding of gross negligence on their
part.

52 |TORTS AND DAMAGES

PNR No. J9R6E, PNR No. J76TH, and PNR No. H9VSE. Cathay 2. That the plaintiffs did not make their bookings directly with Cathay
Pacific went on to detail each and every booking, to wit: Pacific Airways;
3. That the plaintiffs did not purchase and did not get their tickets from
1. PNR No. H9V15 Cathay Pacific Airways;
Agent: Sampaguita Travel Corp. 4. That Cathay Pacific Airways has promptly replied to all
Party: Ms. J Reyes, Mr. M R Reyes, Mr. W Reyes communications sent by the plaintiffs through their counsel;
Itinerary: CX902/CX105 MNL/HKG/ADL 12 APR. 5. That the plane tickets issued to plaintiffs were valid, which is why
The itinerary listed above was confirmed booking. However, the they were able to depart from Manila to Adelaide, Australia and that
itinerary did not include booking for the return flights. From information the reason why they were not able to board their return flight from
retrieved from ABACUS (the booking system used by agents), the Adelaide was because of the alleged cancellation of their booking by
agent has, on 10 April, added segments CX104/CX905 ADL/HKG/MNL Cathay Pacific Airways at Adelaide, save for that of Sixta Lapuz whose
04 MAY on MK status, which was not a confirmed booking. MK booking was confirmed by Cathay Pacific Airways;
function is used for synchronizing records or for ticketing purposes 6. That several reservations and bookings for the plaintiffs were done
only. It does not purport to be a real booking. As a result, no booking by defendant Sampaguita Travel Corporation through the computer
was transmitted into CPA’s system. reservation system and each of such request was issued a PNR;
2. PNR No. HTFMG 7. That, as a travel agent, defendant Sampaguita Travel Corporation
Agent: Sampaguita Travel Corp. merely acts as a booking/sales/ticketing arm for airline companies and
Party: Mrs. Sixta Lapuz it has nothing to do with the airline operations;
Itinerary: CX902/CX105 MNL/HKG/ADL 12 APR, CX104/CX907 8. That in the travel industry, the practice of reconfirmation of return
ADL/HKG/MNL 04/05 MAY. flights by passengers is coursed or done directly with the airline
The above itinerary is the actual itinerary that the passenger has flown. company and not with the travel agent, which has no participation,
However, for the return sector, HKG/MNL, the original booking was on control or authority in making such reconfirmations.
CX905 of 04 May. This original booking was confirmed on 21 Mar. and 9. That in the travel industry, the practice of cancellation of flights is
ticketed on 11 Apr. within the control of the airline and not of the travel agent, unless the
This booking was cancelled on 04 May at 9:03 p.m. when CX905 was travel agent is requested by the passengers to make such
almost scheduled to leave at the behest of the passenger and she was cancellations; and,
re-booked on CX907 of 05 May at the same time. 10. That defendant Cathay Pacific Airways has advertised that "there is
3. PNR No. J9R6E no need to confirm your flight when travelling with us", although Cathay
Agent: Rajah Travel Corp. Pacific Airways qualifies the same to the effect that in some cases
Party: Mrs. Julieta Gaspar, Mrs. Sixta Lapuz, Mrs. Juanita Reyes, there is a need for reconfirmations.8
Mr. Michael Roy Reyes, Mr. Wilfredo Reyes. After trial on the merits, the Regional Trial Court (RTC) rendered a
Itinerary: CX900 & CX902 MNL/HKG 12 APR, CX105 HKG/ADL 12 Decision,9 the dispositive part of which reads:
APR, CX104/CX905 ADL/HKG/MNL 04 MAY & 07 MAY WHEREFORE, premises considered, judgment is hereby rendered in
The party was confirmed initially on CX900/12 Apr, CX105/12 Apr, favor of the defendants and against the herein plaintiff. Accordingly,
CX104/CX9095 07 May and on waiting list for CX902/12 Apr, plaintiffs’ complaint is hereby ordered DISMISSED for lack of merit.
CX104/CX905 04 May. Defendants’ counterclaims and cross-claims are similarly ordered
However, on 31 Mar., the booking was cancelled by the agent. dismissed for lack of merit. No pronouncement as to cost.10
4. PNR No. J76TH The trial court found that respondents were in possession of valid
Agent: Sampaguita Travel Corp. tickets but did not have confirmed reservations for their return trip to
Party: Mr. W Reyes Manila. Additionally, the trial court observed that the several PNRs
Itinerary: CX104/CX905 ADL/HKG/MNL 04 MAY. opened by Sampaguita Travel created confusion in the bookings. The
The booking on the above itinerary was confirmed initially. When the trial court however did not find any basis to establish liability on the
agent was asked for the ticket number as the flight CX905 04 May was part of either Cathay Pacific or Sampaguita Travel considering that the
very critical, the agent has inputted the ticket number on 10 Apr. but cancellation was not without any justified reason. Finally, the trial court
has removed the record on 11 April. Since the booking was reflected denied the claims for damages for being unsubstantiated.
