THIRD DIVISION PHILIPPINE NATIONAL RAILWAYS and VIRGILIO J.

BORJA, Petitioners, - versus COURT OF APPEALS (Second Division), CORAZON C. AMORES, MA. EMILIE A. MOJICA, CECILE C. SISON, DINO C. AMORES, LARISA C. AMORES, ARMAND JINO C. AMORES and JOHN C. AMORES, Respondents. YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ. Promulgated: October 15, 2007 x------------------------------------------------------------------------------------x DECISION NACHURA, J.: G.R. No. 157658 Present:

Railways (PNR) train with locomotive number T-517 turned up and collided with the car.4[4] At the time of the mishap, there was neither a signal nor a crossing bar at the intersection to warn motorists of an approaching train. Aside from the railroad track, the only visible warning sign at that time was the defective standard signboard STOP, LOOK and LISTEN wherein the sign Listen was lacking while that of Look was bent.5[5] No whistle blow from the train was likewise heard before it finally bumped the car of Amores. 6[6] After impact, the car was dragged about ten (10) meters beyond the center of the crossing. 7[7] Amores died as a consequence thereof. On July 22, 1992, the heirs of Amores, consisting of his surviving wife and six children, herein respondents, filed a Complaint for Damages 8[8] against petitioners PNR and Virgilio J. Borja (Borja), PNRs locomotive driver at the time of the incident, before the RTC of Manila. The case was raffled to Branch 28 and was docketed as Civil Case No. 92-61987. In their complaint, respondents averred that the trains speedometer was defective, and that the petitioners negligence was the proximate cause of the mishap for their failure to take precautions to prevent injury to persons and property despite the dense population in the vicinity. They then prayed for actual and moral damages, as well as attorneys fees. 9[9] In their Answer,10[10] the petitioners denied the allegations, stating that the train was railroad-worthy and without any defect. According to them, the proximate cause of the death of Amores was his own carelessness and negligence, and Amores wantonly disregarded traffic rules and regulations in crossing the railroad tracks and trying to beat the approaching train. They admitted that there was no crossing bar at the site of the accident because it was merely a barangay road.11[11] PNR stressed that it exercised the diligence of a good father of a family

Before the Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, seeking to annul and set aside the Decision1[1] of the Court of Appeals (CA) in CA-G.R. CV No. 54906 which reversed the Decision2[2] of the Regional Trial Court (RTC) of Manila, Branch 28, in Civil Case No. 92-61987. The factual antecedents are as follows: In the early afternoon of April 27, 1992, Jose Amores (Amores) was traversing the railroad tracks in Kahilum II Street, Pandacan, Manila. Before crossing the railroad track, he stopped for a while then proceeded accordingly. 3[3] Unfortunately, just as Amores was at the intersection, a Philippine National

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in the selection and supervision of the locomotive driver and train engineer, Borja, and that the latter likewise used extraordinary diligence and caution to avoid the accident. Petitioners further asserted that respondents had the last clear chance to avoid the accident but recklessly failed to do so. After trial on the merits, on August 22, 1996, the RTC rendered judgment in favor of the petitioners, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered dismissing the complaint of the plaintiffs and the defendants counterclaim. The costs shall be halved and paid equally by the parties. The counsel for the defendants is hereby ordered to inform this court who is the legal representative of the deceased defendant, Virgilio Borja, within ten (10) days from receipt of a copy of this decision. SO ORDERED.12[12] The RTC rationalized that the proximate cause of the collision was Amores fatal misjudgment and the reckless course of action he took in crossing the railroad track even after seeing or hearing the oncoming train. On appeal, the CA reversed the RTC decision, as follows: WHEREFORE, the assailed Decision of the Regional Trial Court of Manila, Branch 28 is hereby REVERSED. The defendants PNR and the estate of Virgilio J. Borja are jointly and severally liable to pay plaintiffs the following: 1) 2) The amount of P122,300.00 for the cost of damage to the car; and, The amount of P50,000 as moral damages.

PNR to install a semaphore or at the very least, to post a flagman, considering that the crossing is located in a thickly populated area. Moreover, the signboard Stop, Look and Listen was found insufficient because of its defective condition as described above. Lastly, no negligence could be attributed to Amores as he exercised reasonable diligence in crossing the railroad track. Aggrieved by this reversal, the petitioners filed the present petition for review on certiorari, raising the following grounds: I THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN RENDERING ITS DECISION REVERSING THE DECISION OF THE REGIONAL TRIAL COURT OF MANILA BRANCH 28, IN NOT TAKING INTO CONSIDERATION THE PROVISION OF SECTION 42, R.A. 4136 OF THE LAND TRANSPORTATION AND TRAFFIC CODE. II THE DECISION OF THE COURT OF APPEALS IS CONTRARY TO THE EVIDENCE ON RECORD ADDUCED IN THE TRIAL ON THE MERIT IN CIVIL CASE NO. 92-61987. 14[14] The petitioners insist that Amores must have heard the trains whistle and heeded the warning but, noting that the train was still a distance away and moving slowly, he must have calculated that he could beat it to the other side of the track before the train would arrive at the intersection. The petitioners likewise add that the train was railroad-worthy and that its defective speedometer did not affect the trains operation. Lastly, they insist that evidence showed sufficient warning signs strategically installed at the crossing to alert both motorists and pedestrians. Respondents, on the other hand, argue that the cause of the accident was petitioners carelessness, imprudence and laxity in failing to provide a crossing bar and keeper at the Kahilum II railway intersection. Considering that Kahilum II Street is in the middle of a thickly populated squatters area, and many pedestrians cross the railroad track, notwithstanding the fact that it is a public street and a main thoroughfare utilized in going to Herran Street, the presence of adequate warning signals would have prevented the untimely death of Amores. Another crucial point raised by the respondents is the manner in which Borja applied the brakes of the train only when the locomotive was already very near Amores car, as admitted by witness Querimit. Finally, respondents claim that Borjas failure to blow the locomotives horn, pursuant to the usual practice of doing the same 100 meters before reaching the Kahilum II crossing point is an earmark of recklessness on the part of the petitioners. The petition must fail.

For lack of official receipts for funeral expenses and specimen of the last pay slip of the deceased, the claim for reimbursement of funeral expenses and claim for payment of support is hereby DENIED for lack of basis. Costs against Defendants. SO ORDERED.13[13] In reversing the trial courts decision, the appellate court found the petitioners negligent. The court based the petitioners negligence on the failure of

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The only issue to be resolved in the present case is whether the appellate court was correct in ascribing negligence on the part of the petitioners. It was ascertained beyond quandary that the proximate cause of the collision is the negligence and imprudence of the petitioner PNR and its locomotive driver, Borja, in operating the passenger train. As the action is predicated on negligence, the relevant provision is Article 2176 of the New Civil Code, which states that: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there was no pre-existing contractual relation between the parties, is called quasidelict and is governed by the provisions of this chapter. We have thoroughly reviewed the records of the case and we find no cogent reason to reverse the appellate courts decision. Negligence has been defined as the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. 15[15] Using the aforementioned philosophy, it may be reliably concluded that there is no hard and fast rule whereby such degree of care and vigilance is calibrated; it is dependent upon the circumstances in which a person finds himself. All that the law requires is that it is perpetually compelling upon a person to use that care and diligence expected of sensible men under comparable circumstances. 16[16] We hold that the petitioners were negligent when the collision took place. The transcript of stenographic notes reveals that the train was running at a fast speed because notwithstanding the application of the ordinary and emergency brakes, the train still dragged the car some distance away from the point of impact. Evidence likewise unveils the inadequate precautions taken by petitioner PNR to forewarn the public of the impending danger. Aside from not having any crossing bar, no flagman or guard to man the intersection at all times was posted on the day of the incident. A reliable signaling device in good condition, not just a dilapidated Stop, Look and Listen signage because of many years of neglect, is needed to give notice to the public. It is the responsibility of the railroad company to use reasonable care to keep the signal devices in working order. Failure to do so would be an indication of negligence. As held in the case of Philippine National Railway v. Brunty ,17[17] it may broadly be stated that railroad companies owe to the public a duty of exercising a reasonable

degree of care to avoid injury to persons and property at railroad crossings, which duties pertain both to the operation of trains and to the maintenance of the crossings. Moreover, every corporation constructing or operating a railway shall make and construct at all points where such railway crosses any public road, good, sufficient, and safe crossings, and erect at such points, at sufficient elevation from such road as to admit a free passage of vehicles of every kind, a sign with large and distinct letters placed thereon, to give notice of the proximity of the railway, and warn persons of the necessity of looking out for trains. 18[18] The failure of the PNR to put a cross bar, or signal light, flagman or switchman, or semaphore is evidence of negligence and disregard of the safety of the public, even if there is no law or ordinance requiring it, because public safety demands that said device or equipment be installed. The petitioners insist that a train has a right-of-way in a railroad crossing under the existing laws. They derive their theory from Section 42 (d), Article III of R.A. 4136, otherwise known as the Land Transportation and Traffic Code, which states that: The driver of a vehicle upon a highway shall bring to a full stop such vehicle before traversing any through highway or railroad crossing: Provided, That when it is apparent that no hazard exists, the vehicle may be slowed down to five miles per hour instead of bringing it to a full stop. They claim that motorists are enjoined by law to stop, look and listen before crossing railroad tracks and that a heavier responsibility rests upon the motorists in avoiding accidents at level crossings. It is true that one driving an automobile must use his faculties of seeing and hearing when nearing a railroad crossing. However, the obligation to bring to a full stop vehicles moving in public highways before traversing any through street only accrues from the time the said through street or crossing is so designated and sign-posted. From the records of the case, it can be inferred that Amores exercised all the necessary precautions required of him as to avoid injury to himself and to others. The witnesses testimonies showed that Amores slackened his speed, made a full stop, and then proceeded to cross the tracks when he saw that there was no impending danger to his life. Under these circumstances, we are convinced that Amores did everything, with absolute care and caution, to avoid the collision. It is settled that every person or motorist crossing a railroad track should use ordinary prudence and alertness to determine the proximity of a train before attempting to cross. We are persuaded that the circumstances were beyond the control of Amores for no person would sacrifice his precious life if he had the slightest opportunity to evade the catastrophe. Besides, the authority in this jurisdiction is that the failure of a railroad company to install a semaphore or at the

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very least, to post a flagman or watchman to warn the public of the passing train amounts to negligence.19[19] In view of the foregoing, We will now discuss the liability of petitioner PNR. Article 218020[20] of the New Civil Code discusses the liability of the employer once negligence or fault on the part of the employee has been established. The employer is actually liable on the assumption of juris tantum that the employer failed to exercise diligentissimi patris families in the selection and supervision of its employees. The liability is primary and can only be negated by showing due diligence in the selection and supervision of the employee, a factual matter that has not been demonstrated. 21[21] Even the existence of hiring procedures and supervisory employees cannot be incidentally invoked to overturn the presumption of negligence on the part of the employer.22[22] WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated March 31, 2003 in CA-G.R. CV No. 54906 is hereby AFFIRMED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 160795 June 27, 2008 CORINTHIAN GARDENS ASSOCIATION, INC., petitioner, vs. SPOUSES REYNALDO and MARIA LUISA TANJANGCO, and SPOUSES FRANK and TERESITA CUASO, respondent. DECISION NACHURA, J.: Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Civil Procedure seeking the reversal of the Court of Appeals (CA) Decision 2 dated January 31, 2003 in CA-G.R. CV No. 43217, which reversed and set aside the Decision3 of the Regional Trial Court (RTC) of Quezon City, dated March 30, 1993. The Antecedents: Respondents-spouses Reynaldo and Maria Luisa Tanjangco (the Tanjangcos) own Lots 68 and 69 covered by Transfer Certificates of Title (TCT) No. 242245 4 and 2829615 respectively, located at Corinthian Gardens Subdivision, Quezon City,

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which is managed by petitioner Corinthian Gardens Association, Inc. (Corinthian). On the other hand, respondents-spouses Frank and Teresita Cuaso (the Cuasos) own Lot 65 which is adjacent to the Tanjangcos lots. Before the Cuasos constructed their house on Lot 65, a relocation survey was necessary. As Geodetic Engineer Democrito De Dios (Engr. De Dios), operating under the business name D.M. De Dios Realty and Surveying, conducted all the previous surveys for the subdivision's developer, Corinthian referred Engr. De Dios to the Cuasos. Before, during and after the construction of the said house, Corinthian conducted periodic ocular inspections in order to determine compliance with the approved plans pursuant to the Manual of Rules and Regulations of Corinthian.6 Unfortunately, after the Cuasos constructed their house employing the services of C.B. Paraz & Construction Co., Inc. (C.B. Paraz) as builder, their perimeter fence encroached on the Tanjangcos Lot 69 by 87 square meters. No amicable settlement was reached between the parties. Thus, the Tanjangcos demanded that the Cuasos demolish the perimeter fence but the latter failed and refused, prompting the Tanjangcos to file with the RTC a suit against the Cuasos for Recovery of Possession with Damages. 7 Eventually, the Cuasos filed a Third-Party Complaint 8 against Corinthian, C.B. Paraz and Engr. De Dios. The Cuasos ascribed negligence to C.B. Paraz for its failure to ascertain the proper specifications of their house, and to Engr. De Dios for his failure to undertake an accurate relocation survey, thereby, exposing them to litigation. The Cuasos also faulted Corinthian for approving their relocation survey and building plans without verifying their accuracy and in making representations as to Engr. De Dios' integrity and competence. The Cuasos alleged that had Corinthian exercised diligence in performing its duty, they would not have been involved in a boundary dispute with the Tanjangcos. Thus, the Cuasos opined that Corinthian should also be held answerable for any damages that they might incur as a result of such construction. On March 30, 1993, the RTC rendered a Decision in favor of the Tanjangcos. It ruled that the Cuasos perimeter wall encroached on the land of the Tanjangos by 87 square meters. It, however, ruled that the Cuasos were builders in good faith, and gave the Tanjangcos the option to sell and the Cuasos the option to buy the encroaching portion of the land, at a price to be agreed upon by the parties within sixty (60) days from receipt of the said Decision. In the event that the Cuasos were unable and unwilling to purchase the said portion, the perimeter wall should be demolished at the latters expense. The RTC also ordered the Cuasos to pay monthly rentals of P2,000.00 commencing from the time of the filing of the complaint. The RTC likewise held that C.B. Paraz was grossly negligent in not taking into account the correct boundaries of Cuasos lot when it constructed the house. It, thus, ordered C.B. Paraz to pay moral and exemplary damages as well as attorneys fees to the Tanjangcos and the Cuasos. The third-party complaint against Corinthian and Engr. De Dios, on the other hand, was dismissed for lack of cause of action. The Tanjangcos filed a Motion for Reconsideration 9 of the said RTC Decision which the RTC, however, denied in its Order10 dated June 28, 1993. Dissatisfied with the RTC ruling, the Tanjangcos, the Cuasos, and C.B. Paraz all appealed to the CA.

On appeal, the CA reversed and set aside the RTC Decision. It held that the Cuasos acted in bad faith in land-grabbing the 87 square meter-portion of Lot 69 as of April 5, 1989. Correlatively, the CA allowed the Tanjangcos to exercise the rights granted under Articles 449, 450, 451 and 549 of the New Civil Code, which include the right to demand the demolition of the offending perimeter wall after reimbursing the Cuasos the necessary expenses for the preservation of the encroached area. The Cuasos were ordered to pay monthly rentals of P10,000.00 for the use, enjoyment and occupancy of the lot from 1989 up to the time they vacate the property considering the location and category of the same. They were, likewise, ordered to pay the Tanjangcos P100,000.00, as moral damages, P50,000.00 as exemplary damages, and P150,000.00 as attorneys fees. The CA also imposed six percent (6%) interest per annum on all the awards. The Cuasos appeal against the Tanjangcos, on the other hand, was dismissed for lack of merit. On the third-party complaints, Corinthian, C.B. Paraz and Engr. De Dios were all found negligent in performing their respective duties and so they were ordered to contribute five percent (5%) each, or a total of fifteen percent (15%) to all judgment sums and amounts that the Cuasos shall eventually pay under the decision, also with interest of six percent (6%) per annum. Only Corinthian filed a Motion for Reconsideration 11 of the CA Decision within the 15-day reglementary period. No motion for reconsideration was filed by the Cuasos, C.B. Paraz and/or Engr. De Dios. About six (6) months later, or on August 12, 2003, the Cuasos filed a Comment/Manifestation12 praying that they be allowed to adopt Corinthians Motion for Reconsideration. In its Resolution13 dated November 14, 2003, the CA denied Corinthians Motion for Reconsideration. Hence, Corinthian filed the instant Petition for Review on Certiorari assailing the CA Decision and Resolution, and impleading the Cuasos as one of the respondents being the third-party plaintiffs in the RTC. This Court gave due course to Corinthians petition and required the parties to submit their respective memorandum.14 In compliance, the Cuasos submitted their Memorandum15 and Supplement to Memorandum, 16 which were both noted by this Court in its Resolutions dated January 10, 2005 17 and February 2, 2005, 18 respectively. In the meantime, the Tanjangcos moved for partial entry of judgment of the CA Decision which was granted by the CA in its Resolution 19 dated May 26, 2006, directing the issuance of an Entry of Judgment and a Certification that its Decision dated January 31 2003 has become final and executory with respect to the Cuasos, C.B. Paraz and Engr. De Dios for their failure to file an appeal assailing the said Decision before this Court. The Tanjangcos then moved for the execution of the judgment against the Cuasos, specifically the demolition of the perimeter fence, 20 which was also granted by the RTC in its Order21 dated December 18, 2006. Other than the filing of an Opposition 22 and a Motion for Reconsideration 23 before the RTC, the Cuasos prayed for the issuance of a temporary restraining order (TRO) and/or preliminary injunction before this Court to enjoin the demolition of the perimeter fence. They averred that the premature demolition of the alleged encroaching perimeter wall and other improvements will cause grave and

irreparable damage to them, because what is sought to be demolished is part of their residence. They claimed that no amount of money will compensate for the damage they stand to suffer should any demolition subsequently prove to be wrongful. They argued that before any execution can be carried out, it is necessary to first determine whether or not Corinthian was negligent in approving the building plan and whether or not it acted in good faith in doing so. Such determination, according to the Cuasos, will in turn determine whether or not they were in good faith in constructing the house.24 The Tanjangcos opposed the Cuasos' application for TRO. They countered that the only pending matter with this Court is the appeal by Corinthian; hence, the implementation of the January 31, 2003 Decision of the CA against the Cuasos will not preempt the outcome of the said pending incidents. Also, any action taken by this Court on Corinthians petition would not benefit the Cuasos for they did not appeal the adverse decision against them. Accordingly, they cannot obtain affirmative relief from this Court by reason or on account of the appeal taken by Corinthian. The appeal, they added, is personal to Corinthian. Finally, they argued that the Cuasos are now estopped from questioning the enforcement of the CA Decision since they issued a managers check to pay the money judgment. 25 In this Court's Resolution dated July 18, 2007, we denied the Cuasos' application for TRO and/or writ of preliminary injunction for lack of merit. The denial was based on sound legal principles. It is axiomatic that to be entitled to the injunctive writ, one must show that there exists a right to be protected which is directly threatened by the act sought to be enjoined. Furthermore, there must be a showing that the invasion of the right is material and substantial, that the right of complainant is clear and unmistakable, and that there is an urgent and paramount necessity for the writ to issue in order to prevent serious damage. 26 In the Cuasos case, their right to injunctive relief had not been clearly and unmistakably demonstrated. They failed to show proof that there is material and substantial invasion of their right to warrant the issuance of an injunctive writ. Indeed, the enforcement of the writ of execution, which would demolish the Cuasos perimeter fence, is manifestly prejudicial to their interest. However, they possess no clear and unmistakable legal right that merits protection through the writ of preliminary injunction. 27 Their right to maintain the said fence had been declared inferior to the Tanjangcos right to the demolition of the fence, after the CA judgment had become final and executory as to the Cuasos. It bears stressing that the Cuasos failed to appeal the ruling of the CA. This failure to contest the CA decision before this Court was fatal to their cause. It had the effect of an admission that they indeed acted in bad faith, as they accepted the CA ruling. The decision of the CA, therefore, became binding and final as to them. 28 As a matter of fact, the CA already issued a partial entry of judgment against the Cuasos. An injunction to stay a final and executory decision is unavailing except only after a showing that facts and circumstances exist which would render execution unjust or inequitable, or that a change in the situation of the parties occurred. Here, no such exception exists as shown by the facts earlier narrated. 29 While it is true that this Court noted the Memorandum and Supplemental Memorandum filed by the Cuasos, such notation was made only insofar as Corinthian made them respondents in this petition. This Court cannot grant to the

Cuasos any affirmative relief as they did not file a petition questioning the CA ruling. Consequently, the Decision of the CA holding that the Cuasos acted in bad faith and that the perimeter fence may now be demolished cannot be put in issue by the Cuasos. It is a fundamental principle that a party who does not appeal, or file a petition for certiorari, is not entitled to any affirmative relief. 30 An appellee who is not an appellant may assign errors in his brief where his purpose is to maintain the judgment, but he cannot seek modification or reversal of the judgment or claim affirmative relief unless he has also appealed. 31 This applies to C.B. Paraz and Engr. De Dios who likewise failed to assail the aforementioned CA Decision. With this matter put to rest, we now go to the main issues raised by Corinthian, the sole petitioner in this case, to wit: a) Whether or not there is legal basis for the Court of Appeals to hold petitioner Corinthian Gardens Association, Inc. liable to pay 5% of the judgment money to Sps. Tanjangco on account of the encroachment made by Sps. Cuaso[; and] b) Whether or not the Court of Appeals has legal basis to increase unilaterally and without proof the amount prayed for in the Complaint, i.e., P2,000.00, as reasonable compensation for the use and enjoyment of the portion of the lot encroached upon, to P10,000.00.32 Corinthian claims that the approval of the building plan of the Cuasos was not tainted with negligence as it did not approve the survey relocation plan but merely the architectural, structural and sanitary plans for Cuasos' house; that the purpose of the said approval is not to ensure that the house to be erected on a particular lot is constructed within its boundaries but only to ensure compliance with the Manual of Rules and Regulations; that while Corinthian conducts actual site inspections, the inspection and approval of the building plans are limited to "table inspection" only; that the survey relocation plan was never submitted for Corinthian's approval; that the acceptance of the builder's bond did not make Corinthian automatically liable for the encroachment and for damages; and that Corinthian approved the building plan with the good faith and due diligence required under the circumstances. It, thus, concludes that it cannot be held liable to pay five percent (5%) of the money judgment to the Tanjangcos on account of the encroachment made by the Cuasos. Likewise, it finds no legal basis for the CA to unilaterally increase the amount of the adjudged rent from P2,000.00 to P10,000.00 which was not prayed for by the Tanjangcos in their complaint and in the absence of evidence adduced by the parties.33 On the other hand, the Tanjangcos stand by the ruling of the CA and opine that Corinthian was negligent in approving the building plan of the Cuasos. They submit that Corinthian's claim that it merely conducts "table inspections" of buildings further bolsters their argument that Corinthian was negligent in conveniently and unilaterally restricting and limiting the coverage of its approval, contrary to its own Manual of Rules and Regulations; that the acceptance of a builder's bond does not automatically make Corinthian liable but the same affirms the fact that a homeowner can hold it liable for the consequences of the approval of a building plan; and that Corinthian, by regularly demanding and accepting membership dues, must be wary of its responsibility to protect the rights and interests of its members. Lastly, the Tanjangcos contend that a court can take judicial notice of

the general increase in the rentals of real estate, as in this case, where the CA considered the value of their lot in the "posh-and-swank" Corinthian Gardens Subdivision and the fact that they were deprived of it for almost two decades. The Tanjangcos pray that this Court sustain the ruling of the CA. 34 The instant case is obviously one for tort, as governed by Article 2176 of the Civil Code, which provides: ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. In every tort case filed under this provision, plaintiff has to prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person for whose act he must respond; and (3) the connection of cause and effect between the fault or negligence and the damages incurred. 35 Undeniably, the perimeter fence of the Cuasos encroached on Lot 69 owned by the Tanjangcos by 87 square meters as duly found by both the RTC and the CA in accordance with the evidence on record. As a result, the Tanjangcos suffered damage in having been deprived of the use of that portion of their lot encroached upon. Thus, the primordial issue to be resolved in this case is whether Corinthian was negligent under the circumstances and, if so, whether such negligence contributed to the injury suffered by the Tanjangcos. A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary prudence and may be one which creates a situation involving an unreasonable risk to another because of the expectable action of the other, a third person, an animal, or a force of nature. A negligent act is one from which an ordinary prudent person in the actor's position, in the same or similar circumstances, would foresee such an appreciable risk of harm to others as to cause him not to do the act or to do it in a more careful manner. 36 The test to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in committing the alleged negligent act use that reasonable care and caution which an ordinary person would have used in the same situation? If not, then he is guilty of negligence. The law, in effect, adopts the standard supplied by the imaginary conduct of the discreet paterfamilias in Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in a man of ordinary intelligence and prudence, and determines liability according to that standard. 37 By this test, we find Corinthian negligent. While the issue of Corinthian's alleged negligence is factual in character, 38 a review by this Court is proper because the CA's factual findings differ from those of the RTC's.39 Thus, after a meticulous review of the evidence on record, we hold that the CA committed no reversible error when it deviated from the findings of fact of the RTC. The CA's findings and conclusions are substantiated by the evidence on record and are more in accord with law and reason. Indeed, it is clear that Corinthian failed to exercise the requisite diligence in insuring that the Cuasos abide by its Manual of Rules and Regulations, thereby resulting in the encroachment on the Tanjangcos property.

We agree with the CA when it aptly held: Corinthian cannot and should not be allowed to justify or excuse its negligence by claiming that its approval of the Cuasos building plans was only limited to a socalled "table inspection;" and not actual site measurement. To accept some such postulate is to put a premium on negligence. Corinthian was not organized solely for the defendants Cuasos. It is also the subdivision of the plaintiffs-spouses Tanjangcos - and of all others who have their dwelling units or abodes therein. Pertinently, its Manual of Rules and Regulations stipulates in Section 3 thereof (under the heading Construction), thus: A. Rules and Regulations No new construction can be started unless the building plans are approved by the Association and the appropriate Builders cash bond and pre-construction fees are paid. The Association will not allow the entry of construction materials and process identification cards for workers if the above conditions are not complied with. Likewise, all renovations, repairs, additions and improvements to a finished house except electrical wiring, will have to be approved by the Association. Water service connection of a homeowner who undertakes construction work without prior approval of the Association will be cut-off in addition to the sanctions previously mentioned. It goes without saying that this Manual of Rules and Regulations applies to all - or it does not apply at all. To borrow a popular expression, what is sauce for the gander is sauce for the goose - or ought to be. To put it matter-of-factly and bluntly, thus, its so-called "table inspection" approval of the Cuasos building plans is no less of an approval, as approvals come and go. And since it is an approval tainted with negligence, the necessary and inevitable consequences which law and justice attach to such negligence must, as a matter of law and justice, also necessarily attach to Corinthian. And then again third party defendant-appellee Corinthian Garden required the posting of a builders cash bond (Exh. 5-Corinthian) from the defendants-appellants Cuasos and the third-party defendant C.B. Paraz Construction to secure the performance of their undertaking. Surely, Corinthian does not imply that while it may take the benefits from the Builders cash bond, it may, Pilate-like, wash its hands of any responsibility or liability that would or might arise from the construction or building of the structure for which the cash bond was in the first place posted. That is not only unjust and immoral, but downright unchristian and iniquitous. Under the same parity of reasoning, the payment by the appellants-Cuasos to the appellee Corinthian of pre-construction and membership fees in the Association must necessarily entail the creation of certain obligations on the part of Corinthian. For duties and responsibilities always go hand in hand with rights and privileges. That is the law of life - and that is the law of every civilized society. It is an axiom of equity that he who receives the benefits must share the burdens. 40 By its Manual of Rules and Regulations, it is reasonable to assume that Corinthian, through its representative, in the approval of building plans, and in the conduct of periodic inspections of on-going construction projects within the subdivision, is responsible in insuring compliance with the approved plans, inclusive of the construction of perimeter walls, which in this case is the subject of dispute between the Tanjangcos and the Cuasos.41 It is not just or equitable to relieve

Corinthian of any liability when, by its very own rules, it imposes its authority over all its members to the end that "no new construction can be started unless the plans are approved by the Association and the appropriate cash bond and preconstruction fees are paid." Moreover, Corinthian can impose sanctions for violating these rules. Thus, the proposition that the inspection is merely a "table inspection" and, therefore, should exempt Corinthian from liability, is unacceptable. After all, if the supposed inspection is merely a "table inspection" and the approval granted to every member is a mere formality, then the purpose of the rules would be defeated. Compliance therewith would not be mandatory, and sanctions imposed for violations could be disregarded. Corinthian's imprimatur on the construction of the Cuasos' perimeter wall over the property of the Tanjangcos assured the Cuasos that everything was in order. In sum, Corinthians failure to prevent the encroachment of the Cuasos perimeter wall into Tanjangcos property despite the inspection conducted constitutes negligence and, at the very least, contributed to the injury suffered by the Tanjangcos. On the second issue, our ruling in Spouses Badillo v. Tayag42 is instructive: Citing Sia v. Court of Appeals [272 SCRA 141, May 5, 1997], petitioners argue that the MTC may take judicial notice of the reasonable rental or the general price increase of land in order to determine the amount of rent that may be awarded to them. In that case, however, this Court relied on the CA's factual findings, which were based on the evidence presented before the trial court. In determining reasonable rent, the RTC therein took account of the following factors: 1) the realty assessment of the land, 2) the increase in realty taxes, and 3) the prevailing rate of rentals in the vicinity. Clearly, the trial court relied, not on mere judicial notice, but on the evidence presented before it. Indeed, courts may fix the reasonable amount of rent for the use and occupation of a disputed property. However, petitioners herein erred in assuming that courts, in determining the amount of rent, could simply rely on their own appreciation of land values without considering any evidence. As we have said earlier, a court may fix the reasonable amount of rent, but it must still base its action on the evidence adduced by the parties. In Herrera v. Bollos [G.R. No. 138258, January 18, 2002], the trial court awarded rent to the defendants in a forcible entry case. Reversing the RTC, this Court declared that the reasonable amount of rent could be determined not by mere judicial notice, but by supporting evidence: x x x A court cannot take judicial notice of a factual matter in controversy. The court may take judicial notice of matters of public knowledge, or which are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. Before taking such judicial notice, the court must "allow the parties to be heard thereon." Hence, there can be no judicial notice on the rental value of the premises in question without supporting evidence. Truly, mere judicial notice is inadequate, because evidence is required for a court to determine the proper rental value. But contrary to Corinthian's arguments, both the RTC and the CA found that indeed rent was due the Tanjangcos because they were deprived of possession and use of their property. This uniform factual finding of the RTC and the CA was based on the evidence presented below. Moreover, in

Spouses Catungal v. Hao,43 we considered the increase in the award of rentals as reasonable given the particular circumstances of each case. We noted therein that the respondent denied the petitioners the benefits, including rightful possession, of their property for almost a decade. Similarly, in the instant case, the Tanjangcos were deprived of possession and use of their property for more than two decades through no fault of their own. Thus, we find no cogent reason to disturb the monthly rental fixed by the CA. All told, the CA committed no reversible error. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals is AFFIRMED. Costs against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 169891 November 2, 2006 PHILIPPINE NATIONAL RAILWAYS, Petitioner, vs. ETHEL BRUNTY and JUAN MANUEL M. GARCIA, Respondents. DECISION CALLEJO, SR., J.: This is a Petition for Review on Certiorari of the Decision 1 of the Court of Appeals (CA) in CA-G.R. CV No. 47567 and its Resolution 2 denying the motion for reconsideration thereof. The assailed decision affirmed with partial modification the ruling3 of the Regional Trial Court (RTC) of Manila, Branch 20, directing petitioner Philippine National Railways (PNR) to indemnify respondents Ethel Brunty and Juan Manuel M. Garcia for the death of Rhonda Brunty, and to pay actual and moral damages, attorneys fees and cost of suit. Rhonda Brunty, daughter of respondent Ethel Brunty and an American citizen, came to the Philippines for a visit sometime in January 1980. Prior to her departure, she, together with her Filipino host Juan Manuel M. Garcia, traveled to Baguio City on board a Mercedes Benz sedan with plate number FU 799, driven by Rodolfo L. Mercelita. It was about 12:00 midnight, January 25, 1980. By then, PNR Train No. T-71, driven by Alfonso Reyes, was on its way to Tutuban, Metro Manila 4 as it had left the La Union station at 11:00 p.m., January 24, 1980. By 2:00 a.m., Rhonda Brunty, Garcia and Mercelita were already approaching the railroad crossing at Barangay Rizal, Moncada, Tarlac. Mercelita, driving at approximately 70 km/hr, drove past a vehicle, unaware of the railroad track up ahead and that they were about to collide with PNR Train No. T-71. Mercelita was

instantly killed when the Mercedes Benz smashed into the train; the two other passengers suffered serious physical injuries. 5 A certain James Harrow6 brought Rhonda Brunty to the Central Luzon Doctors Hospital in Tarlac, where she was pronounced dead after ten minutes from arrival. Garcia, who had suffered severe head injuries, was brought via ambulance to the same hospital. He was transferred to the Manila Doctors Hospital, and later to the Makati Medical Center for further treatment.7 On July 28, 1981, Ethel Brunty sent a demand letter 8 to the PNR demanding payment of actual, compensatory, and moral damages, as a result of her daughters death. When PNR did not respond, Ethel Brunty and Garcia, filed a complaint9 for damages against the PNR before the RTC of Manila. The case was raffled to Branch 20 and was docketed as Civil Case No. 83-18645. They alleged that the death of Mercelita and Rhonda Brunty, as well as the physical injuries suffered by Garcia, were the direct and proximate result of the gross and reckless negligence of PNR in not providing the necessary equipment at the railroad crossing in Barangay Rizal, Municipality of Moncada, Tarlac. They pointed out that there was no flagbar or red light signal to warn motorists who were about to cross the railroad track, and that the flagman or switchman was only equipped with a hand flashlight.10 Plaintiffs likewise averred that PNR failed to supervise its employees in the performance of their respective tasks and duties, more particularly the pilot and operator of the train. 11 They prayed for the payment of the following damages: 1.) P200,000.00 as actual and compensatory damages to plaintiff Ethel Brunty; 2.) P2,800,000.00 for compensatory damages to plaintiff Ethel Brunty representing lost or unearned income of Rhonda Brunty; 3.) Such amounts of moral and exemplary damages as may be warranted by the evidence adduced, to plaintiff Ethel Brunty; 4.) At least P64,057.61 as actual damages representing medical expenses to plaintiff Juan Manuel M. Garcia and at least P1,000,000.00 as unearned or lost income of said plaintiff; 5.) At least P72,760.00 as actual damages representing cost of the Mercedes Benz car to plaintiff Juan Manuel M. Garcia; 6.) Such amounts of moral and exemplary damages as may be warranted by the evidence adduced, to plaintiff Juan Manuel M. Garcia; and 7.) Attorneys fees equivalent to at least 15% of the total award to plaintiffs herein.12 In its Answer,13 PNR claimed that it exercised the diligence of a good father of a family not only in the selection but also in the supervision of its employees. 14 By way of special and affirmative defense, it stressed that it had the right of way on the railroad crossing in question, and that it has no legal duty to put up a bar or red light signal in any such crossing. It insisted that there were adequate, visible, and clear warning signs strategically posted on the sides of the road before the railroad crossing. It countered that the immediate and proximate cause of the accident was Mercelitas negligence, and that he had the last clear chance to avoid the accident. The driver disregarded the warning signs, the whistle blasts of the oncoming train and the flashlight signals to stop given by the guard. 15 As counterclaim, it prayed that it be awarded actual and compensatory damages, and litigation expenses.16

Plaintiffs filed an Amended Complaint 17 dated July 28, 1986 to include, as party plaintiff, Chemical Industries of the Philippines, Inc. (Chemphil), Garcias employer, who claimed to have paid for the latters medical and hospitalization expenses, the services rendered by the funeral parlor of the deceased, and the expenses in transferring the remains of Rhonda Brunty to the United States. 18 After trial on the merits, the RTC rendered its Decision 19 on May 21, 1990 in favor of plaintiffs. The fallo reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiffs Ethel Brunty and Juan Manuel M. Garcia and against the defendant Philippine National Railways directing the latter to pay the former the sum of: 1. Thirty Thousand Pesos (P30,000.00) Philippine Currency, for the death of Rhonda Brunty formerly a resident of 1595 Ashland Avenue, Des Plaines, Illinois, U.S.A.; 2. One Million Pesos (P1,000,000.00) Philippine Currency for moral and actual damages due the heirs of Rhonda Brunty; 3. Seventy-Two Thousand Seven Hundred Sixty Pesos (P72,760.00) Philippine Currency for damages sustained by the Mercedes Benz; 4. Fifty Thousand Pesos (P50,000.00) Philippine Currency as and for attorney's fees, and; 5. Costs of suit. SO ORDERED.20 Aggrieved, the PNR appealed the case to the CA, raising the following errors: I. THE TRIAL COURT ERRED IN ADJUDGING DEFENDANT-APPELLANT PNR LIABLE FOR THE DEATH OF RHONDA BRUNTY AND THE CONSEQUENT AWARD OF DAMAGES DUE THE HEIRS OF RHONDA BRUNTY. II. THE TRIAL COURT ERRED IN ADJUDGING DEFENDANT-APPELLANT PNR LIABLE FOR THE DAMAGES SUFFERED BY PLAINTIFF-APPELLEES MERCEDES BENZ IN THE AMOUNT OF SEVENTY-TWO THOUSAND SEVEN HUNDRED AND SIXTY PESOS (P72,760.00). III. THE LOWER COURT ERRED IN AWARDING ATTORNEYS FEES TO THE PLAINTIFFSAPPELLEES.21 In its Brief, PNR insisted that the sole and proximate cause of the accident was the negligence and recklessness of Garcia and Mercelita. 22 It insisted that it had provided adequate warning signals at the railroad crossing 23 and had exercised due care in the selection and supervision of its employees. 24 The RTC erred in awarding damages to Rhonda Brunty as she cannot be allowed to receive what she is not in a position to give, having been a non-resident alien who did not own a property in the Philippines.25 It likewise questioned the award of damages on the Mercedes Benz as well as the grant of attorneys fees. 26 At the very least, Mercelita was guilty of contributory negligence. 27 For their part, appellees countered that appellant was grossly and recklessly negligent in not properly providing the necessary equipment at the railroad crossing in Rizal, Moncada, Tarlac; 28 appellant was negligent in not exercising due diligence of a good father of a family in the supervision of its employees, particularly the train operator Alfonso Reyes; 29 the car was driven in a careful and

diligent manner, and at a moderate speed, with due regard to all traffic rules and regulations at that particular time; 30 the doctrine of "last clear chance" is not applicable;31 Ethel Brunty is a non-resident alien who can rightfully file the instant case;32 and they are entitled to recover damages from appellant. 33 The CA rendered the assailed Decision 34 on August 15, 2005. The dispositive portion reads: WHEREFORE, premises considered, the assailed decision is hereby AFFIRMED with PARTIAL MODIFICATIONS, increasing the death indemnity award from P30,000.00 to P50,000.00, and deleting the award for damages sustained by the Mercedes Benz. SO ORDERED.35 The appellate court affirmed the findings of the RTC as to the negligence of the PNR. Considering the circumstances prevailing at the time of the fatal accident, it ruled that the alleged safety measures installed by the PNR at the railroad crossing were not merely inadequate they did not satisfy the well-settled safety standards in transportation.36 However, the CA did not agree with the RTCs findings on the contributory negligence of Mercelita, the driver of the Mercedes Benz. It held that Mercelita could not have foreseen the harm that would befall him and the two other passengers under the prevailing circumstances, thus, could not be considered guilty of contributory negligence. 37 The PNR, now petitioner, comes before this Court in this Petition for Review on Certiorari on the following grounds: I. THE COURT OF APPEALS ERRED IN MANIFESTLY OVERLOOKING CERTAIN RELEVANT FACTS NOT DISPUTED BY THE PARTIES AND WHICH, IF PROPERLY CONSIDERED, WOULD JUSTIFY A DIFFERENT CONCLUSION SUCH AS: THE RESPONDENTS DRIVER OVERTOOK ANOTHER VEHICLE BY ACCELERATING AT 70 KILOMETERS PER HOUR WITHIN JUST 50 YARDS AWAY FROM THE RAILROAD TRACKS. II. THE FINDINGS OF FACT OF THE COURT OF APPEALS ARE CONTRARY TO THOSE OF THE TRIAL COURT REGARDING CONTRIBUTORY NEGLIGENCE OF THE RESPONDENTS DRIVER. III. THE COURT OF APPEALS ERRED IN NOT APPLYING THE DOCTRINE OF LAST CLEAR CHANCE IN THE INSTANT CASE.38 Petitioner insists that the proximate cause of the mishap was Mercelitas disregard of traffic rules and regulations. Had the court considered the fact that Mercelita had overtaken another vehicle a few yards before the railroad track, it would have reached a different conclusion. 39 Moreover, petitioner asserts, considering that the decisions of the RTC and the CA vary as to whether or not Mercelita was guilty of contributory negligence, the findings of the RTC should prevail. Thus, Mercelitas contributory negligence should not have been ignored. 40 Lastly, petitioner avers that since there is freedom of control and greater maneuverability on the part of motor vehicles, it is obvious that in railroad crossings, they have the last clear chance to prevent or avoid an unwanted accident from taking place. 41 In their Comment42 on the petition, respondents reiterate the findings of the RTC and the CA that the breach by petitioner of its legal duty to provide adequate and

necessary public safety device and equipment within the area or scene of the accident was the proximate cause of the mishap. 43 While it is true that as a general rule, the trial court is in the best position to evaluate and observe the conduct and demeanor of the witnesses presented during the trial, the CA, in the exercise of its appellate jurisdiction, has the vested right to modify, reject, or set aside the trial courts evaluation and findings.44 As to the application of the doctrine of last clear chance, respondents claim that said issue is being raised for the first time in this petition.45 Lastly, respondents cite foreign jurisprudence stating that if the violation is one which gives rise to liability per se for any resulting injury, the defenses ordinarily available in actions for diligence are barred and the contributory negligence of the person injured is no defense. 46 The Court is thus tasked to answer the following factual questions: (1) As between petitioner and Mercelita, whose negligence resulted in the unfortunate collision? (2) Is Mercelita (the driver of the Mercedes Benz) guilty of contributory negligence? Finally, the application in this case of the doctrine of last clear chance is likewise in question. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. 47 In Corliss v. Manila Railroad Company,48 this Court held that negligence is want of the care required by the circumstances. It is a relative or comparative, not an absolute, term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. 49 In determining whether or not there is negligence on the part of the parties in a given situation, jurisprudence50 has laid down the following test: Did defendant, in doing the alleged negligent act, use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, the person is guilty of negligence. The law, in effect, adopts the standard supposed to be supplied by the imaginary conduct of the discreet pater familias of the Roman law. The issue of who, between the parties, was negligent was thoroughly discussed by both the RTC and the CA. In petitions for review under Rule 45 of the Revised Rules of Court, only questions of law may be put into issue, and questions of fact as a general rule, cannot be entertained. The finding of negligence by the RTC, as affirmed by the CA, is a question of fact which this Court cannot pass upon as it would entail going into factual matters on which the finding of negligence was based.51 The established rule is that factual findings of the CA affirming those of the trial court are conclusive and binding on this Court. 52 The records of the instant case show that both the RTC and the CA carefully examined the factual circumstances surrounding the case, and we find no cogent reason to disturb the same. It is, however, worthy to emphasize that petitioner was found negligent because of its failure to provide the necessary safety device to ensure the safety of motorists in crossing the railroad track. As such, it is liable for damages for violating the provisions of Article 2176 of the New Civil Code, viz: Article 2176. Whoever, by act or omission, causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

In a long line of cases, the Court held that in order to sustain a claim based on quasi-delict, the following requisites must concur: (1) damage to plaintiff; (2) negligence, by act or omission, of which defendant, or some person for whose acts he must respond was guilty; and (3) connection of cause and effect between such negligence and damage.53 Applying the foregoing requisites, the CA correctly made the following conclusions: It was clearly established that plaintiffs-appellees (respondents herein) sustained damage or injury as a result of the collision. That there was negligence on the part of PNR is, likewise, beyond cavil. Considering the circumstances prevailing at the time of the fatal accident, the alleged safety measures installed by the PNR at the railroad crossing is not only inadequate but does not satisfy well-settled safety standards in transportation. x x x xxxx x x x An examination of the photographs of the railroad crossing at Moncada, Tarlac presented as evidence by PNR itself would yield the following: (1.) absence of flagbars or safety railroad bars; (2.) inadequacy of the installed warning signals; and (3.) lack of proper lighting within the area. Thus, even if there was a flagman stationed at the site as claimed by PNR (petitioner), it would still be impossible to know or see that there is a railroad crossing/tracks ahead, or that there is an approaching train from the Moncada side of the road since ones view would be blocked by a cockpit arena. x x x54 Moreover, the CA held that a vehicle coming from the Moncada side would have difficulty in knowing that there is an approaching train because of the slight curve, more so, at an unholy hour as 2:00 a.m. Thus, it is imperative on the part of the PNR to provide adequate safety equipment in the area. 55 It may broadly be stated that railroad companies owe to the public a duty of exercising a reasonable degree of care to avoid injury to persons and property at railroad crossings, which duties pertain both in the operation of trains and in the maintenance of the crossings. 56 Moreover, every corporation constructing or operating a railway shall make and construct at all points where such railway crosses any public road, good, sufficient, and safe crossings and erect at such points, at a sufficient elevation from such road as to admit a free passage of vehicles of every kind, a sign with large and distinct letters placed thereon, to give notice of the proximity of the railway, and warn persons of the necessity of looking out for trains.57 This Court has previously determined the liability of the PNR for damages for its failure to put a cross bar, or signal light, flagman or switchman, or semaphores. Such failure is evidence of negligence and disregard of the safety of the public, even if there is no law or ordinance requiring it because public safety demands that said device or equipment be installed. 58 In view of the foregoing, we affirm the factual findings of the CA as well as its conclusion on petitioners negligence. As to whether or not Mercelita was guilty of contributory negligence, we agree with petitioner. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. 59 To hold a person as having contributed to his injuries, it must be shown that he performed an act that brought about his injuries in disregard of warning or signs of an

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impending danger to health and body. 60 To prove contributory negligence, it is still necessary to establish a causal link, although not proximate, between the negligence of the party and the succeeding injury. In a legal sense, negligence is contributory only when it contributes proximately to the injury, and not simply a condition for its occurrence.61 The court below found that there was a slight curve before approaching the tracks; the place was not properly illuminated; ones view was blocked by a cockpit arena; and Mercelita was not familiar with the road. Yet, it was also established that Mercelita was then driving the Mercedes Benz at a speed of 70 km/hr and, in fact, had overtaken a vehicle a few yards before reaching the railroad track. Mercelita should not have driven the car the way he did. However, while his acts contributed to the collision, they nevertheless do not negate petitioners liability. Pursuant to Article 217962 of the New Civil Code, the only effect such contributory negligence could have is to mitigate liability, which, however, is not applicable in this case, as will be discussed later.1wphi1 As to whether or not the doctrine of last clear chance is applicable, we rule in the negative. The doctrine of last clear chance states that where both parties are negligent but the negligent act of one is appreciably later than that of the other, or where it is impossible to determine whose fault or negligence caused the loss, the one who had the last clear opportunity to avoid the loss but failed to do so, is chargeable with the loss. Stated differently, the antecedent negligence of plaintiff does not preclude him from recovering damages caused by the supervening negligence of defendant, who had the last fair chance to prevent the impending harm by the exercise of due diligence. 63 The proximate cause of the injury having been established to be the negligence of petitioner, we hold that the above doctrine finds no application in the instant case. We note that the damages awarded by the appellate court consist of (1) P50,000.00 as indemnity for the death of Rhonda Brunty; (2) P1,000,000.00 as actual and moral damages due the heirs of Rhonda Brunty; and (3) P50,000.00 as and by way of attorneys fees. No damages, however, were awarded for the injuries suffered by Garcia, yet, the latter never interposed an appeal before the CA nor even before this Court. The record is, likewise, bereft of any allegation and proof as to the relationship between Mercelita (the driver) and Rhonda Brunty. Hence, the earlier finding of contributory negligence on the part of Mercelita, which generally has the effect of mitigation of liability, does not apply. As to the amount of damages awarded, a modification of the same is in order, specifically on the award of actual and moral damages in the aggregate amount of P1,000,000.00. Actual or compensatory damages are those awarded in order to compensate a party for an injury or loss he suffered. They arise out of a sense of natural justice, aimed at repairing the wrong done. To be recoverable, they must be duly proved with a reasonable degree of certainty. A court cannot rely on speculation, conjecture, or guesswork as to the fact and amount of damages, but must depend upon competent proof that they have suffered, and on evidence of the actual amount thereof.64 Respondents, however, failed to present evidence for such damages; hence, the award of actual damages cannot be sustained. However, as the heirs of Rhonda Brunty undeniably incurred expenses for the wake and burial of the latter, we deem it proper to award temperate damages in the amount of

P25,000.00 pursuant to prevailing jurisprudence. 65 This is in lieu of actual damages as it would be unfair for the victims heirs to get nothing, despite the death of their kin, for the reason alone that they cannot produce receipts. 66 The relatives of the victim who incurred physical injuries in a quasi-delict are not proscribed from recovering moral damages in meritorious cases. 67 We, therefore, sustain the award of moral damages in favor of the heirs of Rhonda Brunty. Moral damages are not punitive in nature, but are designed to compensate and alleviate in some way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury unjustly caused a person. Although incapable of pecuniary computation, moral damages must nevertheless be somehow proportional to and in approximation of the suffering inflicted. 68 In the instant case, the moral suffering of the heirs of Rhonda Brunty was sufficiently established by Ethel Brunty in her deposition,69 viz: Q: What have you felt as a result of the death of Rhonda? A: I felt earnest anguish and mixed feelings of anger and extreme sorrow because she died so far away and alone, and because her death could so easily be prevented if there had been adequate and appropriate warning signals at the railroad crossing and it is just an unbearable and irreparable loss. In so many ways, she was my life. It seemed to me that losing her was just like losing my own life, or worst, and even now, there is no end to our bereavement. I am still on constant medication to be able to sleep and to be able to perform my duties effectively in my job but it does not take away the pain of loss.70 In People v. Teehankee, Jr.,71 and in Metro Manila Transit Corporation v. Court of Appeals,72 we awarded moral damages in the amount of P1,000,000.00 to the heirs of the deceased. In Victory Liner, Inc. v. Heirs of Malecdan, 73 the award of P100,000.00 as moral damages was held in keeping with the purpose of the law, while in Macalinao v. Ong,74 the amount of P50,000.00 was held sufficient. 1wphi1 Considering the circumstances attendant in this case, we find that an award of P500,000.00 as moral damages to the heirs of Rhonda Brunty is proper. In view of recent jurisprudence, indemnity of P50,000.00 for the death of Rhonda Brunty and attorneys fees amounting to P50,000.00 is likewise proper. WHEREFORE, premises considered, the Decision of the Court of Appeals dated August 15, 2005 is AFFIRMED WITH MODIFICATIONS. The award of actual damages is deleted, and in lieu thereof, temperate damages of P25,000.00 is awarded to the heirs of Rhonda Brunty. The award of moral damages is reduced to P500,000.00. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 159617 August 8, 2007 ROBERTO C. SICAM and AGENCIA de R.C. SICAM, INC., petitioners, vs. LULU V. JORGE and CESAR JORGE, respondents. DECISION AUSTRIA-MARTINEZ, J.: Before us is a Petition for Review on Certiorari filed by Roberto C. Sicam, Jr. (petitioner Sicam) and Agencia de R.C. Sicam, Inc. (petitioner corporation) seeking to annul the Decision 1 of the Court of Appeals dated March 31, 2003, and its Resolution2 dated August 8, 2003, in CA G.R. CV No. 56633. It appears that on different dates from September to October 1987, Lulu V. Jorge (respondent Lulu) pawned several pieces of jewelry with Agencia de R. C. Sicam located at No. 17 Aguirre Ave., BF Homes Paraaque, Metro Manila, to secure a loan in the total amount of P59,500.00. On October 19, 1987, two armed men entered the pawnshop and took away whatever cash and jewelry were found inside the pawnshop vault. The incident was entered in the police blotter of the Southern Police District, Paraaque Police Station as follows: Investigation shows that at above TDPO, while victims were inside the office, two (2) male unidentified persons entered into the said office with guns drawn. Suspects(sic) (1) went straight inside and poked his gun toward Romeo Sicam and thereby tied him with an electric wire while suspects (sic) (2) poked his gun toward Divina Mata and Isabelita Rodriguez and ordered them to lay (sic) face flat on the floor. Suspects asked forcibly the case and assorted pawned jewelries items mentioned above. Suspects after taking the money and jewelries fled on board a Marson Toyota unidentified plate number.3 Petitioner Sicam sent respondent Lulu a letter dated October 19, 1987 informing her of the loss of her jewelry due to the robbery incident in the pawnshop. On November 2, 1987, respondent Lulu then wrote a letter 4 to petitioner Sicam expressing disbelief stating that when the robbery happened, all jewelry pawned were deposited with Far East Bank near the pawnshop since it had been the practice that before they could withdraw, advance notice must be given to the pawnshop so it could withdraw the jewelry from the bank. Respondent Lulu then requested petitioner Sicam to prepare the pawned jewelry for withdrawal on November 6, 1987 but petitioner Sicam failed to return the jewelry. On September 28, 1988, respondent Lulu joined by her husband, Cesar Jorge, filed a complaint against petitioner Sicam with the Regional Trial Court of Makati seeking indemnification for the loss of pawned jewelry and payment of actual, moral and exemplary damages as well as attorney's fees. The case was docketed as Civil Case No. 88-2035. Petitioner Sicam filed his Answer contending that he is not the real party-in-interest as the pawnshop was incorporated on April 20, 1987 and known as Agencia de R.C. Sicam, Inc; that petitioner corporation had exercised due care and diligence in the

safekeeping of the articles pledged with it and could not be made liable for an event that is fortuitous. Respondents subsequently filed an Amended Complaint to include petitioner corporation. Thereafter, petitioner Sicam filed a Motion to Dismiss as far as he is concerned considering that he is not the real party-in-interest. Respondents opposed the same. The RTC denied the motion in an Order dated November 8, 1989. 5 After trial on the merits, the RTC rendered its Decision 6 dated January 12, 1993, dismissing respondents complaint as well as petitioners counterclaim. The RTC held that petitioner Sicam could not be made personally liable for a claim arising out of a corporate transaction; that in the Amended Complaint of respondents, they asserted that "plaintiff pawned assorted jewelries in defendants' pawnshop"; and that as a consequence of the separate juridical personality of a corporation, the corporate debt or credit is not the debt or credit of a stockholder. The RTC further ruled that petitioner corporation could not be held liable for the loss of the pawned jewelry since it had not been rebutted by respondents that the loss of the pledged pieces of jewelry in the possession of the corporation was occasioned by armed robbery; that robbery is a fortuitous event which exempts the victim from liability for the loss, citing the case of Austria v. Court of Appeals ;7 and that the parties transaction was that of a pledgor and pledgee and under Art. 1174 of the Civil Code, the pawnshop as a pledgee is not responsible for those events which could not be foreseen. Respondents appealed the RTC Decision to the CA. In a Decision dated March 31, 2003, the CA reversed the RTC, the dispositive portion of which reads as follows: WHEREFORE, premises considered, the instant Appeal is GRANTED, and the Decision dated January 12, 1993,of the Regional Trial Court of Makati, Branch 62, is hereby REVERSED and SET ASIDE, ordering the appellees to pay appellants the actual value of the lost jewelry amounting to P272,000.00, and attorney' fees of P27,200.00.8 In finding petitioner Sicam liable together with petitioner corporation, the CA applied the doctrine of piercing the veil of corporate entity reasoning that respondents were misled into thinking that they were dealing with the pawnshop owned by petitioner Sicam as all the pawnshop tickets issued to them bear the words "Agencia de R.C. Sicam"; and that there was no indication on the pawnshop tickets that it was the petitioner corporation that owned the pawnshop which explained why respondents had to amend their complaint impleading petitioner corporation. The CA further held that the corresponding diligence required of a pawnshop is that it should take steps to secure and protect the pledged items and should take steps to insure itself against the loss of articles which are entrusted to its custody as it derives earnings from the pawnshop trade which petitioners failed to do; that Austria is not applicable to this case since the robbery incident happened in 1961 when the criminality had not as yet reached the levels attained in the present day; that they are at least guilty of contributory negligence and should be held liable for the loss of jewelries; and that robberies and hold-ups are foreseeable risks in that those engaged in the pawnshop business are expected to foresee. The CA concluded that both petitioners should be jointly and severally held liable to respondents for the loss of the pawned jewelry.

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Petitioners motion for reconsideration was denied in a Resolution dated August 8, 2003. Hence, the instant petition for review with the following assignment of errors: THE COURT OF APPEALS ERRED AND WHEN IT DID, IT OPENED ITSELF TO REVERSAL, WHEN IT ADOPTED UNCRITICALLY (IN FACT IT REPRODUCED AS ITS OWN WITHOUT IN THE MEANTIME ACKNOWLEDGING IT) WHAT THE RESPONDENTS ARGUED IN THEIR BRIEF, WHICH ARGUMENT WAS PALPABLY UNSUSTAINABLE. THE COURT OF APPEALS ERRED, AND WHEN IT DID, IT OPENED ITSELF TO REVERSAL BY THIS HONORABLE COURT, WHEN IT AGAIN ADOPTED UNCRITICALLY (BUT WITHOUT ACKNOWLEDGING IT) THE SUBMISSIONS OF THE RESPONDENTS IN THEIR BRIEF WITHOUT ADDING ANYTHING MORE THERETO DESPITE THE FACT THAT THE SAID ARGUMENT OF THE RESPONDENTS COULD NOT HAVE BEEN SUSTAINED IN VIEW OF UNREBUTTED EVIDENCE ON RECORD. 9 Anent the first assigned error, petitioners point out that the CAs finding that petitioner Sicam is personally liable for the loss of the pawned jewelries is "a virtual and uncritical reproduction of the arguments set out on pp. 5-6 of the Appellants brief."10 Petitioners argue that the reproduced arguments of respondents in their Appellants Brief suffer from infirmities, as follows: (1) Respondents conclusively asserted in paragraph 2 of their Amended Complaint that Agencia de R.C. Sicam, Inc. is the present owner of Agencia de R.C. Sicam Pawnshop, and therefore, the CA cannot rule against said conclusive assertion of respondents; (2) The issue resolved against petitioner Sicam was not among those raised and litigated in the trial court; and (3) By reason of the above infirmities, it was error for the CA to have pierced the corporate veil since a corporation has a personality distinct and separate from its individual stockholders or members. Anent the second error, petitioners point out that the CA finding on their negligence is likewise an unedited reproduction of respondents brief which had the following defects: (1) There were unrebutted evidence on record that petitioners had observed the diligence required of them, i.e, they wanted to open a vault with a nearby bank for purposes of safekeeping the pawned articles but was discouraged by the Central Bank (CB) since CB rules provide that they can only store the pawned articles in a vault inside the pawnshop premises and no other place; (2) Petitioners were adjudged negligent as they did not take insurance against the loss of the pledged jelweries, but it is judicial notice that due to high incidence of crimes, insurance companies refused to cover pawnshops and banks because of high probability of losses due to robberies; (3) In Hernandez v. Chairman, Commission on Audit (179 SCRA 39, 45-46), the victim of robbery was exonerated from liability for the sum of money belonging to others and lost by him to robbers. Respondents filed their Comment and petitioners filed their Reply thereto. The parties subsequently submitted their respective Memoranda. We find no merit in the petition. To begin with, although it is true that indeed the CA findings were exact reproductions of the arguments raised in respondents (appellants) brief filed with

the CA, we find the same to be not fatally infirmed. Upon examination of the Decision, we find that it expressed clearly and distinctly the facts and the law on which it is based as required by Section 8, Article VIII of the Constitution. The discretion to decide a case one way or another is broad enough to justify the adoption of the arguments put forth by one of the parties, as long as these are legally tenable and supported by law and the facts on records. 11 Our jurisdiction under Rule 45 of the Rules of Court is limited to the review of errors of law committed by the appellate court. Generally, the findings of fact of the appellate court are deemed conclusive and we are not duty-bound to analyze and calibrate all over again the evidence adduced by the parties in the court a quo.12 This rule, however, is not without exceptions, such as where the factual findings of the Court of Appeals and the trial court are conflicting or contradictory 13 as is obtaining in the instant case. However, after a careful examination of the records, we find no justification to absolve petitioner Sicam from liability. The CA correctly pierced the veil of the corporate fiction and adjudged petitioner Sicam liable together with petitioner corporation. The rule is that the veil of corporate fiction may be pierced when made as a shield to perpetrate fraud and/or confuse legitimate issues. 14 The theory of corporate entity was not meant to promote unfair objectives or otherwise to shield them.15 Notably, the evidence on record shows that at the time respondent Lulu pawned her jewelry, the pawnshop was owned by petitioner Sicam himself. As correctly observed by the CA, in all the pawnshop receipts issued to respondent Lulu in September 1987, all bear the words "Agencia de R. C. Sicam," notwithstanding that the pawnshop was allegedly incorporated in April 1987. The receipts issued after such alleged incorporation were still in the name of " Agencia de R. C. Sicam," thus inevitably misleading, or at the very least, creating the wrong impression to respondents and the public as well, that the pawnshop was owned solely by petitioner Sicam and not by a corporation. Even petitioners counsel, Atty. Marcial T. Balgos, in his letter 16 dated October 15, 1987 addressed to the Central Bank, expressly referred to petitioner Sicam as the proprietor of the pawnshop notwithstanding the alleged incorporation in April 1987. We also find no merit in petitioners' argument that since respondents had alleged in their Amended Complaint that petitioner corporation is the present owner of the pawnshop, the CA is bound to decide the case on that basis. Section 4 Rule 129 of the Rules of Court provides that an admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. Thus, the general rule that a judicial admission is conclusive upon the party making it and does not require proof, admits of two exceptions, to wit: (1) when it is shown that such admission was made through palpable mistake, and (2) when it is shown that no such admission was in fact made. The latter exception allows one to contradict an admission by denying that he made such an admission. 17 The Committee on the Revision of the Rules of Court explained the second exception in this wise:

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x x x if a party invokes an "admission" by an adverse party, but cites the admission "out of context," then the one making the "admission" may show that he made no "such" admission, or that his admission was taken out of context. x x x that the party can also show that he made no "such admission", i.e., not in the sense in which the admission is made to appear. That is the reason for the modifier "such" because if the rule simply states that the admission may be contradicted by showing that "no admission was made," the rule would not really be providing for a contradiction of the admission but just a denial.18 (Emphasis supplied). While it is true that respondents alleged in their Amended Complaint that petitioner corporation is the present owner of the pawnshop, they did so only because petitioner Sicam alleged in his Answer to the original complaint filed against him that he was not the real party-in-interest as the pawnshop was incorporated in April 1987. Moreover, a reading of the Amended Complaint in its entirety shows that respondents referred to both petitioner Sicam and petitioner corporation where they (respondents) pawned their assorted pieces of jewelry and ascribed to both the failure to observe due diligence commensurate with the business which resulted in the loss of their pawned jewelry. Markedly, respondents, in their Opposition to petitioners Motion to Dismiss Amended Complaint, insofar as petitioner Sicam is concerned, averred as follows: Roberto C. Sicam was named the defendant in the original complaint because the pawnshop tickets involved in this case did not show that the R.C. Sicam Pawnshop was a corporation. In paragraph 1 of his Answer, he admitted the allegations in paragraph 1 and 2 of the Complaint. He merely added "that defendant is not now the real party in interest in this case." It was defendant Sicam's omission to correct the pawnshop tickets used in the subject transactions in this case which was the cause of the instant action. He cannot now ask for the dismissal of the complaint against him simply on the mere allegation that his pawnshop business is now incorporated. It is a matter of defense, the merit of which can only be reached after consideration of the evidence to be presented in due course.19 Unmistakably, the alleged admission made in respondents' Amended Complaint was taken "out of context" by petitioner Sicam to suit his own purpose. Ineluctably, the fact that petitioner Sicam continued to issue pawnshop receipts under his name and not under the corporation's name militates for the piercing of the corporate veil. We likewise find no merit in petitioners' contention that the CA erred in piercing the veil of corporate fiction of petitioner corporation, as it was not an issue raised and litigated before the RTC. Petitioner Sicam had alleged in his Answer filed with the trial court that he was not the real party-in-interest because since April 20, 1987, the pawnshop business initiated by him was incorporated and known as Agencia de R.C. Sicam. In the pretrial brief filed by petitioner Sicam, he submitted that as far as he was concerned, the basic issue was whether he is the real party in interest against whom the complaint should be directed. 20 In fact, he subsequently moved for the dismissal of the complaint as to him but was not favorably acted upon by the trial court. Moreover, the issue was squarely passed upon, although erroneously, by the trial court in its Decision in this manner:

x x x The defendant Roberto Sicam, Jr likewise denies liability as far as he is concerned for the reason that he cannot be made personally liable for a claim arising from a corporate transaction. This Court sustains the contention of the defendant Roberto C. Sicam, Jr. The amended complaint itself asserts that "plaintiff pawned assorted jewelries in defendant's pawnshop." It has been held that " as a consequence of the separate juridical personality of a corporation, the corporate debt or credit is not the debt or credit of the stockholder, nor is the stockholder's debt or credit that of a corporation.21 Clearly, in view of the alleged incorporation of the pawnshop, the issue of whether petitioner Sicam is personally liable is inextricably connected with the determination of the question whether the doctrine of piercing the corporate veil should or should not apply to the case. The next question is whether petitioners are liable for the loss of the pawned articles in their possession. Petitioners insist that they are not liable since robbery is a fortuitous event and they are not negligent at all. We are not persuaded. Article 1174 of the Civil Code provides: Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen or which, though foreseen, were inevitable. Fortuitous events by definition are extraordinary events not foreseeable or avoidable. It is therefore, not enough that the event should not have been foreseen or anticipated, as is commonly believed but it must be one impossible to foresee or to avoid. The mere difficulty to foresee the happening is not impossibility to foresee the same. 22 To constitute a fortuitous event, the following elements must concur: (a) the cause of the unforeseen and unexpected occurrence or of the failure of the debtor to comply with obligations must be independent of human will; (b) it must be impossible to foresee the event that constitutes the caso fortuito or, if it can be foreseen, it must be impossible to avoid; (c) the occurrence must be such as to render it impossible for the debtor to fulfill obligations in a normal manner; and, (d) the obligor must be free from any participation in the aggravation of the injury or loss. 23 The burden of proving that the loss was due to a fortuitous event rests on him who invokes it.24 And, in order for a fortuitous event to exempt one from liability, it is necessary that one has committed no negligence or misconduct that may have occasioned the loss. 25 It has been held that an act of God cannot be invoked to protect a person who has failed to take steps to forestall the possible adverse consequences of such a loss. One's negligence may have concurred with an act of God in producing damage and injury to another; nonetheless, showing that the immediate or proximate cause of the damage or injury was a fortuitous event would not exempt one from liability. When the effect is found to be partly the result of a person's participation -whether by active intervention, neglect or failure to act -- the whole occurrence is humanized and removed from the rules applicable to acts of God. 26

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Petitioner Sicam had testified that there was a security guard in their pawnshop at the time of the robbery. He likewise testified that when he started the pawnshop business in 1983, he thought of opening a vault with the nearby bank for the purpose of safekeeping the valuables but was discouraged by the Central Bank since pawned articles should only be stored in a vault inside the pawnshop. The very measures which petitioners had allegedly adopted show that to them the possibility of robbery was not only foreseeable, but actually foreseen and anticipated. Petitioner Sicams testimony, in effect, contradicts petitioners defense of fortuitous event. Moreover, petitioners failed to show that they were free from any negligence by which the loss of the pawned jewelry may have been occasioned. Robbery per se, just like carnapping, is not a fortuitous event. It does not foreclose the possibility of negligence on the part of herein petitioners. In Co v. Court of Appeals,27 the Court held: It is not a defense for a repair shop of motor vehicles to escape liability simply because the damage or loss of a thing lawfully placed in its possession was due to carnapping. Carnapping per se cannot be considered as a fortuitous event. The fact that a thing was unlawfully and forcefully taken from another's rightful possession, as in cases of carnapping, does not automatically give rise to a fortuitous event. To be considered as such, carnapping entails more than the mere forceful taking of another's property. It must be proved and established that the event was an act of God or was done solely by third parties and that neither the claimant nor the person alleged to be negligent has any participation. In accordance with the Rules of Evidence, the burden of proving that the loss was due to a fortuitous event rests on him who invokes it which in this case is the private respondent. However, other than the police report of the alleged carnapping incident, no other evidence was presented by private respondent to the effect that the incident was not due to its fault. A police report of an alleged crime, to which only private respondent is privy, does not suffice to establish the carnapping. Neither does it prove that there was no fault on the part of private respondent notwithstanding the parties' agreement at the pre-trial that the car was carnapped. Carnapping does not foreclose the possibility of fault or negligence on the part of private respondent.28 Just like in Co, petitioners merely presented the police report of the Paraaque Police Station on the robbery committed based on the report of petitioners' employees which is not sufficient to establish robbery. Such report also does not prove that petitioners were not at fault. On the contrary, by the very evidence of petitioners, the CA did not err in finding that petitioners are guilty of concurrent or contributory negligence as provided in Article 1170 of the Civil Code, to wit: Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages.29 Article 2123 of the Civil Code provides that with regard to pawnshops and other establishments which are engaged in making loans secured by pledges, the special laws and regulations concerning them shall be observed, and subsidiarily, the provisions on pledge, mortgage and antichresis.

The provision on pledge, particularly Article 2099 of the Civil Code, provides that the creditor shall take care of the thing pledged with the diligence of a good father of a family. This means that petitioners must take care of the pawns the way a prudent person would as to his own property. In this connection, Article 1173 of the Civil Code further provides: Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2 shall apply. If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. We expounded in Cruz v. Gangan30 that negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do; or the doing of something which a prudent and reasonable man would not do. 31 It is want of care required by the circumstances. A review of the records clearly shows that petitioners failed to exercise reasonable care and caution that an ordinarily prudent person would have used in the same situation. Petitioners were guilty of negligence in the operation of their pawnshop business. Petitioner Sicam testified, thus: Court: Q. Do you have security guards in your pawnshop? A. Yes, your honor. Q. Then how come that the robbers were able to enter the premises when according to you there was a security guard? A. Sir, if these robbers can rob a bank, how much more a pawnshop. Q. I am asking you how were the robbers able to enter despite the fact that there was a security guard? A. At the time of the incident which happened about 1:00 and 2:00 o'clock in the afternoon and it happened on a Saturday and everything was quiet in the area BF Homes Paraaque they pretended to pawn an article in the pawnshop, so one of my employees allowed him to come in and it was only when it was announced that it was a hold up. Q. Did you come to know how the vault was opened? A. When the pawnshop is official (sic) open your honor the pawnshop is partly open. The combination is off. Q. No one open (sic) the vault for the robbers? A. No one your honor it was open at the time of the robbery. Q. It is clear now that at the time of the robbery the vault was open the reason why the robbers were able to get all the items pawned to you inside the vault. A. Yes sir.32 revealing that there were no security measures adopted by petitioners in the operation of the pawnshop. Evidently, no sufficient precaution and vigilance were adopted by petitioners to protect the pawnshop from unlawful intrusion. There was no clear showing that there was any security guard at all. Or if there was one, that he had sufficient training in securing a pawnshop. Further, there is no showing that the alleged security guard exercised all that was necessary to prevent any untoward incident or to ensure that no suspicious individuals were allowed to enter

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the premises. In fact, it is even doubtful that there was a security guard, since it is quite impossible that he would not have noticed that the robbers were armed with caliber .45 pistols each, which were allegedly poked at the employees. 33 Significantly, the alleged security guard was not presented at all to corroborate petitioner Sicam's claim; not one of petitioners' employees who were present during the robbery incident testified in court. Furthermore, petitioner Sicam's admission that the vault was open at the time of robbery is clearly a proof of petitioners' failure to observe the care, precaution and vigilance that the circumstances justly demanded. Petitioner Sicam testified that once the pawnshop was open, the combination was already off. Considering petitioner Sicam's testimony that the robbery took place on a Saturday afternoon and the area in BF Homes Paraaque at that time was quiet, there was more reason for petitioners to have exercised reasonable foresight and diligence in protecting the pawned jewelries. Instead of taking the precaution to protect them, they let open the vault, providing no difficulty for the robbers to cart away the pawned articles. We, however, do not agree with the CA when it found petitioners negligent for not taking steps to insure themselves against loss of the pawned jewelries. Under Section 17 of Central Bank Circular No. 374, Rules and Regulations for Pawnshops, which took effect on July 13, 1973, and which was issued pursuant to Presidential Decree No. 114, Pawnshop Regulation Act, it is provided that pawns pledged must be insured, to wit: Sec. 17. Insurance of Office Building and Pawns- The place of business of a pawnshop and the pawns pledged to it must be insured against fire and against burglary as well as for the latter(sic), by an insurance company accredited by the Insurance Commissioner. However, this Section was subsequently amended by CB Circular No. 764 which took effect on October 1, 1980, to wit: Sec. 17 Insurance of Office Building and Pawns The office building/premises and pawns of a pawnshop must be insured against fire. (emphasis supplied). where the requirement that insurance against burglary was deleted. Obviously, the Central Bank considered it not feasible to require insurance of pawned articles against burglary. The robbery in the pawnshop happened in 1987, and considering the above-quoted amendment, there is no statutory duty imposed on petitioners to insure the pawned jewelry in which case it was error for the CA to consider it as a factor in concluding that petitioners were negligent. Nevertheless, the preponderance of evidence shows that petitioners failed to exercise the diligence required of them under the Civil Code. The diligence with which the law requires the individual at all times to govern his conduct varies with the nature of the situation in which he is placed and the importance of the act which he is to perform. 34 Thus, the cases of Austria v. Court of Appeals,35 Hernandez v. Chairman, Commission on Audit 36 and Cruz v. Gangan37 cited by petitioners in their pleadings, where the victims of robbery were exonerated from liability, find no application to the present case. In Austria, Maria Abad received from Guillermo Austria a pendant with diamonds to be sold on commission basis, but which Abad failed to subsequently return because of a robbery committed upon her in 1961. The incident became the

subject of a criminal case filed against several persons. Austria filed an action against Abad and her husband (Abads) for recovery of the pendant or its value, but the Abads set up the defense that the robbery extinguished their obligation. The RTC ruled in favor of Austria, as the Abads failed to prove robbery; or, if committed, that Maria Abad was guilty of negligence. The CA, however, reversed the RTC decision holding that the fact of robbery was duly established and declared the Abads not responsible for the loss of the jewelry on account of a fortuitous event. We held that for the Abads to be relieved from the civil liability of returning the pendant under Art. 1174 of the Civil Code, it would only be sufficient that the unforeseen event, the robbery, took place without any concurrent fault on the debtors part, and this can be done by preponderance of evidence; that to be free from liability for reason of fortuitous event, the debtor must, in addition to the casus itself, be free of any concurrent or contributory fault or negligence. 38 We found in Austria that under the circumstances prevailing at the time the Decision was promulgated in 1971, the City of Manila and its suburbs had a high incidence of crimes against persons and property that rendered travel after nightfall a matter to be sedulously avoided without suitable precaution and protection; that the conduct of Maria Abad in returning alone to her house in the evening carrying jewelry of considerable value would have been negligence per se and would not exempt her from responsibility in the case of robbery. However we did not hold Abad liable for negligence since, the robbery happened ten years previously; i.e., 1961, when criminality had not reached the level of incidence obtaining in 1971. In contrast, the robbery in this case took place in 1987 when robbery was already prevalent and petitioners in fact had already foreseen it as they wanted to deposit the pawn with a nearby bank for safekeeping. Moreover, unlike in Austria, where no negligence was committed, we found petitioners negligent in securing their pawnshop as earlier discussed. In Hernandez, Teodoro Hernandez was the OIC and special disbursing officer of the Ternate Beach Project of the Philippine Tourism in Cavite. In the morning of July 1, 1983, a Friday, he went to Manila to encash two checks covering the wages of the employees and the operating expenses of the project. However for some reason, the processing of the check was delayed and was completed at about 3 p.m. Nevertheless, he decided to encash the check because the project employees would be waiting for their pay the following day; otherwise, the workers would have to wait until July 5, the earliest time, when the main office would open. At that time, he had two choices: (1) return to Ternate, Cavite that same afternoon and arrive early evening; or (2) take the money with him to his house in Marilao, Bulacan, spend the night there, and leave for Ternate the following day. He chose the second option, thinking it was the safer one. Thus, a little past 3 p.m., he took a passenger jeep bound for Bulacan. While the jeep was on Epifanio de los Santos Avenue, the jeep was held up and the money kept by Hernandez was taken, and the robbers jumped out of the jeep and ran. Hernandez chased the robbers and caught up with one robber who was subsequently charged with robbery and pleaded guilty. The other robber who held the stolen money escaped. The Commission on Audit found Hernandez negligent because he had not brought the cash proceeds of the checks to his office in Ternate, Cavite for safekeeping, which is the normal procedure in the handling of funds. We held that Hernandez was not

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negligent in deciding to encash the check and bringing it home to Marilao, Bulacan instead of Ternate, Cavite due to the lateness of the hour for the following reasons: (1) he was moved by unselfish motive for his co-employees to collect their wages and salaries the following day, a Saturday, a non-working, because to encash the check on July 5, the next working day after July 1, would have caused discomfort to laborers who were dependent on their wages for sustenance; and (2) that choosing Marilao as a safer destination, being nearer, and in view of the comparative hazards in the trips to the two places, said decision seemed logical at that time. We further held that the fact that two robbers attacked him in broad daylight in the jeep while it was on a busy highway and in the presence of other passengers could not be said to be a result of his imprudence and negligence. Unlike in Hernandez where the robbery happened in a public utility, the robbery in this case took place in the pawnshop which is under the control of petitioners. Petitioners had the means to screen the persons who were allowed entrance to the premises and to protect itself from unlawful intrusion. Petitioners had failed to exercise precautionary measures in ensuring that the robbers were prevented from entering the pawnshop and for keeping the vault open for the day, which paved the way for the robbers to easily cart away the pawned articles. In Cruz, Dr. Filonila O. Cruz, Camanava District Director of Technological Education and Skills Development Authority (TESDA), boarded the Light Rail Transit (LRT) from Sen. Puyat Avenue to Monumento when her handbag was slashed and the contents were stolen by an unidentified person. Among those stolen were her wallet and the government-issued cellular phone. She then reported the incident to the police authorities; however, the thief was not located, and the cellphone was not recovered. She also reported the loss to the Regional Director of TESDA, and she requested that she be freed from accountability for the cellphone. The Resident Auditor denied her request on the ground that she lacked the diligence required in the custody of government property and was ordered to pay the purchase value in the total amount of P4,238.00. The COA found no sufficient justification to grant the request for relief from accountability. We reversed the ruling and found that riding the LRT cannot per se be denounced as a negligent act more so because Cruzs mode of transit was influenced by time and money considerations; that she boarded the LRT to be able to arrive in Caloocan in time for her 3 pm meeting; that any prudent and rational person under similar circumstance can reasonably be expected to do the same; that possession of a cellphone should not hinder one from boarding the LRT coach as Cruz did considering that whether she rode a jeep or bus, the risk of theft would have also been present; that because of her relatively low position and pay, she was not expected to have her own vehicle or to ride a taxicab; she did not have a government assigned vehicle; that placing the cellphone in a bag away from covetous eyes and holding on to that bag as she did is ordinarily sufficient care of a cellphone while traveling on board the LRT; that the records did not show any specific act of negligence on her part and negligence can never be presumed. Unlike in the Cruz case, the robbery in this case happened in petitioners' pawnshop and they were negligent in not exercising the precautions justly demanded of a pawnshop. WHEREFORE, except for the insurance aspect, the Decision of the Court of Appeals dated March 31, 2003 and its Resolution dated August 8, 2003, are AFFIRMED.

Costs against petitioners. SO ORDERED.

Republic SUPREME Manila EN BANC

of

the

Philippines COURT

G.R. No. 130068 October 1, 1998 FAR EASTERN SHIPPING COMPANY, petitioner, vs. COURT OF APPEALS and PHILIPPINE PORTS AUTHORITY, respondents. G.R. No. 130150 October, 1998 MANILA PILOTS ASSOCIATION, petitioner, vs. PHILIPPINE PORTS AUTHORITY and FAR EASTERN SHIPPING COMPANY, respondents. REGALADO, J.: These consolidated petitions for review on certiorari seek in unison to annul and set aside the decision 1 of respondent Court of Appeals of November 15, 1996 and its resolution 2 dated July 31, 1997 in CA-G.R. CV No. 24072, entitled "Philippine Ports Authority, Plaintiff-Appellee vs. Far Eastern Shipping Company, Senen C. Gavino and Manila Pilots' Association, Defendants-Appellants," which affirmed with modification the judgment of the trial court holding the defendants-appellants therein solidarily liable for damages in favor of herein private respondent. There is no dispute about the facts as found by the appellate court, thus . . . On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the USSR, owned and operated by the Far Eastern Shipping Company (FESC for brevity's sake), arrived at the Port of Manila from Vancouver, British Columbia at about 7:00 o'clock in the morning. The vessel was assigned Berth 4 of the Manila International Port, as its berthing space. Captain Roberto Abellana was tasked by the Philippine Port Authority to supervise the berthing of the vessel. Appellant Senen Gavino was assigned by the Appellant Manila Pilots' Association (MPA for brevity's sake) to conduct docking maneuvers for the safe berthing of the vessel to Berth No. 4. Gavino boarded the vessel at the quarantine anchorage and stationed himself in the bridge, with the master of the vessel, Victor Kavankov, beside him. After a briefing of Gavino by Kavankov of the particulars of the vessel and its cargo, the vessel lifted anchor from the quarantine anchorage and proceeded to the Manila International Port. The sea was calm and the wind was ideal for docking maneuvers. When the vessel reached the landmark (the big church by the Tondo North Harbor) one-half mile from the pier, Gavino ordered the engine stopped. When the vessel was already about 2,000 feet from the pier, Gavino ordered the anchor dropped.

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Kavankov relayed the orders to the crew of the vessel on the bow. The left anchor, with two (2) shackles, were dropped. However, the anchor did not take hold as expected. The speed of the vessel did not slacken. A commotion ensued between the crew members. A brief conference ensued between Kavankov and the crew members. When Gavino inquired what was all the commotion about, Kavankov assured Gavino that there was nothing to it. After Gavino noticed that the anchor did not take hold, he ordered the engines half-astern. Abellana, who was then on the pier apron, noticed that the vessel was approaching the pier fast. Kavankov likewise noticed that the anchor did not take hold. Gavino thereafter gave the "full-astern" code. Before the right anchor and additional shackles could be dropped, the bow of the vessel rammed into the apron of the pier causing considerable damage to the pier. The vessel sustained damage too, (Exhibit "7-Far Eastern Shipping). Kavankov filed his sea protest (Exhibit "1Vessel"). Gavino submitted his report to the Chief Pilot ( Exhibit "1-Pilot") who referred the report to the Philippine Ports Authority ( Exhibit 2-Pilot"). Abellana likewise submitted his report of the incident (Exhibit "B"). Per contract and supplemental contract of the Philippine Ports Authority and the contractor for the rehabilitation of the damaged pier, the same cost the Philippine Ports Authority the amount of P1,126,132.25 (Exhibits "D" and "E"). 3 On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the Solicitor General, filed before the Regional Trial Court of Manila, Branch 39, a complaint for a sum of money against Far Eastern Shipping Co., Capt. Senen C. Gavino and the Manila Pilots' Association, docketed as Civil Case No. 83-14958, 4 praying that the defendants therein be held jointly and severally liable to pay the plaintiff actual and exemplary damages plus costs of suit. In a decision dated August 1, 1985, the trial court ordered the defendants therein jointly and severally to pay the PPA the amount of P1,053,300.00 representing actual damages and the costs of suit. 5 The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the pilot of a commercial vessel, under compulsory pilotage, solely liable for the damage caused by the vessel to the pier, at the port of destination, for his negligence? and (2) Would the owner of the vessel be liable likewise if the damage is caused by the concurrent negligence of the master of the vessel and the pilot under a compulsory pilotage? As stated at the outset, respondent appellate court affirmed the findings of the court a quo except that if found no employer-employee relationship existing between herein private respondents Manila Pilots' Association (MPA, for short) and Capt. Gavino. 6 This being so, it ruled instead that the liability of MPA is anchored, not on Article 2180 of the Civil Code, but on the provisions of Customs Administrative Order No. 15-65, 7 and accordingly modified said decision of the trial court by holding MPA, along with its co-defendants therein, still solidarily liable to PPA but entitled MPA to reimbursement from Capt. Gavino for such amount of the adjudged pecuniary liability in excess of the amount equivalent to seventy-five percent (75%) of its prescribed reserve fund. 8 Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the decision of the Court of Appeals and both of them elevated their respective plaints to us via separate petitions for review on certiorari.