as not ticketed, the booking was cancelled on 18 Apr. accordingly. Respondents appealed to the Court of Appeals. On 22 October 2008,
This PNR was split from another PNR record, H9VSE. the Court of Appeals ordered Cathay Pacific to pay ₱25,000.00 each to
5. PNR No. H9VSE respondents as nominal damages.
Agent: Sampaguita Travel Corp. Upon denial of their motion for reconsideration, Cathay Pacific filed the
Party: Ms. R Lapuz, Mr. R Lapuz, Mr. A Samson, originally Mr. W instant petition for review assigning the following as errors committed
Reyes was included in this party as well by the Court of Appeals:
Itinerary: CX104/CX905 ADL/HKG/MNL 04 MAY.
The booking was confirmed initially but were not ticketed by 11 Apr. A.WHETHER OR NOT THE COURT OF APPEALS COMMITTED A
and was cancelled accordingly. However, the PNR of Mr. W Reyes CLEAR AND REVERSIBLE ERROR IN HOLDING THAT CATHAY
who was originally included in this party was split to a separate record PACIFIC AIRWAYS IS LIABLE FOR NOMINAL DAMAGES FOR ITS
of J76TH.6 ALLEGED INITIAL BREACH OF CONTRACT WITH THE
Cathay Pacific asserted that in the case of Wilfredo with PNR No. PASSENGERS EVEN THOUGH CATHAY PACIFIC AIRWAYS WAS
J76TH, no valid ticket number was inputted within a prescribed period ABLE TO PROVE BEYOND REASONABLE DOUBT THAT IT WAS
which means that no ticket was sold. Thus, Cathay Pacific had the NOT AT FAULT FOR THE PREDICAMENT OF THE RESPONDENT
right to cancel the booking. Cathay Pacific found that Sampaguita PASSENGERS.
Travel initially inputted a ticket number for PNR No. J76TH and had it B.WHETHER OR NOT THE COURT OF APPEALS COMMITTED A
cancelled the following day, while the PNR Nos. HDWC3 and HTFMG CLEAR AND REVERSIBLE ERROR IN RELYING ON MATTERS NOT
of Juanita and Michael do not exist. PROVED DURING THE TRIAL AND NOT SUPPORTED BY THE
The Answer also contained a cross-claim against Sampaguita Travel EVIDENCE AS BASIS FOR HOLDING CATHAY PACIFIC AIRWAYS
and blamed the same for the cancellation of respondents’ return flights. LIABLE FOR NOMINAL DAMAGES.
Cathay Pacific likewise counterclaimed for payment of attorney’s fees. C.WHETHER OR NOT THE COURT OF APPEALS COMMITTED A
On the other hand, Sampaguita Travel, in its Answer, denied Cathay CLEAR AND REVERSIBLE ERROR IN HOLDING CATHAY PACIFIC
Pacific’s claim that it was the cause of the cancellation of the bookings. AIRWAYS LIABLE FOR NOMINAL DAMAGES TO RESPONDENT
Sampaguita Travel maintained that it made the necessary reservation SIXTA LAPUZ.
with Cathay Pacific for respondents’ trip to Adelaide. After getting D.WHETHER OR NOT THE COURT OF APPEALS COMMITTED A
confirmed bookings with Cathay Pacific, Sampaguita Travel issued the CLEAR AND REVERSIBLE ERROR IN NOT HOLDING
corresponding tickets to respondents. Their confirmed bookings were SAMPAGUITA TRAVEL CORP. LIABLE TO CATHAY PACIFIC
covered with the following PNRs: AIRWAYS FOR WHATEVER DAMAGES THAT THE AIRLINE
COMPANY WOULD BE ADJUDGED THE RESPONDENT
PASSENGER NAME PNR No. PASSENGERS.
Lapuz, Sixta H9V15/ J76TH E.ALTERNATIVELY, WHETHER OR NOT THE COURT OF APPEALS
COMMITTED A CLEAR AND REVERSIBLE ERROR WHEN IT
Reyes, Wilfredo H9V15/HDWC3 FAILED TO APPLY THE DOCTRINE OF STARE DECISIS IN FIXING
Reyes, Michael Roy H9V15/H9VZF THE AMOUNT OF NOMINAL DAMAGES TO BE AWARDED.11
Reyes, Juanita HTFMG7
Cathay Pacific assails the award of nominal damages in favor of
Sampaguita Travel explained that the Reyeses had two (2) PNRs each respondents on the ground that its action of cancelling the flight
because confirmation from Cathay Pacific was made one flight bookings was justifiable. Cathay Pacific reveals that upon
segment at a time. Sampaguita Travel asserted that it only issued the investigation, the respondents had no confirmed bookings for their
tickets after Cathay Pacific confirmed the bookings. Furthermore, return flights. Hence, it was not obligated to transport the respondents.