In G. R. No. 130068, which was assigned to the Second Division of this Court, FESC imputed that the Court of Appeals seriously erred: 1. in not holding Senen C. Gavino and the Manila Pilots' Association as the parties solely responsible for the resulting damages sustained by the pier deliberately ignoring the established jurisprudence on the matter; 2. in holding that the master had not exercised the required diligence demanded from him by the circumstances at the time the incident happened; 3. in affirming the amount of damages sustained by the respondent Philippine Ports Authority despite a strong and convincing evidence that the amount is clearly exorbitant and unreasonable; 4. in not awarding any amount of counterclaim prayed for by the petitioner in its answer; and 5. in not granting herein petitioner's claim against pilot Senen C. Gavino and Manila Pilots' Association in the event that it be held liable. 9 Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of the incident, it was the compulsory pilot, Capt. Gavino, who was in command and had complete control in the navigation and docking of the vessel. It is the pilot who supersedes the master for the time being in the command and navigation of a ship and his orders must be obeyed in all respects connected with her navigation. Consequently, he was solely responsible for the damage caused upon the pier apron, and not the owners of the vessel. It claims that the master of the boat did not commit any act of negligence when he failed to countermand or overrule the orders of the pilot because he did not see any justifiable reason to do so. In other words, the master cannot be faulted for relying absolutely on the competence of the compulsory pilot. If the master does not observe that a compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot. 10 Respondent PPA, in its comment, predictably in full agreement with the ruling of respondent court on the solidary liability of FESC, MPA and Capt. Gavino, stresses the concurrent negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor Kabankov, * shipmaster of MV Pavlodar, as the basis of their solidary liability for damages sustained by PPA. It posits that the vessel was being piloted by Capt. Gavino with Capt. Kabankov beside him all the while on the bridge of the vessel, as the former took over the helm of MV Pavlodar when it rammed and damaged the apron of the pier of Berth No. 4 of the Manila International Port. Their concurrent negligence was the immediate and proximate cause of the collision between the vessel and the pier Capt. Gavino, for his negligence in the conduct of docking maneuvers for the safe berthing of the vessel; and Capt. Kabankov, for failing to countermand the orders of the harbor pilot and to take over and steer the vessel himself in the face of imminent danger, as well as for merely relying on Capt. Gavino during the berthing procedure. 11 On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division and later transferred to the Third Division. MPA, now as petitioner in this case, avers that respondent court's errors consisted in disregarding and misinterpreting Customs Administrative Order No. 15-65 which limits the liability of MPA. Said pilots' association asseverates that it should not be held solidarily liable with Capt. Gavino who, as held by respondent court is only a member, not an

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employee, thereof. There being no employer-employee relationship, neither can MPA be held liable for any vicarious liability for the respective exercise of profession by its members nor be considered a joint tortfeasor as to be held jointly and severally liable. 12 It further argues that there was erroneous reliance on Customs Administrative Order No. 15-65 and the constitution and by-laws of MPA, instead of the provisions of the Civil Code on damages which, being a substantive law, is higher in category than the aforesaid constitution and by-laws of a professional organization or an administrative order which bears no provision classifying the nature of the liability of MPA for the negligence its member pilots. 13 As for Capt. Gavino, counsel for MPA states that the former had retired from active pilotage services since July 28, 1994 and has ceased to be a member of petitioner pilots' association. He is not joined as a petitioner in this case since his whereabouts are unknown. 14 FESC's comment thereto relied on the competence of the Court of Appeals in construing provisions of law or administrative orders as bases for ascertaining the liability of MPA, and expressed full accord with the appellate court's holding of solidary liability among itself, MPA and Capt. Gavino. It further avers that the disputed provisions of Customs Administrative Order No. 15-65 clearly established MPA's solidary liability. 15 On the other hand, public respondent PPA, likewise through representations by the Solicitor General, assumes the same supportive stance it took in G.R. No. 130068 in declaring its total accord with the ruling of the Court of Appeals that MPA is solidarily liable with Capt. Gavino and FESC for damages, and in its application to the fullest extent of the provisions of Customs Administrative Order No. 15-65 in relation to MPA's constitution and by-laws which spell out the conditions of and govern their respective liabilities. These provisions are clear and unambiguous as regards MPA's liability without need for interpretation or construction. Although Customs Administrative Order No. 15-65 is a mere regulation issued by an administrative agency pursuant to delegated legislative authority to fix details to implement the law, it is legally binding and has the same statutory force as any valid statute. 16 Upon motion 17 by FESC dated April 24, 1998 in G.R. No. 130150, said case was consolidated with G.R. No. 130068. 18 Prefatorily, on matters of compliance with procedural requirements, it must be mentioned that the conduct of the respective counsel for FESC and PPA leaves much to be desired, to the displeasure and disappointment of this Court. Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure 19 incorporates the former Circular No. 28-91 which provided for what has come to be known as the certification against forum shopping as an additional requisite for petitions filed with the Supreme Court and the Court of Appeals, aside from the other requirements contained in pertinent provisions of the Rules of Court therefor, with the end in view of preventing the filing of multiple complaints involving the same issues in the Supreme Court, Court of Appeals or different divisions thereof or any other tribunal or agency. More particularly, the second paragraph of Section 2, Rule 42 provides: xxx xxx xxx The petitioner shall also submit together with the petition a certification under oath that he has not theretofore commenced any other action involving the same issues

in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. (Emphasis ours.) For petitions for review filed before the Supreme Court, Section 4(e), Rule 45 specifically requires that such petition shall contain a sworn certification against forum shopping as provided in the last paragraph of Section 2, Rule 42. The records show that the law firm of Del Rosario and Del Rosario through its associate, Atty. Herbert A. Tria, is the counsel of record for FESC in both G.R. No. 130068 and G.R. No. 130150. G.R. No. 130068, which is assigned to the Court's Second Division, commenced with the filing by FESC through counsel on August 22, 1997 of a verified motion for extension of time to file its petition for thirty (30) days from August 28, 1997 or until September 27, 1997. 20 Said motion contained the following certification against forum shopping 21 signed by Atty. Herbert A. Tria as affiant: CERTIFICATION AGAINST FORUM SHOPPING I/we hereby certify that I/we have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that to the best of my own knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that if I/we should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I/we undertake to report that fact within five (5) days therefrom to this Honorable Court. This motion having been granted, FESC subsequently filed its petition on September 26, 1997, this time bearing a "verification and certification against forum-shopping" executed by one Teodoro P. Lopez on September 24, 1997, 22 to wit: VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING in compliance with Section 4(e), Rule 45 in relation to Section 2, Rule 42 of the Revised Rules of Civil Procedure I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state: 1. That I am the Manager, Claims Department of Filsov Shipping Company, the local agent of petitioner in this case. 2. That I have caused the preparation of this Petition for Review on Certiorari. 3. That I have read the same and the allegations therein contained are true and correct based on the records of this case. 4. That I certify that petitioner has not commenced any other action or proceeding involving the same issues in the Supreme Court or Court of Appeals, or any other tribunal or agency, that to the best of my own knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals or any other tribunal or agency, that if I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of

19

Appeals, or any other tribunal or agency, I undertake to report the fact within five (5) days therefrom to this Honorable Court. (Italics supplied for emphasis.) Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then pending with the Third Division was duly filed on August 29, 1997 with a copy thereof furnished on the same date by registered mail to counsel for FESC. 23 Counsel of record for MPA. Atty. Jesus P. Amparo, in his verification accompanying said petition dutifully revealed to the Court that xxx xxx xxx 3. Petitioner has not commenced any other action or proceeding involving the same issues in this Honorable Court, the Court of Appeals or different Divisions thereof, or any other tribunal or agency, but to the best of his knowledge, there is an action or proceeding pending in this Honorable Court, entitled Far Eastern Shipping Co., Petitioner, vs. Philippine Ports Authority and Court of Appeals with a Motion for Extension of time to file Petition For Review by Certiorari filed sometime on August 18, 1987. If undersigned counsel will come to know of any other pending action or claim filed or pending he undertakes to report such fact within five (5) days to this Honorable Court. 24 (Emphasis supplied.) Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on August 29, 1997 and taking judicial notice of the average period of time it takes local mail to reach its destination, by reasonable estimation it would be fair to conclude that when FESC filed its petition in G.R. No. 130068 on September 26, 1997, it would already have received a copy of the former and would then have knowledge of the pendency of the other petition initially filed with the First Division. It was therefore incumbent upon FESC to inform the Court of that fact through its certification against forum shopping. For failure to make such disclosure, it would appear that the aforequoted certification accompanying the petition in G.R. No. 130068 is defective and could have been a ground for dismissal thereof. Even assuming that FESC had not yet received its copy of MPA's petition at the time it filed its own petition and executed said certification, its signatory did state "that if I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or any other tribunal or agency, I undertake to report the fact within five (5) days therefrom to this Honorable Court." 25 Scouring the records page by page in this case, we find that no manifestation concordant with such undertaking was then or at any other time thereafter ever filed by FESC nor was there any attempt to bring such matter to the attention of the Court. Moreover, it cannot feign non-knowledge of the existence of such other petition because FESC itself filed the motion for consolidation in G.R. No. 130150 of these two cases on April 24, 1998. It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario, displays an unprofessional tendency of taking the Rules for granted, in this instance exemplified by its pro forma compliance therewith but apparently without full comprehension of and with less than faithful commitment to its undertakings to this Court in the interest of just, speedy and orderly administration of court proceedings. As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the court. 26 He is an officer of the court exercising a privilege which is indispensable in the administration of justice. 27 Candidness, especially towards the

courts, is essential for the expeditious administration of justice. Courts are entitled to expect only complete honesty from lawyers appearing and pleading before them. 28 Candor in all dealings is the very essence of honorable membership in the legal profession. 29 More specifically, a lawyer is obliged to observe the rules of procedure and not to misuse them to defeat the ends of justice. 30 It behooves a lawyer, therefore, to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. 31 Being an officer of the court, a lawyer has a responsibility in the proper administration of justice. Like the court itself, he is an instrument to advance its ends the speedy, efficient, impartial, correct and inexpensive adjudication of cases and the prompt satisfaction of final judgments. A lawyer should not only help attain these objectives but should likewise avoid any unethical or improper practices that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting in the speedy and efficient administration of justice. 32 Sad to say, the members of said law firm sorely failed to observe their duties as responsible members of the Bar. Their actuations are indicative of their predisposition to take lightly the avowed duties of officers of the Court to promote respect for law and for legal processes. 33 We cannot allow this state of things to pass judicial muster. In view of the fact that at around the time these petitions were commenced, the 1997 Rules of Civil Procedure had just taken effect, the Court treated infractions of the new Rules then with relative liberality in evaluating full compliance therewith. Nevertheless, it would do well to remind all concerned that the penal provisions of Circular No. 28-91 which remain operative provides, inter alia: 3. Penalties. xxx xxx xxx (c) The submission of a false certification under Par. 2 of the Circular shall likewise constitute contempt of court, without prejudice to the filing of criminal action against the guilty party. The lawyer may also be subjected to disciplinary proceedings. It must be stressed that the certification against forum shopping ordained under the Rules is to be executed by the petitioner, and not by counsel. Obviously it is the petitioner, and not always the counsel whose professional services have been retained for a particular case, who is in the best position to know whether he or it actually filed or caused the filing of a petition in that case. Hence, a certification against forum shopping by counsel is a defective certification. It is clearly equivalent to non-compliance with the requirement under Section 2, Rule 42 in relation to Section 4, Rule 45, and constitutes a valid cause for dismissal of the petition. Hence, the initial certification appended to the motion for extension of time to file petition in G.R. No. 130068 executed in behalf of FESC by Atty. Tria is procedurally deficient. But considering that it was a superfluity at that stage of the proceeding, it being unnecessary to file such a certification with a mere motion for extension, we shall disregard such error. Besides, the certification subsequently executed by Teodoro P. Lopez in behalf of FESC cures that defect to a certain extent, despite the inaccuracies earlier pointed out. In the same vein, we shall consider the verification signed in behalf of MPA by its counsel, Atty. Amparo, in G.R. No. 130150 as substantial compliance inasmuch as it served the purpose of the Rules

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of informing the Court of the pendency of another action or proceeding involving the same issues. It bears stressing that procedural rules are instruments in the speedy and efficient administration of justice. They should be used to achieve such end and not to derail it. 34 Counsel for PPA did not make matters any better. Despite the fact that, save for the Solicitor General at the time, the same legal team of the Office of the Solicitor General (OSG, for short) composed of Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, with the addition of Assistant Solicitor General Pio C. Guerrero very much later in the proceedings, represented PPA throughout the appellate proceedings in both G.R. No. 130068 and G.R. No. 130150 and was presumably fully acquainted with the facts and issues of the case, it took the OSG an inordinately and almost unreasonably long period of time to file its comment, thus unduly delaying the resolution of these cases. It took several changes of leadership in the OSG from Silvestre H. Bello III to Romeo C. dela Cruz and, finally, Ricardo P. Galvez before the comment in behalf of PPA was finally filed. In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days, a warning that no further extensions shall be granted, and personal service on the Solicitor General himself of the resolution requiring the filing of such comment before the OSG indulged the Court with the long required comment on July 10, 1998. 35 This, despite the fact that said office was required to file its comment way back on November 12, 1997. 36 A closer scrutiny of the records likewise indicates that petitoner FESC was not even furnished a copy of said comment as required by Section 5, Rule 42. Instead, a copy thereof was inadvertently furnished to MPA which, from the point of view of G.R. No. 130068, was a non-party. 37 The OSG fared slightly better in G.R. No. 130150 in that it took only six (6) extensions, or a total of 180 days, before the comment was finally filed. 38 And while it properly furnished petitioner MPA with a copy of its comment, it would have been more desirable and expedient in this case to have furnished its therein co-respondent FESC with a copy thereof, if only as a matter of professional courtesy. 39 This undeniably dilatory disinclination of the OSG to seasonably file required pleadings constitutes deplorable disservice to the tax-paying public and can only be categorized as censurable inefficiency on the part of the government law office. This is most certainly professionally unbecoming of the OSG. Another thing that baffles the Court is why the OSG did not take the inititive of filing a motion for consolidation in either G.R. No. 130068 or G.R. No. 130150, considering its familiarity with the background of the case and if only to make its job easier by having to prepare and file only one comment. It could not have been unaware of the pendency of one or the other petition because, being counsel for respondent in both cases, petitioner is required to furnish it with a copy of the petition under pain of dismissal of the petition for failure otherwise. 40 Besides, in G.R. 130068, it prefaces its discussions thus Incidentally, the Manila Pilots' Association (MPA), one of the defendants-appellants in the case before the respondent Court of Appeals, has taken a separate appeal from the said decision to this Honorable Court, which was docketed as G.R. No. 130150 and entitled "Manila Pilots' Association, Petitioner, versus Philippine Ports Authority and Far Eastern Shipping Co., Respondents." 41

Similarly, in G.R. No. 130150, it states Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an appeal from the said decision to this Honorable Court, docketed as G.R. No. 130068, entitled "Far Eastern Shipping Co. vs. Court of Appeals and Philippine Ports Authority." 42 We find here a lackadaisical attitude and complacency on the part of the OSG in the handling of its cases and an almost reflexive propensity to move for countless extensions, as if to test the patience of the Court, before favoring it with the timely submission of required pleadings. It must be emphasized that the Court can resolve cases only as fast as the respective parties in a case file the necessary pleadings. The OSG, by needlessly extending the pendency of these cases through its numerous motions for extension, came very close to exhausting this Court's forbearance and has regrettably fallen short of its duties as the People's Tribune. The OSG is reminded that just like other members of the Bar, the canons under the Code of Professional Responsibility apply with equal force on lawyers in government service in the discharge of their official tasks. 43 These ethical duties are rendered even more exacting as to them because, as government counsel, they have the added duty to abide by the policy of the State to promote a high standard of ethics in public service. 44 Furthermore, it is incumbent upon the OSG, as part of the government bureaucracy, to perform and discharge its duties with the highest degree of professionalism, intelligence and skill 45 and to extend prompt, courteous and adequate service to the public. 46 Now, on the merits of the case. After a judicious examination of the records of this case, the pleadings filed, and the evidence presented by the parties in the two petitions, we find no cogent reason to reverse and set aside the questioned decision. While not entirely a case of first impression, we shall discuss the issues seriatim and, correlatively by way of a judicial once-over, inasmuch as the matters raised in both petitions beg for validation and updating of well-worn maritime jurisprudence. Thereby, we shall write finis to the endless finger-pointing in this shipping mishap which has been stretched beyond the limits of judicial tolerance. The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage pursuant to Section 8, Article III of Philippine Ports Authority Administrative Order No. 03-85, 47 which provides that: Sec. 8. Compulsor Pilotage Service . For entering a harbor and anchoring thereat, or passing through rivers or straits within a pilotage district, as well as docking and undocking at any pier/wharf, or shifting from one berth or another, every vessel engaged in coastwise and foreign trade shall be under compulsory pilotage. . . . In case of compulsory pilotage, the respective duties and responsibilities of the compulsory pilot and the master have been specified by the same regulation in this wise: Sec. 11. Control of vessels and liability for damage . On compulsory pilotage grounds, the Harbor Pilot providing the service to a vessel shall be responsible for the damage caused to a vessel or to life and property at ports due to his negligence or fault. He can only be absolved from liability if the accident is caused by force majeure or natural calamities provided he has exercised prudence and extra diligence to prevent or minimize damage.

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The Master shall retain overall command of the vessel even on pilotage grounds whereby he can countermand or overrule the order or command of the Harbor Pilot on beard. In such event, any damage caused to a vessel or to life and property at ports by reason of the fault or negligence of the Master shall be the responsibility and liability of the registered owner of the vessel concerned without prejudice to recourse against said Master. Such liability of the owner or Master of the vessel or its pilots shall be determined by competent authority in appropriate proceedings in the light of the facts and circumstances of each particular case. Sec. 32. Duties and responsibilities of the Pilot or Pilots' Association. The duties and responsibilities of the Harbor Pilot shall be as follows: xxx xxx xxx f) a pilot shall be held responsible for the direction of a vessel from the time he assumes his work as a pilot thereof until he leaves it anchored or berthed safely; Provided, however, that his responsibility shall cease at the moment the Master neglects or refuses to carry out hisorder. Customs Administrative Order No. 15-65 issued twenty years earlier likewise provided in Chapter I thereof for the responsibilities of pilots: Par. XXXIX. A Pilot shall be held responsible for the direction of a vessel from the time he assumes control thereof until he leaves it anchored free from shoal: Provided, That his responsibility shall cease at the moment the master neglects or refuses to carry out his instructions. xxx xxx xxx Par. XLIV. Pilots shall properly and safely secure or anchor vessels under their control when requested to do so by the master of such vessels. I. G.R. No. 130068 Petitioner FESC faults the respondent court with serious error in not holding MPA and Capt. Gavino solely responsible for the damages cause to the pier. It avers that since the vessel was under compulsory pilotage at the time with Capt. Gavino in command and having exclusive control of the vessel during the docking maneuvers, then the latter should be responsible for damages caused to the pier. 48 It likewise holds the appellate court in error for holding that the master of the ship, Capt. Kabankov, did not exercise the required diligence demanded by the circumstances. 49 We start our discussion of the successive issues bearing in mind the evidentiary rule in American jurisprudence that there is a presumption of fault against a moving vessel that strikes a stationary object such as a dock or navigational aid. In admiralty, this presumption does more than merely require the ship to go forward and produce some evidence on the presumptive matter. The moving vessel must show that it was without fault or that the collision was occasioned by the fault of the stationary object or was the result of inevitable accident. It has been held that such vessel must exhaust every reasonable possibility which the circumstances admit and show that in each, they did all that reasonable care required. 50 In the absence of sufficient proof in rebuttal, the presumption of fault attaches to a moving vessel which collides with a fixed object and makes a prima facie case of fault against the vessel. 51 Logic and experience support this presumption: The common sense behind the rule makes the burden a heavy one. Such accidents simply do not occur in the ordinary course of things unless the vessel has been

mismanaged in some way. It is nor sufficient for the respondent to produce witnesses who testify that as soon as the danger became apparent everything possible was done to avoid an accident. The question remains, How then did the collision occur? The answer must be either that, in spite of the testimony of the witnesses, what was done was too little or too late or, if not, then the vessel was at fault for being in a position in which an unavoidable collision would occur. 52 The task, therefore, in these cases is to pinpoint who was negligent the master of the ship, the harbor pilot or both. A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out of ports, or in certain waters. In a broad sense, the term "pilot" includes both (1) those whose duty it is to guide vessels into or out of ports, or in particular waters and (2) those entrusted with the navigation of vessels on the high seas. 53 However, the term "pilot" is more generally understood as a person taken on board at a particular place for the purpose of conducting a ship through a river, road or channel, or from a port. 54 Under English and American authorities, generally speaking, the pilot supersedes the master for the time being in the command and navigation of the ship, and his orders must be obeyed in all matters connected with her navigation. He becomes the master pro hac vice and should give all directions as to speed, course, stopping and reversing anchoring, towing and the like. And when a licensed pilot is employed in a place where pilotage is compulsory, it is his duty to insist on having effective control of the vessel, or to decline to act as pilot. Under certain systems of foreign law, the pilot does not take entire charge of the vessel, but is deemed merely the adviser of the master, who retains command and control of the navigation even in localities where pilotage is compulsory. 55 It is quite common for states and localities to provide for compulsory pilotage, and safety laws have been enacted requiring vessels approaching their ports, with certain exceptions, to take on board pilots duly licensed under local law. The purpose of these laws is to create a body of seamen thoroughly acquainted with the harbor, to pilot vessels seeking to enter or depart, and thus protect life and property from the dangers of navigation. 56 In line with such established doctrines, Chapter II of Customs Administrative Order No. 15-65 prescribes the rules for compulsory pilotage in the covered pilotage districts, among which is the Manila Pilotage District, viz. PARAGRAPH I. Pilotage for entering a harbor and anchoring thereat, as well as docking and undocking in any pier or shifting from one berth to another shall be compulsory, except Government vessels and vessels of foreign governments entitled to courtesy, and other vessels engaged solely in river or harbor work, or in a daily ferry service between ports which shall be exempt from compulsory pilotage provisions of these regulations: provided, however, that compulsory pilotage shall not apply in pilotage districts whose optional pilotage is allowed under these regulations. Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the Manila International Port. Upon assuming such office as compulsory pilot, Capt. Gavino is held to the universally accepted high standards of care and diligence required of a pilot, whereby he assumes to have skill and knowledge in respect to navigation in the particular waters over which his license extends superior to and

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more to be trusted than that of the master. 57 A pilot 57 should have a thorough knowledge of general and local regulations and physical conditions affecting the vessel in his charge and the waters for which he is licensed, such as a particular harbor or river. He is not held to the highest possible degree of skill and care, but must have and exercise the ordinary skill and care demanded by the circumstances, and usually shown by an expert in his profession. Under extraordinary circumstancesm, a pilot must exercise extraordinary care. 58 In Atlee vs. The Northwesrern Union Packet Company . 59 Mr. Justice Miller spelled out in great detail the duties of a pilot: . . . (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of the topography through which he steers his vessel. In the long course of a thousand miles in one of these rivers, he must be familiar with the appearance of the shore on each side of the river as he goes along. Its banks, towns, its landings, its houses and trees, are all landmarks by which he steers his vessel. The compass is of little use to him. He must know where the navigable channel is, in its relation to all these external objects, especially in the night. He must also be familiar with all dangers that are permanently located in the course of the river, as sand-bars, snags, sunken rocks or trees or abandoned vessels orbarges. All this he must know and remember and avoid. To do this, he must be constantly informed of the changes in the current of the river, of the sand-bars newly made,of logs or snags, or other objects newly presented, against which his vessel might be injured. xxx xxx xxx It may be said that this is exacting a very high order of ability in a pilot. But when we consider the value of the lives and property committed to their control, for in this they are absolute masters, the high compensation they receive, the care which Congress has taken to secure by rigid and frequent examinations and renewal of licenses, this very class of skill, we do not think we fix the standard too high. Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to such strict standard of care and diligence required of pilots in the performance of their duties. Witness this testimony of Capt. Gavino: Court: You have testified before that the reason why the vessel bumped the pier was because the anchor was not released immediately or as soon as you have given the order. Do you remember having srated that? A Yes, your Honor. Q And you gave this order to the captain of the vessel? A Yes, your Honor. Q By that testimony, you are leading the Court to understand that if that anchor was released immediately at the time you gave the order, the incident would not have happened. Is that correct? A Yes, sir, but actually it was only a presumption on my part because there was a commotion between the officers who are in charge of the dropping of the anchor and the captain. I could not understand their language, it was in Russian, so I presumed the anchor was not dropped on time. Q So, you are not sure whether it was really dropped on time or not? A I am not sure, your Honor.

xxx xxx xxx Q You are not even sure what could have caused the incident. What factor could have caused the incident? A Well, in this case now, because either the anchor was not dropped on time or the anchor did not hold, that was the cause of the incident, your Honor. 60 It is disconcertingly riddled with too much incertitude and manifests a seeming indifference for the possibly injurious consequences his commands as pilot may have. Prudence required that he, as pilot, should have made sure that his directions were promptly and strictly followed. As correctly noted by the trial court Moreover, assuming that he did indeed give the command to drop the anchor on time, as pilot he should have seen to it that the order was carried out, and he could have done this in a number of ways, one of which was to inspect the bow of the vessel where the anchor mechanism was installed. Of course, Captain Gavino makes reference to a commotion among the crew members which supposedly caused the delay in the execution of the command. This account was reflected in the pilot's report prepared four hours later, but Capt. Kavankov, while not admitting whether or not such a commotion occurred, maintained that the command to drop anchor was followed "immediately and precisely." Hence, the Court cannot give much weight or consideration to this portion of Gavino's testimony." 61 An act may be negligent if it is done without the competence that a reasonable person in the position of the actor would recognize as necessary to prevent it from creating an unreasonable risk of harm to another. 62 Those who undertake any work calling for special skills are required not only to exercise reasonable care in what they do but also possess a standard minimum of special knowledge and ability. 63 Every man who offers his services to another, and is employed, assumes to exercise in the employment such skills he possesses, with a reasonable degree of diligence. In all these employments where peculiar skill is requisite, if one offers his services he is understood as holding himself out to the public as possessing the degree of skill commonly possessed by others in the same employment, and if his pretensions are unfounded he commits a species of fraud on every man who employs him in reliance on his public profession. 64 Furthermore, there is an obligation on all persons to take the care which, under ordinary circumstances of the case, a reasonable and prudent man would take, and the omission of that care constitutes negligence. 65 Generally, the degree of care required is graduated according to the danger a person or property attendant upon the activity which the actor pursues or the instrumentality which he uses. The greater the danger the greater the degree of care required. What is ordinary under extraordinary of conditions is dictated by those conditions; extraordinary risk demands extraordinary care. Similarly, the more imminent the danger, the higher the degree of care. 66 We give our imprimatur to the bases for the conclusion of the Court of Appeals that Capt. Gavino was indeed negligent in the performance of his duties: xxx xxx xxx . . . As can be gleaned from the logbook, Gavino ordered the left anchor and two (2) shackles dropped at 8:30 o'clock in the morning. He ordered the engines of the

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vessel stopped at 8:31 o'clock. By then,Gavino must have realized that the anchor did not hit a hard object and was not clawed so as to reduce the momentum of the vessel. In point of fact, the vessel continued travelling towards the pier at the same speed. Gavino failed to react, At 8:32 o'clock, the two (2) tugboats began to push the stern part of the vessel from the port side bur the momentum of the vessel was not contained. Still, Gavino did not react. He did not even order the other anchor and two (2) more shackles dropped to arrest the momentum of the vessel. Neither did he order full-astern. It was only at 8:34 o'clock, or four (4) minutes, after the anchor was dropped that Gavino reacted. But his reaction was even (haphazard) because instead of arresting fully the momentum of the vessel with the help of the tugboats, Gavino ordered merely "half-astern". It took Gavino another minute to order a "full-astern". By then, it was too late. The vessel's momentum could no longer be arrested and, barely a minute thereafter, the bow of the vessel hit the apron of the pier. Patently, Gavino miscalculated. He failed to react and undertake adequate measures to arrest fully the momentum of the vessel after the anchor failed to claw to the seabed. When he reacted, the same was even (haphazard). Gavino failed to reckon the bulk of the vessel, its size and its cargo. He erroneously believed that only one (1) anchor would suffice and even when the anchor failed to claw into the seabed or against a hard object in the seabed, Gavino failed to order the other anchor dropped immediately. His claim that the anchor was dropped when the vessel was only 1,000 feet from the pier is but a belated attempt to extricate himself from the quagmire of his own insouciance and negligence. In sum, then, Appellants' claim that the incident was caused by "force majeure" is barren of factual basis. xxx xxx xxx The harbor pilots are especially trained for this job. In the Philippines, one may not be a harbor pilot unless he passed the required examination and training conducted then by the Bureau of Custom, under Customs Administrative Order No. 15-65, now under the Philippine Ports Authority under PPA Administrative Order 6385, Paragraph XXXIX of the Customs Administrative Order No. 15-65 provides that "the pilot shall be held responsible for the direction of the vessel from the time he assumes control thereof, until he leaves it anchored free from shoal: Provided, that his responsibility shall cease at the.moment the master neglects or refuse(s) to carry out his instructions." The overall direction regarding the procedure for docking and undocking the vessel emanates from the harbor pilot. In the present recourse, Gavino failed to live up to his responsibilities and exercise reasonable care or that degree of care required by the exigencies of the occasion. Failure on his part to exercise the degree of care demanded by the circumstances is negligence (Reese versus Philadelphia & RR Co. 239 US 363, 60 L ed. 384, 57 Am Jur, 2d page 418). 67 This affirms the findings of the trial court regarding Capt. Gavino's negligence: This discussion should not however, divert the court from the fact that negligence in manuevering the vessel must be attributed to Capt. Senen Gavino. He was an experienced pilot and by this time should have long familiarized himself with the depth of the port and the distance he could keep between the vessel and port in order to berth safely. 68

The negligence on the part of Capt. Gavino is evident; but Capt. Kabancov is no less responsible for the allision. His unconcerned lethargy as master of the ship in the face of troublous exigence constitutes negligence. While it is indubitable that in exercising his functions a pilot is in sole command of the ship 69 and supersedes the master for the time being in the command and navigation of a ship and that he becomes master pro hac vice of a vessel piloted by him, 70 there is overwhelming authority to the effect that the master does not surrender his vessel to the pilot and the pilot is not the master. The master is still in command of the vessel notwithstanding the presence of a pilot. There are occasions when the master may and should interfere and even displace the pilot, as when the pilot is obviously incompetent or intoxicated and the circumstances may require the master to displace a compulsory pilot because of incompetency or physical incapacity. If, however, the master does nor observe that a compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot, but not blindly. 71 The master is not wholly absolved from his duties while a pilot is on board his vessel, and may advise with or offer suggestions to him. He is still in command of the vessel, except so far as her navigation is concerned, and must cause the ordinary work of the vessel to be properly carried on and the usual precaution taken. Thus, in particular, he is bound to see that there is sufficient watch on deck, and that the men are attentive to their duties, also that engines are stopped, towlines cast off, and the anchors clear and ready to go at the pilot's order. 72 A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the discharge of his duties as master of the ship, leaving the entire docking procedure up to the pilot, instead of maintaining watchful vigilance over this risky maneuver: Q Will you please tell us whether you have the right to intervene in docking of your ship in the harbor? A No sir, I have no right to intervene in time of docking, only in case there is imminent danger to the vessel and to the pier. Q Did you ever intervene during the time that your ship was being docked by Capt. Gavino? A No sir, I did not intervene at the time when the pilot was docking my ship. Q Up to the time it was actually docked at the pier, is that correct? A No sir, I did not intervene up to the very moment when the vessel was docked. xxx xxx xxx Atty. Del Rosario (to the witness) Q Mr. Witness, what happened, if any, or was there anything unusual that happened during the docking? A Yes sir, our ship touched ihe pier and the pier was damaged. Court (to the witness) Q When you said touched the pier, are you leading the court to understand that your ship bumped the pier? A I believe that my vessel only touched the pier but the impact was very weak. Q Do you know whether the pier was damaged as a result of that slight or weak impact? A Yes sir, after the pier was damaged. xxx xxx xxx

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Q Being most concerned with the safety of your vessel, in the maneuvering of your vessel to the port, did you observe anything irregular in the maneuvering by Capt. Gavino at the time he was trying to cause the vessel to be docked at the pier? A You mean the action of Capt. Gavino or his condition? Court: Q Not the actuation that conform to the safety maneuver of the ship to the harbor? A No sir, it was a usual docking. Q By that statement of yours, you are leading the court to understand that there was nothing irregular in the docking of the ship? A Yes sir, during the initial period of the docking, there was nothing unusual that happened. Q What about in the last portion of the docking of the ship, was there anything unusual or abnormal that happened? A None Your Honor, I believe that Capt. Gavino thought that the anchor could keep or hold the vessel. Q You want us to understand, Mr. Witness, that the dropping of the anchor of the vessel was nor timely? A I don't know the depth of this port but I think, if the anchor was dropped earlier and with more shackles, there could not have been an incident. Q So you could not precisely tell the court that the dropping of the anchor was timery because you are not well aware of the seabed, is that correct? A Yes sir, that is right. xxx xxx xxx Q Alright, Capt. Kavankov, did you come to know later whether the anchor held its ground so much so that the vessel could not travel? A It is difficult for me to say definitely. I believe that the anchor did not hold the ship. Q You mean you don't know whether the anchor blades stuck to the ground to stop the ship from further moving? A Yes sir, it is possible. Q What is possible? A I think, the 2 shackles were not enough to hold the vessel. Q Did you know that the 2 shackles were dropped? A Yes sir, I knew that. Q If you knew that the shackles were not enough to hold the ship, did you not make any protest to the pilot? A No sir, after the incident, that was my assumption. Q Did you come to know later whether that presumption is correct? A I still don't know the ground in the harbor or the depths. Q So from the beginning, you were not competent whether the 2 shackles were also dropped to hold the ship? A No sir, at the beginning, I did not doubt it because I believe Capt. Gavino to be an experienced pilot and he should be more aware as to the depths of the harbor and the ground and I was confident in his actions. xxx xxx xxx Solicitor Abad (to the witness) Q Now, you were standing with the pilot on the bridge of the vessel before the inicident happened, were you not?

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

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

May I ask that the question . . . Solicitor Abad: Never mind, I will reform the question. xxx xxx xxx Solicitor Abad (to the witness) Q Is it not a fact that the vessel bumped the pier? A That is right, it bumped the pier. Q For the main reason that the anchor of the vessel did not hold the ground as expected? A Yes sir, that is my opinion. 73 Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment of the situation: Q Now, after the anchor was dropped, was there any point in time that you felt that the vessel was in imminent danger. A No, at that time, the vessel was not in imminent, danger, sir. 74 This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to Capt. Gavino's anxious assessment of the situation: Q When a pilot is on board a vessel, it is the piler's command which should be followed at that moment until the vessel is, or goes to port or reaches port? A Yes, your Honor, but it does not take away from the Captain his prerogative to countermand the pilot. Q In what way? A In any case, which he thinks the pilot is not maneuvering correctly, the Captain always has the prerogative to countermand the pilot's order. Q But insofar as competence, efficiency and functional knowledee of the seabed which are vital or decisive in the safety ( sic) bringing of a vessel to the port, he is not competent? A Yes, your Honor. That is why they hire a pilot in an advisory capacity, but still, the safety of the vessel rest(s) upon the Captain, the Master of the vessel. Q In this case, there was not a disagreement between you and the Captain of the vessel in the bringing of the vessel to port? A No, your Honor. Court: May proceed. Atty. Catris: In fact, the Master of the vessel testified here that he was all along in conformity with the orders you, gave to him, and, as matter of fact, as he said, he obeyed all your orders. Can you tell, if in the course of giving such normal orders for the saf(e) docking of the MV Pavlodar, do you remember of any instance that the Master of the vessel did not obey your command for the safety docking of the MV Pavlodar? Atty. del Rosario: Already answered, he already said yes sir. Court: Yes, he has just answered yes sir to the Court that there was no disagreement insofar as the bringing of the vessel safely to the port. Atty. Catris:

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

going straightforward with its bow towards the port (Exhibit "A-1 ). There was thus a need for the vessel to move "full-astern" and to drop the other anchor with another shackle or two (2), for the vessel to avoid hitting the pier. Kavankov refused to act even as Gavino failed to act. Even as Gavino gave mere "halfastern" order, Kavankov supinely stood by. The vessel was already about twenty (20) meters away from the pier when Gavino gave the "full-astern" order. Even then, Kavankov did nothing to prevent the vessel from hitting the pier simply because he relied on the competence and plan of Gavino. While the "full-astern'' maneuver momentarily arrested the momentum of the vessel, it was, by then, too late. All along, Kavankov stood supinely beside Gavino, doing nothing but relay the commands of Gavino. Inscrutably, then, Kavankov was negligent. xxx xxx xxx The stark incompetence of Kavankov is competent evidence to prove the unseaworthiness of the vessel. It has been held that the incompetence of the navigator, the master of the vessel or its crew makes the vessel unseaworthy (Tug Ocean Prince versus United States of America, 584 F. 2nd, page 1151). Hence, the Appellant FESC is likewise liable for the damage sustained by the Appellee. 77 We find strong and well-reasoned support in time-tested American maritime jurisprudence, on which much of our laws and jurisprudence on the matter are based, for the conclusions of the Court of Appeals adjudging both Capt. Gavino and Capt. Kabankov negligent. As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in The Steamship China vs. Walsh, 78 that it is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel, at his discretion. In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that: Nor are rye satisfied with the conduct of the master in leaving the pilot in sole charge of the vessel . While the pilot doubtless supersedes the master for the time being in the command and navigation of the ship, and his orders must be obeyed in all matters connected with her navigation, the master is not wholly absolved from his duties while the pilot is on board, and may advise with him, and even displace him in case he is intoxicated or manifestly incompetent. He is still in command of the vessel, except so far as her navigation is concerned, and bound to see that there is a sufficient watch on deck, and that the men are attentive to their duties. . . . (N)orwithstanding the pilot has charge, it is the duty of the master to prevent accident, and not to abandon the vessel entirely to the pilot ; but that there are certain duties he has to discharge (notwithstanding there is a pilot on board) for the benefit of the owners. . . . that in well conducted ships the master does not regard the presence of a duly licensed pilot in compulsory pilot waters as freeing him from every, obligation to attend to the safety of the vessel ; but that, while the master sees that his officers and crew duly attend to the pilot's orders, he himself is bound to keep a vigilant eye on the navigation of the vessel, and, when exceptional circumstances exist, not only to urge upon the pilot to use every precaution, but to insist upon such being taken . 79 (Italics for emphasis.)

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In Jure vs. United Fruit Co ., 80 which, like the present petitions, involved compulsory pilotage, with a similar scenario where at and prior to the time of injury, the vessel was in the charge of a pilot with the master on the bridge of the vessel beside said pilot, the court therein ruled: The authority of the master of a vessel is not in complete abeyance while a pilot, who is required by law to be accepted, is in discharge of his functions. . . . It is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel. He may exercise it, or not, according to his discretion. There was evidence to support findings that piaintiff's injury was due to the negligent operation of the Atenas, and that the master of that vessel was negligent in failing to take action to avoid endangering a vessel situated as the City of Canton was and persons or property thereon. A phase of the evidence furnished support for the inferences . . . that he negligently failed to suggest to the pilot the danger which was disclosed, and means of avoiding such danger; and that the master's negligence in failing to give timelt admonition to the pilot proximately contributed to the injury complained of. We are of opinion that the evidence mentioned tended to prove conduct of the pilot, known to the master, giving rise to a case of danger or great necessity, calling for the intervention of the master. A master of a vessel is not without fault in acquiescing in canduct of a pilot which involves apparent and avoidable danger , whether such danger is to the vessel upon which the pilot is, or to another vessel, or persons or property thereon or on shore. (Emphasis ours.) Still in another case involving a nearly identical setting, the captain of a vessel alongside the compulsory pilot was deemed to be negligent, since, in the words of the court, "he was in a position to exercise his superior authority if he had deemed the speed excessive on the occasion in question. I think it was clearly negligent of him not to have recognized the danger to any craft moored at Gravell Dock and that he should have directed the pilot to reduce his speed as required by the local governmental regulations. His failure amounted to negligence and renders the respondent liable." 81 (Emphasis supplied.) Though a compulsory pilot might be regarded as an independent contractor, he is at all times subject to the ultimate control of the ship's master. 82 In sum, where a compulsory pilot is in charge of a ship, the master being required to permit him to navigate it, if the master observes that the pilot is incompetent or physically incapable, then it is the dury of the master to refuse to permit the pilot to act. But if no such reasons are present, then the master is justified in relying upon the pilot, but not blindly. Under the circumstances of this case, if a situation arose where the master, exercising that reasonable vigilance which the master of a ship should exercise, observed, or should have observed, that the pilot was so navigating the vessel that she was going, or was likely to go, into danger, and there was in the exercise of reasonable care and vigilance an opportunity for the master to intervene so as to save the ship from danger, the master should have acted accordingly. 83 The master of a vessel must exercise a degree of vigilance commensurate with the circumstances . 84 Inasmuch as the matter of negligence is a question of fact, 85 we defer to the findings of the trial court, especially as this is affirmed by the Court of Appeals. 86

But even beyond that, our own evaluation is that Capt. Kabankov's shared liability is due mainly to the fact that he failed to act when the perilous situation should have spurred him into quick and decisive action as master of the ship. In the face of imminent or actual danger, he did not have to wait for the happenstance to occur before countermanding or overruling the pilot. By his own admission, Capt. Kabankov concurred with Capt. Gavino's decisions, and this is precisely the reason why he decided not to countermand any of the latter's orders. Inasmuch as both lower courts found Capt. Gavino negligent, by expressing full agreement therewith Capt. Kabankov was just as negligent as Capt. Gavino. In general, a pilot is personally liable for damages caused by his own negligence or default to the owners of the vessel, and to third parties for damages sustained in a collision. Such negligence of the pilot in the performance of duty constitutes a maritime tort. 87 At common law, a shipowner is not liable for injuries inflicted exclusively by the negligence of a pilot accepted by a vessel compulsorily. 88 The exemption from liability for such negligence shall apply if the pilot is actually in charge and solely in fault. Since, a pilot is responsible only for his own personal negligence, he cannot be held accountable for damages proximately caused by the default of others, 89 or, if there be anything which concurred with the fault of the pilot in producing the accident, the vessel master and owners are liable. Since the colliding vessel is prima facie responsible, the burden of proof is upon the party claiming benefit of the exemption from liability. It must be shown affirmatively that the pilot was at fault, and that there was no fault on the part of the officers or crew, which might have been conducive to the damage. The fact that the law compelled the master to take the pilot does not exonerate the vessel from liability. The parties who suffer are entitled to have their remedy against the vessel that occasioned the damage, and are not under necessity to look to the pilot from whom redress is not always had for compensation. The owners of the vessel are responsible to the injured party for the acts of the pilot, and they must be left to recover the amount as well as they can against him. It cannot be maintained that the circumstance of having a pilot on board, and acting in conformity to his directions operate as a discharge of responsibility of the owners. 90 Except insofar as their liability is limited or exempted by statute, the vessel or her owner are liable for all damages caused by the negligence or other wrongs of the owners or those in charge of the vessel. Where the pilot of a vessel is not a compulsory one in the sense that the owner or master of the vessel are bound to accept him, but is employed voluntarily, the owners of the vessel are, all the more, liable for his negligent act. 91 In the United States, the owners of a vessel are not personally liable for the negligent acts of a compulsory pilot, but by admiralty law, the fault or negligence of a compulsory pilot is imputable to the vessel and it may be held liable therefor in rem. Where, however, by the provisions of the statute the pilot is compulsory only in the sense that his fee must be paid, and is not in compulsory charge of the vessel, there is no exemption from liability. Even though the pilot is compulsory, if his negligence was not the sole cause of the injury, but the negligence of the master or crew contributed thereto, the owners are liable. 92 But the liability of the ship in rem does not release the pilot from the consequences of his own negligence. 93 The rationale for this rule is that the master is not entirely absolved of responsibility with respect to navigation when a compulsory pilot is in charge. 94

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By way of validation and in light of the aforecited guidepost rulings in American maritime cases, we declare that our rulings during the early years of this century in City of Manila vs. Gambe, 95 China Navigation Co., Ltd. vs. Vidal , 96 and Yap Tica & Co. vs. Anderson, et al. 97 have withstood the proverbial test of time and remain good and relevant case law to this day. City of Manila stands for the doctrine that the pilot who was in command and complete control of a vessel, and not the owners, must be held responsible for an accident which was solely the result of the mistake of the pilot in not giving proper orders, and which did not result from the failure of the owners to equip the vessel with the most modern and improved machinery. In China Navigation Co., the pilot deviated from the ordinary and safe course, without heeding the warnings of the ship captain. It was this careless deviation that caused the vessel to collide with a pinnacle rock which, though uncharted, was known to pilots and local navigators. Obviously, the captain was blameless. It was the negligence of the pilot alone which was the proximate cause of the collision. The Court could not but then rule that The pilot in the case at bar having deviated from the usual and ordinary course followed by navigators in passing through the strait in question, without a substantial reason, was guilty of negligence, and that negligence having been the proximate cause of the damages, he is liable for such damages as usually and naturally flow therefrom. . . . . . . (T)he defendant should have known of the existence and location of the rock upon which the vessel struck while under his control and management. . . . . Consistent with the pronouncements in these two earlier cases, but on a slightly different tack, the Court in Yap Tico & Co. exonerated the pilot from liability for the accident where the orders of the pilot in the handling of the ship were disregarded by the officers and crew of the ship. According to the Court, a pilot is ". . . responsible for a full knowledge of the channel and the navigation only so far as he can accomplish it through the officers and crew of the ship, and I don't see chat he can be held responsible for damage when the evidence shows, as it does in this case, that the officers and crew of the ship failed to obey his orders." Nonetheless, it is possible for a compulsory pilot and the master of the vessel to be concurrently negligent and thus share the blame for the resulting damage as joint tortfeasors, 98 but only under the circumstances obtaining in and demonstrated by the instant petitions. It may be said, as a general rule, that negligence in order to render a person liable need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes other than piaintiff's, is the proximate cause of the injury. Accordingly, where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that the negligence of the person charged with injury is an efficient cause without which the injury would not have resulted to as great an extent, and that such cause is not attributable to the person injured. It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone, without the negligence or wrongful acts of the other concurrent rortfeasor. 99 Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery

may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not the same. No actor's negligence ceases to be a proximate cause merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury. 100 There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the total damage. Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in combination the direct and proximate cause of a single injury to a third person, it is impossible to determine in what proportion each contributed to the injury and either of them is responsible for the whole injury. Where their concurring negligence resulted in injury or damage to a third party, they become joint tortfeasors and are solidarily liable for the resulting damage under Article 2194 101 of the Civil Code. 102 As for the amount of damages awarded by the trial court, we find the same to be reasonable. The testimony of Mr. Pascual Barral, witness for PPA, on cross and redirect examination, appears to be grounded on practical considerations: Q So that the cost of the two additional piles as well as the (two) square meters is already included in this P1,300,999.77. A Yes sir, everything. It is (the) final cost already. Q For the eight piles. A Including the reduced areas and other reductions. Q (A)nd the two square meters. A Yes sir. Q In other words, this P1,300,999.77 does not represent only for the six piles that was damaged as well as the corresponding two piles. A The area was corresponding, was increased by almost two in the actual payment. That was why the contract was decreased, the real amount was P1,124,627.40 and the final one is P1,300,999.77. Q Yes, but that P1,300,999.77 included the additional two new posts. A It was increased. Q Why was it increased? A The original was 48 and the actual was 46. Q Now, the damage was somewhere in 1980. It took place in 1980 and you started the repair and reconstruction in 1982, that took almost two years? A Yes sir. Q May it not happen that by natural factors, the existing damage in 1980 was aggravated for the 2 year period that the damage portion was not repaired? A I don't think so because that area was at once marked and no vehicles can park, it was closed. Q Even if or even natural elements cannot affect the damage? A Cannot, sir. xxx xxx xxx Q You said in the cross-examination that there were six piles damaged by the accident, but that in the reconstruction of the pier, PPA drove and constructed 8 piles. Will you explain to us why there was change in the number of piles from the original number?

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

The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are: PAR. XXVII. In all pilotage districts where pilotage is compulsory, there shall be created and maintained by the pilots or pilots' association, in the manner hereinafter prescribed, a reserve fund equal to P1,000.00 for each pilot thereof for the purpose of paying claims for damages to vessels or property caused through acts or omissions of its members while rendered in compulsory pilotage service. In Manila, the reserve fund shall be P2,000.00 for each pilot. PAR. XXVIII. A pilots' association shall not be liable under these regulations for damage to any vessel, or other property, resulting from acts of a member of an association in the actual performance of his duty for a greater amount than seventy-five per centum (75%) of its prescribed reserve fund; it being understood that if the association is held liable for an amount greater than the amount abovestated, the excess shall be paid by the personal funds of the member concerned. PAR. XXXI. If a payment is made from the reserve fund of an association on account of damages caused by a member thereof, and he shall have been found at fault, such member shall reimburse the association in the amount so paid as soon as practicable; and for this purpose, not less than twenty-five per centum of his dividends shall be retained each month until the full amount has been returned to the reserve fund. PAR. XXXIV. Nothing in these regulations shall relieve any pilots' association or members thereof, individually or collectively, from civil responsibility for damages to life or property resulting from the acts of members in the performance of their duties. Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which timery amended this applicable maritime regulation, state: Art. IV Sec. 17. Pilots' Association The Pilots in a Pilotage District shall organize themselves into a Pilots' Association or firm, the members of which shall promulgate their own By-Laws not in conflict with the rules and regulations promulgated by the Authority. These By-Laws shall be submitted not later than one (1) month after the organization of the Pilots' Association for approval by the General Manager of the Authority. Subsequent amendments thereto shall likewise be submitted for approval. Sec. 25. Indemnity Insurance and Reserve Fund a) Each Pilots' Association shall collectively insure its membership at the rate of P50,000.00 each member to cover in whole or in part any liability arising from any accident resulting in damage to vessel(s), port facilities and other properties and/or injury to persons or death which any member may have caused in the course of his performance of pilotage duties. . . . . b) The Pilotage Association shall likewise set up and maintain a reserve fund which shall answer for any part of the liability referred to in the immediately preceding paragraph which is left unsatisfied by the insurance proceeds, in the following manner: 1) Each pilot in the Association shall contribute from his own account an amount of P4,000.00 (P6,000.00 in the Manila Pilotage District) to the reserve fund. This fund shall not be considered part of the capital of the Association nor charged as an expense thereof.

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2) Seventy-five percent (75 %) of the reserve fund shall be set aside for use in the payment of damages referred to above incurred in the actual performance of pilots' duties and the excess shall be paid from the personal funds of the member concerned. xxx xxx xxx 5) If payment is made from the reserve fund of an Association on account of damage caused by a member thereof who is found at fault, he shall reimburse the Association in the amount so paid as soon as practicable; and for this purpose, not less than twenty-five percentum (25 %) of his dividend shall be retained each month until the full amount has been returned to the reserve fund. Thereafter, the pilot involved shall be entitled to his full dividend. 6) When the reimbursement has been completed as prescribed in the preceding paragraph, the ten percentum (10%) and the interest withheld from the shares of the other pilots in accordance with paragraph (4) hereof shall be returned to them. c) Liability of Pilots' Association Nothing in these regulations shall relieve any Pilots' Association or members thereof, individually or collectively, from any civil, administrative and/or criminal responsibility for damages to life or property resulting from the individual acts of its members as well as those of the Association's employees and crew in the performance of their duties. The Court of Appeals, while affirming the trial court's finding of solidary liability on the part of FESC, MPA and Capt. Gavino, correctly based MPA' s liability not on the concept of employer-employee relationship between Capt. Gavino and itself, but on the provisions of Customs Administrative Order No. 15-65: The Appellant MPA avers that, contrary to the findings and disquisitions of the Court a quo, the Appellant Gavino was not and has never been an employee of the MPA but was only a member thereof. The Court a quo, it is noteworthy, did not state the factual basis on which it anchored its finding that Gavino was the employee of MPA. We are in accord with MPA's pose. Case law teaches Us that, for an employer-employee relationship to exist, the confluence of the following elements must be established: (1) selection and engagement of employees; (2) the payment of wages; (3) the power of dismissal; (4) the employer's power to control the employees with respect to the means and method by which the work is to be performed (Ruga versus NLRC, 181 SCRA 266). xxx xxx xxx The liability of MPA for damages is not anchored on Article 2180 of the New Civil Code as erroneously found and declared by the Court a quo but under the provisions of Customs Administrative Order No. 15-65, supra, in tandem with the by-laws of the MPA. 107 There being no employer-employee relationship, clearly Article 2180 108 of the Civil Code is inapplicable since there is no vicarious liability of an employer to speak of. It is so stated in American law, as follows: The well established rule is that pilot associations are immune to vicarious liability for the tort of their members. They are not the employer of their members and exercise no control over them once they take the helm of the vessel. They are also not partnerships because the members do not function as agents for the association or for each other. Pilots' associations are also not liable for negligently assuring the competence of their members because as professional associations

they made no guarantee of the professional conduct of their members to the general public. 109 Where under local statutes and regulations, pilot associations lack the necessary legal incidents of responsibility, they have been held not liable for damages caused by the default of a member pilot. 110 Whether or not the members of a pilots' association are in legal effect a copartnership depends wholly on the powers and duties of the members in relation to one another under the provisions of the governing statutes and regulations. The relation of a pilot to his association is not that of a servant to the master, but of an associate assisting and participating in a common purpose. Ultimately, the rights and liabilities between a pilots' association and an individual member depend largely upon the constitution, articles or by-laws of the association, subject to appropriate government regulations. 111 No reliance can be placed by MPA on the cited American rulings as to immunity from liability of a pilots' association in ljght of existing positive regulation under Philippine law. The Court of Appeals properly applied the clear and unequivocal provisions of Customs Administrative Order No. 15-65. In doing so, it was just being consistent with its finding of the non-existence of employer-employee relationship between MPA and Capt. Gavino which precludes the application of Article 2180 of the Civil Code. True. Customs Administrative Order No. 15-65 does not categorically characterize or label MPA's liability as solidary in nature. Nevertheless, a careful reading and proper analysis of the correlated provisions lead to the conclusion that MPA is solidarily liable for the negligence of its member pilots, without prejudice to subsequent reimbursement from the pilot at fault. Art. 1207 of the Civil Code provides that there is solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity. Plainly, Customs Administrative Order No. 15-65, which as an implementing rule has the force and effect of law, can validly provide for solidary liability.We note the Solicitor General's comment hereon, to wit: . . . Customs Administrative Order No. 15-65 may be a mere rule and regulation issued by an administrative agency pursuant to a delegated authority to fix "the details" in the execution or enforcement of a policy set out in the law itself. Nonetheless, said administrative order, which adds to the procedural or enforcing provisions of substantive law, is legally binding and receives the same statutory force upon going into effect. In that sense, it has equal, not lower, statutory force and effect as a regular statute passed by the legislature. 112 MPA's prayer for modification of the appellate court's decision under review by exculpating petitioner MPA "from liability beyond seventy-five percent (75 %) of Reserve Fund" is unnecessary because the liability of MPA under Par. XXVIII of Customs Administrative Order No. 15-65 is in fact limited to seventy-five percent (75 %) of its prescribed reserve fund, any amount of liability beyond that being for the personal account of the erring pilot and subject to reimbursement in case of a finding of fault by the member concerned. This is clarified by the Solicitor General: Moreover, contrary to petitioner's pretensions, the provisions of Customs Administrative Order No. 15-65 do not limit the liability of petitioner as a pilots' association to an absurdly small amount of seventy-five per centum (75 %) of the member pilots' contribution of P2,000.00 to the reserve fund. The law speaks of the entire reserve fund required to be maintained by the pilots' association to

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answer (for) whatever liability arising from the tortious act of its members. And even if the association is held liable for an amount greater than the reserve fund, the association may not resist the liability by claiming to be liable only up to seventy-five per centum (75 %) of the reserve fund because in such instance it has the right to be reimbursed by the offending member pilot for the excess. 113 WHEREFORE, in view of all of the foregoing, the consolidated petitions for review are DENIED and the assailed decision of the Court of Appeals is AFFIRMED in toto. Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its associate, Atty. Herbert A. Tria, is REPRIMANDED and WARNED that a repetition of the same or similar acts of heedless disregard of its undertakings under the Rules shall be dealt with more severely. The original members of the legal team of the Office of the Solicitor General assigned to this case, namely, Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, are ADMONISHED and WARNED that a repetition of the same or similar acts of unduly delaying proceedings due to delayed filing of required pleadings shall also be dealt with more stringently. The Solicitor Genral is DIRECTED to look into the circumstances of this case and to adopt provident measures to avoid a repetition of this incident and which would ensure prompt compliance with orders of this Court regarding the timely filing of requisite pleadings, in the interest of just, speedy and orderly administration of justice. Let copies of this decision be spread upon the personal records of the lawyers named herein in the Office of the Bar Confidant. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-6870 May 24, 1954 ELENA AMEDO, plaintiff-appellant, vs. RIO Y OLABARRIETA, INC., defendant-appellee. Cesareo Perez and Meliton C. Parducho for appellant. M. Almario and Jose T. Lajom for appellee. CONCEPCION, J.: This case was instituted on October 18, 1950. In her original complaint, plaintiff Elena Amedo sought to collect from defendant Rio y Olabarrieta, Inc., the sum of P2,038.40 as compensation for the death of her son, Filomeno Managuit, who worked for the defendant as a seaman of the M/S Pilar II. The main allegation of said original complaint was: That on May 27, 1949 at about 11:30 o'clock in the morning, while the deceased Filomeno Managuit was on board M/S "Pilar II" as such seaman, he jumped into the water to retrieve a 2-peso bill belonging to him, and as a consequence of which, he was drowned. On November 1, 1950, defendant filed a motion to dismiss upon the ground that said allegation does not show that the death of plaintiff's son was due to an

"accident arising out of and in the course of employment," and that, accordingly, the complaint does not state a cause of action. This motion was granted and the complaint dismissed, accordingly, by an order dated December 11, 1950. A motion for the reconsideration of this order having been denied, plaintiff appealed to this Court, which, on October 30, 1952, rendered a decision affirming the order appealed from, but "without prejudice to the right of the plaintiff, the mother of the deceased seaman, to file an amended complaint within fifteen (15) days from notice by the clerk of the trial court that the record of this case had been remanded to and received by the trial court, without costs." Hence, on December 22, 1952, plaintiff filed an amended complaint, paragraph 4 of which alleges: That on May 27, 1949, at or about 11:30 o'clock in the morning while the said Filomeno Managuit was in the course of his employment, performing his duties as such ordinary seaman on defendant's M/S "Pilar II", which was anchored then about 1 1/2 miles from the seashore of Arceli Dumarang, Palawan, his two-peso bill was blown by the breeze into the sea and in his effort to retrieve the same from the waters he was drowned. A motion to dismiss this amended complaint upon the ground of failure to state a cause of action was granted and the case, consequently, dismissed without costs. Are consideration of this action having been denied, the case is once again before us on appeal. Plaintiff's claim is admittedly predicated upon Act No. 3428, otherwise known as the Workmen's Compensation Act. The same was amended, first, by Act No. 3812, then, by Commonwealth Act No. 210 and, lastly, by Republic Act 772. The latter, however, took effect on June 20,1952 or after the accident upon which plaintiff bases her cause of action. Hence, in the consideration of this case, we shall disregard the provisions of said Republic Act No. 772. Sections 2 and 4 of Act No. 2428, prior to its latest amendment, read: Sec. 2. Grounds for compensation . When any employee receives a personal injury from any accident arising out of and in the course of the employment, or contracts any illness directly caused by such employment, or the result of the nature of such employment, his employer shall pay compensation in the sums and to the persons hereinafter specified. Sec. 4. Injuries not covered . Compensation shall not be allowed for injuries caused (1) by the voluntary intent of the employee to inflict such injury upon himself or another person; (2) by drunkenness on the part of the laborer who had the accident; (3) by notorious negligence of the same. Pursuant to these provisions in so far as pertinent to the case at bar three conditions are essential to hold an employer liable to compensate his employee for a personal injury sustained by him from an accident, namely: (1) the accident must arise out of the employment; (2) it must happen in the course of the employment; and (3) it must not be caused by the "notorious negligence" of the employee. Admittedly, the death of Filomeno Managuit was due to an accident. The point in issue is whether such accident occurred under the three (3) conditions aforementioned. Referring to the first two requirements, we said, in Afable et al. vs. Singer Sewing Machine Co. (58 Phil., 39, 42): The phrase "due to and in the pursuance of" used in section 2 of Act No. 3428 was changed in Act No. 3812 to "arising out of and in the course of". Discussing this

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phrase, the Supreme Court of Illinois in the case of Muller Construction Co. vs. Industrial Board (283 Ill., 148; 118 N. E., 1028; 1 W. C. L., 943), said: "The words "arising out of" refer to the origin or cause of the accident and are descriptive of its character, while the words `in the course of' refer to the time, place, and circumstances under which the accident takes place. (Fitzgerald vs. Clarke & Sons, 1 B.W.C.C., 197 Dietzen Co. vs. Industrial Board, 279 Ill. 11; 116 N.E. 684.) By the use of these words it was not the intention of the legislature to make the employer an insurer against all accidental injuries which might happen to an employee while in the course of the employment, but only for such injuries arising from or growing out of the risks peculiar to the nature of work in the scope of the workmen's employment or incidental to such employment, and accidents in which it is possible to trace the injury to some risk or hazard to which the employee is exposed ina special degree by reason of such employment. Risks to which all persons similarly situated are equally exposed and not traceable in some special degree to the particular employment are excluded." Adopting a liberal view, it may be conceded that the death of Filomeno took place "in the course of" his employment, in that it happened at the "time" when, and at the "place" where-according to the amended complaint-he was working. However, the accident which produced this tragic result did not "arise out of" his employment. Indeed, the latter was not "the origin or cause of said accident. The blowing of his 2-peso bill may have grown out of, or arisen from, his employment. It was the result of a risk peculiar to his work as a seaman or incidental to such work. But, his death was the consequence of his decision to jump into the water to retrieve said bill. The hazardous nature of this act was not due specially to the nature of his employment. It was a risk to which any person on board the M/S Pilar II, such as a passenger thereof or an ordinary visitor, would have been exposed had he, likewise, jumped into the sea, as Filomeno had. Irrespective of whether or not the accident in question arose out of, or took place in the course of the employment, was it caused by his "notorious negligence"? The phrase "notorious negligence" has been held to be tantamount to "gross negligence", which, in turn, has been defined as follows: Gross negligence is define to be the want of even slight care and diligence. (Mobile and M. R. Co. vs. Aschcraft [1872] 48 Ala., 15.) By gross negligence is meant "such entire want of care as to raise a presumption that the person in fault is conscious of the probable consequences of carelessness, and is indifferent, or worse, to the danger of injury to person or property of others." ... The negligence must amount to a reckless disregard of the safety of person or property." (Wall vs. Cameron [1882] 6 Colo., 275; see, also, The Law Governing Labor Disputes in the Philippines by Francisco, 2nd ed., p. 877.) It cannot be denied that in jumping into the sea, one mile and a half from the seashore of Arceli, Dumarang, Palawan, Filomeno failed to exercise "even slight care and diligence," that he displayed a "reckless disregard of the safety" of his person, that he could not have been but conscious of the probable consequences" of his carelessness and that he was "indifferent, or worse, to the danger of injury. Thus, in the case of Government of the Philippines vs. The Manila Electric Co . (40 Off. Gaz., 9th Suppl., 232),an employee of the Bureau of Posts who died by electrocution, as the lines which he was repairing came into contact with those of the Manila Electric, was held to be guilty of gross negligence, he having been

previously warned that the service of electric light had been reestablished and that he should, therefore be careful in handling the wires. The same conclusion was reached in De la Cruz vs. Hijos de I. de la Rama and Co . (62 Phil., 653), involving a truck driver who died, because his truck fell into a ditch in consequence of a false manuever he made to avoid collision with another car which unexpectedly appeared on the road, while he was driving on the wrong side of the highway, at a speed of 40 to 50 km. an hour. To the same effect was the decision in Jahara vs. Mindanao Lumber Co. (57 Phil., 853), referring to a laborer who was run over by a car, as he fell therefrom, when he tried to board it while moving backward. Similarly, the death of a carpenter as he slipped from the roof of a building he was repairing was blamed on his gross negligence in Caunan vs. Compania General de Tabacos (56 Phil., 542,545), he having worn rubber shoes despite the fact that the roof was wet. The case of Reyes vs. The City of Manila (G. R. No. 29112, July 18, 1933) referred to a watchman assigned to a road-roller, who sat on a piece of board one end of which was over a box placed on the hind wheels of the road-roller and the other end over a box of tools on the same rollert two meters above the ground. As he tried to drive away the mosquitoes and flying ants which bothered him, the board slipped off the wheel of the roller. So, he fell to the ground and his knee and left pelvis bumped against the cement sidewalk, sustaining physical injuries as a consequence thereof. It was held that he had been grossly negligent in seating on the piece of board which was precariously placed and in making motions for the purpose of driving away the mosquitoes and flying ants. Again in Guilas vs. The Province of Pampanga (G. R. No. 37744, July 21, 1933), a laborer on board a truck who stood up as it was approaching a curve and fell over when the vehicle turned the curved, was held guilty of gross negligence. In none of these cases was the danger as apparent or imminent as when Filomeno Managuit jumped into the sea to recover his 2-peso bill. Hence, there is more reason to hold that his death was caused by his notorious negligence. His case is easily distinguishable from that of Cuevo vs. Barredo (G.R. No. 45669, decided February 24, 1938, the employee involved therein, who appeared to be a good swimmer, having acted in obedience to an order of his foreman, to save or protect a property of the employer. It is, also, distinguishable from accidents occurring while the laborer or employee is answering a call of nature, or throwing away his cigarette (Columbia Casualty Co. vs. Parham, 69 Ga. App. 258), or picking up his pipe, which had fallen, or retrieving his shoes from a car into which a fellow worker had thrown it (Donovan vs. Bush Terminal Co., 6 N. Y. S. 2nd 860, 255 App. Div. 737), these acts not being dangerous per se and the employee being legally justified or supposed to perform either of them in the course of his employment. So, also, if, while Filomeno Managuit was working, his 2-peso bill merely fell from his pocket, and as he picked up the bill from the floor something accidentally fell upon him and injured him, he would surely be entitled to compensation, his act being obviously innocent. In such case, it could be said, in the words of the Lord President in Lauchlan vs. Anderson (S. C. 529), that "He had the right to be at the place ...; he was within the time during which he was employed ...;and he was doing a thing which a man while working may reasonably do-a workman of his sort may reasonably smoke, he may reasonably drop his pipe, and he may reasonably pick it up again." (See Ramos vs. Poblete et al., 40 Off. Gaz., 3474). Jumping into

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the sea, however, is entirely different, the danger which it entails being clear, potent and obvious. In view of the foregoing the decision appealed from is hereby affirmed, without special pronouncement as to costs. It is so ordered. SECOND DIVISION [G.R. No. L-8110. June 30, 1956.] MARINDUQUE IRON MINES AGENTS, INC., Petitioner, vs. THE WORKMENS COMPENSATION COMMISSION, THE HEIRS OF PEDRO MAMADOR and GERONIMO MA. COLL, Respondents. DECISION BENGZON, J.: The Marinduque Iron Mines Agents Inc. questions by certiorari the order of the Workmens Compensation Commissioner confirming the referees award of compensation to the heirs of Pedro Mamador for his accidental death. Only the right to compensation is disputed; chan roblesvirtualawlibrarynot the amount. It appears, says the award, that on August 23, 1951, at 6:chanroblesvirtuallawlibrary00 a.m. in Bo. Sumangga, Mogpog, Marinduque, the deceased Mamador together with other laborers of the Respondent-corporation, (Marinduque Iron Mines Agents Inc.) boarded a truck belonging to the latter, which was then driven by one Procopio Macunat, also employed by the corporation, and on its way to their place of work at the mine camp at Talantunan, while trying to overtake another truck on the company road, it turned over and hit a coconut tree, resulting in the death of said Mamador and injury to the others. Procopio Macunat was prosecuted, convicted and sentenced to indemnify the heirs of the deceased. (Criminal Case No. 1491). He has paid nothing however, to the latter. In his first proposition Petitioner challenges the validity of the proceedings before the Commission, asserting it had not been given the opportunity to cross-examine the opposing witnesses. According to Respondents. The records show that pursuant to a request made by this Commission on March 28, 1953 to investigate the above-entitled case, the Public Defender of Boac, Marinduque, notified Respondent Geronimo Ma. Coll and the general manager of the Respondent company, Mr. Eric Lenze, to appear before him in an investigation, first on May 12, 1953, when neither of them appeared, and the second on May 29, 1953, when only Mr. Geronimo Ma. Coll. appeared. The sworn testimony of Mr. Ma. Coll was then taken down in a question and answer method. On August 18, 1953, thru Referee Ramon Villaflor, this Commission wrote the Respondent company to comment on the enclosed copy of the sworn declaration of Ma. Coll. The Respondent company, thru its Vice President, denied its liability under the Workmens Compensation Act, as amended. In an investigation conducted on February 8, 1954 by the undersigned referee, the Respondent company thru Mr. Lenze who was assisted by counsel, was allowed to examine the records of the case including the sworn declaration of Ma. Coll and was given all the opportunity to rebut the same by additional evidence.

In our opinion, Petitioners grievance does not rest on any sound basis, because it was given notice, and therefore had the chance, to examine (and cross-examine) the witnesses against it. The statute even permits the Commissioner (or his referee) to take testimony without notice (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 instance. Anyway we are not shown how its failure to cross-examine the witnesses prejudiced the Petitioners position. In its second proposition, Petitioner maintains that this claim is barred by section 6 of the Workmens Compensation Law, because (a) Macunat was prosecuted and required to indemnify the heirs of the deceased and (b) an amicable settlement was concluded between said heirs and Macunat. Section 6 provides as follows:chanroblesvirtuallawlibrary Sec. 6. Liability of third parties. In case an employee suffers an injury for which compensation is due under this Act by any other person besides his employer, it shall be optional with such injured employee either to claim compensation from his employer, under this Act, or sue such other person for damages, in accordance with law; chan roblesvirtualawlibraryand in case compensation is claimed and allowed in accordance with this Act, the employer who paid such compensation or was found liable to pay the same, shall succeed the injured employee to the right of recovering from such person what he paid:chanroblesvirtuallawlibrary Provided, That in case the employer recovers from such third person damages in excess of those paid or allowed under this Act, such excess shall be delivered to the injured employee or any other person entitled thereto, after deduction of the expenses of the employer and the costs of the proceedings. The sum paid by the employer for compensation or the amount of compensation to which the employee or his dependents are entitled, shall not be admissible as evidence in any damage suit or action. It is the Petitioners contention that Criminal Case No. 1491 and its outcome constituted an election by the employee (or his heirs) to sue the third person, such election having the effect of releasing the employer. However, Criminal Case No. 1491 was not a suit for damages against the third person, it being alleged, without contradiction that the heirs did not intervene therein and have not so far received the indemnity ordered by the court. At any rate, we have already decided in Nava vs. Inchausti Co. 1 that the indemnity granted the heirs in a criminal prosecution of the other person does not affect the liability of the employer to pay compensation. 2 As to the alleged amicable settlement, it consists of an affidavit wherein, for the sum of 150 pesos, Mamadors widow promised to forgive Macunat for the wrong committed and not to bring him before the authorities for prosecution. Upon making such promise Petitioner argues she elected one of the remedies, (against the third person) and is barred from the other remedy (against the employer). The contention may not be sustained, inasmuch as all the widow promised was to forego the offenders criminal prosecution. Note further that a question may be raised whether she could bind the other heirs of the deceased. The most important aspect of this appeal, is the effect of the deceaseds having violated the employers prohibition against laborers riding the haulage trucks.

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Petitioner claims such violation was the laborers notorious negligence which, under the law, precludes recovery. The Commission has not declared that the prohibition was known to Mamador. Yet the employer does not point out in the record evidence to that effect. Supposing Mamador knew the prohibition, said the referee, can we truthfully say that he boarded the fatal truck with full apprehension of the existence of the danger, if any at all, that an ordinary prudent man would try to avoid? I do not believe so, and even in the presence of doubt, the same must be resolved in his favor. Unless of course, we can attribute to him a desire to end his life. Nowhere in the records of this case can we find the slightest insinuation of that desire. There is no doubt that mere riding on haulage truck or stealing a ride thereon is not negligence, ordinarily. It couldnt be, because transportation by truck is not dangerous per se. It is argued that there was notorious negligence in this particular instance because there was the employers prohibition. Does violation of this order constitute negligence? Many courts hold that violation of a statute or ordinance constitutes negligence per se. Others consider the circumstances. However there is practical unanimity in the proposition that violation of a rule promulgated by a Commission or board is not negligence per se; chan roblesvirtualawlibrarybut it may be evidence of negligence. (C.J.S., Vol. 65, p. 427.) This order of the employer (prohibition rather) couldnt be of a greater obligation than the rule of a Commission or board. And the referee correctly considered this violation as possible evidence of negligence; chan roblesvirtualawlibrarybut it declared that under the circumstance, the laborer could not be declared to have acted with negligence. Correctly, it is believed, since the prohibition had nothing to do with personal safety of the riders. Such finding is virtually a finding of fact which we may not overrule in this certiorari proceeding. Nevertheless, even granting there was negligence, it surely was not notorious negligence, which we have interpreted to mean the same thing as gross negligence 3 implying conscious indifference to consequences pursuing a course of conduct which would naturally and probably result in injury utter disregard of consequences. (38 Am. Jur., 691) Getting or accepting a free ride on the companys haulage truck couldnt be gross negligence, because as the referee found, no danger or risk was apparent. There being no other material point raised in the petition for review, the award of compensation is hereby affirmed, with costs against Petitioner. Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., and Endencia, JJ., concur. Reyes, A., J., concurs in the result. Separate Opinions MONTEMAYOR, J.: I concur in the result. I believe that the injury suffered herein was not in the course of the employments, neither did it arise out of it, but this question does not seem to have been raised below or in the appeal.

SECOND DIVISION CONCEPCION ILAO-ORETA, Petitioner, G.R. No. 172406 Present: QUISUMBING, J., Chairperson, CARPIO, CARPIO MORALES, TINGA, and VELASCO, JR., JJ. Promulgated: October 11, 2007

- versus -

SPOUSES EVA MARIE and BENEDICTO NOEL RONQUILLO, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CARPIO MORALES, J.: Respondents, spouses Eva Marie Ronquillo (Eva Marie) and Noel Benedicto (Noel) Ronquillo (the Ronquillo spouses or the spouses), had not been blessed with a child despite several years of marriage. They thus consulted petitioner, Dr. Concepcion Ilao-Oreta (Dr. Ilao-Oreta), an obstetrician-gynecologist-consultant at the St. Lukes Medical Center where she was, at the time material to the case, the chief of the Reproductive Endocrinology and Infertility Section. Upon Dr. Ilao-Oretas advice, Eva Marie agreed to undergo a laparoscopic procedure whereby a laparascope would be inserted through the patients abdominal wall to get a direct view of her internal reproductive organ in order to determine the real cause of her infertility. The procedure was scheduled on April 5, 1999 at 2:00 p.m., to be performed by Dr. Ilao-Oreta. At around 7:00 a.m. of said date, Eva Marie, accompanied by her husband Noel, checked in at the St. Lukes Medical Center and underwent preoperative procedures including the administration of intravenous fluid and enema. Dr. Ilao-Oreta did not arrive at the scheduled time for the procedure, however, and no prior notice of its cancellation was received. It turned out that the doctor was on a return flight from Hawaii to, and arrived at 10:00 p.m. of April 5, 1999 in, Manila.

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On May 18, 1999, the Ronquillo spouses filed a complaint 23[1] against Dr. IlaoOreta and the St. Lukes Medical Center for breach of professional and service contract and for damages before the Regional Trial Court (RTC) of Batangas City. They prayed for the award of actual damages including alleged loss of income of Noel while accompanying his wife to the hospital, moral damages, exemplary damages, the costs of litigation, attorneys fees, and other available reliefs and remedies.24[2] In her Answer,25[3] Dr. Ilao-Oreta gave her side of the case as follows: She went on a honeymoon to Hawaii and was scheduled to leave Hawaii at 3:00 p.m. of April 4, 1999 for Manila. Aware that her trip from Hawaii to Manila would take about 12 hours, inclusive of a stop-over at the Narita Airport in Japan, she estimated that she would arrive in Manila in the early morning of April 5, 1999. She thus believed in utmost good faith that she would be back in Manila in time for the scheduled conduct of the laparoscopic procedure. She failed to consider the time difference between Hawaii and the Philippines, however. In its Answer, [4] the St. Lukes Medical Center contended that the spouses have no cause of action against it since it performed the pre-operative procedures without delay, and any cause of action they have would be against Dr. Ilao-Oreta. By Decision27[5] of March 9, 2001, Branch 84 of the Batangas RTC, finding that the failure of the doctor to arrive on time was not intentional, awarded Eva Marie only actual damages in the total amount of P9,939 and costs of suit. It found no adequate proof that Noel had been deprived of any job contract while attending to his wife in the hospital. On appeal by the spouses, the Court of Appeals, by Decision 28[6] of April 21, 2006, finding Dr. Ilao-Oreta grossly negligent, 29[7] modified the trial courts decision as follows:
26

WHEREFORE, the trial Courts decision dated March 9, 2001 is affirmed, subject to the modification that the amount of actual damages, for which both defendantsappellees are jointly and severally liable to plaintiffs-appellants, is increased to P16,069.40. Furthermore, defendant-appellee Dr. Ilao-Oreta is also held liable to pay plaintiff-appellants the following: (a) P50,000.00 as moral damages;

(b) P25,000.00 as exemplary damages; and (c) P20,000.00 as attorneys fees.

SO ORDERED.30[8] (Underscoring supplied)

Hence, the present Petition for Review 31[9] of Dr. Ilao-Oreta raising the following arguments: THE COURT A QUO ERRED IN FINDING PETITIONER TO HAVE ACTED WITH GROSS NEGLIGENCE AND AWARDING MORAL DAMAGES TO RESPONDENTS. 32[10] THE COURT A QUO RESPONDENTS.33[11] ERRED IN AWARDING EXEMPLARY DAMAGES TO

THE COURT A QUO [ERRED] IN AWARDING ATTORNEYS FEES TO RESPONDENTS. 34 [12] THE COURT A QUO ERRED IN INCREASING THE AWARD OF ACTUAL DAMAGES IN FAVOR OF RESPONDENTS.35[13] Gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of

23 24 25 26 27 28 29

30 31 32 33 34 35

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consequences without exerting any effort to avoid them. 36[14] It is characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. 37[15] The records show that before leaving for Hawaii, Dr. Ilao-Oreta left an admitting order with her secretary for one of the spouses to pick up, apprised Eva Marie of the necessary preparations for the procedure, and instructed the hospital staff to perform pre-operative treatments.38[16] These acts of the doctor reflect an earnest intention to perform the procedure on the day and time scheduled. The records also show that on realizing that she missed the scheduled procedure, Dr. Ilao-Oreta, upon arrival in Manila, immediately sought to rectify the same, thus: [ATTY SINJAN] Q: So, can you tell us the reason why you missed that operation? [DR. ILAO-ORETA] A: When I scheduled her for the surgery, I looked at my ticket and so I was to leave Hawaii on April 4 at around 4:00 oclock in the afternoon, so I was computing 12 hours of travel including stop-over, then probably I would be in Manila early morning of April 5, then I have so much time and I can easily do the case at 2:00 oclock, you know it skipped my mind the change in time. Q: So when you arrived at 10:00 [PM] in Manila, what did you do?

A: I apologized to him, I said I was sorry about the time that I missed the surgery, and I told him that I can do the case right that same day without Mrs. Ronquillo having to undergo another [b]arium enema. Q: What else did you tell him, if any?

A: I asked him whether I can talk with Mrs. Ronquillo because I wanted to apologize to her personally. Q: And what did he say?

A: I could hear on the background that Mrs. Ronquillo was shouting angrily that she didnt want to talk to me, and that she didnt want re-scheduling of the surgery . . . ATTY LONTOK: May we move, your Honor, for the striking out of the answer, this is purely hearsay. COURT: Remain on the record. WITNESS [DR. ILAO-ORETA]: . . . and then Mr. Ronquillo told me Im sorry, Dra., we cannot re-schedule the surgery.39[17] (Underscoring supplied) Noel admitted that indeed Dr. Ilao-Oreta called him up after she arrived in Manila as related by her.40[18] The evidence then shows that Dr. Ilao-Oreta, who had traveled more than twice to the United States where she obtained a fellowship in Reproductive Endocrinology and Infertility was indeed negligent when she scheduled to perform professional service at 2:00 p.m. on April 5, 1999 without considering the time difference between the Philippines and Hawaii. The doctors act did not, however, reflect gross negligence as defined above. Her argument that Although petitioner failed to take into consideration the time difference between the Philippines and Hawaii, the situation then did not present any clear and apparent harm or injury that even a careless person may perceive. Unlike in situations where the Supreme Court had found gross negligence to exist, petitioner could not have been conscious of any foreseeable danger that may occur since she actually believed that she would make it to the operation that was elective in nature, the only purpose of which was to determine the real cause of infertility and not to treat and cure a life threatening disease. Thus, in merely fixing the date of

A: I called immediately the hospital and I talked with the nurses, I asked about the patient, Mrs. Ronquillo, and they told me that she has already left at around 7:00. Q: And after calling the hospital, what happened?

A: I wanted to call the plaintiffs, but I didnt have their number at that time, so in the morning I went to my office early at 8:00 and looked for her chart, because her telephone number was written in the chart. So, I called them right away. Q: A: Q: Were you able to contact them? I was able to reach Mr. Ronquillo. In the course of your conversation, what did you tell Mr. Ronquillo?

36 37 38

39 40

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her appointment with respondent Eva Marie Ronquillo, petitioner was not in the pursuit or performance of conduct which any ordinary person may deem to probably and naturally result in injury,41[19] (Underscoring in original) thus persuades. It bears noting that when she was scheduling the date of her performance of the procedure, Dr. Ilao-Oreta had just gotten married and was preparing for her honeymoon,42[20] and it is of common human knowledge that excitement attends its preparations. Her negligence could then be partly attributed to human frailty which rules out its characterization as gross. The doctors negligence not being gross, the spouses are not entitled to recover moral damages. Neither are the spouses entitled to recover exemplary damages in the absence of a showing that Dr. Ilao-Oreta acted in a wanton, fraudulent, reckless, oppressive or malevolent manner,43[21] nor to award of attorneys fees as, contrary to the finding of the Court of Appeals that the spouses were compelled to litigate and incur expenses to protect their interest, 44[22] the records show that they did not exert enough efforts to settle the matter before going to court. Eva Marie herself testified: ATTY. SINJIAN: Q: Isnt it true that before instituting this present case, you did not make any demand on Dr. Ilao-Oreta regarding the claims which you have allegedly incurred, because of the failed laparoscopic surgery operation? A [EVA MARIE]: I will tell the truth. Dr. Augusto Reyes of St. Lukes . . . Q: A: But did you demand? No, I did not demand because

WITNESS: Im explaining first. Dr. Augusto Reyes told me that he will hold the meeting for me and Dr. Oreta to settle things and reimburse all the money that I spent from the hospital, and he even suggested Dr. Oreta to personally talk to me. ATTY. SINJIAN: Q: So it was to Dr. Augusto Reyes that you talked? A: Yes. Q: A: Q: A: But you did not demand anything or write to Dr. Oreta? No. Before instituting this case? No.45[23] (Underscoring supplied)

Finally, Dr. Ilao-Oretas prayer for the reduction of actual damages is well-taken. Article 2201 of the Civil Code provides: In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those which are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted. In fixing the amount of actual damages, the Court of Appeals and the trial court included expenses which the spouses incurred prior to April 5, 1999 when the breach of contract complained of occurred. 46[24] The Court of Appeals also included the alleged P300 spent on fuel consumption from the spouses residence at San Pascual, Batangas to the St. Lukes Medical Center in Quezon City and the alleged P500 spent on food in the hospital canteen, both of which are unsubstantiated by independent or competent proof.47[25] The only piece of documentary evidence supporting the food and fuel expenses is an unsigned listing.48[26] As the fuel and food expenses are not adequately substantiated, they cannot be included in the computation of the amount of actual damages. So Premiere Development Bank v. Court of Appeals 49[27] instructs:

ATTY. SINJIAN: That will be all, your Honor. ATTY. LONTOK: The witness is still explaining.

41 42 43 44

45 46 47 48

38

In the instant case, the actual damages were proven through the sole testimony of Themistocles Ruguero, the vice president for administration of Panacor. In his testimony, the witness affirmed that Panacor incurred losses, specifically, in terms of training and seminars, leasehold acquisition, procurement of vehicles and office equipment without, however, adducing receipts to substantiate the same. The documentary evidence marked as Exhibit W, which was an ordinary private writing allegedly itemizing the capital expenditures and losses from the failed operation of Panacor, was not testified to by any witness to ascertain the veracity of its content. Although the lower court fixed the sum of P4,520,000.00 as the total expenditures incurred by Panacor, it failed to show how and in what manner the same were substantiated by the claimant with reasonable certainty. Hence, the claim for actual damages should be received with extreme caution since it is only based on bare assertion without support from independent evidence. Premieres failure to prove actual expenditure consequently conduces to a failure of its claim. In determining actual damages, the court cannot rely on mere assertions, speculations, conjectures or guesswork but must depend on competent proof and on the best evidence obtainable regarding the actual amount of loss.50 [28] (Underscoring supplied) The list of expenses cannot replace receipts when they should have been issued as a matter of course in business transactions 51[29] as in the case of purchase of gasoline and of food. The documented claim for hospital and medical expenses of the spouses is detailed in the Statement of Account issued by the hospital, the pertinent entries of which read: xxxx

BALANCE DUE

(2,711.30)52[30] =======

As extrapolated from the above-quoted entries in the Statement of Account, P2,288.70 (the gross hospital charges of P2,416.50 less the unused medicine in the amount of P127.80) was debited from the P5,000 deposit53[31] to thus leave a balance of the deposit in the amount of P2,711.30, which the trial court erroneously denominated as confinement fee. The remaining balance of P2,711.30 was the amount refundable to the spouses. Following Eastern Shipping Lines, Inc. v. Court of Appeals ,54[32] this Court awards interest on the actual damages to be paid by Dr. Ilao-Oreta at the rate of 6% per annum from the time of the filing of the complaint on May 18, 1999, and at 12% per annum from the finality of this judgment until its satisfaction. WHEREFORE, the petition is GRANTED. in that The decision appealed from is MODIFIED

1) the award to respondents-spouses Noel and Eva Marie Ronquillo of actual damages is REDUCED to P2,288.70, to bear interest at a rate of 6% per annum from the time of the filing of the complaint on May 18, 1999 and, upon finality of this judgment, at the rate of 12% per annum until satisfaction; and 2. DELETED. The award of moral and exemplary damages and attorneys fees is

SO ORDERED. SECOND DIVISION

GROSS HOSPITAL CHARGES 2,416.50 4/5/1999 1699460 DEPOSITOFFICIAL RECEIPT (5,000.00) (5,000.00) ________ 4/5/1999 SECOND 0284893 UNUSED MED 0439534 (65.55) FLOOR HINOX 500 MG CAP SECOND 0284894 UNUSED MED 0439893 (62.25) FLOOR PHENERGAN 2 ML 50MG ______ (127.80)

49 50 51

52 53 54

39

CONCEPCION ILAO-ORETA, Petitioner,

G.R. No. 172406 Present: QUISUMBING, J., Chairperson, CARPIO, CARPIO MORALES, TINGA, and VELASCO, JR., JJ. Promulgated: October 11, 2007

- versus -

On May 18, 1999, the Ronquillo spouses filed a complaint 55[1] against Dr. IlaoOreta and the St. Lukes Medical Center for breach of professional and service contract and for damages before the Regional Trial Court (RTC) of Batangas City. They prayed for the award of actual damages including alleged loss of income of Noel while accompanying his wife to the hospital, moral damages, exemplary damages, the costs of litigation, attorneys fees, and other available reliefs and remedies.56[2] In her Answer,57[3] Dr. Ilao-Oreta gave her side of the case as follows: She went on a honeymoon to Hawaii and was scheduled to leave Hawaii at 3:00 p.m. of April 4, 1999 for Manila. Aware that her trip from Hawaii to Manila would take about 12 hours, inclusive of a stop-over at the Narita Airport in Japan, she estimated that she would arrive in Manila in the early morning of April 5, 1999. She thus believed in utmost good faith that she would be back in Manila in time for the scheduled conduct of the laparoscopic procedure. She failed to consider the time difference between Hawaii and the Philippines, however. In its Answer,58[4] the St. Lukes Medical Center contended that the spouses have no cause of action against it since it performed the pre-operative procedures without delay, and any cause of action they have would be against Dr. Ilao-Oreta. By Decision59[5] of March 9, 2001, Branch 84 of the Batangas RTC, finding that the failure of the doctor to arrive on time was not intentional, awarded Eva Marie only actual damages in the total amount of P9,939 and costs of suit. It found no adequate proof that Noel had been deprived of any job contract while attending to his wife in the hospital. On appeal by the spouses, the Court of Appeals, by Decision 60[6] of April 21, 2006, finding Dr. Ilao-Oreta grossly negligent, 61[7] modified the trial courts decision as follows:

SPOUSES EVA MARIE and BENEDICTO NOEL RONQUILLO, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CARPIO MORALES, J.: Respondents, spouses Eva Marie Ronquillo (Eva Marie) and Noel Benedicto (Noel) Ronquillo (the Ronquillo spouses or the spouses), had not been blessed with a child despite several years of marriage. They thus consulted petitioner, Dr. Concepcion Ilao-Oreta (Dr. Ilao-Oreta), an obstetrician-gynecologist-consultant at the St. Lukes Medical Center where she was, at the time material to the case, the chief of the Reproductive Endocrinology and Infertility Section. Upon Dr. Ilao-Oretas advice, Eva Marie agreed to undergo a laparoscopic procedure whereby a laparascope would be inserted through the patients abdominal wall to get a direct view of her internal reproductive organ in order to determine the real cause of her infertility. The procedure was scheduled on April 5, 1999 at 2:00 p.m., to be performed by Dr. Ilao-Oreta. At around 7:00 a.m. of said date, Eva Marie, accompanied by her husband Noel, checked in at the St. Lukes Medical Center and underwent preoperative procedures including the administration of intravenous fluid and enema. Dr. Ilao-Oreta did not arrive at the scheduled time for the procedure, however, and no prior notice of its cancellation was received. It turned out that the doctor was on a return flight from Hawaii to, and arrived at 10:00 p.m. of April 5, 1999 in, Manila.

55 56 57 58 59 60 61

40

WHEREFORE, the trial Courts decision dated March 9, 2001 is affirmed, subject to the modification that the amount of actual damages, for which both defendantsappellees are jointly and severally liable to plaintiffs-appellants, is increased to P16,069.40. Furthermore, defendant-appellee Dr. Ilao-Oreta is also held liable to pay plaintiff-appellants the following: (a) P50,000.00 as moral damages;

consequences without exerting any effort to avoid them. 68[14] It is characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. 69[15] The records show that before leaving for Hawaii, Dr. Ilao-Oreta left an admitting order with her secretary for one of the spouses to pick up, apprised Eva Marie of the necessary preparations for the procedure, and instructed the hospital staff to perform pre-operative treatments.70[16] These acts of the doctor reflect an earnest intention to perform the procedure on the day and time scheduled. The records also show that on realizing that she missed the scheduled procedure, Dr. Ilao-Oreta, upon arrival in Manila, immediately sought to rectify the same, thus: [ATTY SINJAN] Q: So, can you tell us the reason why you missed that operation?

(b) P25,000.00 as exemplary damages; and (c) P20,000.00 as attorneys fees.

SO ORDERED.62[8] (Underscoring supplied)

Hence, the present Petition for Review 63[9] of Dr. Ilao-Oreta raising the following arguments: THE COURT A QUO ERRED IN FINDING PETITIONER TO HAVE ACTED WITH GROSS NEGLIGENCE AND AWARDING MORAL DAMAGES TO RESPONDENTS. 64[10] THE COURT A QUO RESPONDENTS.65[11] ERRED IN AWARDING EXEMPLARY DAMAGES TO

[DR. ILAO-ORETA] A: When I scheduled her for the surgery, I looked at my ticket and so I was to leave Hawaii on April 4 at around 4:00 oclock in the afternoon, so I was computing 12 hours of travel including stop-over, then probably I would be in Manila early morning of April 5, then I have so much time and I can easily do the case at 2:00 oclock, you know it skipped my mind the change in time. Q: So when you arrived at 10:00 [PM] in Manila, what did you do?

THE COURT A QUO [ERRED] IN AWARDING ATTORNEYS FEES TO RESPONDENTS. 66 [12] THE COURT A QUO ERRED IN INCREASING THE AWARD OF ACTUAL DAMAGES IN FAVOR OF RESPONDENTS.67[13] Gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of

A: I called immediately the hospital and I talked with the nurses, I asked about the patient, Mrs. Ronquillo, and they told me that she has already left at around 7:00. Q: And after calling the hospital, what happened?

A: I wanted to call the plaintiffs, but I didnt have their number at that time, so in the morning I went to my office early at 8:00 and looked for her chart, because her telephone number was written in the chart. So, I called them right away. Q: A: Q: Were you able to contact them? I was able to reach Mr. Ronquillo. In the course of your conversation, what did you tell Mr. Ronquillo?

62 63 64 65 66 67

68 69 70

41

A: I apologized to him, I said I was sorry about the time that I missed the surgery, and I told him that I can do the case right that same day without Mrs. Ronquillo having to undergo another [b]arium enema. Q: What else did you tell him, if any?

her appointment with respondent Eva Marie Ronquillo, petitioner was not in the pursuit or performance of conduct which any ordinary person may deem to probably and naturally result in injury,73[19] (Underscoring in original) thus persuades.

A: I asked him whether I can talk with Mrs. Ronquillo because I wanted to apologize to her personally. Q: And what did he say?

A: I could hear on the background that Mrs. Ronquillo was shouting angrily that she didnt want to talk to me, and that she didnt want re-scheduling of the surgery . . . ATTY LONTOK: May we move, your Honor, for the striking out of the answer, this is purely hearsay. COURT: Remain on the record. WITNESS [DR. ILAO-ORETA]: . . . and then Mr. Ronquillo told me Im sorry, Dra., we cannot re-schedule the surgery.71[17] (Underscoring supplied) Noel admitted that indeed Dr. Ilao-Oreta called him up after she arrived in Manila as related by her.72[18] The evidence then shows that Dr. Ilao-Oreta, who had traveled more than twice to the United States where she obtained a fellowship in Reproductive Endocrinology and Infertility was indeed negligent when she scheduled to perform professional service at 2:00 p.m. on April 5, 1999 without considering the time difference between the Philippines and Hawaii. The doctors act did not, however, reflect gross negligence as defined above. Her argument that Although petitioner failed to take into consideration the time difference between the Philippines and Hawaii, the situation then did not present any clear and apparent harm or injury that even a careless person may perceive. Unlike in situations where the Supreme Court had found gross negligence to exist, petitioner could not have been conscious of any foreseeable danger that may occur since she actually believed that she would make it to the operation that was elective in nature, the only purpose of which was to determine the real cause of infertility and not to treat and cure a life threatening disease. Thus, in merely fixing the date of

It bears noting that when she was scheduling the date of her performance of the procedure, Dr. Ilao-Oreta had just gotten married and was preparing for her honeymoon,74[20] and it is of common human knowledge that excitement attends its preparations. Her negligence could then be partly attributed to human frailty which rules out its characterization as gross. The doctors negligence not being gross, the spouses are not entitled to recover moral damages. Neither are the spouses entitled to recover exemplary damages in the absence of a showing that Dr. Ilao-Oreta acted in a wanton, fraudulent, reckless, oppressive or malevolent manner,75[21] nor to award of attorneys fees as, contrary to the finding of the Court of Appeals that the spouses were compelled to litigate and incur expenses to protect their interest, 76[22] the records show that they did not exert enough efforts to settle the matter before going to court. Eva Marie herself testified: ATTY. SINJIAN: Q: Isnt it true that before instituting this present case, you did not make any demand on Dr. Ilao-Oreta regarding the claims which you have allegedly incurred, because of the failed laparoscopic surgery operation? A [EVA MARIE]: I will tell the truth. Dr. Augusto Reyes of St. Lukes . . . Q: A: But did you demand? No, I did not demand because

ATTY. SINJIAN: That will be all, your Honor. ATTY. LONTOK: The witness is still explaining.