Sampaguita Travel exonerated itself from liability for damages because In fact, Cathay Pacific adds, it exhibited good faith in accommodating
respondents were claiming for damages arising from a breach of the respondents despite holding unconfirmed bookings.
contract of carriage. Sampaguita Travel likewise filed a cross-claim Cathay Pacific also scores the Court of Appeals in basing the award of
against Cathay Pacific and a counterclaim for damages. nominal damages on the alleged asthmatic condition of passenger
During the pre-trial, the parties agreed on the following stipulation of Michael and old age of Sixta. Cathay Pacific points out that the
facts: records, including the testimonies of the witnesses, did not make any
1. That the plaintiffs did not deal directly with Cathay Pacific Airways; mention of Michael’s asthma. And Sixta was in fact holding a

53 |TORTS AND DAMAGES

confirmed booking but she refused to take her confirmed seat and Since the contract between the parties is an ordinary one for services,
instead stayed in HongKong with the other respondents. the standard of care required of respondent is that of a good father of a
Cathay Pacific blames Sampaguita Travel for negligence in not family under Article 1173 of the Civil Code. This connotes reasonable
ensuring that respondents had confirmed bookings for their return trips. care consistent with that which an ordinarily prudent person would
Lastly, assuming arguendo that the award of nominal damages is have observed when confronted with a similar situation. The test to
proper, Cathay Pacific contends that the amount should be reduced to determine whether negligence attended the performance of an
₱5,000.00 for each passenger. obligation is: did the defendant in doing the alleged negligent act use
At the outset, it bears pointing out that respondent Sixta had no cause that reasonable care and caution which an ordinarily prudent person
of action against Cathay Pacific or Sampaguita Travel. The elements would have used in the same situation? If not, then he is guilty of
of a cause of action consist of: (1) a right existing in favor of the negligence.16
plaintiff, (2) a duty on the part of the defendant to respect the plaintiff’s There was indeed failure on the part of Sampaguita Travel to exercise
right, and (3) an act or omission of the defendant in violation of such due diligence in performing its obligations under the contract of
right.12 As culled from the records, there has been no violation of any services. It was established by Cathay Pacific, through the generation
right or breach of any duty on the part of Cathay Pacific and of the PNRs, that Sampaguita Travel failed to input the correct ticket
Sampaguita Travel. As a holder of a valid booking, Sixta had the right number for Wilfredo’s ticket. Cathay Pacific even asserted that
to expect that she would fly on the flight and on the date specified on Sampaguita Travel made two fictitious bookings for Juanita and
her airplane ticket. Cathay Pacific met her expectations and Sixta was Michael.
indeed able to complete her flight without any trouble. The absence of The negligence of Sampaguita Travel renders it also liable for
any violation to Sixta’s right as passenger effectively deprived her of damages.
any relief against either Cathay Pacific or Sampaguita Travel. For one to be entitled to actual damages, it is necessary to prove the
With respect to the three remaining respondents, we rule as follows: actual amount of loss with a reasonable degree of certainty, premised
The determination of whether or not the award of damages is correct upon competent proof and the best evidence obtainable by the injured
depends on the nature of the respondents’ contractual relations with party. To justify an award of actual damages, there must be competent
Cathay Pacific and Sampaguita Travel. It is beyond dispute that proof of the actual amount of loss. Credence can be given only to
respondents were holders of Cathay Pacific airplane tickets and they claims which are duly supported by receipts.17
made the booking through Sampaguita Travel.
Respondents’ cause of action against Cathay Pacific stemmed from a We echo the findings of the trial court that respondents failed to show
breach of contract of carriage. A contract of carriage is defined as one proof of actual damages. Wilfredo initially testified that he personally
whereby a certain person or association of persons obligate incurred losses amounting to ₱300,000.00 which represents the
themselves to transport persons, things, or news from one place to amount of the contract that he was supposedly scheduled to sign had
another for a fixed price.13 Under Article 1732 of the Civil Code, this his return trip not been cancelled. During the cross-examination
"persons, corporations, firms, or associations engaged in the business however, it appears that the supposed contract-signing was a mere
of carrying or transporting passengers or goods or both, by land, water, formality and that an agreement had already been hatched
or air, for compensation, offering their services to the public" is called a beforehand. Hence, we cannot fathom how said contract did not
common carrier. materialize because of Wilfredo’s absence, and how Wilfredo incurred
such losses when he himself admitted that he entered into said
Respondents entered into a contract of carriage with Cathay Pacific. contract on behalf of Parsons Engineering Consulting Firm, where he
As far as respondents are concerned, they were holding valid and worked as construction manager. Thus, if indeed there were losses,
confirmed airplane tickets. The ticket in itself is a valid written contract these were losses suffered by the company and not by Wilfredo.
of carriage whereby for a consideration, Cathay Pacific undertook to Moreover, he did not present any documentary evidence, such as the
carry respondents in its airplane for a round-trip flight from Manila to actual contract or affidavits from any of the parties to said contract, to
Adelaide, Australia and then back to Manila. In fact, Wilfredo called the substantiate his claim of losses. With respect to the remaining
Cathay Pacific office in Adelaide one week before his return flight to re- passengers, they likewise failed to present proof of the actual losses
confirm his booking. He was even assured by a staff of Cathay Pacific they suffered.
that he does not need to reconfirm his booking.
In its defense, Cathay Pacific posits that Wilfredo’s booking was Under Article 2220 of the Civil Code of the Philippines, an award of
cancelled because a ticket number was not inputted by Sampaguita moral damages, in breaches of contract, is in order upon a showing
Travel, while bookings of Juanita and Michael were not honored for that the defendant acted fraudulently or in bad faith.18 What the law
being fictitious. Cathay Pacific clearly blames Sampaguita Travel for considers as bad faith which may furnish the ground for an award of
not finalizing the bookings for the respondents’ return flights. moral damages would be bad faith in securing the contract and in the
Respondents are not privy to whatever misunderstanding and execution thereof, as well as in the enforcement of its terms, or any
confusion that may have transpired in their bookings. On its face, the other kind of deceit. In the same vein, to warrant the award of
airplane ticket is a valid written contract of carriage. This Court has exemplary damages, defendant must have acted in wanton, fraudulent,
held that when an airline issues a ticket to a passenger confirmed on a reckless, oppressive, or malevolent manner.19
particular flight, on a certain date, a contract of carriage arises, and the In the instant case, it was proven by Cathay Pacific that first, it
passenger has every right to expect that he would fly on that flight and extended all possible accommodations to respondents.1âwphi1 They
on that date. If he does not, then the carrier opens itself to a suit for were promptly informed of the problem in their bookings while they
breach of contract of carriage.14 were still at the Adelaide airport. Despite the non-confirmation of their
As further elucidated by the Court of Appeals: bookings, respondents were still allowed to board the Adelaide to Hong
Now, Article 1370 of the Civil Code mandates that "if the terms of a Kong flight. Upon arriving in Hong Kong, they were again informed that
contract are clear and leave no doubt upon the intention of the they could not be accommodated on the next flight because it was
contracting parties, the literal meaning of its stipulations shall control." already fully booked. They were however allowed to board the next
Under Section 9, Rule 130 of the Rules of Court, once the terms of an available flight on the following day. Second, upon receiving the
agreement have been reduced to writing, it is deemed to contain all the complaint letter of respondents, Cathay Pacific immediately addressed
terms agreed upon by the parties and no evidence of such terms other the complaint and gave an explanation on the cancellation of their flight
than the contents of the written agreement shall be admissible. The bookings.
terms of the agreement of appellants and appellee Cathay Pacific The Court of Appeals is correct in stating that "what may be attributed
embodied in the tickets issued by the latter to the former are plain – to x x x Cathay Pacific is negligence concerning the lapses in their
appellee Cathay Pacific will transport appellants to Adelaide, Australia process of confirming passenger bookings and reservations, done
from Manila via Hongkong on 12 April 1991 and back to Manila from through travel agencies. But this negligence is not so gross so as to
Adelaide, Australia also via Hongkong on 4 May 1997. In addition, the amount to bad faith."20 Cathay Pacific was not motivated by malice or
tickets reveal that all appellants have confirmed bookings for their flight bad faith in not allowing respondents to board on their return flight to
to Adelaide, Australia and back to Manila as manifested by the words Manila. It is evident and was in fact proven by Cathay Pacific that its
"Ok" indicated therein. Arlene Ansay, appellee Cathay Pacific’s refusal to honor the return flight bookings of respondents was due to
Reservation Supervisor, validated this fact in her testimony saying that the cancellation of one booking and the two other bookings were not
the return flights of all appellants to the Philippines on 4 May 1997 reflected on its computerized booking system.
were confirmed as appearing on the tickets. Indubitably, when appellee Likewise, Sampaguita Travel cannot be held liable for moral damages.