73 74 75 76

71 72

42

WITNESS: Im explaining first. Dr. Augusto Reyes told me that he will hold the meeting for me and Dr. Oreta to settle things and reimburse all the money that I spent from the hospital, and he even suggested Dr. Oreta to personally talk to me. ATTY. SINJIAN: Q: So it was to Dr. Augusto Reyes that you talked? A: Yes. Q: A: Q: A: But you did not demand anything or write to Dr. Oreta? No. Before instituting this case? No.77[23] (Underscoring supplied)

Finally, Dr. Ilao-Oretas prayer for the reduction of actual damages is well-taken. Article 2201 of the Civil Code provides: In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those which are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted. In fixing the amount of actual damages, the Court of Appeals and the trial court included expenses which the spouses incurred prior to April 5, 1999 when the breach of contract complained of occurred. 78[24] The Court of Appeals also included the alleged P300 spent on fuel consumption from the spouses residence at San Pascual, Batangas to the St. Lukes Medical Center in Quezon City and the alleged P500 spent on food in the hospital canteen, both of which are unsubstantiated by independent or competent proof.79[25] The only piece of documentary evidence supporting the food and fuel expenses is an unsigned listing.80[26] As the fuel and food expenses are not adequately substantiated, they cannot be included in the computation of the amount of actual damages. So Premiere Development Bank v. Court of Appeals 81[27] instructs:

In the instant case, the actual damages were proven through the sole testimony of Themistocles Ruguero, the vice president for administration of Panacor. In his testimony, the witness affirmed that Panacor incurred losses, specifically, in terms of training and seminars, leasehold acquisition, procurement of vehicles and office equipment without, however, adducing receipts to substantiate the same. The documentary evidence marked as Exhibit W, which was an ordinary private writing allegedly itemizing the capital expenditures and losses from the failed operation of Panacor, was not testified to by any witness to ascertain the veracity of its content. Although the lower court fixed the sum of P4,520,000.00 as the total expenditures incurred by Panacor, it failed to show how and in what manner the same were substantiated by the claimant with reasonable certainty. Hence, the claim for actual damages should be received with extreme caution since it is only based on bare assertion without support from independent evidence. Premieres failure to prove actual expenditure consequently conduces to a failure of its claim. In determining actual damages, the court cannot rely on mere assertions, speculations, conjectures or guesswork but must depend on competent proof and on the best evidence obtainable regarding the actual amount of loss.82 [28] (Underscoring supplied) The list of expenses cannot replace receipts when they should have been issued as a matter of course in business transactions 83[29] as in the case of purchase of gasoline and of food. The documented claim for hospital and medical expenses of the spouses is detailed in the Statement of Account issued by the hospital, the pertinent entries of which read: xxxx GROSS HOSPITAL CHARGES 2,416.50 4/5/1999 1699460 DEPOSITOFFICIAL RECEIPT (5,000.00) (5,000.00) ________ 4/5/1999 SECOND 0284893 UNUSED MED 0439534 (65.55) FLOOR HINOX 500 MG CAP SECOND 0284894 UNUSED MED 0439893 (62.25) FLOOR PHENERGAN 2 ML 50MG ______ (127.80)

77 78 79 80

81 82 83

43

BALANCE DUE

(2,711.30)84[30] =======

As extrapolated from the above-quoted entries in the Statement of Account, P2,288.70 (the gross hospital charges of P2,416.50 less the unused medicine in the amount of P127.80) was debited from the P5,000 deposit85[31] to thus leave a balance of the deposit in the amount of P2,711.30, which the trial court erroneously denominated as confinement fee. The remaining balance of P2,711.30 was the amount refundable to the spouses. Following Eastern Shipping Lines, Inc. v. Court of Appeals ,86[32] this Court awards interest on the actual damages to be paid by Dr. Ilao-Oreta at the rate of 6% per annum from the time of the filing of the complaint on May 18, 1999, and at 12% per annum from the finality of this judgment until its satisfaction. WHEREFORE, the petition is GRANTED. in that The decision appealed from is MODIFIED

1) the award to respondents-spouses Noel and Eva Marie Ronquillo of actual damages is REDUCED to P2,288.70, to bear interest at a rate of 6% per annum from the time of the filing of the complaint on May 18, 1999 and, upon finality of this judgment, at the rate of 12% per annum until satisfaction; and 2. DELETED. The award of moral and exemplary damages and attorneys fees is

SO ORDERED. Republic of SUPREME Manila EN BANC G.R. No. L-12219 March 15, 1918 AMADO PICART, vs. FRANK SMITH, JR., defendant-appellee. Alejo Mabanag G. E. Campbell for appellee. STREET, J.: the Philippines COURT

plaintiff-appellant, for appellant.

84 85 86

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

44

some distance away; and from this moment it was not longer within the power of the plaintiff to escape being run down by going to a place of greater safety. The control of the situation had then passed entirely to the defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there were no other persons on the bridge, to take the other side and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this, the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that, if the animal in question was unacquainted with automobiles, he might get exited and jump under the conditions which here confronted him. When the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye of the law. The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by the circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take care only when there is something before them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences. Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. A prudent man, placed in the position of the defendant, would in our opinion, have recognized that the course which he was pursuing was fraught with risk, and would therefore have foreseen harm to the horse and the rider as reasonable consequence of that course. Under these circumstances the law imposed on the defendant the duty to guard against the threatened harm. It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and directly

responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party. The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be mentioned in this connection. This Court there held that while contributory negligence on the part of the person injured did not constitute a bar to recovery, it could be received in evidence to reduce the damages which would otherwise have been assessed wholly against the other party. The defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed upon cars which were hauled along a narrow track. At certain spot near the water's edge the track gave way by reason of the combined effect of the weight of the car and the insecurity of the road bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in evidence that the accident was due to the effects of the typhoon which had dislodged one of the supports of the track. The court found that the defendant company was negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment of the accident, guilty of contributory negligence in walking at the side of the car instead of being in front or behind. It was held that while the defendant was liable to the plaintiff by reason of its negligence in having failed to keep the track in proper repair nevertheless the amount of the damages should be reduced on account of the contributory negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted in an omission only. The liability of the company arose from its responsibility for the dangerous condition of its track. In a case like the one now before us, where the defendant was actually present and operating the automobile which caused the damage, we do not feel constrained to attempt to weigh the negligence of the respective parties in order to apportion the damage according to the degree of their relative fault. It is enough to say that the negligence of the defendant was in this case the immediate and determining cause of the accident and that the antecedent negligence of the plaintiff was a more remote factor in the case. A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer, to the effect that the subject matter of the action had been previously adjudicated in the court of a justice of the peace. In this connection it appears that soon after the accident in question occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary investigation the defendant was discharged by the magistrate and the proceedings were dismissed. Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the question of his civil liability arising from negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)

45

From what has been said it results that the judgment of the lower court must be reversed, and judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other instances. The sum here awarded is estimated to include the value of the horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest on the whole to the date of this recovery. The other damages claimed by the plaintiff are remote or otherwise of such character as not to be recoverable. So ordered. Arellano, C.J., Torres, Carson, Araullo, Avancea, and Fisher, JJ., concur. Johnson, J., reserves his vote. Separate Opinions MALCOLM, J., concurring: After mature deliberation, I have finally decided to concur with the judgment in this case. I do so because of my understanding of the "last clear chance" rule of the law of negligence as particularly applied to automobile accidents. This rule cannot be invoked where the negligence of the plaintiff is concurrent with that of the defendant. Again, if a traveler when he reaches the point of collision is in a situation to extricate himself and avoid injury, his negligence at that point will prevent a recovery. But Justice Street finds as a fact that the negligent act of the interval of time, and that at the moment the plaintiff had no opportunity to avoid the accident. Consequently, the "last clear chance" rule is applicable. In other words, when a traveler has reached a point where he cannot extricate himself and vigilance on his part will not avert the injury, his negligence in reaching that position becomes the condition and not the proximate cause of the injury and will not preclude a recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.) Republic of the Philippines Supreme Court Manila SECOND DIVISION THE HEIRS OF REDENTOR COMPLETO and ELPIDIO ABIAD, Petitioners, G.R. No. 172200 Present: CARPIO, J., Chairperson, NACHURA, PERALTA, ABAD, and MENDOZA, JJ. Promulgated: SGT. AMANDO C. ALBAYDA, JR., Respondent. July 6, 2010

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

DECISION NACHURA, J.: Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision 87[1] dated January 2, 2006 and the Resolution88[2] dated March 30, 2006 of the Court of Appeals (CA) in CA-G.R. CV No. 68405.

- versus -

87 88

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The Facts The facts of the case are as follows: Respondent Amando C. Albayda, Jr. (Albayda) is a Master Sergeant of the Philippine Air Force, 527th Base Security Squadron, 520 th Airbase, Philippine Air Force, located at Villamor Air Base (VAB), Pasay City. Petitioner Redentor Completo (Completo), now represented by his heirs, was the taxi driver of a Toyota Corolla, bearing Plate No. PYD-128, owned and operated by co-petitioner Elpidio Abiad (Abiad).89[3] Albayda and Completo figured in an accident along the intersection of 8th and 11th Streets, VAB. Albayda filed a complaint for damages before the Regional Trial Court (RTC) of Pasay City. The case was docketed as Civil Case No. 98-1333.90[4] The amended complaint alleged that, on August 27, 1997, while Albayda was on his way to the office to report for duty, riding a bicycle along 11 th Street, the taxi driven by Completo bumped and sideswiped him, causing serious physical injuries. Albayda was brought to the Philippine Air Force General Hospital (PAFGH) inside VAB. However, he was immediately transferred to the Armed Forces of the Philippines Medical Center (AFPMC) on V. Luna Road, Quezon City, because there was a fracture in his left knee and there was no orthopedic doctor available at PAFGH. From August 27, 1997 until February 11, 1998, he was confined therein. He was again hospitalized at PAFGH from February 23, 1998 until March 22, 1998. 91[5] Conciliation between the parties before the barangay failed. Thus, Albayda filed a complaint for physical injuries through reckless imprudence against Completo before the Office of the City Prosecutor of Pasay City. On the other hand, Completo filed a counter-charge of damage to property through reckless imprudence against Albayda. On January 13, 1998, the Office of the City Prosecutor issued a resolution, 92[6] recommending the filing of an information for reckless imprudence resulting in physical injuries against Completo. The countercharge of damage to property was recommended dismissed. 93[7]

The case was raffled to the Metropolitan Trial Court of Pasay City, Branch 45, where Albayda manifested his reservation to file a separate civil action for damages against petitioners Completo and Abiad.94[8] Albayda alleged that the proximate cause of the incident which necessitated his stay in the hospital for approximately seven (7) months was the negligence of Completo who, at the time of the accident, was in the employ of Abiad. The pain he suffered required him to undergo medical physiotherapy for a number of years to regain normality of his left knee joint, and he claimed that he incurred actual damages totaling Two Hundred Seventy-Six Thousand Five Hundred Fifty Pesos (P276,550.00), inclusive of his anticipated operations. 95[9] He further stated that aggravating the physical sufferings, mental anguish, frights, serious anxiety, besmirched reputation, wounded feelings, moral shock, and social humiliation resulting from his injuries, his wife abandoned him in May 1998, and left their children in his custody. He thus demanded the amount of Six Hundred Thousand Pesos (P600,000.00) as moral damages. He likewise asked for exemplary damages in the amount of Two Hundred Thousand Pesos (P200,000.00) and attorneys fees of Twenty-Five Thousand Pesos (P25,000.00), plus One Thousand Pesos (P1,000.00) per court appearance.96[10] In his answer to the amended complaint, Completo alleged that, on August 27, 1997, he was carefully driving the taxicab along 8 th Street, VAB, when suddenly he heard a strange sound from the rear right side of the taxicab. When he stopped to investigate, he found Albayda lying on the road and holding his left leg. He immediately rendered assistance and brought Albayda to PAFGH for emergency treatment.97[11] Completo also asserted that he was an experienced driver who, in accordance with traffic rules and regulations and common courtesy to his fellow motorists, had already reduced his speed to twenty (20) kilometers per hour even before reaching the intersection of 8th and 11th Streets. In contrast, Albayda rode his bicycle at a very high speed, causing him to suddenly lose control of the bicycle and hit the rear door on the right side of the taxicab. 98[12]

89 90 91 92 93

94 95 96 97 98

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The deep indentation on the rear right door of the taxicab was caused by the impact of Albaydas body that hit the taxicab after he had lost control of the bicycle; while the slight indentation on the right front door of the taxicab was caused by the impact of the bike that hit the taxicab after Albayda let go of its handles when he had lost control of it.99[13] Completo maintained that Albayda had no cause of action. The accident and the physical injuries suffered by Albayda were caused by his own negligence, and his purpose in filing the complaint was to harass petitioners and unjustly enrich himself at their expense. 100[14] After submission of the parties respective pleadings, a pretrial conference was held. On December 8, 1998, the RTC issued a pretrial order. Thereafter, trial on the merits ensued.101[15] Albayda presented himself, Michael Navarro (Navarro), Dr. Rito Barrosa, Jr. (Dr. Barrosa), Dr. Armando Sta. Ana, Jr., Dr. Ranny Santiago, (Dr. Santiago), and Dr. Manuel Fidel Magtira (Dr. Magtira) as witnesses in open court. 102[16] On direct examination, Navarro testified that, on August 27, 1997, at around 1:45 p.m., he saw a taxicab, with Plate No. PYD-128, coming from 11 th Street, running at an unusual speed. The normal speed should have been twentyfive (25) kilometers per hour. He was at the corner of 9 th and 8th Streets when the taxicab passed by him. The side of the bicycle was hit by the taxicab at the intersection of 11th and 8th Streets. He saw Albayda fall to the ground, grimacing in pain. The taxicab at that moment was about ten (10) meters away from Albayda. On cross-examination, Navarro reiterated that the taxicab was running quite fast. The bicycle ridden by Albayda reached the intersection of 8 th and 11th Streets before the taxicab hit it.103[17]

99 100 101 102 103

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Dr. Santiago, the orthopedic surgeon who treated Albayda when the latter was admitted at AFPMC, testified that the cause of the injury was hard impact, and recommended an operation to alleviate the suffering. On cross-examination, he said that there was a separation of the fragments of the proximal leg, the injured extremity, called levia. They placed the victim on knee traction or calcaneal traction,104[18] in order to avoid further swelling. They bore the calcanean bone with a stainless steel pin so that they could put five percent (5%) of the body weight of the patient to cool down the leg. He treated Albayda for three (3) months. He recommended surgery, but the victim had other medical problems, like an increase in sugar level, and they were waiting for the availability of the implant. The implant was supposed to be placed on the lateral aspect of the proximal leg or the levia, the part with the separation. It was a long implant with screws. 105[19] Dr. Magtira testified that Albayda was readmitted at AFPMC on January 25, 1999 because of complaints of pain and limitation of motion on the knee joint. Upon evaluation, the pain was caused by traumatic arthritis brought about by malunion of the lateral trivial condial. An operation of the soft tissue release was conducted for him to mobilize his knee joint and attain proper range of motion. After the operation, Albayda attained functional range of motion, but because of subsisting pain, they had to do osteoplasty 106[20] of the malunion, which was another operation. On cross-examination, Dr. Magtira testified that he rendered free medical service at AFPMC.107[21] Albayda testified that he was thirty-six (36) years old and a soldier of the Armed Forces of the Philippines. On August 27, 1997, at around 1:40 p.m., he was riding his bike on his way to the office, located on 916 Street, VAB. He had to stop at the corner of 11th and 8th Streets because an oncoming taxicab was moving fast. However, the taxicab still bumped the front tire of his bike, hit his left knee and threw him off until he fell down on the road. The taxicab stopped about ten meters away, and then moved backwards. Its driver, Completo, just stared at him. When somebody shouted to bring him to the hospital, two (2) persons, one of whom was Dr. Barrosa, helped him and carried him into the taxicab driven by Completo, who brought him to PAFGH.108[22] Upon examination, it was found that Albayda suffered fracture in his left knee and that it required an operation. No orthopedic doctor was available at

PAFGH. Thus, he was transferred that same afternoon to AFPMC, where he was confined until February 11, 1998.109[23] At AFPMC, Albaydas left leg was drilled on and attached to traction. When his leg was drilled, it was so painful that he had to shout. After his release from the hospital, he continued to suffer pain in his leg. He underwent reflexology and therapy which offered temporary relief from pain. But after some time, he had to undergo therapy and reflexology again. 110[24]

104 105 106 107 108 109 110

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On January 25, 1999, Albayda was readmitted at AFPMC and operated on. On June 24, 1999, he was operated on again. Wire and screw were installed so that he could bend his knee. Nonetheless, he continued to suffer pain. As of the date of his testimony in court, he was scheduled for another operation in January 2000, when the steel that would be installed in his leg arrives. 111[25] For his food, Albayda spent Thirty Pesos (P30.00) each day during his six (6) months of confinement; for his bed pan, One Thousand Pesos (P1,000.00); for his twice weekly reflexology, Three Hundred Pesos (P300.00) every session since April 1997; for his caretaker, P300.00 per day for six months. He also asked for P600,000.00 in moral damages because Completo did not lend him a helping hand, and he would be suffering deformity for the rest of his life. He demanded P25,000.00 as attorneys fees and P1,000.00 for every court appearance of his lawyer.112[26] On cross-examination, Albayda testified that, on the date of the incident, he was the base guard at VAB, and his duty was from 2 p.m. to 8 p.m. That afternoon, he was not in a hurry to go to his place of work because it was only about 1:45 p.m., and his place of work was only six (6) meters away. After the accident, he was brought to PAFGH, and at 3:00 p.m., he was brought to the AFPMC. When he was discharged from the hospital, he could no longer walk. 113[27]

111 112 113

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Dr. Barrosas testimony during cross-examination emphasized that he was with 2 other persons when he carried Albayda into the taxicab driven by Completo. He was certain that it was not Completo who carried the victim into the taxicab. It was only a matter of seconds when he rushed to the scene of the accident. The taxicab backed up fifteen (15) seconds later. Albayda lay 2 meters away from the corner of 8th and 11th Streets.114[28] Completo, Abiad, and Benjamin Panican (Panican) testified for the defense.115[29] Completo alleged that he had been employed as taxi driver of FOJS Transport, owned by Abiad, since February 1997. On August 27, 1997, he was driving the taxicab, with Plate No. PYD-128, from 10:00 a.m. At around 1:45 p.m., he was on his way home when a bicycle bumped his taxicab at the intersection of 8th and 11th Streets, VAB. The bicycle was travelling from south to north, and he was going east coming from the west. The bicycle was coming from 11 th Street, while he was travelling along 8th Street.116[30] On cross-examination, Completo testified that when Albayda hit the rear right door of the taxicab, the latter fell to the ground. When he heard a noise, he immediately alighted from the taxicab. He denied that he stopped about 10 meters away from the place where Albayda fell. He carried Albayda and drove him to the hospital.117[31]

114 115 116 117

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Panican testified that he worked as an airconditioner technician in a shop located on 8th Street corner 11th Street. On the date and time of the incident, he was working in front of the shop near the roadside. He saw a bicycle bump the rear right side of the taxicab. Then, the driver of the taxicab alighted, carried Albayda, and brought him to the hospital.118[32] When questioned by the trial court, Panican testified that the bicycle was running fast and that he saw it bump the taxicab. The taxicab already passed the intersection of 11th and 8th Streets when the bicycle arrived.119[33] Abiad testified that, aside from being a soldier, he was also a franchise holder of taxicabs and passenger jeepneys. When Completo applied as a driver of the taxicab, Abiad required the former to show his bio-data, NBI clearance, and drivers license. Completo never figured in a vehicular accident since the time he was employed in February 1997. Abiad averred that Completo was a good driver and a good man. Being the operator of taxicab, Abiad would wake up early and personally check all the taxicabs. 120[34] On July 31, 2000, the trial court rendered a decision, 121[35] the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiff [Albayda] and against the defendants [Completo and Abiad]. Accordingly, the defendants [Completo and Abiad] are hereby ordered to pay the plaintiff [Albayda] the following sum: 1. 2. 3. P46,000.00 as actual damages; P400,000.00 as moral damages; [and] P25,000.00 as attorneys fees.

Completo and Abiad filed an appeal. The CA affirmed the trial court with modification in a Decision123[37] dated January 2, 2006, viz.: WHEREFORE, premises considered, the appeal is DENIED for lack of merit. The assailed Decision dated 31 July 2000 rendered by the Regional Trial Court of Pasay City, Branch 117, in Civil Case No. 98-1333 is hereby AFFIRMED with the following MODIFICATIONS: 1. the award of Php 46,000.00 as actual damages is DELETED;

2. temperate damages in the amount of Php 40,000.00 is awarded in favor of appellee; 3. 200,000.00; moral damages in favor of appellee is REDUCED to Php

4. appellants Redentor Completo and Elpidio Abiad are solidarily liable to pay appellee Amando C. Albayda, Jr. said temperate and moral damages, as well as the attorneys fees in the amount of Php 25,000.00 awarded by the trial court; 5. the temperate and moral damages shall earn legal interest at 6% per annum computed from the date of promulgation of Our Decision; 6. upon finality of Our Decision, said moral and temperate damages shall earn legal interest at the rate of 12% per annum, in lieu of 6% per annum, until full payment. Costs against appellants. SO ORDERED.124[38]

Costs against the defendants [Completo and Abiad]. SO ORDERED.122[36]

118 119 120 121 122 123 124

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 169467 February 25, 2010 ALFREDO P. PACIS and CLEOPATRA D. PACIS, Petitioners, vs. JEROME JOVANNE MORALES, Respondent. DECISION CARPIO, J.: The Case This petition for review1 assails the 11 May 2005 Decision 2 and the 19 August 2005 Resolution of the Court of Appeals in CA-G.R. CV No. 60669. The Facts On 17 January 1995, petitioners Alfredo P. Pacis and Cleopatra D. Pacis (petitioners) filed with the trial court a civil case for damages against respondent Jerome Jovanne Morales (respondent). Petitioners are the parents of Alfred Dennis Pacis, Jr. (Alfred), a 17-year old student who died in a shooting incident inside the Top Gun Firearms and Ammunitions Store (gun store) in Baguio City. Respondent is the owner of the gun store. The facts as found by the trial court are as follows: On January 19, 1991, Alfred Dennis Pacis, then 17 years old and a first year student at the Baguio Colleges Foundation taking up BS Computer Science, died due to a gunshot wound in the head which he sustained while he was at the Top Gun Firearm[s] and Ammunition[s] Store located at Upper Mabini Street, Baguio City. The gun store was owned and operated by defendant Jerome Jovanne Morales. With Alfred Pacis at the time of the shooting were Aristedes Matibag and Jason Herbolario. They were sales agents of the defendant, and at that particular time, the caretakers of the gun store. The bullet which killed Alfred Dennis Pacis was fired from a gun brought in by a customer of the gun store for repair. The gun, an AMT Automag II Cal. 22 Rimfire Magnum with Serial No. SN-H34194 (Exhibit "Q"), was left by defendant Morales in a drawer of a table located inside the gun store. Defendant Morales was in Manila at the time. His employee Armando Jarnague, who was the regular caretaker of the gun store was also not around. He left earlier and requested sales agents Matibag and Herbolario to look after the gun store while he and defendant Morales were away. Jarnague entrusted to Matibag and Herbolario a bunch of keys used in the gun store which included the key to the drawer where the fatal gun was kept. It appears that Matibag and Herbolario later brought out the gun from the drawer and placed it on top of the table. Attracted by the sight of the gun, the young Alfred Dennis Pacis got hold of the same. Matibag asked Alfred Dennis Pacis to return the gun. The latter followed and handed the gun to Matibag. It went off, the bullet hitting the young Alfred in the head. A criminal case for homicide was filed against Matibag before branch VII of this Court. Matibag, however, was acquitted of the charge against him because of the

exempting circumstance of "accident" under Art. 12, par. 4 of the Revised Penal Code. By agreement of the parties, the evidence adduced in the criminal case for homicide against Matibag was reproduced and adopted by them as part of their evidence in the instant case. 3 On 8 April 1998, the trial court rendered its decision in favor of petitioners. The dispositive portion of the decision reads: WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs [Spouses Alfredo P. Pacis and Cleopatra D. Pacis] and against the defendant [Jerome Jovanne Morales] ordering the defendant to pay plaintiffs (1) P30,000.00 as indemnity for the death of Alfred Pacis; (2) P29,437.65 as actual damages for the hospitalization and burial expenses incurred by the plaintiffs; (3) P100,000.00 as compensatory damages; (4) P100,000.00 as moral damages; (5) P50,000.00 as attorneys fees. SO ORDERED.4 Respondent appealed to the Court of Appeals. In its Decision 5 dated 11 May 2005, the Court of Appeals reversed the trial courts Decision and absolved respondent from civil liability under Article 2180 of the Civil Code. 6 Petitioners filed a motion for reconsideration, which the Court of Appeals denied in its Resolution dated 19 August 2005. Hence, this petition. The Trial Courts Ruling The trial court held respondent civilly liable for the death of Alfred under Article 2180 in relation to Article 2176 of the Civil Code. 7 The trial court held that the accidental shooting of Alfred which caused his death was partly due to the negligence of respondents employee Aristedes Matibag (Matibag). Matibag and Jason Herbolario (Herbolario) were employees of respondent even if they were only paid on a commission basis. Under the Civil Code, respondent is liable for the damages caused by Matibag on the occasion of the performance of his duties, unless respondent proved that he observed the diligence of a good father of a family to prevent the damage. The trial court held that respondent failed to observe the required diligence when he left the key to the drawer containing the loaded defective gun without instructing his employees to be careful in handling the loaded gun. The Court of Appeals Ruling The Court of Appeals held that respondent cannot be held civilly liable since there was no employer-employee relationship between respondent and Matibag. The Court of Appeals found that Matibag was not under the control of respondent with respect to the means and methods in the performance of his work. There can be no employer-employee relationship where the element of control is absent. Thus, Article 2180 of the Civil Code does not apply in this case and respondent cannot be held liable. Furthermore, the Court of Appeals ruled that even if respondent is considered an employer of Matibag, still respondent cannot be held liable since no negligence can be attributed to him. As explained by the Court of Appeals:

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Granting arguendo that an employer-employee relationship existed between Aristedes Matibag and the defendant-appellant, we find that no negligence can be attributed to him. Negligence is best exemplified in the case of Picart vs. Smith (37 Phil. 809). The test of negligence is this: "x x x. Could a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes a duty on the actor to refrain from that course or take precaution against its mischievous results, and the failure to do so constitutes negligence. x x x." Defendant-appellant maintains that he is not guilty of negligence and lack of due care as he did not fail to observe the diligence of a good father of a family. He submits that he kept the firearm in one of his table drawers, which he locked and such is already an indication that he took the necessary diligence and care that the said gun would not be accessible to anyone. He puts [sic] that his store is engaged in selling firearms and ammunitions. Such items which are per se dangerous are kept in a place which is properly secured in order that the persons coming into the gun store would not be able to take hold of it unless it is done intentionally, such as when a customer is interested to purchase any of the firearms, ammunitions and other related items, in which case, he may be allowed to handle the same. We agree. Much as We sympathize with the family of the deceased, defendantappellant is not to be blamed. He exercised due diligence in keeping his loaded gun while he was on a business trip in Manila. He placed it inside the drawer and locked it. It was taken away without his knowledge and authority. Whatever happened to the deceased was purely accidental. 8 The Issues Petitioners raise the following issues: I. THE APPELLATE COURT COMMITTED SERIOUS ERROR IN RENDERING THE DECISION AND RESOLUTION IN QUESTION IN DISREGARD OF LAW AND JURISPRUDENCE BY REVERSING THE ORDER OF THE REGIONAL TRIAL COURT (BRANCH 59) OF BAGUIO CITY NOTWITHSTANDING CLEAR, AUTHENTIC RECORDS AND TESTIMONIES PRESENTED DURING THE TRIAL WHICH NEGATE AND CONTRADICT ITS FINDINGS. II. THE APPELLATE COURT COMMITTED GRAVE, REVERSIBLE ERROR IN RENDERING THE DECISION AND RESOLUTION IN QUESTION BY DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS THEREBY IGNORING THE FACTUAL FINDINGS OF THE REGIONAL TRIAL COURT (BRANCH 59) OF BAGUIO CITY SHOWING PETITIONERS CLEAR RIGHTS TO THE AWARD OF DAMAGES. 9 The Ruling of the Court We find the petition meritorious. This case for damages arose out of the accidental shooting of petitioners son. Under Article 116110 of the Civil Code, petitioners may enforce their claim for damages based on the civil liability arising from the crime under Article 100 11 of the Revised Penal Code or they may opt to file an independent civil action for damages under the Civil Code. In this case, instead of enforcing their claim for damages in the homicide case filed against Matibag, petitioners opted to file an independent civil action for damages against respondent whom they alleged was

Matibags employer. Petitioners based their claim for damages under Articles 2176 and 2180 of the Civil Code. Unlike the subsidiary liability of the employer under Article 103 12 of the Revised Penal Code,13 the liability of the employer, or any person for that matter, under Article 2176 of the Civil Code is primary and direct, based on a persons own negligence. Article 2176 states: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called quasi-delict and is governed by the provisions of this Chapter. This case involves the accidental discharge of a firearm inside a gun store.1avvphi1 Under PNP Circular No. 9, entitled the "Policy on Firearms and Ammunition Dealership/Repair," a person who is in the business of purchasing and selling of firearms and ammunition must maintain basic security and safety requirements of a gun dealer, otherwise his License to Operate Dealership will be suspended or canceled.14 Indeed, a higher degree of care is required of someone who has in his possession or under his control an instrumentality extremely dangerous in character, such as dangerous weapons or substances. Such person in possession or control of dangerous instrumentalities has the duty to take exceptional precautions to prevent any injury being done thereby. 15 Unlike the ordinary affairs of life or business which involve little or no risk, a business dealing with dangerous weapons requires the exercise of a higher degree of care. As a gun store owner, respondent is presumed to be knowledgeable about firearms safety and should have known never to keep a loaded weapon in his store to avoid unreasonable risk of harm or injury to others. Respondent has the duty to ensure that all the guns in his store are not loaded. Firearms should be stored unloaded and separate from ammunition when the firearms are not needed for ready-access defensive use.16 With more reason, guns accepted by the store for repair should not be loaded precisely because they are defective and may cause an accidental discharge such as what happened in this case. Respondent was clearly negligent when he accepted the gun for repair and placed it inside the drawer without ensuring first that it was not loaded. In the first place, the defective gun should have been stored in a vault. Before accepting the defective gun for repair, respondent should have made sure that it was not loaded to prevent any untoward accident. Indeed, respondent should never accept a firearm from another person, until the cylinder or action is open and he has personally checked that the weapon is completely unloaded.17 For failing to insure that the gun was not loaded, respondent himself was negligent. Furthermore, it was not shown in this case whether respondent had a License to Repair which authorizes him to repair defective firearms to restore its original composition or enhance or upgrade firearms.18 Clearly, respondent did not exercise the degree of care and diligence required of a good father of a family, much less the degree of care required of someone dealing with dangerous weapons, as would exempt him from liability in this case. WHEREFORE, we GRANT the petition. We SET ASIDE the 11 May 2005 Decision and the 19 August 2005 Resolution of the Court of Appeals in CA-G.R. CV No. 60669. We REINSTATE the trial courts Decision dated 8 April 1998.

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SO ORDERED.

FIRST DIVISION [G.R. No. 129792. December 21, 1999] JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA PANELO, petitioners, vs. HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R. AGUILAR, respondents. DECISION DAVIDE, JR., C.J.: In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners seek the reversal of the 17 June 1996 decision i[1] of the Court of Appeals in C.A. G.R. No. CV 37937 and the resolution ii[2]denying their motion for reconsideration. The assailed decision set aside the 15 January 1992 judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages and attorneys fees to private respondents Conrado and Criselda (CRISELDA) Aguilar. Petitioner Jarco Marketing Corporation is the owner of Syvels Department Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the stores branch manager, operations manager, and supervisor, respectively. Private respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH). In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvels Department Store, Makati City. CRISELDA was signing her credit card slip at the payment and verification counter when she felt a sudden gust of wind and heard a loud thud. She looked behind her. She then beheld her daughter ZHIENETH on the floor, her young body pinned by the bulk of the stores giftwrapping counter/structure. ZHIENETH was crying and screaming for help. Although shocked, CRISELDA was quick to ask the assistance of the people around in lifting the counter and retrieving ZHIENETH from the floor. iii[3] ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day ZHIENETH lost her speech and thereafter communicated with CRISELDA by writing on a magic slate. The injuries she sustained took their toil on her young body. She died fourteen (14) days after the accident or on 22 May 1983, on the hospital bed. She was six years old. iv[4] The cause of her death was attributed to the injuries she sustained. The provisional medical certificatev[5] issued by ZHIENETHs attending doctor described the extent of her injuries: Diagnoses: 1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury 2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver 3. Rupture, stomach, anterior & posterior walls 4. Complete transection, 4th position, duodenum 5. Hematoma, extensive, retroperitoneal 6. Contusion, lungs, severe CRITICAL After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the hospitalization, medical bills and wake and funeral

expensesvi[6] which they had incurred. Petitioners refused to pay. Consequently, private respondents filed a complaint for damages, docketed as Civil Case No. 7119 wherein they sought the payment of P157,522.86 for actual damages, P300,000 for moral damages, P20,000 for attorneys fees and an unspecified amount for loss of income and exemplary damages. In their answer with counterclaim, petitioners denied any liability for the injuries and consequent death of ZHIENETH. They claimed that CRISELDA was negligent in exercising care and diligence over her daughter by allowing her to freely roam around in a store filled with glassware and appliances. ZHIENETH too, was guilty of contributory negligence since she climbed the counter, triggering its eventual collapse on her. Petitioners also emphasized that the counter was made of sturdy wood with a strong support; it never fell nor collapsed for the past fifteen years since its construction. Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence of a good father of a family in the selection, supervision and control of its employees. The other petitioners likewise raised due care and diligence in the performance of their duties and countered that the complaint was malicious for which they suffered besmirched reputation and mental anguish. They sought the dismissal of the complaint and an award of moral and exemplary damages and attorneys fees in their favor. In its decisionvii[7] the trial court dismissed the complaint and counterclaim after finding that the preponderance of the evidence favored petitioners. It ruled that the proximate cause of the fall of the counter on ZHIENETH was her act of clinging to it. It believed petitioners witnesses who testified that ZHIENETH clung to the counter, afterwhich the structure and the girl fell with the structure falling on top of her, pinning her stomach. In contrast, none of private respondents witnesses testified on how the counter fell. The trial court also held that CRISELDAs negligence contributed to ZHIENETHs accident. In absolving petitioners from any liability, the trial court reasoned that the counter was situated at the end or corner of the 2nd floor as a precautionary measure hence, it could not be considered as an attractive nuisance. viii[8] The counter was higher than ZHIENETH. It has been in existence for fifteen years. Its structure was safe and well-balanced. ZHIENETH, therefore, had no business climbing on and clinging to it. Private respondents appealed the decision, attributing as errors of the trial court its findings that: (1) the proximate cause of the fall of the counter was ZHIENETHs misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH; (3) petitioners were not negligent in the maintenance of the counter; and (4) petitioners were not liable for the death of ZHIENETH. Further, private respondents asserted that ZHIENETH should be entitled to the conclusive presumption that a child below nine (9) years is incapable of contributory negligence. And even if ZHIENETH, at six (6) years old, was already capable of contributory negligence, still it was physically impossible for her to have propped herself on the counter. She had a small frame (four feet high and seventy pounds) and the counter was much higher and heavier than she was. Also, the testimony of one of the stores former employees, Gerardo Gonzales, who accompanied ZHIENETH when she was brought to the emergency room of the Makati Medical Center belied petitioners theory that ZHIENETH climbed the

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counter. Gonzales claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied, [N]othing, I did not come near the counter and the counter just fell on me.ix[9] Accordingly, Gonzales testimony on ZHIENETHs spontaneous declaration should not only be considered as part of res gestae but also accorded credit. Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of ZHIENETH at the precise moment that she was signing the credit card slip. Finally, private respondents vigorously maintained that the proximate cause of ZHIENETHs death, was petitioners negligence in failing to institute measures to have the counter permanently nailed. On the other hand, petitioners argued that private respondents raised purely factual issues which could no longer be disturbed. They explained that ZHIENETHs death while unfortunate and tragic, was an accident for which neither CRISELDA nor even ZHIENETH could entirely be held faultless and blameless. Further, petitioners adverted to the trial courts rejection of Gonzales testimony as unworthy of credence. As to private respondents claim that the counter should have been nailed to the ground, petitioners justified that it was not necessary. The counter had been in existence for several years without any prior accident and was deliberately placed at a corner to avoid such accidents. Truth to tell, they acted without fault or negligence for they had exercised due diligence on the matter. In fact, the criminal casex[10] for homicide through simple negligence filed by private respondents against the individual petitioners was dismissed; a verdict of acquittal was rendered in their favor. The Court of Appeals, however, decided in favor of private respondents and reversed the appealed judgment. It found that petitioners were negligent in maintaining a structurally dangerous counter. The counter was shaped like an inverted Lxi[11] with a top wider than the base. It was top heavy and the weight of the upper portion was neither evenly distributed nor supported by its narrow base. Thus, the counter was defective, unstable and dangerous; a downward pressure on the overhanging portion or a push from the front could cause the counter to fall. Two former employees of petitioners had already previously brought to the attention of the management the danger the counter could cause. But the latter ignored their concern. The Court of Appeals faulted the petitioners for this omission, and concluded that the incident that befell ZHIENETH could have been avoided had petitioners repaired the defective counter. It was inconsequential that the counter had been in use for some time without a prior incident. The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the time of the incident, was absolutely incapable of negligence or other tort. It reasoned that since a child under nine (9) years could not be held liable even for an intentional wrong, then the six-year old ZHIENETH could not be made to account for a mere mischief or reckless act. It also absolved CRISELDA of any negligence, finding nothing wrong or out of the ordinary in momentarily allowing ZHIENETH to walk while she signed the document at the nearby counter. The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found them biased and prejudiced. It instead gave credit to the testimony of

disinterested witness Gonzales. The Court of Appeals then awarded P99,420.86 as actual damages, the amount representing the hospitalization expenses incurred by private respondents as evidenced by the hospital's statement of account. xii[12] It denied an award for funeral expenses for lack of proof to substantiate the same. Instead, a compensatory damage of P50,000 was awarded for the death of ZHIENETH. We quote the dispositive portion of the assailed decision, xiii[13] thus: WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and another one is entered against [petitioners], ordering them to pay jointly and severally unto [private respondents] the following: 1. P50,000.00 by way of compensatory damages for the death of Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April 1984; 2. P99,420.86 as reimbursement for hospitalization expenses incurred; with legal interest (6% p.a.) from 27 April 1984; 3. P100,000.00 as moral and exemplary damages; 4. P20,000.00 in the concept of attorneys fees; and 5. Costs. Private respondents sought a reconsideration of the decision but the same was denied in the Court of Appeals resolutionxiv[14] of 16 July 1997. Petitioners now seek the reversal of the Court of Appeals decision and the reinstatement of the judgment of the trial court. Petitioners primarily argue that the Court of Appeals erred in disregarding the factual findings and conclusions of the trial court. They stress that since the action was based on tort, any finding of negligence on the part of the private respondents would necessarily negate their claim for damages, where said negligence was the proximate cause of the injury sustained. The injury in the instant case was the death of ZHIENETH. The proximate cause was ZHIENETHs act of clinging to the counter. This act in turn caused the counter to fall on her. This and CRISELDAs contributory negligence, through her failure to provide the proper care and attention to her child while inside the store, nullified private respondents claim for damages. It is also for these reasons that parents are made accountable for the damage or injury inflicted on others by their minor children. Under these circumstances, petitioners could not be held responsible for the accident that befell ZHIENETH. Petitioners also assail the credibility of Gonzales who was already separated from Syvels at the time he testified; hence, his testimony might have been tarnished by ill-feelings against them. For their part, private respondents principally reiterated their arguments that neither ZHIENETH nor CRISELDA was negligent at any time while inside the store; the findings and conclusions of the Court of Appeals are substantiated by the evidence on record; the testimony of Gonzales, who heard ZHIENETH comment on the incident while she was in the hospitals emergency room should receive credence; and finally, ZHIENETHs part of the res gestae declaration that she did nothing to cause the heavy structure to fall on her should be considered as the correct version of the gruesome events. We deny the petition. The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or attributable to negligence; and (2) in case of a finding of negligence, whether the same was attributable to private respondents for maintaining a

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defective counter or to CRISELDA and ZHIENETH for failing to exercise due and reasonable care while inside the store premises. An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. xv[15] It is a fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the person to whom it happens. xvi[16] On the other hand, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do.xvii[17] Negligence is the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.xviii[18] Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have been prevented by any means suggested by common prudence. xix[19] The test in determining the existence of negligence is enunciated in the landmark case of Picart v. Smith,xx[20] thus: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence.xxi[21] We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETHs death could only be attributed to negligence. We quote the testimony of Gerardo Gonzales who was at the scene of the incident and accompanied CRISELDA and ZHIENETH to the hospital: Q While at the Makati Medical Center, did you hear or notice anything while the child was being treated? A At the emergency room we were all surrounding the child. And when the doctor asked the child what did you do, the child said nothing, I did not come near the counter and the counter just fell on me. Q (COURT TO ATTY. BELTRAN) You want the words in Tagalog to be translated? ATTY. BELTRAN Yes, your Honor. COURT Granted. Intercalate wala po, hindi po ako lumapit doon. Basta bumagsak.xxii[22] This testimony of Gonzales pertaining to ZHIENETHs statement formed (and should be admitted as) part of the res gestae under Section 42, Rule 130 of the Rules of Court, thus: Part of res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.

It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally considered declarations and admissions.xxiii[23] All that is required for their admissibility as part of the res gestae is that they be made or uttered under the influence of a startling event before the declarant had the time to think and concoct a falsehood as witnessed by the person who testified in court. Under the circumstances thus described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor whom she trusted with her life. We therefore accord credence to Gonzales testimony on the matter, i.e., ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did, through their negligence or omission to secure or make stable the counters base. Gonzales earlier testimony on petitioners insistence to keep and maintain the structurally unstable gift-wrapping counter proved their negligence, thus: Q When you assumed the position as gift wrapper at the second floor, will you please describe the gift wrapping counter, were you able to examine? A Because every morning before I start working I used to clean that counter and since it is not nailed and it was only standing on the floor, it was shaky . xxx Q Will you please describe the counter at 5:00 oclock [sic] in the afternoon on [sic] May 9 1983? A At that hour on May 9, 1983, that counter was standing beside the verification counter. And since the top of it was heavy and considering that it was not nailed, it can collapse at anytime, since the top is heavy. xxx Q And what did you do? A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is fond of putting display decorations on tables, he even told me that I would put some decorations. But since I told him that it not [sic] nailed and it is shaky he told me better inform also the company about it. And since the company did not do anything about the counter, so I also did not do anything about the counter. xxiv [24] [Emphasis supplied] Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus: Q Will you please described [sic] to the honorable Court the counter where you were assigned in January 1983? xxx A That counter assigned to me was when my supervisor ordered me to carry that counter to another place. I told him that the counter needs nailing and it has to be nailed because it might cause injury or accident to another since it was shaky. Q When that gift wrapping counter was transferred at the second floor on February 12, 1983, will you please describe that to the honorable Court? A I told her that the counter wrapper [sic] is really in good [sic] condition; it was shaky. I told her that we had to nail it. Q When you said she, to whom are you referring to [sic]? A I am referring to Ms. Panelo, sir. Q And what was the answer of Ms. Panelo when you told her that the counter was shaky?