Cathay Pacific initially refused to transport appellants to the Philippines True, Sampaguita Travel was negligent in the conduct of its booking
on 4 May 1997 due to the latter’s lack of reservation, it has, in effect, and ticketing which resulted in the cancellation of flights. But its actions
breached their contract of carriage. Appellants, however, were were not proven to have been tainted with malice or bad faith. Under
eventually accommodated and transported by appellee Cathay Pacific these circumstances, respondents are not entitled to moral and
to Manila.15 exemplary damages. With respect to attorney’s fees, we uphold the
appellate court’s finding on lack of factual and legal justification to
Cathay Pacific breached its contract of carriage with respondents when award attorney’s fees.
it disallowed them to board the plane in Hong Kong going to Manila on
the date reflected on their tickets. Thus, Cathay Pacific opened itself to We however sustain the award of nominal damages in the amount of
claims for compensatory, actual, moral and exemplary damages, ₱25,000.00 to only three of the four respondents who were aggrieved
attorney’s fees and costs of suit. by the last-minute cancellation of their flights. Nominal damages are
In contrast, the contractual relation between Sampaguita Travel and recoverable where a legal right is technically violated and must be
respondents is a contract for services. The object of the contract is vindicated against an invasion that has produced no actual present
arranging and facilitating the latter’s booking and ticketing. It was even loss of any kind or where there has been a breach of contract and no
Sampaguita Travel which issued the tickets. substantial injury or actual damages whatsoever have been or can be

54 |TORTS AND DAMAGES

shown.21 Under Article 2221 of the Civil Code, nominal damages may follow up the results of the CT scan test. The staff was met by the
be awarded to a plaintiff whose right has been violated or invaded by brother of Mary Ann, who allegedly repeatedly shouted at them saying
the defendant, for the purpose of vindicating or recognizing that right, that they would file a case against Cebu Golden Food. Thus, Cebu
not for indemnifying the plaintiff for any loss suffered. Golden Food reported the incident to their licensor, McGeorge Food
Considering that the three respondents were denied boarding their Industries, Inc.
return flight from HongKong to Manila and that they had to wait in the Sometime in October 2000, McGeorge received a Letter from the
airport overnight for their return flight, they are deemed to have lawyer of the Latonios regarding the September 17, 2000 incident. In
technically suffered injury. Nonetheless, they failed to present proof of its reply, McGeorge immediately assured the Latonios that the health
actual damages. Consequently, they should be compensated in the and safety of all McDonald's customers is its utmost concern and that
form of nominal damages. the best medical and hospital care would be made available to Ed
Christian.
The amount to be awarded as nominal damages shall be equal or at McGeorge also sent its Field Service Director, together with its lawyer,
least commensurate to the injury sustained by respondents to meet with the Latonios and their lawyers to assure them that
considering the concept and purpose of such damages. The amount of McDonald's was ready to assist in whatever medical attention would be
nominal damages to be awarded may also depend on certain special required of Ed Christian.
reasons extant in the case.22 During the meeting, McGeorge agreed to contact a neurologist for
The amount of such damages is addressed to the sound discretion of consultation to ensure Ed Christian’s health. McGeorge conferred and
the court and taking into account the relevant circumstances, 23 such as consulted with two neurosurgeons at the St. Luke's Medical Center and
the failure of some respondents to board the flight on schedule and the the Makati Medical Center, who both recommended to first study the x-
slight breach in the legal obligations of the airline company to comply ray results and CT scan to determine the extent of the injury sustained
with the terms of the contract, i.e., the airplane ticket and of the travel by the baby.
agency to make the correct bookings. We find the award of ₱25,000.00 Thereafter, McGeorge relayed the doctor’s requirement to the Latonios
to the Reyeses correct and proper. who initially agreed to give McGeorge copies of the x-ray and CT scan
Cathay Pacific and Sampaguita Travel acted together in creating the results. However, the Latonios had a change of heart and informed
confusion in the bookings which led to the erroneous cancellation of McGeorge that they had decided against lending them the x-ray and
respondents’ bookings. Their negligence is the proximate cause of the CT scan results and other related medical records.
technical injury sustained by respondents. Therefore, they have Instead, the Latonios sent a Letter to McGeorge demanding for
become joint tortfeasors, whose responsibility for quasi-delict, under compensation in the amount of Fifteen Million Pesos (₱15,000,000.00).
Article 2194 of the Civil Code, is solidary. As their demand remained unheeded, the Latonios caused the
Based on the foregoing, Cathay Pacific and Sampaguita Travel are publication of the accident in the local newspaper, Sun Star Cebu on
jointly and solidarily liable for nominal damages awarded to February 8, 2001 with a headline "Food outlet sued for ₱.9 M
respondents Wilfredo, Juanita and Michael Roy. damages". Simultaneously, the Latonios also instituted a complaint for
damages and attorney's fees against McGeorge.
WHEREFORE, the Petition is DENIED. The 22 October 2008 Decision On March 3, 2009, the RTC, in Civil Case No. CEB-26126, issued a
of the Court of Appeals is AFFIRMED with MODIFICATION that Decision,7 the dispositive portion of which reads:
Sampaguita Travel is held to be solidarily liable with Cathay Pacific in WHEREFORE, premises considered, judgment is hereby rendered in
the payment of nominal damages of ~25,000.00 each for Wilfredo favor of the plaintiffs and against defendants Tyke Philip Lomibao and
Reyes, Juanita Reyes, and Michael Rox Reyes. The complaint of Cebu Golden Foods, Inc., finding defendant Tyke Philip Lomibao liable
respondent Sixta for acts of negligence causing the fall of baby Ed Christian Latonio and
Lapuz is DISMISSED for lack of cause of action. correspondingly, finding defendant Cebu Golden Foods, Inc. liable
SO ORDERED. solidarily with defendant Tyke Philip Lomibao, pursuant to Article 2180
of the New Civil Code inasmuch as defendant Cebu Golden Foods,
Inc. was the employer of defendant Tyke Philip Lomibao.
G.R. No. 206184 Accordingly, defendants Tyke Philip Lomibao and Cebu Golden Foods,
SPOUSES ED DANTE LATONIO AND MARY ANN LATONIO and Incorporated, are hereby ordered to pay to the plaintiffs the following:
the minor ED CHRISTIAN LATONIO, Petitioners 1. ₱900,000.00 as Moral Damages;
vs. 2. ₱50,000.00 as Exemplary Damages, and
MCGEORGE FOOD INDUSTRIES INC., CEBU GOLDEN FOODS 3. ₱300,000.00 as Attorney's fees.
INDUSTRIES, INC., and TYKE PHILIP LOMIBAO, Respondents The case against defendant McGeorge Food Industries Inc., is hereby
dismissed for lack of evidence. SO ORDERED.
PERALTA, J.:
Aggrieved, Cebu Golden Food and Lomibao filed an appeal before the
Before this Court is a petition for review1 via Rule 45 of the Rules of Court of Appeals-Cebu City.
Court assailing the Decision2 dated September 28, 2012 and On September 28, 2012, in its assailed Decision, the Court of Appeals
Resolution3 dated January 31, 2013 of the Court of reversed the trial court's decision and said that the trial court
Appeals (CA), Cebu City in CA-G.R. CV No. 03079, which reversed overlooked substantial facts and circumstances which, if properly
4
and set aside the Decision of the Regional Trial Court (RTC) Branch considered, would justify a different conclusion and alter the results of
22, Cebu City and denied the motion for reconsideration, respectively. the case. The dispositive portion of the decision reads, thus:
WHEREFORE, the appeal is GRANTED. The Decision dated 03 March
The facts are as follows: 2009 of the Regional Trial Court, Branch 22, Cebu City
On September 17, 2000, the petitioners, spouses Ed Dante (Ed) and is REVERSED and SET ASIDE. Civil Case No. CEB-26126
Mary Ann Latonio (Mary Ann); accompanied their eight-month-old child is DISMISSED for lack of merit. The compulsory counterclaims of
Ed Christian to a birthday party at the McDonald's Restaurant, Ayala defendants-appellants are DENIED. No costs.
Center, Cebu City. SO ORDERED.8
During the party and as part of the birthday package, McDonald's
presented two mascots – "Birdie" and "Grimace" - to entertain and Thus, the instant petition for review under Rule 45 of the Rules of Court
dance for the guests. Respondent Tyke Philip brought before this Court raising the sole issue of: Whether the Court
Lomibao (Lomibao )5 was the person inside the "Birdie" mascot suit. of Appeals erred in ruling that the proximate cause of Ed Christian’s fall
After the mascots danced, guests had their pictures taken with them. was the negligence of petitioner Mary Ann Latonia. 9
Intending to have her child's photo taken with the mascots, Mary Ann The trial court held Cebu Golden Food is liable because the proximate
placed Ed Christian on a chair in front of the mascot "Birdie." The cause of Ed Christian’s fall is the negligence of their employee,
mascot positioned itself behind the child and extended its "wings" to Lomibao. On the other hand, the Court of Appeals reversed the trial
give a good pose for the camera. court's decision and held that Ed Christian’s mother, Mary Ann, is liable
As photos were about to be taken, Mary Ann released her hold of Ed because the proximate cause of the child's fall was Mary Ann's act of
Christian. Seconds later, the child fell head first from the chair onto the leaving her eightmonth- old child, Ed Christian, in the "hands" of
floor. Lomibao who was at the time wearing the Birdie mascot costume.
We find no merit on this instant petition.
Several guests attended to Ed Christian. Meanwhile, the employees of The principle is well-established that this Court is not a trier of facts.