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A She told me Why do you have to teach me. You are only my subordinate and you are to teach me? And she even got angry at me when I told her that. xxx Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee of the management do to that (sic) xxx Witness: None, sir. They never nailed the counter. They only nailed the counter after the accident happened.xxv[25] [Emphasis supplied] Without doubt, petitioner Panelo and another store supervisor were personally informed of the danger posed by the unstable counter. Yet, neither initiated any concrete action to remedy the situation nor ensure the safety of the stores employees and patrons as a reasonable and ordinary prudent man would have done. Thus, as confronted by the situation petitioners miserably failed to discharge the due diligence required of a good father of a family. On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that the formers testimonies were biased and tainted with partiality. Therefore, the allegation that Gonzales and Guevarras testimonies were blemished by ill feelings against petitioners since they (Gonzales and Guevarra) were already separated from the company at the time their testimonies were offered in court was but mere speculation and deserved scant consideration. It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a general rule disturb the findings of the trial court, which is in a better position to determine the same. The trial court has the distinct advantage of actually hearing the testimony of and observing the deportment of the witnesses.xxvi[26] However, the rule admits of exceptions such as when its evaluation was reached arbitrarily or it overlooked or failed to appreciate some facts or circumstances of weight and substance which could affect the result of the case.xxvii[27] In the instant case, petitioners failed to bring their claim within the exception. Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below nine (9) years old in that they are incapable of contributory negligence. In his book,xxviii[28] former Judge Cezar S. Sangco stated: In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account, exempt from criminal liability. The same presumption and a like exemption from criminal liability obtains in a case of a person over nine and under fifteen years of age, unless it is shown that he has acted with discernment. Since negligence may be a felony and a quasi-delict and required discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of a child over nine but under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law. [Emphasis supplied] Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the counter, no injury should have occurred if we accept petitioners

theory that the counter was stable and sturdy. For if that was the truth, a frail sixyear old could not have caused the counter to collapse. The physical analysis of the counter by both the trial court and Court of Appeals and a scrutiny of the evidencexxix[29]on record reveal otherwise, i.e., it was not durable after all. Shaped like an inverted L, the counter was heavy, huge, and its top laden with formica. It protruded towards the customer waiting area and its base was not secured. xxx [30] CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to CRISELDAs waist, later to the latters hand. xxxi[31] CRISELDA momentarily released the childs hand from her clutch when she signed her credit card slip. At this precise moment, it was reasonable and usual for CRISELDA to let go of her child. Further, at the time ZHIENETH was pinned down by the counter, she was just a foot away from her mother; and the gift-wrapping counter was just four meters away from CRISELDA. xxxii[32] The time and distance were both significant. ZHIENETH was near her mother and did not loiter as petitioners would want to impress upon us. She even admitted to the doctor who treated her at the hospital that she did not do anything; the counter just fell on her. WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED. Costs against petitioners. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-33722 July 29, 1988 FEDERICO YLARDE and ADELAIDA DORONIO petitioners, vs. EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents. Buenaventura C. Evangelista for petitioners. Modesto V. Cabanela for respondent Edgardo Aquino. Manuel P. Pastor for respondent Mauro Soriano. GANCAYCO, J.: In this petition for review on certiorari seeking the reversal of the decision of the Court of Appeals in CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a case which originated from the Court of First Instance of Pangasinan, We are again caned upon determine the responsibility of the principals and teachers towards their students or pupils. In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary School, a public educational institution located in Tayug, PangasinanPrivate respondent Edgardo Aquino was a teacher therein. At that time, the school was fittered with several concrete blocks which were remnants of the old school shop that was destroyed in World War II. Realizing that the huge stones were serious hazards to the schoolchildren, another teacher by the name of Sergio

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Banez started burying them one by one as early as 1962. In fact, he was able to bury ten of these blocks all by himself. Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen of his male pupils, aged ten to eleven, after class dismissal on October 7, 1963. Being their teacher-in-charge, he ordered them to dig beside a one-ton concrete block in order to make a hole wherein the stone can be buried. The work was left unfinished. The following day, also after classes, private respondent Aquino called four of the original eighteen pupils to continue the digging. These four pupils Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and Novelito Ylarde, dug until the excavation was one meter and forty centimeters deep. At this point, private respondent Aquino alone continued digging while the pupils remained inside the pit throwing out the loose soil that was brought about by the digging. When the depth was right enough to accommodate the concrete block, private respondent Aquino and his four pupils got out of the hole. Then, said private respondent left the children to level the loose soil around the open hole while he went to see Banez who was about thirty meters away. Private respondent wanted to borrow from Banez the key to the school workroom where he could get some rope. Before leaving. , private respondent Aquino allegedly told the children "not to touch the stone." A few minutes after private respondent Aquino left, three of the four kids, Alonso, Alcantara and Ylarde, playfully jumped into the pit. Then, without any warning at all, the remaining Abaga jumped on top of the concrete block causing it to slide down towards the opening. Alonso and Alcantara were able to scramble out of the excavation on time but unfortunately fo Ylarde, the concrete block caught him before he could get out, pinning him to the wall in a standing position. As a result thereof, Ylarde sustained the following injuries: 1. Contusion with hematoma, left inguinal region and suprapubic region. 2. Contusion with ecchymosis entire scrotal region. 3. Lacerated wound, left lateral aspect of penile skin with phimosis 4. Abrasion, gluteal region, bilateral. 5. Intraperitoneal and extrapertitoneal extravasation of blood and urine about 2 liters. 6. Fracture, simple, symphesis pubis 7. Ruptured (macerated) urinary bladder with body of bladder almost entirely separated from its neck. REMARKS: 1. Above were incurred by crushing injury. 2. Prognosis very poor. (Sgd.) MELQUIADES A. BRAVO Physician on Duty. 1 Three days later, Novelito Ylarde died. Ylarde's parents, petitioners in this case, filed a suit for damages against both private respondents Aquino and Soriano. The lower court dismissed the complaint on the following grounds: (1) that the digging done by the pupils is in line with their course called Work Education; (2) that Aquino exercised the utmost diligence of a very cautious person; and (3) that the demise of Ylarde was due to his own reckless imprudence. 2

On appeal, the Court of Appeals affirmed the Decision of the lower court. Petitioners base their action against private respondent Aquino on Article 2176 of the Civil Code for his alleged negligence that caused their son's death while the complaint against respondent Soriano as the head of school is founded on Article 2180 of the same Code. Article 2176 of the Civil Code provides: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre- existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. On the other hand, the applicable provision of Article 2180 states: Art. 2180. x x x xxx xxx xxx Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. 3 The issue to be resolved is whether or not under the cited provisions, both private respondents can be held liable for damages. As regards the principal, We hold that he cannot be made responsible for the death of the child Ylarde, he being the head of an academic school and not a school of arts and trades. This is in line with Our ruling in Amadora vs. Court of Appeals , 4 wherein this Court thoroughly discussed the doctrine that under Article 2180 of the Civil Code, it is only the teacher and not the head of an academic school who should be answerable for torts committed by their students. This Court went on to say that in a school of arts and trades, it is only the head of the school who can be held liable. In the same case, We explained: After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such student, following the first part of the provision. This is the general rule. In the case of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the head thereof who shall be answerable. Following the canon of reddendo singula sinquilis 'teachers' should apply to the words "pupils and students' and 'heads of establishments of arts and trades to the word "apprentices." Hence, applying the said doctrine to this case, We rule that private respondent Soriano, as principal, cannot be held liable for the reason that the school he heads is an academic school and not a school of arts and trades. Besides, as clearly admitted by private respondent Aquino, private respondent Soriano did not give any instruction regarding the digging. From the foregoing, it can be easily seen that private respondent Aquino can be held liable under Article 2180 of the Civil Code as the teacher-in-charge of the children for being negligent in his supervision over them and his failure to take the necessary precautions to prevent any injury on their persons. However, as earlier

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pointed out, petitioners base the alleged liability of private respondent Aquino on Article 2176 which is separate and distinct from that provided for in Article 2180. With this in mind, the question We need to answer is this: Were there acts and omissions on the part of private respondent Aquino amounting to fault or negligence which have direct causal relation to the death of his pupil Ylarde? Our answer is in the affirmative. He is liable for damages. From a review of the record of this case, it is very clear that private respondent Aquino acted with fault and gross negligence when he: (1) failed to avail himself of services of adult manual laborers and instead utilized his pupils aged ten to eleven to make an excavation near the one-ton concrete stone which he knew to be a very hazardous task; (2) required the children to remain inside the pit even after they had finished digging, knowing that the huge block was lying nearby and could be easily pushed or kicked aside by any pupil who by chance may go to the perilous area; (3) ordered them to level the soil around the excavation when it was so apparent that the huge stone was at the brink of falling; (4) went to a place where he would not be able to check on the children's safety; and (5) left the children close to the excavation, an obviously attractive nuisance. The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site has a direct causal connection to the death of the child Ylarde. Left by themselves, it was but natural for the children to play around. Tired from the strenuous digging, they just had to amuse themselves with whatever they found. Driven by their playful and adventurous instincts and not knowing the risk they were facing three of them jumped into the hole while the other one jumped on the stone. Since the stone was so heavy and the soil was loose from the digging, it was also a natural consequence that the stone would fall into the hole beside it, causing injury on the unfortunate child caught by its heavy weight. Everything that occurred was the natural and probable effect of the negligent acts of private respondent Aquino. Needless to say, the child Ylarde would not have died were it not for the unsafe situation created by private respondent Aquino which exposed the lives of all the pupils concerned to real danger. We cannot agree with the finding of the lower court that the injuries which resulted in the death of the child Ylarde were caused by his own reckless imprudence, It should be remembered that he was only ten years old at the time of the incident, As such, he is expected to be playful and daring. His actuations were natural to a boy his age. Going back to the facts, it was not only him but the three of them who jumped into the hole while the remaining boy jumped on the block. From this, it is clear that he only did what any other ten-year old child would do in the same situation. In ruling that the child Ylarde was imprudent, it is evident that the lower court did not consider his age and maturity. This should not be the case. The degree of care required to be exercised must vary with the capacity of the person endangered to care for himself. A minor should not be held to the same degree of care as an adult, but his conduct should be judged according to the average conduct of persons of his age and experience. 5 The standard of conduct to which a child must conform for his own protection is that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under the same or similar circumstances. 6 Bearing this in mind, We cannot charge the child Ylarde with reckless imprudence.

The court is not persuaded that the digging done by the pupils can pass as part of their Work Education. A single glance at the picture showing the excavation and the huge concrete block 7 would reveal a dangerous site requiring the attendance of strong, mature laborers and not ten-year old grade-four pupils. We cannot comprehend why the lower court saw it otherwise when private respondent Aquino himself admitted that there were no instructions from the principal requiring what the pupils were told to do. Nor was there any showing that it was included in the lesson plan for their Work Education. Even the Court of Appeals made mention of the fact that respondent Aquino decided all by himself to help his co-teacher Banez bury the concrete remnants of the old school shop. 8 Furthermore, the excavation should not be placed in the category of school gardening, planting trees, and the like as these undertakings do not expose the children to any risk that could result in death or physical injuries. The contention that private respondent Aquino exercised the utmost diligence of a very cautious person is certainly without cogent basis. A reasonably prudent person would have foreseen that bringing children to an excavation site, and more so, leaving them there all by themselves, may result in an accident. An ordinarily careful human being would not assume that a simple warning "not to touch the stone" is sufficient to cast away all the serious danger that a huge concrete block adjacent to an excavation would present to the children. Moreover, a teacher who stands in loco parentis to his pupils would have made sure that the children are protected from all harm in his company. We close by categorically stating that a truly careful and cautious person would have acted in all contrast to the way private respondent Aquino did. Were it not for his gross negligence, the unfortunate incident would not have occurred and the child Ylarde would probably be alive today, a grown- man of thirty-five. Due to his failure to take the necessary precautions to avoid the hazard, Ylarde's parents suffered great anguish all these years. WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the questioned judgment of the respondent court is REVERSED and SET ASIDE and another judgment is hereby rendered ordering private respondent Edagardo Aquino to pay petitioners the following: (1) Indemnity for the death of Child Ylarde P30,000.00 (2) Exemplary damages 10,000.00 (3) Moral damages 20,000.00 SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-32611 November 3, 1930 CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee, vs. PHILIPPINE MOTORS CORPORATION, defendant-appellant. Gibbs and McDonough for appellant. Benj. S. Ohnick for appellee.

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

were so fixed that it was possible to change from the gasoline fuel to the mixed fuel. The purpose of this arrangement was to enable the operator to start the engine on gasoline and then, after the engine had been operating for a few moments, to switch to the new fuel supply. lawphil.net In the course of the preliminary work upon the carburetor and its connections, it was observed that the carburetor was flooding, and that the gasoline, or other fuel, was trickling freely from the lower part to the carburetor to the floor. This fact was called to Quest's attention, but he appeared to think lightly of the matter and said that, when the engine had gotten to running well, the flooding would disappear. After preliminary experiments and adjustments had been made the boat was taken out into the bay for a trial run at about 5 p.m. or a little later, on the evening of January 30,1925. The first part of the course was covered without any untoward development, other than he fact that the engine stopped a few times, owing no doubt to the use of an improper mixture of fuel. In the course of the trial Quest remained outside of the engine compartment and occupied himself with making distillate, with a view to ascertaining what proportion of the two elements would give best results in the engine. As the boat was coming in from this run, at about 7:30 p.m. and when passing near Cavite, the engine stopped, and connection again had to be made with the gasoline line to get a new start. After this had been done the mechanic, or engineer, switched to the tube connecting with the new mixture. A moment later a back fire occurred in the cylinder chamber. This caused a flame to shoot back into the carburetor, and instantly the carburetor and adjacent parts were covered with a mass of flames, which the members of the crew were unable to subdue. They were therefore compelled, as the fire spread, to take to a boat, and their escape was safely effected, but the Gwendoline was reduced to a mere hulk. The salvage from, the wreck, when sold, brought only the sum of P150. The value of the boat, before the accident occured, as the court found, was P10,000. A study of the testimony lead us to the conclusion that the loss of this boat was chargeable to the negligence and lack of skill of Quest. The temporary tank in which the mixture was prepared was apparently at too great an elevation from the carburetor, with the result that when the fuel line was opened, the hydrostatic pressure in the carburetor was greater than the delicate parts of the carburetor could sustain. This was no doubt the cause of the flooding of the carburetor; and the result was that; when the back fire occurred, the external parts of the carburetor, already saturated with gasoline, burst into flames, whence the fire was quickly communicated to the highly inflammable material near-by. Ordinarily a back fire from an engine would not be followed by any disaster, but in this case the leak along the pipe line and the flooding of the carburetor had created a dangerous situation, which a prudent mechanic, versed in repairs of this nature, would have taken precautions to avoid. The back fire may have been due either to the fact that the spark was too advanced or the fuel improperly mixed. In this connection it must be remembered that when a person holds himself out as being competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do. The proof shows that Quest had had ample experience in fixing the engines of automobiles and tractors, but it does

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not appear that he was experienced in the doing of similar work on boats. For this reason, possibly the dripping of the mixture form the tank on deck and the flooding of the carburetor did not convey to his mind an adequate impression of the danger of fire. But a person skilled in that particular sort of work would, we think have been sufficiently warned from those circumstances to cause him to take greater and adequate precautions against the danger. In other words Quest did not use the skill that would have been exhibited by one ordinarily expert in repairing gasoline engines on boats. There was here, in our opinion, on the part of Quest, a blameworthy antecedent inadvertence to possible harm, and this constitutes negligence. The burning of the Gwendoline may be said to have resulted from accident, but this accident was in no sense an unavoidable accident. It would not have occured but for Quest's carelessness or lack of skill. The test of liability is not whether the injury was accidental in a sense, but whether Quest was free from blame. We therefore see no escape from the conclusion that this accident is chargeable to lack of skill or negligence in effecting the changes which Quest undertook to accomplish; and even supposing that our theory as to the exact manner in which the accident occurred might appear to be in some respects incorrect, yet the origin of the fire in not so inscrutable as to enable us to say that it was casus fortuitus. The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of the Gwendoline during the experimental run, the defendant corporation was in the position of a bailee and that, as a consequence, the burden of proof was on the defendant to exculpate itself from responsibility by proving that the accident was not due to the fault of Quest. We are unable to accede to this point of view. Certainly, Quest was not in charge of the navigation of the boat on this trial run. His employment contemplated the installation of new parts in the engine only, and it seems rather strained to hold that the defendant corporation had thereby become bailee of the boat. As a rule workmen who make repairs on a ship in its owner's yard, or a mechanic who repairs a coach without taking it to his shop, are not bailees, and their rights and liabilities are determined by the general rules of law, under their contract. The true bailee acquires possession and what is usually spoken of as special property in the chattel bailed. As a consequence of such possession and special property, the bailee is given a lien for his compensation. These ideas seem to be incompatible with the situation now under consideration. But though defendant cannot be held liable in the supposition that the burden of proof had not been sustained by it in disproving the negligence of its manager, we are nevertheless of the opinion that the proof shows by a clear preponderance that the accident to the Gwendoline and the damages resulting therefrom are chargeable to the negligence or lack of skill of Quest. This action was instituted about two years after the accident in question had occured, and after Quest had ceased to be manager of the defendant corporation and had gone back to the United States. Upon these facts, the defendant bases the contention that the action should be considered stale. It is sufficient reply to say that the action was brought within the period limited by the statute of limitations and the situation is not one where the defense of laches can be properly invoked.

It results that the judgment appealed from, awarding damages to the plaintiff in the amount of P9,850, with interest, must be affirmed; and it is so ordered, with costs against the appellant. Avancea, C.J., Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur. The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-12858 January 22, 1918 THE UNITED STATES, plaintiff-appellee, vs. SANTIAGO PINEDA, defendant-appellant. Francisco and Lualhati for appellant. Acting Attorney-General Paredes for appellee. MALCOLM, J.: This appeal requires a construction and an application, for the first time, of the penal provisions of the Pharmacy Law. Santiago Pineda, the defendant, is a registered pharmacist of long standing and the owner of a drug store located at Nos. 442, 444, Calle Santo Cristo, city of Manila. One Feliciano Santos, having some sick horses, presented a copy of a prescription obtained from Dr. Richardson, and which on other occasions Santos had given to his horses with good results, at Pineda's drug store for filling. The prescription read "clorato de potasa 120 gramos en seis papelitos de 20 gramos, para caballo." Under the supervision of Pineda, the prescription was prepared and returned to Santos in the form of six papers marked, "Botica Pineda Clorato potasa 120.00 en seis papeles para caballo Sto. Cristo 442, 444, Binondo, Manila." Santos, under the belief that he had purchased the potassium chlorate which he had asked for, put two of the packages in water the doses to two of his sick horses. Another package was mixed with water for another horse, but was not used. The two horses, to which had been given the preparation, died shortly afterwards. Santos, thereupon, took the three remaining packages to the Bureau of Science for examination. Drs. Pea and Darjuan, of the Bureau of Science, on analysis found that the packages contained not potassium chlorate but barium chlorate. At the instance of Santos, the two chemists also went to the drug

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store of the defendant and bought potassium chlorate, which when analyzed was found to be barium chlorate. (Barium chlorate, it should be noted, is a poison; potassium chlorate is not.) Dr. Buencamino, a veterinarian, performed an autopsy on the horses, and found that death was the result of poisoning. Four assignments of error are made. The first is that the lower court erred in admitting the testimony of the chemist Pena and Darjuan as to their purchase of potassium chlorate at the drug store of the accused, which substance proved on analysis to be barium chlorate. What the appellant is here relying on is the maxim res inter alios acta . As a general rule, the evidence of other offenses committed by a defendant is inadmissible. But appellant has confused this maxim and this rule with certain exceptions thereto. The effort is not to convict the accused of a second offense. Nor is there an attempt to draw the mind away from the point at issue and thus to prejudice defendant's case. The purpose is to ascertain defendant's knowledge and intent, and to fix his negligence. If the defendant has on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and fraudulent intent may even be established. It has been said that there is no better evidence of negligence than the frequency of accidents. (See 10 R. C. L., pp. 938, 940.) The United States Supreme Court has held that: On the trial of a criminal case the question relates to the tendency of certain testimony to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appear that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused. Whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the inquiry or the failure of direct proof, objections to the testimony on the ground of irrelevancy are not favored. Evidence is admissible in a criminal action which tends to show motive, although it tends to prove the commission of another offense by the defendant. (Moore vs. U. S. [1893], 150 U. S., 57.) The second assignment of error is that the lower court erred in finding that the substance sold by the accused to Feliciano Santos on the 22d of June, 1916, was barium chlorate and not potassium chlorate. The proof demonstrates the contrary. The third and fourth assignments of error that the lower court erred in finding that the accused has been proved guilty beyond a reasonable doubt of an infraction of Act No. 597, section 17, as amended. The third assignment contains the points we should consider, including, we may remark, a somewhat difficult question concerning which the briefs have given little assistance. The Pharmacy Law was first enacted as Act No. 597, was later amended by Act Nos. 1921, 2236, and 2382, and is now found as Chapter 30 of the Administrative Code. The law provides for a board of pharmaceutical examiners, and the examination and registration of pharmacists, and finally contains sundry provisions relative to the practice of pharmacy. High qualification for applicants for the pharmaceutical; examination are established. The program of subjects for the examination is wide. Responsibility for the quality of drugs is fixed by section 17 of the Pharmacy Law, as amended (now Administrative Code [1917], section 751), in the following term:

Every pharmacist shall be responsible for the quality of all drugs, chemicals, medicines, and poisons he may sell or keep for sale; and it shall be unlawful for any person whomsoever to manufacture, prepare, sell, or administer any prescription, drug, chemical, medicine, or poison under any fraudulent name , direction, or pretense, or to adulterate any drug, chemical, medicine, or poison so used, sold or offered for sale. Any drug, chemical, medicine, or poison shall be held to be adulterated or deteriorated within the meaning of this section if it differs from the standard of quality or purity given in the United States Pharmacopoeia. The same section of the Pharmacy Law also contains the following penal provision: "Any person violating the provisions of this Act shall, upon conviction, be punished by a fine of not more than five hundred dollar." The Administrative Code, section 2676, changes the penalty somewhat by providing that: Any person engaging in the practice of pharmacy in the Philippine Islands contrary to any provision of the Pharmacy Law or violating any provisions of said law for which no specific penalty s provided shall, for each offense, be punished by a fine not to exceed two hundred pesos, or by imprisonment for not more than ninety days, or both, in the discretion of the court. These are the provisions of law, pursuant to which prosecution has been initiated and which it is now incumbent upon us to construe. Turning to the law, certain points therein as bearing on our present facts must be admitted. Thus, defendant is a pharmacist. As a pharmacist, he is made responsible for the quality of all drugs and poisons which he sells. And finally it is provided that it shall be unlawful for him to sell any drug or poison under any "fraudulent name." It is the one word "fraudulent" which has given the court trouble. What did the Legislature intend to convey by this restrictive adjective? Were we to adhere to the technical definition of fraud, which the appellant vigorously insists upon, it would be difficult, if not impossible, to convict any druggist of a violation of the law. The prosecution would have to prove to a reasonable degree of certainty that the druggist made a material representation; that it was false; that when he made it he knew that it was false or made it recklessly without any knowledge of its truth and as positive assertion; that he made it with the intention that it should be acted upon by the purchaser; that the purchaser acted in reliance upon it, and that the purchased thereby suffered injury. Such a construction with a literal following of well-known principles on the subject of fraud would strip the law of at least much of its force. It would leave the innocent purchaser of drugs, who must blindly trust in the good faith and vigilance of the pharmacist, at the mercy of any unscrupulous vendor. We should not, therefore, without good reason so devitalize the law. The profession of pharmacy, it has been said again and again, is one demanding care and skill. The responsibility of the druggist to use care has been variously qualified as "ordinary care," "care of a special high degree," "the highest degree of care known to practical men." Even under the first conservative expression, "ordinary care" with reference to the business of a druggist, the Supreme Court of Connecticut has said must be held to signify "the highest practicable degree of prudence, thoughtfulness, and vigilance, and most exact and reliable safeguards consistent with the reasonable conduct of the business, in order that human life may not be constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicine." (Tombari vs. Connors [1912], 85 Conn.,

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235. See also Willson vs. Faxon, Williams and Faxon [1913], 208 N. Y., 108; Knoefel vs. Atkins [1907], 81 N. E., 600.) The "skill" required of a druggist is denominated as "high" or "ample." (Peters vs. Jackson [1902], 50 W. Va., 644; 57 L. R. A., 428.) In other words, the care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands. Under one conception, and it should not be forgotten that the case we consider are civil in nature, the question of negligence or ignorance is irrelevant. The druggist is responsible as an absolute guarantor of what he sells. In a decision which stands alone, the Supreme Court of Kentucky said: As applicable to the owners of drug stores, or persons engaged in vending drugs and medicines by retail, the legal maxim should be reversed. Instead of caveat emptor, it should be caveat venditor. That is to say, let him be certain that he does not sell to a purchaser or send to a patient one drug for another, as arsenic for calomel, cantharides for or mixed with snakeroot and Peruvian bark, or even one innocent drug, calculated to produce a certain effect, in place of another sent for and designed to produce a different effect. If he does these things, he cannot escape civil responsibility, upon the alleged pretext that it was an accidental or an innocent mistake; that he had been very careful and particular, and had used extraordinary care and diligence in preparing or compounding the medicines as required, etc. Such excuses will not avail him. (Fleet vs. Hollenkemp [1852], 56 Am. Dec., 563.) Under the other conception, in which the proof of negligence is considered as material, where a customer calls upon a druggist for a harmless remedy, delivery of a poisonous drug by mistake by the druggist is prima facie negligence, placing the burden on him to show that the mistake was under the circumstances consistent with the exercise of due care. (See Knoefel vs. Atkins, supra,) The druggist cannot, for example in filling a prescription calling for potassium chlorate give instead to the customer barium chlorate, a poison, place this poison in a package labeled "potassium chlorate," and expect to escape responsibility on plea of mistake. His mistake, under the most favorable aspect for himself, was negligence. So in a case where a druggist filled an order for calomel tablets with morphine and placed the morphine in a box labeled calomel, it was said: It is not suggested, nor can we apprehend that it is in any wise probable, that the act of furnishing the wrong drug in this case was willful. If it was furnished by the clerk, it was undoubtedly a mistake and unintentional. However, it was a mistake of the gravest kind, and of the most disastrous effect. We cannot say that one holding himself out as competent to handle such drugs, and who does so, having rightful access to them, and relied upon by those dealing with him to exercise that high degree of caution and care called for by the peculiarly dangerous nature of this business, can be heard to say that his mistakes by which he furnishes a customer the most deadly of drugs for those comparatively harmless is not, in and of itself, gross negligence, and that of an aggravated form. (Smith's Admrx. vs. Middleton [1902], 56 L. R. A., 484.) The rule of caveat emptor cannot apply to the purchase and sale of drugs. The vendor and the vendee do not stand at arms length as in ordinary transactions. An imperative duty is on the druggist to take precautions to prevent death or serious injury to anyone who relies on his absolute honesty and peculiar leaning. The

nature of drugs is such that examination would not avail the purchaser anything. It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for. In civil cases, the druggist is made liable for any injury approximately resulting from his negligence. If B negligently sells poison under the guise of a beneficial drug to A, he is liable for the injury done to A. In a case, which has repeatedly been termed the leading case on the subject and which has been followed by the United States Supreme Court, it was said, "Pharmacists or apothecaries who compound or sell medicines, if they carelessly label a poison as a harmless medicine, and sent it so labeled into the market, are liable to all persons who, without fault on their part, are injured by using it as such medicine, in consequence of the false label; the rule being that the liability in such a case arises not out of any contract or direct privity between the wrong-doer and the person injured, but out of the duty which the law imposes on him to avoid acts in their nature dangerous to the lives of others." (Nat. Savings Bank vs. Ward [1879], 100 U. S., 195, following Thomas vs. Winchester [1852], 2 Seld. [N. Y.], 387.) In reality, for the druggist, mistake is negligence and care is no defense. Throughout the criminal law, run the same rigorous rules. For example, apothecaries or apothecary clerks, who are guilty of negligence in the sale of medicine when death ensues in consequence, have been held guilty of manslaughter. (See Tessymond's Case [1828], 1 Lewin, C. C., 169.) Bearing these general principles in mind, and remembering particularly the care and skill which are expected of druggist, that in some jurisdictions they are liable even for their mistake and in others have the burden placed upon them to establish that they were not negligent, it cannot be that the Philippine Legislature intended to use the word "fraudulent" in all its strictness. A plea of accident and mistake cannot excuse for they cannot take place unless there be wanton and criminal carelessness and neglect. How the misfortune occurs is unimportant, if under all the circumstances the fact of occurrence is attributed to the druggist as a legal fault. Rather considering the responsibility for the quality of drugs which the law imposes on druggists and the position of the word "fraudulent" in juxtaposition to "name," what is made unlawful is the giving of a false name to the drug asked for. This view is borne out by Spanish translation, which we are permitted to consult to explain the English text. In the Spanish "supuesto" is used, and this word is certainly not synonymous with "fraudulent." The usual badges of fraud, falsify, deception, and injury must be present-but not scienter. In view of the tremendous an imminent danger to the public from the careless sale of poisons and medicines, we do not deem it too rigid a rule to hold that the law penalizes any druggist who shall sell one drug for another whether it be through negligence or mistake. The judgment of the lower court, sentencing the defendant to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay the costs, is affirmed with the cost of this instance against the appellant, without prejudice to any civil action which may be instituted. So ordered.

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IN REALITY, for the druggist, mistake is negligence and care is no defense.125[1] Sa isang parmasyutika, ang pagkakamali ay kapabayaan at ang pagkalinga ay hindi angkop na dipensa. This is a petition for review on certiorari126[2] of two Resolutions127[3] of the Court of Appeals (CA). The first Resolution granted respondents motion to dismiss while the second denied petitioners motion for reconsideration. The Facts Respondent Raul T. De Leon was the presiding judge of Branch 258, Regional Trial Court (RTC) in Paraaque. 128[4] On October 17, 1999, he noticed that his left eye was reddish. He also had difficulty reading. 129[5] On the same evening, he met a friend for dinner at the Foohyui Restaurant. The same friend happened to be a doctor, Dr. Charles Milla, and had just arrived from abroad. 130[6] Republic of the Philippines Supreme Court Manila THIRD DIVISION MERCURY DRUG CORPORATION and AURMELA GANZON, Petitioners, Chairperson, - versus NACHURA, and REYES, JJ. RAUL DE LEON, Respondent. AUSTRIA-MARTINEZ, CHICO-NAZARIO, G.R. No. 165622 Present: YNARES-SANTIAGO, J., Aside from exchanging pleasantries, De Leon consulted Dr. Milla about his irritated left eye.131[7] The latter prescribed the drugs Cortisporin Opthalmic and Ceftin to relieve his eye problems.132[8] Before heading to work the following morning, De Leon went to the Betterliving, Paraaque, branch of Mercury Drug Store Corporation to buy the prescribed medicines. 133[9] He showed his prescription to

125 126 127 128

Promulgated: October 17, 2008

129 130 131 132 133

x--------------------------------------------------x DECISION REYES, R.T., J.:

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petitioner Aurmela Ganzon, a pharmacist assistant. 134[10] Subsequently, he paid for and took the medicine handed over by Ganzon.135[11] At his chambers, De Leon requested his sheriff to assist him in using the eye drops.136[12] As instructed, the sheriff applied 2-3 drops on respondents left eye.137[13] Instead of relieving his irritation, respondent felt searing pain. 138[14] He immediately rinsed the affected eye with water, but the pain did not subside. 139 [15] Only then did he discover that he was given the wrong medicine, Cortisporin Otic Solution.140[16] De Leon returned to the same Mercury Drug branch, with his left eye still red and teary.141[17] When he confronted Ganzon why he was given ear drops, instead of the prescribed eye drops,142[18] she did not apologize and instead brazenly replied that she was unable to fully read the prescription. 143[19] In fact, it was her supervisor who apologized and informed De Leon that they do not have stock of the needed Cortisporin Opthalmic.144[20] De Leon wrote Mercury Drug, through its president, Ms. Vivian K. Askuna,

about the days incident.145[21] It did not merit any response. 146[22] Instead, two sales persons went to his office and informed him that their supervisor was busy with other matters.147[23] Having been denied his simple desire for a written apology and explanation,148[24] De Leon filed a complaint for damages against Mercury Drug.149[25] Mercury Drug denied that it was negligent and therefore liable for damages.150[26] It pointed out that the proximate cause of De Leons unfortunate experience was his own negligence. 151[27] He should have first read and checked to see if he had the right eye solution before he used any on his eye. 152[28] He could have also requested his sheriff to do the same before the latter applied the medicine on such a delicate part of his body.153[29] Also, Mercury Drug explained that there is no available medicine known as Cortisporin Opthalmic in the Philippine market. 154[30] Furthermore, what was written on the piece of paper De Leon presented to Ganzon was Cortisporin Solution.155[31] Accordingly, she gave him the only available Cortisporin Solution in the market. Moreover, even the piece of paper De Leon presented upon buying the medicine can not be considered as proper prescription. 156[32] It lacked the required

135 136 137 138 139 140 141 142 143 144

145 146 147 148 149 150 151 152 153 154 155

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Moreover, even the piece of paper De Leon presented upon buying the medicine can not be considered as proper prescription. 156[32] It lacked the required information concerning the attending doctors name and license number. 157[33] According to Ganzon, she entertained De Leons purchase request only because he was a regular customer of their branch.158[34] RTC Disposition On April 30, 2003, the RTC rendered judgment in favor of respondent, the dispositive portion of which reads: WHEREFORE, the court finds for the plaintiff. For pecuniary loss suffered, Mercury Drug Store is to pay ONE HUNDRED FIFTYTHREE PESOS AND TWENTY-FIVE CENTAVOS (Php 153.25), the value of the medicine. As moral damages defendants is (sic) ordered to pay ONE HUNDRED THOUSAND PESOS (Php 100,000.00). To serve as a warning to those in the field of dispensing medicinal drugs discretion of the highest degree is expected of them, Mercury Drug Store and defendant Aurmila (sic) Ganzon are ordered to pay plaintiff the amount of THREE HUNDRED THOUSAND PESOS (Php 300,000.00) as exemplary damages. Due to defendants callous reaction to the mistake done by their employee which forced plaintiff to litigate, Defendant ( sic) Mercury Drug Store is to pay plaintiff attorneys fees of P50,000.00 plus litigation expenses. SO ORDERED.159[35] In ruling in favor of De Leon, the RTC ratiocinated:

she further presumed that by merely putting the drug by the counter wherein plaintiff looked at it, paid and took the drug without any objection meant he understood what he was buying.160[36] The RTC ruled that although De Leon may have been negligent by failing to read the medicines label or to instruct his sheriff to do so, Mercury Drug was first to be negligent.161[37] Ganzon dispensed a drug without the requisite prescription.162[38] Moreover, she did so without fully reading what medicine was exactly being bought.163[39] In fact, she presumed that since what was available was the drug Cortisporin Otic Solution, it was what De Leon was attempting to buy.164[40] Said the court: When the injury is caused by the negligence of a servant or employee, there instantly arises a presumption of law that there was negligence on the part of the employer or employer either in the selection of the servant or employee, or in the supervision over him after the selection or both. xxxx The theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant.165[41] Dissatisfied with the RTC ruling, Mercury Drug and Ganzon elevated the matter to the CA. Accordingly, they filed their respective briefs. Raising technical grounds, De Leon moved for the appeals dismissal.

CA Disposition On July 4, 2008, the CA issued a resolution which granted De Leons motion and dismissed the appeal. Said the appellate court:

The proximate cause of the ill fate of plaintiff was defendant Aurmila ( sic) Ganzons negligent exercise of said discretion. She gave a prescription drug to a customer who did not have the proper form of prescription, she did not take a good look at said prescription, she merely presumed plaintiff was looking for Cortisporin Otic Solution because it was the only one available in the market and

160 161 162 163 164 165

156 157 158 159

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As pointed out by the plaintiff-appellee, the Statement of Facts, Statement of the Case, Assignment of Errors/issues, Arguments/ Discussions in the Brief make no references to the pages of the records. We find this procedural lapse justify the dismissal of the appeal, pursuant to Section 1(f), Rule 50 of the 1997 Rules of Civil Procedure x x x.166[42] xxxx The premise that underlies all appeals is that they are merely rights which arise form a statute; therefore, they must be exercised in the manner prescribed by law. It is to this end that rules governing pleadings and practice before the appellate court were imposed. These rules were designed to assist the appellate court in the accomplishment of its tasks, and overall, to enhance the orderly administration of justice. xxxx x x x If the statement of fact is unaccompanied by a page reference to the record, it may be stricken or disregarded all together. 167[43] On October 5, 2004, the CA denied Mercury Drugs and Ganzons joint motion for reconsideration. Although mindful that litigation is not a game of technicalities,168[44] the CA found no persuasive reasons to relax procedural rules in favor of Mercury Drug and Ganzon.169[45] The CA opined: In the case under consideration, We find no faithful compliance on the part of the movants that will call for the liberal application of the Rules. Section 1(f) of Rule 50 of the 1997 Rules of Civil Procedure explicitly provides that an appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, for want of page references to the records as required in Section 13 of Rule 44 of the same rules170[46] Issues

Petitioner has resorted to the present recourse and assigns to the CA the following errors: I THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING PETITIONERS APPEAL BASED ON THE CASES OF DE LIANA VS. CA (370 SCRA 349) AND HEIRS OF PALOMINIQUE VS. CA (134 SCRA 331). II THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DISMISSING PETITIONERS APPEAL DESPITE SUBSTANTIAL COMPLIANCE WITH SECTION 1(F), RULE 60 AND SECTION 13, RULE 44 OF THE RULES OF COURT. III THE HONORABLE COURT OF APPEALS ERRED WHEN IT FAVORED MERE TECHNICALITY OVER SUBSTANTIAL JUSTICE WHICH WILL CERTAINLY CAUSE GRAVE INJUSTICE AND GREAT PREJUDICE TO PETITIONER CONSIDERING THAT THE ASSAILED DECISION ON APPEAL IS CLUSTERED WITH ERRORS AND IN CONTRAST WITH THE DECISIONS OF THIS HONORABLE SUPREME COURT.171[47] (Underscoring supplied) Our Ruling The appeal succeeds in part. Dismissal of an appeal under Rule 50 is discretionary. In several cases,172[48] this Court stressed that the grounds for dismissal of an appeal under Section 1 of Rule 50 173[49] are discretionary upon the appellate court. The very wording of the rule uses the word may instead of shall. This indicates that it is only directory and not mandatory. 174[50] Sound discretion must be exercised in consonance with the tenets of justice and fair play, keeping in mind the circumstances obtaining in each case.175[51] The importance of an appellants brief cannot be gainsaid. Its purpose is two-fold: (1) to present to the court in coherent and concise form the point and

166 167 168 169 170

171 172 173 174 175

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questions in controversy; and (2) to assist the court in arriving at a just and proper conclusion.176[52] It is considered a vehicle of counsel to convey to the court the essential facts of a clients case, a statement of the questions of law involved, the law to be applied, and the application one desires of it by the court. 177[53] The absence of page reference to the record is a ground for dismissal. It is a requirement intended to ultimately aid the appellate court in arriving at a just and proper conclusion of the case. 178[54] However, as earlier discussed, such dismissal is not mandatory, but discretionary on the part of the appellate court. This Court has held that the failure to properly cite reference to the original records is not a fatal procedural lapse. 179[55] When citations found in the appellants brief enable the court to expeditiously locate the portions of the record referred to, there is substantial compliance with the requirements of Section 13(c), (d), and (f) of Rule 44.180[56] In De Leon v. CA,181[57] this Court ruled that the citations contained in the appellants brief sufficiently enabled the appellate court to expeditiously locate the portions of the record referred to. They were in substantial compliance with the rules. The Court said: Nothing in the records indicate that it was exercised capriciously, whimsically, or with a view of permitting injury upon a party litigant. For the same reasons, we hold that the respondent Court of Appeals did not err when it did not dismiss the appeal based on the allegation that appellants brief failed to comply with the internal rules of said court.182[58] Similar to the instant case, the appellants brief in Yuchengco v. Court of Appeals183[59] contained references to Exhibits and Transcript of Stenographic

Notes and attachments. These were found to have substantially complied with the requirements of Section 13(c) and (d) of Rule 44. x x x The Appellants brief may not have referred to the exact pages of the records, however, the same is not fatal to their cause since the references they made enabled the appellate court to expeditiously locate the portions referred to. x x x184[60] It is true that in De Liano v. Court of Appeals ,185[61] this Court held that a statement of facts unaccompanied by a page reference to the record may be presumed to be without support in the record and may be stricken or disregarded altogether. However, the instant case is not on all fours with De Liano. In De Liano, the appellants brief lacked a Subject Index and a Table of Cases and Authorities.186[62] Moreover, the Statement of the Case, Statements of Facts, and Statements of Arguments had no page references to the record. 187[63] When notified of such defects, defendants-appellants failed to amend their brief to conform to the rules.188[64] Instead, they continued to argue that their errors were harmless.189[65] All these omissions and non-compliance justified the dismissal of the appeal by the CA.190[66] In the case under review, although there were no page references to the records, Mercury Drug and Ganzon referred to the exhibits, TSN, and attachments of the case. Despite its deficiencies, the brief is sufficient in form and substance as to apprise the appellate court of the essential facts, nature of the case, the issues raised, and the laws necessary for the disposition of the same. Reliance on Heirs of Palomique v. Court of Appeals 191[67] is likewise misplaced. In Heirs of Palomique, the appellants brief did not at all contain a separate statement

176 177 178 179 180 181 182 183

184 185 186 187 188 189 190 191

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of facts.192[68] This critical omission, together with the failure to make page references to the record to support the factual allegations, justified the dismissal of the appeal.193[69] Rules of procedure are intended to promote, not to defeat, substantial justice. They should not be applied in a very rigid and technical sense. 194[70] For reasons of justice and equity, this Court has allowed exceptions to the stringent rules governing appeals.195[71] It has, in the past, refused to sacrifice justice for technicality.196[72] However, brushing aside technicalities, petitioners are still liable. Mercury Drug and Ganzon failed to exercise the highest degree of diligence expected of them. Denying that they were negligent, Mercury Drug and Ganzon pointed out that De Leons own negligence was the proximate cause of his injury. They argued that any injury would have been averted had De Leon exercised due diligence before applying the medicine on his eye. Had he cautiously read the medicine bottle label, he would have known that he had the wrong medicine. Mercury Drug and Ganzon can not exculpate themselves from any liability. As active players in the field of dispensing medicines to the public, the highest degree of care and diligence is expected of them. 197[73] Likewise, numerous decisions, both here and abroad, have laid salutary rules for the protection of human life and human health.198[74] In the United States case of Tombari v. Conners,199[75] it was ruled that the profession of pharmacy demands care and skill, and druggists must exercise care of a specially high degree, the highest degree of care known to practical men. In other words, druggists must exercise the highest practicable degree of prudence and vigilance, and the most exact and reliable safeguards

consistent with the reasonable conduct of the business, so that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicines. 200[76] In Fleet v. Hollenkemp,201[77] the US Supreme Court ruled that a druggist that sells to a purchaser or sends to a patient one drug for another or even one innocent drug, calculated to produce a certain effect, in place of another sent for and designed to produce a different effect, cannot escape responsibility, upon the alleged pretext that it was an accidental or innocent mistake. His mistake, under the most favorable aspect for himself, is negligence. And such mistake cannot be countenanced or tolerated, as it is a mistake of the gravest kind and of the most disastrous effect.202[78] Smiths Admrx v. Middelton203[79] teaches Us that one holding himself out as competent to handle drugs, having rightful access to them, and relied upon by those dealing with him to exercise that high degree of caution and care called for by the peculiarly dangerous nature of the business, cannot be heard to say that his mistake by which he furnishes a customer the most deadly of drugs for those comparatively harmless, is not in itself gross negligence. 204[80] In our own jurisdiction, United States v. Pineda205[81] and Mercury Drug Corporation v. Baking are illustrative. 206[82] In Pineda, the potassium chlorate demanded by complainant had been intended for his race horses. When complainant mixed with water what he thought and believed was potassium chlorate, but which turned out to be the potently deadly barium chlorate, his race horses died of poisoning only a few hours after. The wisdom of such a decision is unquestionable. If the victims had been human beings instead of horses, the damage and loss would have been irreparable. 207[83]

192 193 194 195 196 197 198 199

200 201 202 203 204 205 206 207

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the care and diligence of a good father of the family. 214[90] Mercury Drug failed to overcome such presumption.215[91] In the more recent Mercury Drug, involving no less than the same petitioner corporation, Sebastian Baking went to the Alabang branch of Mercury Drug208[84] and presented his prescription for Diamicron, which the pharmacist misread as Dormicum.209[85] Baking was given a potent sleeping tablet, instead of medicines to stabilize his blood sugar. 210[86] On the third day of taking the wrong medicine, Baking figured in a vehicular accident. 211[87] He fell asleep while driving.212[88] This Court held that the proximate cause of the accident was the gross negligence of the pharmacist who gave the wrong medicine to Baking. The Court said: x x x Considering that a fatal mistake could be a matter of life and death for a buying patient, the said employee should have been very cautious in dispensing medicines. She should have verified whether the medicine she gave respondent was indeed the one prescribed by his physician. The care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands. 213[89] This Court once more reiterated that the profession of pharmacy demands great care and skill. It reminded druggists to exercise the highest degree of care known to practical men. In cases where an injury is caused by the negligence of an employee, there instantly arises a presumption of law that there has been negligence on the part of the employer, either in the selection or supervision of ones employees. This presumption may be rebutted by a clear showing that the employer has exercised Petitioners Mercury Drug and Ganzon have similarly failed to live up to high standard of diligence expected of them as pharmacy professionals. They were grossly negligent in dispensing ear drops instead of the prescribed eye drops to De Leon. Worse, they have once again attempted to shift the blame to their victim by underscoring his own failure to read the label. As a buyer, De Leon relied on the expertise and experience of Mercury Drug and its employees in dispensing to him the right medicine. 216[92] This Court has ruled that in the purchase and sale of drugs, the buyer and seller do not stand at arms length.217[93] There exists an imperative duty on the seller or the druggist to take precaution to prevent death or injury to any person who relies on ones absolute honesty and peculiar learning.218[94] The Court emphasized: x x x The nature of drugs is such that examination would not avail the purchaser anything. It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for. 219[95] Mercury Drug and Ganzons defense that the latter gave the only available Cortisporin solution in the market deserves scant consideration. Ganzon could have easily verified whether the medicine she gave De Leon was, indeed, the prescribed one or, at the very least, consulted her supervisor. Absent the required certainty in the dispensation of the medicine, she could have refused De Leons purchase of the drug. The award of damages is proper and shall only be reduced considering the peculiar facts of the case. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary

208 209 210 211 212 213

214 215 216 217 218 219

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computation, moral damages may be recovered if they are the proximate result of defendants wrongful act or omission.220[96] Moral damages are not intended to impose a penalty to the wrongdoer or to enrich the claimant at the expense of defendant. 221[97] There is no hard and fast rule in determining what would be a fair and reasonable amount of moral damages since each case must be governed by its peculiar circumstances. 222[98] However, the award of damages must be commensurate to the loss or injury suffered.223[99] Taking into consideration the attending facts of the case under review, We find the amount awarded by the trial court to be excessive. Following the precedent case of Mercury Drug, We reduce the amount from P100,000.00 to P50,000.00 only.224 [100] In addition, We also deem it necessary to reduce the award of exemplary damages from the exorbitant amount of P300,000.00 to P25,000.00 only. This Court explained the propriety of awarding exemplary damages in the earlier Mercury Drug case: x x x Article 2229 allows the grant of exemplary damages by way of example or correction for the public good. As mentioned earlier, the drugstore business is affected by public interest. Petitioner should have exerted utmost diligence in the selection and supervision of its employees. On the part of the employee concerned, she should have been extremely cautious in dispensing pharmaceutical products. Due to the sensitive nature of its business, petitioner must at all times maintain a high level of meticulousness. Therefore, an award of exemplary damages in the amount of P25,000.00 is in order.225[101] (Emphasis supplied) It is generally recognized that the drugstore business is imbued with public interest. This can not be more real for Mercury Drug, the countrys biggest drugstore chain. This Court can not tolerate any form of negligence which can jeopardize the health and safety of its loyal patrons. Moreover, this Court will not countenance the cavalier manner it treated De Leon. Not only does a pharmacy

owe a customer the duty of reasonable care, but it is also duty-bound to accord one with respect. WHEREFORE, the petition is PARTIALLY GRANTED. The Decisions of the CA and the RTC in Paraaque City are AFFIRMED WITH MODIFICATION, in that the award of moral and exemplary damages is reduced to P50,000.00 and P25,000.00, respectively. SO ORDERED.