respondent McDonald’s Cebu Golden Food6 (Cebu Golden Therefore, in an appeal by certiorari under Rule 45 of the Rules of
Food) assisted petitioners in giving first aid treatment to Ed Christian. Court, only questions of law may be raised. The resolution of factual
Petitioners, nevertheless, remained and continued with the party and issues is the function of the lower courts whose findings on these
left only after the party was over. matters are received with respect and are, as a rule, binding on this
At about 9:30 in the evening of the same day, Mary Ann called up Court.10
Cebu Golden Food to inform them that their doctor advised them to get However, this rule is subject to certain exceptions. One of these is
an x-ray examination on Ed Christian. Cebu Golden Food then assured when the findings of the appellate court are contrary to those of the
her that they were willing to shoulder the expenses for the x-ray trial court.11 It is also settled that the appellate courts will not as a
examination of Ed Christian. Later, McDonald’s reimbursed Mary Ann general rule disturb the findings of the trial court, which is in a better
for the expenses incurred relative to the x-ray examination. It further position to determine the same. The trial court has the distinct
offered to pay the expenses for the CT scan to be conducted on Ed advantage of actually hearing the testimony of and observing the
Christian. deportment of the witnesses. Nevertheless, the rule admits of
For some time, nothing was heard from petitioners. Nonetheless, a exceptions such as when its evaluation was reached arbitrarily, or it
staff of Cebu Golden Food visited the Latonios in their residence to overlooked or failed to appreciate some facts or circumstances of

55 |TORTS AND DAMAGES

weight and substance which could affect the result of the case, 12 as Q: Did you check what part of your child's body was in contact in any
what happened in the instant case. part of the mascot’s body?
In the instant case, there is no dispute that petitioners suffered A: Partly it was here on the waist of the child until (sic) the armpit.
damages because of Ed Christian's fall. However, as to the issues on Q: Now you said that you move (sic) further to the side from where
negligence and proximate cause, the Court of Appeals and the trial your baby was standing, is that your testimony?
court gave contradicting findings. A: Yes, ma’am.
As the action is predicated on negligence, the relevant law is Article Q: Can you tell us or can you give us any reason why you move (sic) to
2176 of the Civil Code, which states that- the side?
Whoever by act or omission causes damage to another, there being A: Because I motioned my husband already that he would take a
fault or negligence, is obliged to pay for the damage done. Such fault picture of the baby and the mascot before I left and I am so sure that
or negligence, if there was no pre-existing contractual relation between the baby is securely (sic) with the mascot holding the baby.19
the parties, is called quasi-delict and is governed by the provisions of xxxx
this chapter. Q. And your child at that time was eight (8) months old?
The trial court held that the proximate cause of Ed Christian's fall and A: Yes, ma’am.
the resulting injury was Lomibao’s act of holding the baby during the Q: He cannot stand on his own?
party which was purportedly prohibited under the rules and policy of A: He can stand but he has to have support.
the establishment. Q: He cannot walk on his own at that time?
A: At that time with support."
We disagree. x x x.20
Indeed, the testimony of Mary Ann herself on cross-examination is More telling is the ratiocination of the Court of Appeals, which we quote
telling. Thus: with approval:
xxxx Indeed, it is irresponsible for a mother to entrust the safety, even
Q. And when you said that you informed the mascot, what exact words momentarily, of her eight-month-old child to a mascot, not to mention a
did you use? bird mascot in thick leather suit that had no arms to hold the child and
A. I tap (sic) him on his side and then I called him that I am going to whose diminished ability to see, hear, feel, and move freely was readily
have the taking of pictures with my baby. apparent. Moreover, by merely tapping the mascot and saying
xxxx "papicture ta", Mary Ann Latonio cannot be said to have "told, informed
Q. Now did you wait for the mascots to make a reply? and instructed the mascot that she was letting the mascot hold the
A. He was looking at me and he look (sic) at my face. baby momentarily." Releasing her grasp of the baby without waiting for
Q. Did he make a reply? any indication that the mascot heard and understood her is just plain
A. No, Ma’am. negligence on the part of Mary Ann.
Q. Did you see his eyes looking at you? To Our mind, what is more in accord with human experience and
A. No, Ma’am. dictates of reason is that a diligent mother would naturally ensure first
x x x.13 and foremost the safety of her child before releasing her hold on him.
ATTY. ABELLA Such is not the case here. Mary Ann Latonio, in placing Ed Christian
xxxx on a chair and expecting a bird mascot to ensure the child's safety,
Q. And at the time you already observed that the person was wearing a utterly failed to observe the degree of diligence expected of her as a
thick leather suit? mother of an eight-month- old baby.21
A. Yes. Clearly, based on the foregoing, Mary Ann’s negligence was the
Q. Did you actually see the body of the person who lift (sic) your baby proximate cause of Ed Christian’s fall which caused him injury.