Republic SUPREME Manila THIRD DIVISION

of

the

Philippines COURT

G.R. No. 122445 November 18, 1997 DR. NINEVETCH CRUZ, vs. COURT OF APPEALS and LYDIA UMALI, respondents.

petitioner,

220 221 222 223 224 225

FRANCISCO, J.: Doctors are protected by a special rule of law. They are not guarantors of care. They do not even warrant a good result. They are not insurers against mishaps or unusual consequences. Furthermore they are not liable for honest mistakes of judgment . . . 1 The present case against petitioner is in the nature of a medical malpractice suit, which in simplest terms is the type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. 2 In this jurisdiction, however, such claims are most often brought as a civil action for damages under Article 2176 of the Civil Code, 3 and in some instances, as a criminal case under Article 365 of the Revised Penal Code 4 with which the civil action for damages is impliedly instituted. It is via the latter type of action that the heirs of the deceased sought redress for the petitioner's alleged imprudence and negligence in treating the deceased thereby causing her death. The petitioner and one Dr. Lina Ercillo who was the attending anaesthesiologist during the operation of the deceased were charged with "reckless imprudence and negligence resulting to (sic) homicide" in an information which reads:

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That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused above named, being then the attending anaesthesiologist and surgeon, respectively, did then and there, in a negligence ( sic), careless, imprudent, and incompetent manner, and failing to supply or store sufficient provisions and facilities necessary to meet any and all exigencies apt to arise before, during and/or after a surgical operation causing by such negligence, carelessness, imprudence, and incompetence, and causing by such failure, including the lack of preparation and foresight needed to avert a tragedy, the untimely death of said Lydia Umali on the day following said surgical operation. 5 Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the above-mentioned charge. On March 4, 1994, the Municipal Trial Court in Cities (MTCC) of San Pablo City rendered a decision, the dispositive portion of which is hereunder quoted as follows: WHEREFORE, the court finds the accused Dra. Lina Ercillo not guilty of the offense charged for insufficiency of evidence while her co-accused Dra. Ninevetch Cruz is hereby held responsible for the death of Lydia Umali on March 24, 1991, and therefore guilty under Art. 365 of the Revised Penal Code, and she is hereby sentenced to suffer the penalty of 2 months and 1 day imprisonment of arresto mayor with costs. 6 The petitioner appealed her conviction to the Regional Trial Court (RTC) which affirmed in toto the decision of the MTCC 7 prompting the petitioner to file a petition for review with the Court of Appeals but to no avail. Hence this petition for review on certiorari assailing the decision promulgated by the Court of Appeals on October 24, 1995 affirming petitioner's conviction with modification that she is further directed to pay the heirs of Lydia Umali P50,000.00 as indemnity for her death. 8 In substance, the petition brought before this Court raises the issue of whether or not petitioner's conviction of the crime of reckless imprudence resulting in homicide, arising from an alleged medical malpractice, is supported by the evidence on record. First the antecedent facts. On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her mother to the Perpetual Help Clinic and General Hospital situated in Balagtas Street, San Pablo City, Laguna. They arrived at the said hospital at around 4:30 in 9 the afternoon of the same day. Prior to March 22, 1991, Lydia was examined by the petitioner who found a "myoma" 10 in her uterus, and scheduled her for a hysterectomy operation on March 23, 1991. 11 Rowena and her mother slept in the clinic on the evening of March 22, 1991 as the latter was to be operated on the next day at 1:00 o'clock in the afternoon. 12 According to Rowena, she noticed that the clinic was untidy and the window and the floor were very dusty prompting her to ask the attendant for a rag to wipe the window and the floor with. 13 Because of the untidy state of the clinic, Rowena tried to persuade her mother not to proceed with the operation. 14 The following day, before her mother was wheeled into the operating room, Rowena asked the petitioner if the operation could be postponed. The petitioner called Lydia into her office and the two had a conversation. Lydia then informed Rowena that the petitioner told her that she must be operated on as scheduled. 15

Rowena and her other relatives, namely her husband, her sister and two aunts waited outside the operating room while Lydia underwent operation. While they were waiting, Dr. Ercillo went out of the operating room and instructed them to buy tagamet ampules which Rowena's sister immediately bought. About one hour had passed when Dr. Ercillo came out again this time to ask them to buy blood for Lydia. They bought type "A" blood from the St. Gerald Blood Bank and the same was brought by the attendant into the operating room. After the lapse of a few hours, the petitioner informed them that the operation was finished. The operating staff then went inside the petitioner's clinic to take their snacks. Some thirty minutes after, Lydia was brought out of the operating room in a stretcher and the petitioner asked Rowena and the other relatives to buy additional blood for Lydia. Unfortunately, they were not able to comply with petitioner's order as there was no more type "A" blood available in the blood bank. Thereafter, a person arrived to donate blood which was later transfused to Lydia. Rowena then noticed her mother, who was attached to an oxygen tank, gasping for breath. Apparently the oxygen supply had run out and Rowena's husband together with the driver of the accused had to go to the San Pablo District Hospital to get oxygen. Lydia was given the fresh supply of oxygen as soon as it arrived. 16 But at around 10:00 o'clock P.M. she went into shock and her blood pressure dropped to 60/50. Lydia's unstable condition necessitated her transfer to the San Pablo District Hospital so she could be connected to a respirator and further examined. 17 The transfer to the San Pablo District Hospital was without the prior consent of Rowena nor of the other relatives present who found out about the intended transfer only when an ambulance arrived to take Lydia to the San Pablo District Hospital. Rowena and her other relatives then boarded a tricycle and followed the ambulance. 18 Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the operating room and the petitioner and Dr. Ercillo re-operated on her because there was blood oozing from the abdominal incision. 19 The attending physicians summoned Dr. Bartolome Angeles, head of the Obstetrics and Gynecology Department of the San Pablo District Hospital. However, when Dr. Angeles arrived, Lydia was already in shock and possibly dead as her blood pressure was already 0/0. Dr. Angeles then informed petitioner and Dr. Ercillo that there was nothing he could do to help save the patient. 20 While the petitioner was closing the abdominal wall, the patient died. 21 Thus, on March 24, 1991, at 3:00 o'clock in the morning, Lydia Umali was pronounced dead. Her death certificate states "shock" as the immediate cause of death and "Disseminated Intravascular Coagulation (DIC)" as the antecedent cause. 22 In convicting the petitioner, the MTCC found the following circumstances as sufficient basis to conclude that she was indeed negligent in the performance of the operation: . . . , the clinic was untidy, there was lack of provision like blood and oxygen to prepare for any contingency that might happen during the operation. The manner and the fact that the patient was brought to the San Pablo District Hospital for reoperation indicates that there was something wrong in the manner in which Dra. Cruz conducted the operation. There was no showing that before the operation, accused Dra. Cruz had conducted a cardio pulmonary clearance or any typing of the blood of the patient. It was ( sic) said in medical parlance that the "the abdomen of the person is a temple of surprises" because you do not know the

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whole thing the moment it was open ( sic) and surgeon must be prepared for any eventuality thereof. The patient (sic) chart which is a public document was not presented because it is only there that we could determine the condition of the patient before the surgery. The court also noticed in Exh. "F-1" that the sister of the deceased wished to postpone the operation but the patient was prevailed upon by Dra. Cruz to proceed with the surgery. The court finds that Lydia Umali died because of the negligence and carelessness of the surgeon Dra. Ninevetch Cruz because of loss of blood during the operation of the deceased for evident unpreparedness and for lack of skill, the reason why the patient was brought for operation at the San Pablo City District Hospital. As such, the surgeon should answer for such negligence. With respect to Dra. Lina Ercillo, the anaesthesiologist, there is no evidence to indicate that she should be held jointly liable with Dra. Cruz who actually did the operation. 23 The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's declaration of "incompetency, negligence and lack of foresight and skill of appellant (herein petitioner) in handling the subject patient before and after the operation." 24 And likewise affirming the petitioner's conviction, the Court of Appeals echoed similar observations, thus: . . . While we may grant that the untidiness and filthiness of the clinic may not by itself indicate negligence, it nevertheless shows the absence of due care and supervision over her subordinate employees. Did this unsanitary condition permeate the operating room? Were the surgical instruments properly sterilized? Could the conditions in the OR have contributed to the infection of the patient? Only the petitioner could answer these, but she opted not to testify. This could only give rise to the presumption that she has nothing good to testify on her defense. Anyway, the alleged "unverified statement of the prosecution witness" remains unchallenged and unrebutted. Likewise undisputed is the prosecution's version indicating the following facts: that the accused asked the patient's relatives to buy Tagamet capsules while the operation was already in progress; that after an hour, they were also asked to buy type "A" blood for the patient; that after the surgery, they were again asked to procure more type "A" blood, but such was not anymore available from the source; that the oxygen given to the patient was empty; and that the son-in-law of the patient, together with a driver of the petitioner, had to rush to the San Pablo City District Hospital to get the much-needed oxygen. All these conclusively show that the petitioner had not prepared for any unforeseen circumstances before going into the first surgery, which was not emergency in nature, but was elective or prescheduled; she had no ready antibiotics, no prepared blood, properly typed and cross-matched, and no sufficient oxygen supply. Moreover, there are a lot of questions that keep nagging Us. Was the patient given any cardio-pulmonary clearance, or at least a clearance by an internist, which are standard requirements before a patient is subjected to surgery. Did the petitioner determine as part of the pre-operative evaluation, the bleeding parameters of the patient, such as bleeding time and clotting time? There is no showing that these were done. The petitioner just appears to have been in a hurry to perform the operation, even as the family wanted a postponement to April 6, 1991. Obviously, she did not prepare the patient; neither did she get the family's consent to the operation. Moreover, she did not prepare a medical chart with instructions for the

patient's care. If she did all these, proof thereof should have been offered. But there is none. Indeed, these are overwhelming evidence of recklessness and imprudence. 25 This Court, however, holds differently and finds the foregoing circumstances insufficient to sustain a judgment of conviction against the petitioner for the crime of reckless imprudence resulting in homicide. The elements of reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the reckless imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place. Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. 26 In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pascasio, et al., 27 this Court stated that in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physician's conduct in the treatment and care falls below such standard. 28 Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation. 29 Immediately apparent from a review of the records of this case is the absence of any expert testimony on the matter of the standard of care employed by other physicians of good standing in the conduct of similar operations. The prosecution's expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of Investigation (NBI) only testified as to the possible cause of death but did not venture to illuminate the court on the matter of the standard of care that petitioner should have exercised. All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of provisions such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardio-pulmonary test prior to the operation; the omission of any form of blood typing before transfusion; and even the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner. But while it may be true that the circumstances pointed out by the courts below seemed beyond cavil to constitute reckless imprudence on the part of the surgeon, this conclusion is still best arrived at not through the educated surmises nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert witnesses. For whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion. 30 The

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deference of courts to the expert opinion of qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating. 31 Expert testimony should have been offered to prove that the circumstances cited by the courts below are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. 32 This presumption is rebuttable by expert opinion which is so sadly lacking in the case at bench. Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the lack of provisions; the failure to conduct pre-operation tests on the patient; and the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner do indicate, even without expert testimony, that petitioner was recklessly imprudent in the exercise of her duties as a surgeon, no cogent proof exists that any of these circumstances caused petitioner's death. Thus, the absence of the fourth element of reckless imprudence: that the injury to the person or property was a consequence of the reckless imprudence. In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a causal connection of such breach and the resulting death of his patient . 33 In Chan Lugay v. St. Luke's Hospital, Inc., 34 where the attending physician was absolved of liability for the death of the complainant's wife and newborn baby, this Court held that: In order that there may be a recovery for an injury, however, it must be shown that the "injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes." In other words, the negligence must be the proximate cause of the injury . For, "negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of ." And "the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred." 35 (Emphasis supplied.) Dr. Arizala who conducted an autopsy on the body of the deceased summarized his findings as follows: Atty. Cachero: Q. You mentioned about your Autopsy Report which has been marked as Exh. "A-1b". There appears here a signature above the typewritten name Floresto Arizala, Jr., whose signature is that? A. That is my signature, sir. Q. Do you affirm the truth of all the contents of Exh. "A-1-b"? A. Only as to the autopsy report no. 91-09, the time and place and everything after the post mortem findings, sir.

Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm., infraumbilical area, anterior abdominal area, midline, will you please explain that in your own language? A. There was incision wound (sic) the area just below the navel, sir. Q. And the last paragraph of the postmortem findings which I read: Uterus, pearshaped and pale measuring 7.5 x 5.5 x 5.0 cm. with some surface nodulation of the fundic area posteriorly. Cut-section shows diffusely pale myometrium with areas of streak induration. The ovaries and adnexal structures are missing with the raw surfaces patched with clotted blood. Surgical sutures were noted on the operative site. Intestines and mesenteries are pale with blood clots noted between the mesentric folds. Hemoperitoneum: 300 s.s., right paracolic gutter, 50 c.c., left paracolic gutter 200 c.c., mesentric area, 100 c.c., right pelvic gutter stomach empty. Other visceral organs, pale., will you please explain that on ( sic) your own language or in ordinary. . . . . . . . . . . . A. There was a uterus which was not attached to the adnexal structures namely ovaries which were not present and also sign of previous surgical operation and there were (sic) clotted blood, sir. Q. How about the ovaries and adnexal structures? A. They are missing, sir. Q. You mean to say there are no ovaries? A. During that time there are no ovaries, sir. Q. And there were likewise sign of surgical sutures? A. Yes, sir. Q. How about the intestines and mesenteries are place ( sic) with blood clots noted between the mesenteric folds, will you please explain on (sic) this? A. In the peritoneal cavity, they are mostly perritonial blood . . . . . . . . Q. And what could have caused this blood? A. Well, ordinarily blood is found inside the blood vessel. Blood were ( sic) outside as a result of the injuries which destroyed the integrity of the vessel allowing blood to sip (sic) out, sir. Q. By the nature of the postmortem findings indicated in Exh . A-1-B, can you tell the court the cause of death? A. Yes, sir. The cause of death is: Gross findings are compatible with hemorrhagic shock. Q. Can you tell the us what could have caused this hemorrhagic shock ? A. Well hemorrhagic shock is the result of blood loss. Q. What could have the effect of that loss of blood ? A. Unattended hemorrhage, sir. 36 (Emphasis supplied.) The foregoing was corroborated by Dr. Nieto Salvador: Q. And were you able to determine the cause of death by virtue of the examination of the specimen submitted by Dr. Arizala?

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A. Without knowledge of the autopsy findings it would be difficult for me to determine the cause of death, sir. Q. Have you also examined the post mortem of Dr. Arizala? A. Yes, sir, and by virtue of the autopsy report in connection with your pathology report. Q. What could have caused the death of the victim ? A. This pathologic examination are (sic) compatible with the person who died, sir . Q. Will you explain to us the meaning of hemorrhagic compatible ? A. It means that a person died of blood loss . Meaning a person died of nonreplacement of blood and so the victim before she died there was shock of diminish of blood of the circulation . She died most probably before the actual complete blood loss, sir. Court: Is it possible doctor that the loss of the blood was due on (sic) operation ? A. Based on my pathologist finding, sir. Q. What could have caused this loss of blood? A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel may be cut while on operation and this cause (sic) bleeding, or may be set in the course of operation, or may be (sic) he died after the operation . Of course there are other cause (sic). Atty. Cachero: Q. Especially so doctor when there was no blood replacement ? A. Yes, sir. 37 (Emphasis supplied.) The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause of death. However, as likewise testified to by the expert witnesses in open court, hemorrhage or hemorrhagic shock during surgery may be caused by several different factors. Thus, Dr. Salvador's elaboration on the matter: Atty. Pascual: Q. Doctor, among the causes of hemorrhage that you mentioned you said that it could be at the moment of operation when one losses ( sic) control of the presence, is that correct? During the operation there is lost (sic) of control of the cut vessel? A. Yes, sir. Q. Or there is a failure to ligate a vessel of considerable size? A. Yes, sir. Q. Or even if the vessel were ligated the knot may have slipped later on? A. Yes, sir. Q. And you also mentioned that it may be possible also to some clotting defect, is that correct? A. May be (sic). 38 (Emphasis supplied). Defense witness, Dr. Bu C. Castro also gave the following expert opinion: Q. Doctor even a patient after an operations (sic) would suffer hemorrage what would be the possible causes of such hemorrage (sic)? A. Among those would be what we call Intravascular Coagulation and this is the reason for the bleeding, sir, which cannot be prevented by anyone, it will happen to anyone, anytime and to any persons (sic), sir. COURT: What do you think of the cause of the bleeding, the cutting or the operations done in the body?

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

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

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

77

FIRST DIVISION

PROFESSIONAL SERVICES, INC., Petitioner,

- versus -

THE COURT OF APPEALS and NATIVIDAD and ENRIQUE AGANA, Respondents, x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE AGANA , Petitioners,

- versus -

THE COURT OF APPEALS and JUAN FUENTES, Respondents, x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x MIGUEL AMPIL, Petitioner,

- versus -

THE COURT OF APPEALS and NATIVIDAD AGANA and ENRIQUE AGANA , Respondents.G.R. No. 126297

G.R. No. 126467

G.R. No. 127590

Present:

PUNO, C.J., SANDOVAL-GUTIERREZ, CORONA, AZCUNA, and LEONARDO-DE CASTRO, JJ.

Promulgated: February 11, 2008 ---------x x-------------------------------------- ----------

RESOLUTION SANDOVAL-GUTIERREZ, J.:

As the hospital industry changes, so must the laws and jurisprudence governing hospital liability. The immunity from medical malpractice traditionally accorded to hospitals has to be eroded if we are to balance the interest of the patients and hospitals under the present setting. Before this Court is a motion for reconsideration filed by Professional Services, Inc. (PSI), petitioner in G.R. No. 126297, assailing the Courts First Division Decision dated January 31, 2007, finding PSI and Dr. Miguel Ampil, petitioner in G.R. No. 127590, jointly and severally liable for medical negligence.

A brief revisit of the antecedent facts is imperative.

On April 4, 1984, Natividad Agana was admitted at the Medical City General Hospital (Medical City) because of difficulty of bowel movement and bloody anal discharge. from cancer of the sigmoid. City, performed an anterior resection surgery upon her. Dr. Ampil diagnosed her to be suffering Thus, on April 11, 1984, Dr. Ampil, assisted by the medical staff [1] of Medical During the surgery, he found that the malignancy in Thus, Dr.

her sigmoid area had spread to her left ovary, necessitating the removal of certain portions of it. respondent in G.R. No. 126467, to perform hysterectomy upon Natividad.

Ampil obtained the consent of Atty. Enrique Agana, Natividads husband, to permit Dr. Juan Fuentes,

Dr. Fuentes performed and completed the hysterectomy.

Afterwards, Dr. Ampil took over,

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

sponge count lacking 2 announced to surgeon searched done (sic) but to no avail continue for closure.

After a couple of days, Natividad complained of excruciating pain in her anal region.

She consulted

both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of the surgical operation performed upon her. Dr. Ampil recommended that Natividad consult an oncologist to treat the cancerous nodes which were not removed during the operation.

On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further treatment. After four (4) months of consultations and laboratory examinations, Natividad was told that she was free of cancer. Hence, she was advised to return to the Philippines.

On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two (2) weeks thereafter, her daughter found a piece of gauze protruding from her vagina. Dr. Ampil was immediately

informed. He proceeded to Natividads house where he managed to extract by hand a piece of gauze measuring 1.5 inches in width. Dr. Ampil then assured Natividad that the pains would soon vanish.

Despite Dr. Ampils assurance, the pains intensified, prompting Natividad to seek treatment at the Polymedic General Hospital. her vaginal vault. While confined thereat, Dr. Ramon Gutierrez detected the presence of a foreign The gauze had badly infected Thus, in October 1984, object in her vagina -- a foul-smelling gauze measuring 1.5 inches in width.

A recto-vaginal fistula had formed in her reproductive organ which forced stool to excrete

through the vagina. Another surgical operation was needed to remedy the situation. Natividad underwent another surgery.

On November 12, 1984, Natividad and her husband filed with the Regional Trial Court, Branch 96, Quezon City a complaint for damages against PSI (owner of Medical City), Dr. Ampil and Dr. Fuentes.

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

She was duly

On March 17, 1993, the trial court rendered judgment in favor of spouses Agana finding PSI, Dr. Ampil and Dr. Fuentes jointly and severally liable. On appeal, the Court of Appeals, in its Decision dated September 6, 1996, affirmed the assailed judgment with modification in the sense that the complaint against Dr. Fuentes was dismissed.

PSI, Dr. Ampil and the Aganas filed with this Court separate petitions for review on certiorari. On January 31, 2007, the Court, through its First Division, rendered a Decision holding that PSI is jointly and severally liable with Dr. Ampil for the following reasons: first, there is an employer-employee relationship between Medical City and Dr. Ampil. The Court relied on Ramos v. Court of Appeals,[2] holding that for the purpose of apportioning responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians; second, PSIs act of publicly displaying in the lobby of the Medical City the names and specializations of its accredited physicians, including Dr. Ampil, estopped it from denying the existence of an employer-employee relationship between them under the doctrine of ostensible agency or agency by estoppel ; and third, PSIs failure to supervise Dr. Ampil and its resident physicians and nurses and to take an active step in order to remedy their negligence rendered it directly liable under the doctrine of corporate negligence.

In its motion for reconsideration, PSI contends that the Court erred in finding it liable under Article 2180 of the Civil Code, there being no employer-employee relationship between it and its consultant, Dr. Ampil. PSI stressed that the Courts Decision in Ramos holding that an employer-employee relationship in Further, PSI argues that the doctrine of effect exists between hospitals and their attending and visiting physicians for the purpose of apportioning responsibility had been reversed in a subsequent Resolution.[3] ostensible agency or agency by estoppel cannot apply because spouses Agana failed to establish one requisite of the doctrine, i.e., that Natividad relied on the representation of the hospital in engaging the services of Dr. Ampil. And lastly, PSI maintains that the doctrine of corporate negligence is misplaced because the proximate cause of Natividads injury was Dr. Ampils negligence.

The motion lacks merit.

As earlier mentioned, the First Division, in its assailed Decision, ruled that an employer-employee relationship in effect exists between the Medical City and Dr. Ampil. Consequently, both are jointly and severally liable to the Aganas. This ruling proceeds from the following ratiocination in Ramos:

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling up specialist staff with attending and visiting consultants, who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more apparent than real. In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for consultant slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. This is particularly true with respondent hospital. After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physicians performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated. In other words, private hospitals hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patients condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This being the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioners condition. The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the formers responsibility under a relationship of partia ptetas.

Clearly, in Ramos, the Court considered the peculiar relationship between a hospital and its consultants on the bases of certain factors. One such factor is the control test wherein the hospital exercises control in the hiring and firing of consultants, like Dr. Ampil, and in the conduct of their work.

Actually, contrary to PSIs contention, the Court did not reverse its ruling in Ramos. What it clarified was that the De Los Santos Medical Clinic did not exercise control over its consultant, hence, there is no employer-employee relationship between them. Thus, despite the granting of the said hospitals motion for reconsideration, the doctrine in Ramos stays, i.e., for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship exists between hospitals and their consultants.

In the instant cases, PSI merely offered a general denial of responsibility, maintaining that consultants, like Dr. Ampil, are independent contractors, not employees of the hospital. Even assuming that Dr. Ampil is not an employee of Medical City, but an independent contractor, still the said hospital is liable to the Aganas.

In Nograles, et al. v. Capitol Medical Center, et al., [4] through Mr. Justice Antonio T. Carpio, the Court held:

The question now is whether CMC is automatically exempt from liability considering that Dr. Estrada is an independent contractor-physician. In general, a hospital is not liable for the negligence of an independent contractorphysician. There is, however, an exception to this principle. The hospital may be liable if the physician is the ostensible agent of the hospital. ( Jones v. Philpott, 702 F. Supp. 1210 [1988]) This exception is also known as the doctrine of apparent authority. (Sometimes referred to as the apparent or ostensible agency theory. [ King v. Mitchell, 31 A.D.3rd 958, 819 N.Y. S.2d 169 (2006)]. xxx The doctrine of apparent authority essentially involves two factors to determine the liability of an independent contractor-physician. The first factor focuses on the hospitals manifestations and is sometimes described as an inquiry whether the hospital acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital. (Diggs v. Novant Health, Inc. , 628 S.E.2d 851 (2006) citing Hylton v. Koontz, 138 N.C. App. 629 (2000). In this regard, the hospital need not make express representations to the patient that the treating physician is an employee of the hospital; rather a representation may be general and implied. (Id.) The doctrine of apparent authority is a specie of the doctrine of estoppel. Article 1431 of the Civil Code provides that [t]hrough estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. Estoppel rests on this rule: Whether a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it. ( De Castro v. Ginete, 137 Phil. 453 [1969], citing Sec. 3, par. A, Rule 131 of the Rules of Court. See also King v. Mitchell, 31 A.D.3rd 958, 819 N.Y.S.2d 169 [2006]). xxx The second factor focuses on the patients reliance. It is sometimes characterized as an inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. (Diggs v. Novant Health, Inc.)

PSI argues that the doctrine of apparent authority cannot apply to these cases because spouses Agana failed to establish proof of their reliance on the representation of Medical City that Dr. Ampil is its employee.

The argument lacks merit.

Atty. Agana categorically testified that one of the reasons why he chose Dr. Ampil was that he knew him to be a staff member of Medical City, a prominent and known hospital .

Will you tell us what transpired in your visit to Dr. Ampil?

Well, I saw Dr. Ampil at the Medical City, I know him to be a staff member there, and I told him about the case of my wife and he asked me to bring my wife over so she could be examined. Prior to that, I have known Dr. Ampil, first, he was staying in front of our house, he was a neighbor, second, my daughter was his student in the University of the East School of Medicine at Ramon Magsaysay; and when my daughter opted to establish a hospital or a clinic, Dr. Ampil was one of our consultants on how to establish that hospital. And from there, I have known that he was a specialist when it comes to that illness.

Atty. Agcaoili

On that particular occasion, April 2, 1984, what was your reason for choosing to contact Dr. Ampil in connection with your wifes illness?

First, before that, I have known him to be a specialist on that part of the body as a surgeon; second, I have known him to be a staff member of the Medical City which is a prominent and known hospital. And third, because he is a neighbor, I expect more than the usual medical service to be given to us, than his ordinary patients.[5]

Clearly, PSI is estopped from passing the blame solely to Dr. Ampil. Its act of displaying his name and those of the other physicians in the public directory at the lobby of the hospital amounts to holding out to the public that it offers quality medical service through the listed physicians. This justifies Atty. Aganas belief that Dr. Ampil was a member of the hospitals staff. It must be stressed that under the doctrine of apparent authority, the question in every case is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question .[6] In these cases, the circumstances yield a positive answer to the question.

The challenged Decision also anchors its ruling on the doctrine of corporate responsibility.[7] The duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician. This is because the modern hospital now tends to organize a highly-professional medical staff whose competence and performance need also to be monitored by the hospital commensurate with its inherent responsibility to provide quality medical care.[8] Such responsibility includes the proper supervision of the members of its medical staff . Accordingly, the hospital has the duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises.

Unfortunately, PSI had been remiss in its duty.

It did not conduct an immediate investigation on Dr. Jocson, a member of PSIs

the reported missing gauzes to the great prejudice and agony of its patient.

medical staff, who testified on whether the hospital conducted an investigation, was evasive, thus:

We go back to the operative technique, this was signed by Dr. Puruganan, was this submitted to the hospital?

Yes, sir, this was submitted to the hospital with the record of the patient.

Q A

Was the hospital immediately informed about the missing sponges? That is the duty of the surgeon, sir.

As a witness to an untoward incident in the operating room, was it not your obligation, Dr., to also report to the hospital because you are under the control and direction of the hospital? The hospital already had the record of the two OS missing, sir.

Q A

If you place yourself in the position of the hospital, how will you recover. You do not answer my question with another question.

Q A

Did the hospital do anything about the missing gauzes? The hospital left it up to the surgeon who was doing the operation, sir.

Q A

Did the hospital investigate the surgeon who did the operation? I am not in the position to answer that, sir.

You never did hear the hospital investigating the doctors involved in this case of those missing sponges, or did you hear something?

I think we already made a report by just saying that two sponges were missing, it is up to the hospital to make the move.

Atty. Agana

Precisely, I am asking you if the hospital did a move, if the hospital did a move. A I cannot answer that.

Court By that answer, would you mean to tell the Court that you were aware if there was such a move done by the hospital? A I cannot answer that, your honor, because I did not have any more followup of the case that happened until now.[9]

The above testimony obviously shows Dr. Jocsons lack of concern for the patients.

Such

conduct is reflective of the hospitals manner of supervision. Not only did PSI breach its duty to oversee or supervise all persons who practice medicine within its walls, it also failed to take an active step in fixing the negligence committed . This renders PSI, not only vicariously liable for the negligence of Dr. Ampil under Article 2180 of the Civil Code, but also directly liable for its own negligence under Article 2176.

Moreover, there is merit in the trial courts finding that the failure of PSI to conduct an investigation established PSIs part in the dark conspiracy of silence and concealment about the gauzes . The following testimony of Atty. Agana supports such findings, thus:

You said you relied on the promise of Dr. Ampil and despite the promise you were not able to obtain the said record. Did you go back to the record custodian? I did not because I was talking to Dr. Ampil. He promised me.

Q A

After your talk to Dr. Ampil, you went to the record custodian? I went to the record custodian to get the clinical record of my wife, and I was given a portion of the records consisting of the findings, among them, the entries of the dates, but not the operating procedure and operative report.[10]

In sum, we find no merit in the motion for reconsideration.

WHEREFORE, we DENY PSIs motion for reconsideration with finality.

SO ORDERED.

Republic of the Philippines Supreme Court Manila

THIRD DIVISION

FE CAYAO-LASAM, G.R. No. 159132 Petitioner, Present: YNARES-SANTIAGO, J., Chairperson, - versus - AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ.SPOUSES CLARO and EDITHA RAMOLETE, Promulgated: Respondents. December 18, 2008x - - - - - - - - - - - - - ------------ -------------------------------x

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by Dr. Fe Cayao-Lasam (petitioner) seeking to annul the Decision[1] dated July 4, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 62206.

The antecedent facts:

On July 28, 1994, respondent, three months pregnant Editha Ramolete (Editha) was brought to the Lorma Medical Center (LMC) in San Fernando, La Union due to vaginal bleeding. Upon advice of petitioner relayed via telephone, Editha was admitted to the LMC on the same day. A pelvic sonogram[2] was then conducted on Editha revealing the fetus weak cardiac pulsation.[3] The following day, Edithas repeat pelvic sonogram[4] showed that aside from the fetus weak cardiac pulsation, no fetal movement was also appreciated. Due to persistent and profuse vaginal bleeding, petitioner advised Editha to undergo a Dilatation and Curettage Procedure (D&C) or raspa.

On July 30, 1994, petitioner performed the D&C procedure. following day.

Editha was discharged from the hospital the

On September 16, 1994, Editha was once again brought at the LMC, as she was suffering from vomiting and severe abdominal pains. Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedly informed Editha that there was a dead fetus in the latters womb. After, Editha underwent laparotomy,[5] she was found to have a massive intra-abdominal hemorrhage and a ruptured uterus. Thus, Editha had to undergo a procedure for hysterectomy[6] and as a result, she has no more chance to bear a child.

On November 7, 1994, Editha and her husband Claro Ramolete (respondents) filed a Complaint[7] for Gross Negligence and Malpractice against petitioner before the Professional Regulations Commission (PRC).

Respondents alleged that Edithas hysterectomy was caused by petitioners unmitigated negligence and professional incompetence in conducting the D&C procedure and the petitioners failure to remove the fetus inside Edithas womb.[8] Among the alleged acts of negligence were: first, petitioners failure to check up, visit or administer medication on Editha during her first day of confinement at the LMC;[9] second, petitioner recommended that a D&C procedure be performed on Editha without conducting any internal examination prior to the procedure;[10] third, petitioner immediately suggested a D&C procedure instead of closely monitoring the state of pregnancy of Editha.[11]

In her Answer,[12] petitioner denied the allegations of negligence and incompetence with the following explanations: upon Edithas confirmation that she would seek admission at the LMC, petitioner immediately called the hospital to anticipate the arrival of Editha and ordered through the telephone the medicines Editha needed to take, which the nurses carried out; petitioner visited Editha on the morning of July 28, 1994 during her rounds; on July 29, 1994, she performed an internal examination on Editha and she discovered that the latters cervix was already open, thus, petitioner discussed the possible D&C procedure, should the bleeding become more profuse; on July 30 1994, she conducted another internal examination on Editha, which revealed that the latters cervix was still open; Editha persistently complained of her vaginal bleeding and her passing out of some meaty mass in the process of urination and bowel movement; thus, petitioner advised Editha to undergo D&C procedure which the respondents consented to; petitioner was very vocal in the operating room about not being able to see an abortus;[13] taking the words of Editha to mean that she was passing out some meaty mass and clotted blood, she assumed that the abortus must have been expelled in the process of bleeding; it was Editha who insisted that she wanted to be discharged; petitioner agreed, but she advised Editha to return for check-up on August 5, 1994, which the latter failed to do. Petitioner contended that it was Edithas gross negligence and/or omission in insisting to be discharged on July 31, 1994 against doctors advice and her unjustified failure to return for check-up as directed by petitioner that contributed to her life-threatening condition on September 16, 1994; that Edithas hysterectomy was brought about by her very abnormal pregnancy known as placenta increta, which was an extremely rare and very unusual case of abdominal placental implantation. Petitioner argued that whether or not a D&C procedure was done by her or any other doctor, there would be no difference at all because at any stage of gestation before term, the uterus would rupture just the same.

On March 4, 1999, the Board of Medicine (the Board) of the PRC rendered a Decision,[14] exonerating petitioner from the charges filed against her. The Board held:

Based on the findings of the doctors who conducted the laparotomy on Editha, hers is a case of Ectopic Pregnancy Interstitial. This type of ectopic pregnancy is one that is being protected by the uterine muscles and manifestations may take later than four (4) months and only attributes to two percent (2%) of ectopic pregnancy cases.

When complainant Editha was admitted at Lorma Medical Center on July 28, 1994 due to vaginal bleeding, an ultra-sound was performed upon her and the result of the Sonogram Test reveals a morbid fetus but did not specify where the fetus was located. Obstetricians will assume that the pregnancy is within the uterus unless so specified by the Sonologist who conducted the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if she was not able to determine that complainant Editha is having an ectopic pregnancy interstitial. The D&C conducted on Editha is necessary considering that her cervix is already open and so as to stop the profuse bleeding. Simple curettage cannot remove a fetus if the patient is having an ectopic pregnancy, since ectopic pregnancy is pregnancy conceived outside the uterus and curettage is done only within the uterus. Therefore, a more extensive operation needed in this case of pregnancy in order to remove the fetus.[15]

Feeling aggrieved, respondents went to the PRC on appeal. On November 22, 2000, the PRC rendered a Decision[16] reversing the findings of the Board and revoking petitioners authority or license to practice her profession as a physician. [17] Petitioner brought the matter to the CA in a Petition for Review under Rule 43 of the Rules of Court. Petitioner also dubbed her petition as one for certiorari[18] under Rule 65 of the Rules of Court.

In the Decision dated July 4, 2003, the CA held that the Petition for Review under Rule 43 of the Rules of Court was an improper remedy, as the enumeration of the quasi-judicial agencies in Rule 43 is exclusive.[19] PRC is not among the quasi-judicial bodies whose judgment or final orders are subject of a petition for review to the CA, thus, the petition for review of the PRC Decision, filed at the CA, was improper. The CA further held that should the petition be treated as a petition for certiorari under Rule 65, the same would still be dismissed for being improper and premature. Citing Section 26[20] of Republic Act (R.A.) No. 2382 or the Medical Act of 1959, the CA held that the plain, speedy and adequate remedy under the ordinary course of law which petitioner should have availed herself of was to appeal to the Office of the President.[21]

Hence, herein petition, assailing the decision of the CA on the following grounds:

1.

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT THE PROFESSIONAL REGULATION[S] COMMISSION (PRC) WAS EXCLUDED AMONG THE QUASIJUDICIAL AGENCIES CONTEMPLATED UNDER RULE 43 OF THE RULES OF CIVIL PROCEDURE;

2.

EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED FROM THE PURVIEW OF RULE 43 OF THE RULES OF CIVIL PROCEDURE, THE PETITIONER WAS NOT PRECLUDED FROM FILING A PETITION FOR CERTIORARI WHERE THE DECISION WAS ALSO ISSUED IN EXCESS OF OR WITHOUT JURISDICTION, OR WHERE THE DECISION WAS A PATENT NULLITY;

3.

HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO APPEAL FROM THE DECISION OF THE BOARD OF MEDICINE TO THE PROFESSIONAL REGULATION[S] COMMISSION;

4.

THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING FOR IMPROPER FORUM THE PETITION FOR REVIEW/PETITION FOR CERTIORARI WITHOUT GOING OVER THE MERITS OF THE GROUNDS RELIED UPON BY THE PETITIONER;

5.

PRCS GRAVE OMISSION TO AFFORD HEREIN PETITONER A CHANCE TO BE HEARD ON APPEAL IS A CLEAR VIOLATION OF HER CONSTITUTIONAL RIGHT TO DUE PROCESS AND HAS THE EFFECT OF RENDERING THE JUDGMENT NULL AND VOID;

6.

COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN ACCEPTING AND CONSIDERING THE MEMORANDUM ON APPEAL WITHOUT PROOF OF SERVICE TO HEREIN PETITIONER, AND IN VIOLATION OF ART. IV, SEC. 35 OF THE RULES AND REGULATIONS GOVERNING THE REGULATION AND PRACTICE OF PROFESSIONALS;

7.

PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING PETITIONERS LICENSE TO PRACTICE MEDICINE WITHOUT AN EXPERT TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF RESPONDENT EDITHAT [SIC] RAMOLETES INJURY;

8.

PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN TOTALLY DISREGARDING THE FINDING OF THE BOARD OF MEDICINE, WHICH HAD THE NECESSARY COMPETENCE AND EXPERTISE TO ESTABLISH THE CAUSE OF RESPONDENT EDITHAS INJURY, AS WELL AS THE TESTIMONY OF THE EXPERT WITNESS AUGUSTO MANALO, M.D. ;[AND]

9.

PRC COMMITTED GRAVE ABUSE OF DISCRETION IN MAKING CONCLUSIONS OF FACTS THAT WERE NOT ONLY UNSUPPORTED BY EVIDENCE BUT WERE ACTUALLY CONTRARY TO EVIDENCE ON RECORD.[22]

The Court will first deal with the procedural issues.

Petitioner claims that the law does not allow complainants to appeal to the PRC from the decision of the Board. She invokes Article IV, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals, which provides:

Sec. 35. The respondent may appeal the decision of the Board within thirty days from receipt thereof to the Commission whose decision shall be final. Complainant, when allowed by law, may interpose an appeal from the Decision of the Board within the same period. (Emphasis supplied)

Petitioner asserts that a careful reading of the above law indicates that while the respondent, as a matter of right, may appeal the Decision of the Board to the Commission, the complainant may interpose an appeal from the decision of the Board only when so allowed by law.[23] Petitioner cited Section 26 of Republic Act No. 2382 or The Medical Act of 1959, to wit:

Section 26. Appeal from judgment. The decision of the Board of Medical Examiners (now Medical Board) shall automatically become final thirty days after the date of its promulgation unless the respondent, during the same period, has appealed to the Commissioner of Civil Service (now Professional Regulations Commission) and later to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of the case, or may file in court a petition for certiorari.

Petitioner posits that the reason why the Medical Act of 1959 allows only the respondent in an administrative case to file an appeal with the Commission while the complainant is not allowed to do so is double jeopardy. Petitioner is of the belief that the revocation of license to practice a profession is penal in nature.[24]

The Court does not agree.

For one, the principle of double jeopardy finds no application in administrative cases. Double jeopardy attaches only: (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the express consent of the accused.[25] These elements were not present in the proceedings before the Board of Medicine, as the proceedings involved in the instant case were administrative and not criminal in nature. The Court has already held that double jeopardy does not lie in administrative cases.[26]

Moreover, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals cited by petitioner was subsequently amended to read:

Sec. 35. The complainant/respondent may appeal the order, the resolution or the decision of the Board within thirty (30) days from receipt thereof to the Commission whose decision shall be final and executory. Interlocutory order shall not be appealable to the Commission. (Amended by Res. 174, Series of 1990).[27] (Emphasis supplied)

Whatever doubt was created by the previous provision was settled with said amendment. It is axiomatic that the right to appeal is not a natural right or a part of due process, but a mere statutory privilege that may be exercised only in the manner prescribed by law.[28] In this case, the clear intent of the amendment is to render the right to appeal from a decision of the Board available to both complainants and respondents.

Such conclusion is bolstered by the fact that in 2006, the PRC issued Resolution No. 06-342(A), or the New Rules of Procedure in Administrative Investigations in the Professional Regulations Commission and the Professional Regulatory Boards, which provides for the method of appeal, to wit:

Sec. 1. Appeal; Period Non-Extendible.- The decision, order or resolution of the Board shall be final and executory after the lapse of fifteen (15) days from receipt of the decision, order or resolution without an appeal being perfected or taken by either the respondent or the complainant. A party aggrieved by the decision, order or resolution may file a notice of appeal from the decision, order or resolution of the Board to the Commission within fifteen (15) days from receipt thereof, and serving upon the adverse party a notice of appeal together with the appellants brief or memorandum on appeal, and paying the appeal and legal research fees. x x x[29]

The above-stated provision does not qualify whether only the complainant or respondent may file an appeal; rather, the new rules provide that a party aggrieved may file a notice of appeal. Thus, either the complainant or the respondent who has been aggrieved by the decision, order or resolution of the Board may appeal to the Commission. It is an elementary rule that when the law speaks in clear and categorical language, there is no need, in the absence of legislative intent to the contrary, for any interpretation.[30] Words and phrases used in the statute should be given their plain, ordinary, and common usage or meaning.[31]

Petitioner also submits that appeals from the decisions of the PRC should be with the CA, as Rule 43[32] of the Rules of Court was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial agencies.[33] Petitioner further contends that a quasi-judicial body is not excluded from the purview of Rule 43 just because it is not mentioned therein.[34]

On this point, the Court agrees with the petitioner.