then? Proximate cause is defined as –
A. No. that cause, which, in natural and continuous sequence, unbroken by
Q. Did you see the hands inside the costume? any efficient intervening cause, produces the injury, and without which
A. Of course, I cannot see the hands. the result would not have occurred. And more comprehensively, the
Q. Did you see the arms of the person inside the mascot? proximate legal cause is that acting first and producing the injury,
A. I cannot because he is (sic) wearing a costume.14 either immediately or by setting other events in motion, all constituting
COURT a natural and continuous chain of events, each having a close causal
Q. You were not sure that when you handed the baby it was firmly held connection with its immediate predecessor, the final event in the chain
by the mascot? immediately effecting the injury as a natural and probable result of the
A. I placed the baby in front of the mascot. cause which first acted, under such circumstances that the person
Q. You were not aware about the hands when you turned over the responsible for the first event should, as an ordinary prudent and
baby because it was a mascot? intelligent person, have reasonable ground to expect at the moment of
A. I was sure because I can feel the hands and my baby was standing his act or default that an injury to some person might probably result
in front of him; and he is doing like this (witness demonstrating).15 therefrom.22
ATTY. ABELLA Here, it is beyond dispute that the cause of Ed Christian’s fall is
Q. Did you see the eyes of the person inside the mascot costume? traceable to the negligent act of Mary Ann of leaving him in the "hands"
A. No. of Lomibao who was wearing the Birdie mascot suit. We noted that
Q. Were you aware if there were openings for the eyes of the person "hands" and "wings" were used interchangeably during the testimonies
inside the mascot? of the witnesses, thus, causing confusion. However, it must be
A. Yes, I was aware. stressed that while indeed Lomibao has hands of his own, at the time
Q. The eyesin this mascot costume actually had no opening? of the incident he was wearing the Birdie mascot suit. Suffice it to say
A. Yes, no opening.16 that the Birdie mascot suit have no hands but instead have wings.
COURT Lomibao cannot possibly hold or grasp anything while wearing the
Q. You entrusted the baby even if there was no opening of the eyes? thick Birdie mascot suit. In fact, even if he wanted to hold Ed Christian
A. There was an opening of the costume near the mouth. If the mascot or anything, he could not possibly do so because he was wearing the
cannot see, then how can he play with the kids? Birdie mascot suit which do not even have hands or fingers to be able
Q. You said that you told the mascot that you were leaving the baby to to hold or grasp firmly.
him? Notably, while the CA and the trial court made conflicting rulings on the
A. Ipat (sic) him. negligence of Cebu Golden Food and Lomibao, they, however, concur
Q. Did you see the ears of the person inside the mascot? on Mary Ann's own negligence. The trial court's summation of Mary
A. No. Ann's own negligence is as follows:
Q. Did you even know if there was an opening for the ears at the xxxx
person wearing the mascot costume? A review of their testimonies would reveal that although we ascribe
A. No, but I was nearer the mascot. negligence of defendant Lomibao we, likewise, unraveled that plaintiff
x x x.17 herself was not entirely blameless. Therefore, plaintiff Mary Ann
We agree with the appellate court that despite Mary Ann’s insistence Latonio was likewise negligent. Why was she negligent can be traced
that she made sure that her baby was safe and secured before she to the fact as established that she left her eight-month-old baby on top
released her grasp on Ed Christian, her own testimony revealed that of a chair to the temporary custody of a mascot. Even if the baby was
she had, in fact, acted negligently and carelessly, to wit: only left for a few seconds or minutes that could already spell a
Q. Now when you said that you made sure that the mascot was holding disaster, in fact, it really happened. The baby fell from the chair and
your baby, what action did you do to insure that? went straight into the floor head first. Even if she already informed and
A. When I saw that the mascot was holding my baby so I make (sic) a told the mascot that she was leaving the baby to his hold she should
motion to my husband for the picture taking so I left beside. I backed not have let go of her grip because as a mother she ought to exercise
off a little bit. the commensurate prudence and case.
x x x x. x x x."23
Q. I will not risk my baby if I am not sure that the mascot was not Thus, all the aforementioned circumstances lead us to no other
inserting his hands over my baby when I left the scene. The (sic) I am conclusion than that the proximate cause of the injury sustained by Ed
sure that the baby was already safe in the hands of the mascot. Christian was due to Mary Ann's own negligence.
Q. When you say that you make (sic) sure you just relied on your All told, in the absence of negligence on the part of respondents Cebu
sight? Golden Foods and Lomibao, as well as their management and staff,
A. Yes, ma'am.18 they cannot be made liable to pay for the damages prayed for by the
xxxx petitioners.

56 |TORTS AND DAMAGES

To warrant the recovery of damages, there must be both a right of
action for a legal wrong inflicted by the defendant, and damage
resulting to the plaintiff therefrom.1âwphi1 Wrong without damage, or
damage without wrong, does not constitute a cause of action, since
damages are merely part of the remedy allowed for the injury caused
by a breach or wrong.24
Many accidents occur and many injuries are inflicted by acts or
omissions which cause damage or loss to another but which violate no
legal duty to such other person, and consequently create no cause of
action in his favor. In such cases, the consequences must be borne by
the injured person alone. The law affords no remedy resulting from an
act which does not amount to a legal injury or wrong. 25
WHEREFORE, premises considered, the Decision dated September
28, 2012 and Resolution dated January 31, 2013 of the Court of
Appeals in CA-G.R. CV No. 03079 are hereby AFFIRMED.
SO ORDERED.

57 |TORTS AND DAMAGES