Sec. 1, Rule 43 of the Rules of Court provides:

Section 1. Scope. - This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals, and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions . Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. (Emphasis supplied)

Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly enumerated under Section 1, Rule 43 of the Rules of Court. However, its absence from the enumeration does not, by this fact alone, imply its exclusion from the coverage of said Rule.[35] The Rule expressly provides that it should be applied to appeals from awards, judgments final orders or resolutions of any quasi-judicial agency in the exercise of its quasi-judicial functions. The phrase among these agencies confirms that the enumeration made in the Rule is not exclusive to the agencies therein listed.[36]

Specifically, the Court, in Yang v. Court of Appeals,[37] ruled that Batas Pambansa (B.P.) Blg. 129[38] conferred upon the CA exclusive appellate jurisdiction over appeals from decisions of the PRC. The Court held:

The law has since been changed, however, at least in the matter of the particular court to which appeals from the Commission should be taken. On August 14, 1981, Batas Pambansa Bilang 129 became effective and in its Section 29, conferred on the Court of Appeals exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts and quasijudicial agencies, instrumentalities, boards or commissions except those falling under the appellate jurisdiction of the Supreme Court. x x x. In virtue of BP 129, appeals from the Professional Regulations Commission are now exclusively cognizable by the Court of Appeals.[39] (Emphasis supplied)

Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of Civil Procedure,[40] lodged with the CA such jurisdiction over the appeals of decisions made by the PRC.

Anent the substantive merits of the case, petitioner questions the PRC decision for being without an expert testimony to support its conclusion and to establish the cause of Edithas injury. Petitioner avers that in cases of medical malpractice, expert testimony is necessary to support the conclusion as to the cause of the injury.[41]

Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances.[42] In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient.[43]

There are four elements involved in medical negligence cases: duty, breach, injury and proximate causation.[44]

A physician-patient relationship was created when Editha employed the services of the petitioner. As Edithas physician, petitioner was duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances.[45] The breach of these professional duties of skill and care, or their improper performance by a physician surgeon, whereby the patient is injured in body or in health, constitutes actionable malpractice.[46] As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential.[47] Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.[48]

In the present case, respondents did not present any expert testimony to support their claim that petitioner failed to do something which a reasonably prudent physician or surgeon would have done.

Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo, who was clearly an expert on the subject.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she is to testify, either by the study of recognized authorities on the subject or by practical experience.[49]

Dr. Manalo specializes in gynecology and obstetrics, authored and co-authored various publications on the subject, and is a professor at the University of the Philippines.[50] According to him, his diagnosis of Edithas case was Ectopic Pregnancy Interstitial (also referred to as Cornual), Ruptured.[51] In stating that the D&C procedure was not the proximate cause of the rupture of Edithas uterus resulting in her hysterectomy, Dr. Manalo testified as follows:

Atty. Hidalgo: Q: Doctor, we want to be clarified on this matter. The complainant had testified here that the D&C was the proximate cause of the rupture of the uterus. The condition which she found herself in on the second admission. Will you please tell us whether that is true or not? Yah, I do not think so for two reasons. One, as I have said earlier, the instrument cannot reach the site of the pregnancy, for it to further push the pregnancy outside the uterus. And,

A:

No. 2, I was thinking a while ago about another reason- well, why I dont think so, because it is the triggering factor for the rupture, it could havethe rupture could have occurred much earlier, right after the D&C or a few days after the D&C.

Q:

In this particular case, doctor, the rupture occurred to have happened minutes prior to the hysterectomy or right upon admission on September 15, 1994 which is about 1 months after the patient was discharged, after the D&C was conducted. Would you tell us whether there is any relation at all of the D&C and the rupture in this particular instance? I dont think so for the two reasons that I have just mentioned- that it would not be possible for the instrument to reach the site of pregnancy. And, No. 2, if it is because of the D&C that rupture could have occurred earlier.[52] (Emphases supplied)

A:

Clearly, from the testimony of the expert witness and the reasons given by him, it is evident that the D&C procedure was not the proximate cause of the rupture of Edithas uterus.

During his cross-examination, Dr. Manalo testified on how he would have addressed Edithas condition should he be placed in a similar circumstance as the petitioner. He stated:

Atty. Ragonton: Q: Doctor, as a practicing OB-Gyne, when do you consider that you have done a good, correct and ideal dilatation and curettage procedure? Well, if the patient recovers. If the patient gets well. Because even after the procedure, even after the procedure you may feel that you have scraped everything, the patient stops bleeding, she feels well, I think you should still have some reservations, and wait a little more time.

A:

Q:

If you were the OB-Gyne who performed the procedure on patient Editha Ramolete, would it be your standard practice to check the fetal parts or fetal tissues that were allegedly removed? From what I have removed, yes. But in this particular case, I think it was assumed that it was part of the meaty mass which was expelled at the time she was urinating and flushed in the toilet. So theres no way.

A:

Q: A:

There was [sic] some portions of the fetal parts that were removed? No, it was described as scanty scraping if I remember it rightscanty.

Q: A:

And you would not mind checking those scant or those little parts that were removed? Well, the fact that it was described means, I assume that it was checked, no. It was described as scanty and the color also, I think was described. Because it would be very unusual, even improbable that it would not be examined, because when you scrape, the specimens are right there before your eyes. Its in front of you. You can touch it. In fact, some of them will stick to the instrument and therefore to peel it off from the instrument, you have to touch them. So, automatically they are examined closely. As a matter of fact, doctor, you also give telephone orders to your patients through telephone? Yes, yes, we do that, especially here in Manila because you know, sometimes a doctor can also be tied-up somewhere and if you have to wait until he arrive at a certain place before you give the order, then it would be a lot of time wasted. Because if you know your patient, if you have handled your patient, some of the symptoms you can interpret that comes with practice. And, I

Q: A:

see no reason for not allowing telephone orders unless it is the first time that you will be encountering the patient. That you have no idea what the problem is.

Q: A:

But, doctor, do you discharge patients without seeing them? Sometimes yes, depending on how familiar I am with the patient. We are on the question of telephone orders. I am not saying that that is the idle [sic] thing to do, but I think the reality of present day practice somehow justifies telephone orders. I have patients whom I have justified and then all of a sudden, late in the afternoon or late in the evening, would suddenly call they have decided that they will go home inasmuch as they anticipated that I will discharge them the following day. So, I just call and ask our resident on duty or the nurse to allow them to go because I have seen that patient and I think I have full grasp of her problems. So, thats when I make this telephone orders. And, of course before giving that order I ask about how she feels.[53] (Emphases supplied)

From the foregoing testimony, it is clear that the D&C procedure was conducted in accordance with the standard practice, with the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances, and that there was nothing irregular in the way the petitioner dealt with Editha.

Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under Article 2176[54] of the Civil Code. The defenses in an action for damages, provided for under Article 2179 of the Civil Code are:

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

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.[55] An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.[56]

In the present case, the Court notes the findings of the Board of Medicine:

When complainant was discharged on July 31, 1994, herein respondent advised her to return on August 4, 1994 or four (4) days after the D&C. This advise was clear in complainants Discharge Sheet. However, complainant failed to do so. This being the case, the chain of continuity as required in order that the doctrine of proximate cause can be validly invoked was interrupted. Had she returned, the respondent could have examined her thoroughly.[57] x x x (Emphases supplied)

Also, in the testimony of Dr. Manalo, he stated further that assuming that there was in fact a misdiagnosis, the same would have been rectified if Editha followed the petitioners order to return for a check-up on August 4, 1994. Dr. Manalo stated:

Granting that the obstetrician-gynecologist has been misled (justifiably) up to thus point that there would have been ample opportunity to rectify the misdiagnosis, had the patient returned, as instructed for her follow-up evaluation. It was one and a half months later that the patient sought consultation with another doctor. The continued growth of an ectopic pregnancy, until its eventual rupture, is a dynamic process. Much change in physical findings could be expected in 1 months, including the emergence of suggestive ones.[58]

It is undisputed that Editha did not return for a follow-up evaluation, in defiance of the petitioners advise. Editha omitted the diligence required by the circumstances which could have avoided the injury. The omission in not returning for a follow-up evaluation played a substantial part in bringing about Edithas own injury. Had Editha returned, petitioner could have conducted the proper medical tests and procedure necessary to determine Edithas health condition and applied the corresponding treatment which could have prevented the rupture of Edithas uterus. The D&C procedure having been conducted in accordance with the standard medical practice, it is clear that Edithas omission was the proximate cause of her own injury and not merely a contributory negligence on her part.

Contributory negligence is the act or omission amounting to want of ordinary care on the part of the person injured, which, concurring with the defendants negligence, is the proximate cause of the injury.[59] Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident.[60] Where the immediate cause of an accident resulting in an injury is the plaintiffs own act, which contributed to the principal occurrence as one of its determining factors, he cannot recover damages for the injury.[61] Again, based on the evidence presented in the present case under review, in which no negligence can be attributed to the petitioner, the immediate cause of the accident resulting in Edithas injury was her own omission when she did not return for a follow-up check up, in defiance of petitioners orders. The immediate cause of Edithas injury was her own act; thus, she cannot recover damages from the injury.

Lastly, petitioner asserts that her right to due process was violated because she was never informed by either respondents or by the PRC that an appeal was pending before the PRC.[62] Petitioner claims that a verification with the records section of the PRC revealed that on April 15, 1999, respondents filed a Memorandum on Appeal before the PRC, which did not attach the actual registry receipt but was merely indicated therein.[63] Respondents, on the other hand avers that if the original registry receipt was not attached to the Memorandum on Appeal, PRC would not have entertained the appeal or accepted such pleading for lack of notice or proof of service on the other party.[64] Also, the registry receipt could not be appended to the copy furnished to petitioners former counsel, because the registry receipt was already appended to the original copy of the Memorandum of Appeal filed with PRC.[65]

It is a well-settled rule that when service of notice is an issue, the rule is that the person alleging that the notice was served must prove the fact of service. The burden of proving notice rests upon the party asserting its existence.[66] In the present case, respondents did not present any proof that petitioner was served a copy of the Memorandum on Appeal. Thus, respondents were not able to satisfy the burden of proving that they had in fact informed the petitioner of the appeal proceedings before the PRC.

In EDI-Staffbuilders International, Inc. v. National Labor Relations Commission, [67] in which the National Labor Relations Commission failed to order the private respondent to furnish the petitioner a copy of the Appeal Memorandum, the Court held that said failure deprived the petitioner of procedural due process guaranteed by the Constitution, which could have served as basis for the nullification of the proceedings in the appeal. The same holds true in the case at bar.

The Court finds that the failure of the respondents to furnish the petitioner a copy of the Memorandum of Appeal submitted to the PRC constitutes a violation of due process. Thus, the proceedings before the PRC were null and void.

All told, doctors are protected by a special rule of law. They are not guarantors of care. They are not insurers against mishaps or unusual consequences[68] specially so if the patient herself did not exercise the proper diligence required to avoid the injury.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July 4, 2003 in CAGR SP No. 62206 is hereby REVERSED and SET ASIDE. The Decision of the Board of Medicine dated March 4, 1999 exonerating petitioner is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

THIRD DIVISION

PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS, ABBEYGAIL LUCAS AND GILLIAN LUCAS, Petitioners,

- versus -

DR. PROSPERO MA. C. TUAO, Respondent. G. R. No. 178763

Present:

YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and PERALTA, JJ.

Promulgated:

April 21, 2009x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CHICO-NAZARIO, J.:

In this petition for review on certiorari[1] under Rule 45 of the Revised Rules of Court, petitioners Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the 27 September 2006 Decision[2] and 3 July 2007 Resolution,[3] both of the Court of Appeals in CA-G.R. CV No. 68666, entitled Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao. In the questioned decision and resolution, the Court of Appeals affirmed the 14 July 2000 Decision of the Regional Trial Court (RTC), Branch 150, Makati City, dismissing the complaint filed by petitioners in a civil case entitled, Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao, docketed as Civil Case No. 92-2482.

From the record of the case, the established factual antecedents of the present petition are:

Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted sore eyes in his right eye.

On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter made use of his health care insurance issued by Philamcare Health Systems, Inc. (Philamcare), for a possible consult. The Philamcare Coordinator, Dr. Edwin Oca, M.D., referred Peter to respondent, Dr. Prospero Ma. C. Tuao, M.D. (Dr. Tuao), an ophthalmologist at St. Lukes Medical Center, for an eye consult.

Upon consultation with Dr. Tuao, Peter narrated that it had been nine (9) days since the problem with his right eye began; and that he was already taking Maxitrol to address the problem in his eye. According to Dr. Tuao, he performed ocular routine examination on Peters eyes, wherein: (1) a gross examination of Peters eyes and their surrounding area was made; (2) Peters visual acuity were taken; (3) Peters eyes were palpated to check the intraocular pressure of each; (4) the motility of Peters eyes was observed; and (5) the ophthalmoscopy[4] on Peters eyes was used. On that particular consultation, Dr. Tuao diagnosed that Peter was suffering from conjunctivitis[5] or sore eyes. Dr. Tuao then prescribed Spersacet-C[6] eye drops for Peter and told the latter to return for follow-up after one week.

As instructed, Peter went back to Dr. Tuao on 9 September 1988. Upon examination, Dr. Tuao told Peter that the sore eyes in the latters right eye had already cleared up and he could discontinue the Spersacet-C. However, the same eye developed Epidemic Kerato Conjunctivitis (EKC),[7] a viral infection. To address the new problem with Peters right eye, Dr. Tuao prescribed to the former a steroid-based eye drop called Maxitrol,[8] a dosage of six (6) drops per day.[9] To recall, Peter had already been using Maxitrol prior to his consult with Dr. Tuao.

On 21 September 1988, Peter saw Dr. Tuao for a follow-up consultation. After examining both of Peters eyes, Dr. Tuao instructed the former to taper down[10] the dosage of Maxitrol, because the EKC in his right eye had already resolved. Dr. Tuao specifically cautioned Peter that, being a steroid, Maxitrol had to be withdrawn gradually; otherwise, the EKC might recur.[11]

Complaining of feeling as if there was something in his eyes, Peter returned to Dr. Tuao for another check-up on 6 October 1988. Dr. Tuao examined Peters eyes and found that the right eye had once more developed EKC. So, Dr. Tuao instructed Peter to resume the use of Maxitrol at six (6) drops per day.

On his way home, Peter was unable to get a hold of Maxitrol, as it was out of stock. Consequently, Peter was told by Dr. Tuano to take, instead, Blephamide[12] another steroid-based medication, but with a lower concentration, as substitute for the unavailable Maxitrol, to be used three (3) times a day for five (5) days; two (2) times a day for five (5) days; and then just once a day.[13]

Several days later, on 18 October 1988, Peter went to see Dr. Tuao at his clinic, alleging severe eye pain, feeling as if his eyes were about to pop-out, a headache and blurred vision. Dr. Tuao examined Peters eyes and discovered that the EKC was again present in his right eye. As a result, Dr. Tuao told Peter to resume the maximum dosage of Blephamide.

Dr. Tuao saw Peter once more at the formers clinic on 4 November 1988. Dr. Tuaos examination showed that only the periphery of Peters right eye was positive for EKC; hence, Dr. Tuao prescribed a lower dosage of Blephamide.

It was also about this time that Fatima Gladys Lucas (Fatima), Peters spouse, read the accompanying literature of Maxitrol and found therein the following warning against the prolonged use of such steroids: WARNING:

Prolonged use may result in glaucoma, with damage to the optic nerve, defects in visual acuity and fields of vision, and posterior, subcapsular cataract formation. Prolonged use may suppress the host response and thus increase the hazard of secondary ocular infractions, in those diseases causing thinning of the cornea or sclera, perforations have been known to occur with the use of topical steroids. In acute purulent conditions of the eye, steroids may mask infection or enhance existing infection. If these products are used for 10 days or longer, intraocular pressure should be routinely monitored even though it may be difficult in children and uncooperative patients.

Employment of steroid medication in the treatment of herpes simplex requires great caution.

xxxx

ADVERSE REACTIONS:

Adverse reactions have occurred with steroid/anti-infective combination drugs which can be attributed to the steroid component, the anti-infective component, or the combination. Exact incidence figures are not available since no denominator of treated patients is available. Reactions occurring most often from the presence of the anti-infective ingredients are allergic sensitizations. The reactions due to the steroid component in decreasing order to frequency are elevation of intra-ocular pressure (IOP) with possible development of glaucoma, infrequent optic nerve damage; posterior subcapsular cataract formation; and delayed wound healing. Secondary infection: The development of secondary has occurred after use of combination containing steroids and antimicrobials. Fungal infections of the correa are particularly prone to develop coincidentally with long-term applications of steroid. The possibility of fungal invasion must be considered in any persistent corneal ulceration where steroid treatment has been used. Secondary bacterial ocular infection following suppression of host responses also occurs.

On 26 November 1988, Peter returned to Dr. Tuaos clinic, complaining of feeling worse. [14] It appeared that the EKC had spread to the whole of Peters right eye yet again. Thus, Dr. Tuao instructed Peter to resume the use of Maxitrol. Petitioners averred that Peter already made mention to Dr. Tuao during said visit of the above-quoted warning against the prolonged use of steroids, but Dr. Tuao supposedly brushed aside Peters concern as mere paranoia, even assuring him that the former was taking care of him

(Peter).

Petitioners further alleged that after Peters 26 November 1988 visit to Dr. Tuao, Peter continued to suffer pain in his right eye, which seemed to progress, with the ache intensifying and becoming more frequent.

Upon waking in the morning of 13 December 1988, Peter had no vision in his right eye.

Fatima

observed that Peters right eye appeared to be bloody and swollen.[15] Thus, spouses Peter and Fatima rushed to the clinic of Dr. Tuao. Peter reported to Dr. Tuao that he had been suffering from constant headache in the afternoon and blurring of vision.

Upon examination, Dr. Tuao noted the hardness of Peters right eye. With the use of a tonometer[16] to verify the exact intraocular pressure[17] (IOP) of Peters eyes, Dr. Tuao discovered that the tension in Peters right eye was 39.0 Hg, while that of his left was 17.0 Hg.[18] Since the tension in Peters right eye was way over the normal IOP, which merely ranged from 10.0 Hg to 21.0 Hg,[19] Dr. Tuao ordered[20] him to immediately discontinue the use of Maxitrol and prescribed to the latter Diamox[21] and Normoglaucon, instead.[22] Dr. Tuao also required Peter to go for daily check-up in order for the former to closely monitor the pressure of the latters eyes. On 15 December 1988, the tonometer reading of Peters right eye yielded a high normal level, i.e., 21.0 Hg. Hence, Dr. Tuao told Peter to continue using Diamox and Normoglaucon. But upon Peters complaint of stomach pains and tingling sensation in his fingers,[23] Dr. Tuao discontinued Peters use of Diamox.[24]

Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr. Batungbacal), on 21 December 1988, who allegedly conducted a complete ophthalmological examination of Peters eyes. Dr. Batungbacals diagnosis was Glaucoma[25] O.D.[26] He recommended Laser Trabeculoplasty[27] for Peters right eye.

When Peter returned to Dr. Tuao on 23 December 1988,[28] the tonometer measured the IOP of Peters right eye to be 41.0 Hg,[29] again, way above normal. Dr. Tuao addressed the problem by advising Peter to resume taking Diamox along with Normoglaucon.

During the Christmas holidays, Peter supposedly stayed in bed most of the time and was not able to celebrate the season with his family because of the debilitating effects of Diamox.[30]

On 28 December 1988, during one of Peters regular follow-ups with Dr. Tuao, the doctor conducted another ocular routine examination of Peters eyes. Dr. Tuao noted the recurrence of EKC in Peters right eye. Considering, however, that the IOP of Peters right eye was still quite high at 41.0 Hg, Dr. Tuao was at

a loss as to how to balance the treatment of Peters EKC vis--vis the presence of glaucoma in the same eye. Dr. Tuao, thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto), another ophthalmologist specializing in the treatment of glaucoma.[31] Dr. Tuaos letter of referral to Dr. Agulto stated that:

Referring to you Mr. Peter Lucas for evaluation & possible management. I initially saw him Sept. 2, 1988 because of conjunctivitis. The latter resolved and he developed EKC for which I gave Maxitrol. The EKC was recurrent after stopping steroid drops. Around 1 month of steroid treatment, he noted blurring of vision & pain on the R. however, I continued the steroids for the sake of the EKC. A month ago, I noted iris atrophy, so I took the IOP and it was definitely elevated. I stopped the steroids immediately and has (sic) been treating him medically.

It seems that the IOP can be controlled only with oral Diamox, and at the moment, the EKC has recurred and Im in a fix whether to resume the steroid or not considering that the IOP is still uncontrolled.[32]

On 29 December 1988, Peter went to see Dr. Agulto at the latters clinic. Several tests were conducted thereat to evaluate the extent of Peters condition. Dr. Agulto wrote Dr. Tuao a letter containing the following findings and recommendations:

Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and 20/20L. Tension curve 19 R and 15 L at 1210 H while on Normoglaucon BID OD & Diamox tab every 6h po.

Slit lamp evaluation[33] disclosed subepithelial corneal defect outer OD. There was circumferential peripheral iris atrophy, OD. The lenses were clear. Funduscopy[34] showed vertical cup disc of 0.85 R and 0.6 L with temporal slope R>L.

Zeiss gonioscopy[35] revealed basically open angles both eyes with occasional PAS, [36] OD.

Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I suggest that we do a baseline visual fields and push medication to lowest possible levels. If I may suggest further, I think we should prescribe Timolol[37] BID[38] OD in lieu of Normoglaucon. If the IOP is still inadequate, we may try Depifrin[39] BID OD (despite low PAS). Im in favor of retaining Diamox or similar CAI.[40]

If fields show further loss in say 3 mos. then we should consider trabeculoplasty.

I trust that this approach will prove reasonable for you and Peter.[41]

Peter went to see Dr. Tuao on 31 December 1988, bearing Dr. Agultos aforementioned letter. Though Peters right and left eyes then had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuao still gave him a prescription for Timolol B.I.D. so Peter could immediately start using said medication. Regrettably, Timolol B.I.D. was out of stock, so Dr. Tuao instructed Peter to just continue using Diamox and Normoglaucon in the meantime.

Just two days later, on 2 January 1989, the IOP of Peters right eye remained elevated at 21.0 Hg, [42] as he had been without Diamox for the past three (3) days.

On 4 January 1989, Dr. Tuao conducted a visual field study[43] of Peters eyes, which revealed that the latter had tubular vision[44] in his right eye, while that of his left eye remained normal. Dr. Tuao directed Peter to religiously use the Diamox and Normoglaucon, as the tension of the latters right eye went up even further to 41.0 Hg in just a matter of two (2) days, in the meantime that Timolol B.I.D. and Depifrin were still not available in the market. Again, Dr. Tuao advised Peter to come for regular check-up so his IOP could be monitored.

Obediently, Peter went to see Dr. Tuao on the 7 th, 13th, 16th and 20th of January 1989 for check-up and IOP monitoring.

In the interregnum, however, Peter was prodded by his friends to seek a second medical opinion. On 13 January 1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist, who, in turn, referred Peter to Dr. Mario V. Aquino, M.D. (Dr. Aquino), another ophthalmologist who specializes in the treatment of glaucoma and who could undertake the long term care of Peters eyes.

According to petitioners, after Dr. Aquino conducted an extensive evaluation of Peters eyes, the said doctor informed Peter that his eyes were relatively normal, though the right one sometimes manifested maximum borderline tension. Dr. Aquino also confirmed Dr. Tuaos diagnosis of tubular vision in Peters right eye. Petitioners claimed that Dr. Aquino essentially told Peter that the latters condition would require lifetime medication and follow-ups.

In May 1990 and June 1991, Peter underwent two (2) procedures of laser trabeculoplasty to attempt to control the high IOP of his right eye.

Claiming to have steroid-induced glaucoma[45] and blaming Dr. Tuao for the same, Peter, joined by: (1) Fatima, his spouse[46]; (2) Abbeygail, his natural child[47]; and (3) Gillian, his legitimate child[48] with Fatima, instituted on 1 September 1992, a civil complaint for damages against Dr. Tuao, before the RTC, Branch 150, Quezon City. The case was docketed as Civil Case No. 92-2482.

In their Complaint, petitioners specifically averred that as the direct consequence of [Peters] prolonged use of Maxitrol, [he] suffered from steroid induced glaucoma which caused the elevation of his intra-ocular pressure. The elevation of the intra-ocular pressure of [Peters right eye] caused the impairment of his vision which impairment is not curable and may even lead to total blindness.[49]

Petitioners additionally alleged that the visual impairment of Peters right eye caused him and his family so much grief. Because of his present condition, Peter now needed close medical supervision forever; he had already undergone two (2) laser surgeries, with the possibility that more surgeries were still needed in the future; his career in sports casting had suffered and was continuing to suffer; [50] his anticipated income had been greatly reduced as a result of his limited capacity; he continually suffered from headaches, nausea, dizziness, heart palpitations, rashes, chronic rhinitis, sinusitis,[51] etc.; Peters relationships with his spouse and children continued to be strained, as his condition made him highly irritable and sensitive; his mobility and social life had suffered; his spouse, Fatima, became the breadwinner in the family;[52] and his two children had been deprived of the opportunity for a better life and educational prospects. Collectively, petitioners lived in constant fear of Peter becoming completely blind.[53]

In the end, petitioners sought pecuniary award for their supposed pain and suffering, which were ultimately brought about by Dr. Tuaos grossly negligent conduct in prescribing to Peter the medicine Maxitrol for a period of three (3) months, without monitoring Peters IOP, as required in cases of prolonged use of said medicine, and notwithstanding Peters constant complaint of intense eye pain while using the same. Petitioners particularly prayed that Dr. Tuao be adjudged liable for the following amounts:

1. The amount of P2,000,000.00 to plaintiff Peter Lucas as and by way of compensation for his impaired vision.

2. The amount of P300,000.00 to spouses Lucas as and by way of actual damages plus such additional amounts that be proven during trial.

may

3. damages.

The amount of P1,000,000.00 as and by way of moral

4. damages.

The amount of P500,000.00 as and by way of exemplary

5. The amount of P200,000.00 as and by way of attorneys fees plus costs of suit.[54]

In rebutting petitioners complaint, Dr. Tuao asserted that the treatment made by [him] more than three years ago has no causal connection to [Peters] present glaucoma or condition.[55] Dr. Tuao explained that [d]rug-induced glaucoma is temporary and curable, steroids have the side effect of increasing intraocular pressure. Steroids are prescribed to treat Epidemic Kerato Conjunctivitis or EKC which is an infiltration of the cornea as a result of conjunctivitis or sore eyes. [56] Dr. Tuao also clarified that (1) [c]ontrary to [petitioners] fallacious claim, [he] did NOT continually prescribe the drug Maxitrol which contained steroids for any prolonged period[57] and [t]he truth was the Maxitrol was discontinued x x x as soon as EKC disappeared and was resumed only when EKC reappeared[58]; (2) the entire time he was treating Peter, he continually monitored the intraocular pressure of [Peters eyes] by palpating the eyes and by putting pressure on the eyeballs, and no hardening of the same could be detected, which meant that there was no increase in the tension or IOP, a possible side reaction to the use of steroid medications; and (3) it was only on 13 December 1988 that Peter complained of a headache and blurred vision in his right eye, and upon measuring the IOP of said eye, it was determined for the first time that the IOP of the right eye had an elevated value.

But granting for the sake of argument that the steroid treatment of [Peters] EKC caused the steroid induced glaucoma,[59] Dr. Tuao argued that:

[S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the intake of steroids is discontinued, the intraocular pressure automatically is reduced. Thus, [Peters] glaucoma can only be due to other causes not attributable to steroids, certainly not attributable to [his] treatment of more than three years ago x x x.

From a medical point of view, as revealed by more current examination of [Peter], the latters glaucoma can only be long standing glaucoma, open angle glaucoma, because of the large C:D ratio. The steroids provoked the latest glaucoma to be revealed earlier as [Peter] remained asymptomatic prior to steroid application. Hence, the steroid treatment was in fact beneficial to [Peter] as it revealed the incipient open angle glaucoma of [Peter] to allow earlier treatment of the same.[60]

In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 for insufficiency of evidence.[61] The decretal part of said Decision reads:

Wherefore, premises considered, the instant complaint is dismissed for insufficiency of evidence. The counter claim (sic) is likewise dismissed in the absence of bad faith or malice on the part of plaintiff in filing the suit.[62]

The RTC opined that petitioners failed to prove by preponderance of evidence that Dr. Tuao was negligent in his treatment of Peters condition. In particular, the record of the case was bereft of any evidence to establish that the steroid medication and its dosage, as prescribed by Dr. Tuao, caused Peters glaucoma. The trial court reasoned that the recognized standards of the medical community has not been established in this case, much less has causation been established to render [Tuao] liable.[63] According to the RTC:

[Petitioners] failed to establish the duty required of a medical practitioner against which Peter Pauls treatment by defendant can be compared with. They did not present any medical expert or even a medical doctor to convince and expertly explain to the court the established norm or duty required of a physician treating a patient, or whether the non taking (sic) by Dr. Tuao of Peter Pauls pressure a deviation from the norm or his non-discovery of the glaucoma in the course of treatment constitutes negligence. It is important and indispensable to establish such a standard because once it is established, a medical practitioner who departed thereof breaches his duty and commits negligence rendering him liable. Without such testimony or enlightenment from an expert, the court is at a loss as to what is then the established norm of duty of a physician against which defendants conduct can be compared with to determine negligence.[64]

The RTC added that in the absence of any medical evidence to the contrary, this court cannot accept [petitioners] claim that the use of steroid is the proximate cause of the damage sustained by [Peters] eye.[65]

Correspondingly, the RTC accepted Dr. Tuaos medical opinion that Peter Paul must have been suffering from normal tension glaucoma, meaning, optic nerve damage was happening but no elevation of the eye pressure is manifested, that the steroid treatment actually unmasked the condition that resulted in the earlier treatment of the glaucoma. There is nothing in the record to contradict such testimony. In fact, plaintiffs Exhibit S even tends to support them.

Undaunted, petitioners appealed the foregoing RTC decision to the Court of Appeals. Their appeal was docketed as CA-G.R. CV No. 68666.

On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No. 68666 denying petitioners recourse and affirming the appealed RTC Decision. The fallo of the judgment of the appellate court states:

WHEREFORE, the Decision appealed from is AFFIRMED.[66]

The Court of Appeals faulted petitioners because they

[D]id not present any medical expert to testify that Dr. Tuanos prescription of Maxitrol and Blephamide for the treatment of EKC on Peters right eye was not proper and that his palpation of Peters right eye was not enough to detect adverse reaction to steroid. Peter testified that Dr. Manuel Agulto told him that he should not have used steroid for the treatment of EKC or that he should have used it only for two (2) weeks, as EKC is only a viral infection which will cure by itself. However, Dr. Agulto was not presented by [petitioners] as a witness to confirm what he allegedly told Peter and, therefore, the latters testimony is hearsay. Under Rule 130, Section 36 of the Rules of Court, a witness can testify only to those facts which he knows of his own personal knowledge, x x x. Familiar and fundamental is the rule that hearsay testimony is inadmissible as evidence.[67]

Like the RTC, the Court of Appeals gave great weight to Dr. Tuaos medical judgment, specifically the latters explanation that:

[W]hen a doctor sees a patient, he cannot determine whether or not the latter would react adversely to the use of steroids, that it was only on December 13, 1989, when Peter complained for the first time of headache and blurred vision that he observed that the pressure of the eye of Peter was elevated, and it was only then that he suspected that Peter belongs to the 5% of the population who reacts adversely to steroids.[68]

Petitioners Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated 3 July 2007.

Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court premised on the following assignment of errors:

I.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN AFFIRMING THE DECISION OF THE TRIAL COURT DISMISSING THE PETITIONERS COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND OF INSUFFICIENCY OF EVIDENCE;

II.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN DISMISSING THE PETITIONERS COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND THAT NO MEDICAL EXPERT WAS PRESENTED BY THE PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL NEGLIGENCE AGAINST THE RESPONDENT; AND

III.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT FINDING THE RESPONDENT LIABLE TO THE PETITIONERS FOR ACTUAL, MORAL AND EXEMPLARY DAMAGES, ASIDE FROM ATTORNEYS FEES, COSTS OF SUIT, AS A RESULT OF HIS GROSS NEGLIGENCE. [69]

A reading of the afore-quoted reversible errors supposedly committed by the Court of Appeals in its Decision and Resolution would reveal that petitioners are fundamentally assailing the finding of the Court of Appeals that the evidence on record is insufficient to establish petitioners entitlement to any kind of damage. Therefore, it could be said that the sole issue for our resolution in the Petition at bar is whether the Court of Appeals committed reversible error in affirming the judgment of the RTC that petitioners failed to

prove, by preponderance of evidence, their claim for damages against Dr. Tuao.

Evidently, said issue constitutes a question of fact, as we are asked to revisit anew the factual findings of the Court of Appeals, as well as of the RTC. In effect, petitioners would have us sift through the evidence on record and pass upon whether there is sufficient basis to establish Dr. Tuaos negligence in his treatment of Peters eye condition. This question clearly involves a factual inquiry, the determination of which is not within the ambit of this Courts power of review under Rule 45 of the 1997 Rules Civil Procedure, as amended.[70]

Elementary is the principle that this Court is not a trier of facts; only errors of law are generally reviewed in petitions for review on certiorari criticizing decisions of the Court of Appeals. Questions of fact are not entertained.[71]

Nonetheless, the general rule that only questions of law may be raised on appeal in a petition for review under Rule 45 of the Rules of Court admits of certain exceptions, including the circumstance when the finding of fact of the Court of Appeals is premised on the supposed absence of evidence, but is contradicted by the evidence on record. Although petitioners may not explicitly invoke said exception, it may be gleaned from their allegations and arguments in the instant Petition.

Petitioners contend, that [c]ontrary to the findings of the Honorable Court of Appeals, [they] were more than able to establish that: Dr. Tuao ignored the standard medical procedure for ophthalmologists, administered medication with recklessness, and exhibited an absence of competence and skills expected from him.[72] Petitioners reject the necessity of presenting expert and/or medical testimony to establish (1) the standard of care respecting the treatment of the disorder affecting Peters eye; and (2) whether or not negligence attended Dr. Tuaos treatment of Peter, because, in their words

That Dr. Tuao was grossly negligent in the treatment of Peters simple eye ailment is a simple case of cause and effect . With mere documentary evidence and based on the facts presented by the petitioners, respondent can readily be held liable for damages even without any expert testimony. In any case, however, and contrary to the finding of the trial court and the Court of Appeals, there was a medical expert presented by the petitioner showing the recklessness committed by [Dr. Tuao] Dr. Tuao himself. [Emphasis supplied.]

They insist that Dr. Tuao himself gave sufficient evidence to establish his gross negligence that ultimately caused the impairment of the vision of Peters right eye,[73] i.e., that [d]espite [Dr. Tuaos] knowledge that 5% of the population reacts adversely to Maxitrol, [he] had no qualms whatsoever in prescribing said steroid to Peter without first determining whether or not the (sic) Peter belongs to the 5%.[74]

We are not convinced. The judgments of both the Court of Appeals and the RTC are in accord with the evidence on record, and we are accordingly bound by the findings of fact made therein.

Petitioners position, in sum, is that Peters glaucoma is the direct result of Dr. Tuaos negligence in his improper administration of the drug Maxitrol; thus, [the latter] should be liable for all the damages suffered and to be suffered by [petitioners].[75] Clearly, the present controversy is a classic illustration of a medical negligence case against a physician based on the latters professional negligence. In this type of suit, the patient or his heirs, in order to prevail, is required to prove by preponderance of evidence that the physician failed to exercise that degree of skill, care, and learning possessed by other persons in the same profession; and that as a proximate result of such failure, the patient or his heirs suffered damages.

For lack of a specific law geared towards the type of negligence committed by members of the medical profession, such claim for damages is almost always anchored on the alleged violation of Article 2176 of the Civil Code, which states that:

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

In medical negligence cases, also called medical malpractice suits, there exist a physician-patient relationship between the doctor and the victim. But just like any other proceeding for damages, four essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and (4) proximate causation,[76] must be established by the plaintiff/s. All the four (4) elements must co-exist in order to find the physician negligent and, thus, liable for damages.

When a patient engages the services of a physician, a physician-patient relationship is generated. And in accepting a case, the physician, for all intents and purposes, represents that he has the needed training and skill possessed by physicians and surgeons practicing in the same field; and that he will employ such training, care, and skill in the treatment of the patient.[77] Thus, in treating his patient, a physician is under a duty to [the former] to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. [78] Stated otherwise, the physician has the duty to use at least the same level of care that any other reasonably competent physician would use to treat the condition under similar circumstances.

This standard level of care, skill and diligence is a matter best addressed by expert medical testimony, because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts in the field.[79]

There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the attending physician when the patient is injured in body or in health [and this] constitutes the actionable malpractice.[80] Proof of such breach must likewise rest upon the testimony of an expert witness that the treatment accorded to the patient failed to meet the standard level of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases.

Even so, proof of breach of duty on the part of the attending physician is insufficient, for there must be a causal connection between said breach and the resulting injury sustained by the patient. Put in another way, in order that there may be a recovery for an injury, it must be shown that the injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes; [81] that is, the negligence must be the proximate cause of the injury. And the proximate cause of an injury is that cause, which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.[82]

Just as with the elements of duty and breach of the same, in order to establish the proximate cause [of the injury] by a preponderance of the evidence in a medical malpractice action, [the patient] must similarly use expert testimony, because the question of whether the alleged professional negligence caused [the patients] injury is generally one for specialized expert knowledge beyond the ken of the average layperson; using the specialized knowledge and training of his field, the experts role is to present to the [court] a realistic assessment of the likelihood that [the physicians] alleged negligence caused [the patients] injury.[83]

From the foregoing, it is apparent that medical negligence cases are best proved by opinions of expert witnesses belonging in the same general neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians [or surgeons] stems from the formers realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating;[84] hence, the indispensability of expert testimonies.

In the case at bar, there is no question that a physician-patient relationship developed between Dr. Tuao and Peter when Peter went to see the doctor on 2 September 1988, seeking a consult for the treatment of his sore eyes. Admittedly, Dr. Tuao, an ophthalmologist, prescribed Maxitrol when Peter developed and had recurrent EKC. Maxitrol or neomycin/polymyxin B sulfates/dexamethasone ophthalmic ointment is a multiple-dose anti-infective steroid combination in sterile form for topical application. [85] It is the drug which petitioners claim to have caused Peters glaucoma.

However, as correctly pointed out by the Court of Appeals, [t]he onus probandi was on the patient to establish before the trial court that the physicians ignored standard medical procedure, prescribed and administered medication with recklessness and exhibited an absence of the competence and skills expected of general practitioners similarly situated.[86] Unfortunately, in this case, there was absolute failure on the part of petitioners to present any expert testimony to establish: (1) the standard of care to be implemented

by competent physicians in treating the same condition as Peters under similar circumstances; (2) that, in his treatment of Peter, Dr. Tuao failed in his duty to exercise said standard of care that any other competent physician would use in treating the same condition as Peters under similar circumstances; and (3) that the injury or damage to Peters right eye, i.e., his glaucoma, was the result of his use of Maxitrol, as prescribed by Dr. Tuao. Petitioners failure to prove the first element alone is already fatal to their cause.

Petitioners maintain that Dr. Tuao failed to follow in Peters case the required procedure for the prolonged use of Maxitrol. But what is actually the required procedure in situations such as in the case at bar? To be precise, what is the standard operating procedure when ophthalmologists prescribe steroid medications which, admittedly, carry some modicum of risk?

Absent a definitive standard of care or diligence required of Dr. Tuao under the circumstances, we have no means to determine whether he was able to comply with the same in his diagnosis and treatment of Peter. This Court has no yardstick upon which to evaluate or weigh the attendant facts of this case to be able to state with confidence that the acts complained of, indeed, constituted negligence and, thus, should be the subject of pecuniary reparation.

Petitioners assert that prior to prescribing Maxitrol, Dr. Tuao should have determined first whether Peter was a steroid responder.[87] Yet again, petitioners did not present any convincing proof that such determination is actually part of the standard operating procedure which ophthalmologists should unerringly follow prior to prescribing steroid medications.

In contrast, Dr. Tuao was able to clearly explain that what is only required of ophthalmologists, in cases such as Peters, is the conduct of standard tests/procedures known as ocular routine examination,[88] composed of five (5) tests/procedures specifically, gross examination of the eyes and the surrounding area; taking of the visual acuity of the patient; checking the intraocular pressure of the patient; checking the motility of the eyes; and using ophthalmoscopy on the patients eye and he did all those tests/procedures every time Peter went to see him for follow-up consultation and/or check-up.

We cannot but agree with Dr. Tuaos assertion that when a doctor sees a patient, he cannot determine immediately whether the latter would react adversely to the use of steroids; all the doctor can do is map out a course of treatment recognized as correct by the standards of the medical profession. It must be remembered that a physician is not an insurer of the good result of treatment. The mere fact that the patient does not get well or that a bad result occurs does not in itself indicate failure to exercise due care.[89] The result is not determinative of the performance [of the physician] and he is not required to be infallible.[90]

Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol to Peter was justified by the fact that the latter was already using the same medication when he first came to see Dr. Tuao on 2 September 1988 and had exhibited no previous untoward reaction to that particular drug. [91]

Also, Dr. Tuao categorically denied petitioners claim that he never monitored the tension of Peters eyes while the latter was on Maxitrol. Dr. Tuao testified that he palpated Peters eyes every time the latter came for a check-up as part of the doctors ocular routine examination, a fact which petitioners failed to rebut. Dr. Tuaos regular conduct of examinations and tests to ascertain the state of Peters eyes negate the very basis of petitioners complaint for damages. As to whether Dr. Tuaos actuations conformed to the standard of care and diligence required in like circumstances, it is presumed to have so conformed in the absence of evidence to the contrary.

Even if we are to assume that Dr. Tuao committed negligent acts in his treatment of Peters condition, the causal connection between Dr. Tuaos supposed negligence and Peters injury still needed to be established. The critical and clinching factor in a medical negligence case is proof of the causal The connection between the negligence which the evidence established and the plaintiffs injuries.[92]

plaintiff must plead and prove not only that he has been injured and defendant has been at fault, but also that the defendants fault caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based upon competent expert testimony.[93]

The causation between the physicians negligence and the patients injury may only be established by the presentation of proof that Peters glaucoma would not have occurred but for Dr. Tuaos supposed negligent conduct. Once more, petitioners failed in this regard.

Dr. Tuao does not deny that the use of Maxitrol involves the risk of increasing a patients IOP. In fact, this was the reason why he made it a point to palpate Peters eyes every time the latter went to see him -- so he could monitor the tension of Peters eyes. But to say that said medication conclusively caused Peters glaucoma is purely speculative. Peter was diagnosed with open-angle glaucoma. This kind of glaucoma is characterized by an almost complete absence of symptoms and a chronic, insidious course. [94] In open-angle glaucoma, halos around lights and blurring of vision do not occur unless there has been a sudden increase in the intraocular vision.[95] Visual acuity remains good until late in the course of the disease.[96] Hence, Dr. Tuao claims that Peters glaucoma can only be long standing x x x because of the large C:D[97] ratio, and that [t]he steroids provoked the latest glaucoma to be revealed earlier was a blessing in disguise as [Peter] remained asymptomatic prior to steroid application.

Who between petitioners and Dr. Tuao is in a better position to determine and evaluate the necessity of using Maxitrol to cure Peters EKC vis--vis the attendant risks of using the same?

That Dr. Tuao has the necessary training and skill to practice his chosen field is beyond cavil. Petitioners do not dispute Dr. Tuaos qualifications that he has been a physician for close to a decade and a half at the time Peter first came to see him; that he has had various medical training; that he has authored numerous papers in the field of ophthalmology, here and abroad; that he is a Diplomate of the Philippine Board of Ophthalmology; that he occupies various teaching posts (at the time of the filing of the present complaint, he was the Chair of the Department of Ophthalmology and an Associate Professor at the University of the Philippines-Philippine General Hospital and St. Lukes Medical Center, respectively); and that he held an assortment of positions in numerous medical organizations like the Philippine Medical Association, Philippine

Academy of Ophthalmology, Philippine Board of Ophthalmology, Philippine Society of Ophthalmic Plastic and Reconstructive Surgery, Philippine Journal of Ophthalmology, Association of Philippine Ophthalmology Professors, et al.

It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases, he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. [98] In making the judgment call of treating Peters EKC with Maxitrol, Dr. Tuao took the necessary precaution by palpating Peters eyes to monitor their IOP every time the latter went for a check-up, and he employed the best of his knowledge and skill earned from years of training and practice.

In contrast, without supporting expert medical opinions, petitioners bare assertions of negligence on Dr. Tuaos part, which resulted in Peters glaucoma, deserve scant credit.

Our disposition of the present controversy might have been vastly different had petitioners presented a medical expert to establish their theory respecting Dr. Tuaos so-called negligence. In fact, the record of the case reveals that petitioners counsel recognized the necessity of presenting such evidence. Petitioners even gave an undertaking to the RTC judge that Dr. Agulto or Dr. Aquino would be presented. Alas, no followthrough on said undertaking was made.

The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the issue. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiffs prima facie case; otherwise, a verdict must be returned in favor of plaintiff.[99] The party having the burden of proof must establish his case by a preponderance of evidence.[100] The concept of preponderance of evidence refers to evidence which is of greater weight or more convincing than that which is offered in opposition to it;[101] in the last analysis, it means probability of truth. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.[102] Rule 133, Section 1 of the Revised Rules of Court provides the guidelines for determining preponderance of evidence, thus:

In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies the court may consider all the facts and circumstances of the case, the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower court, to establish their case by a preponderance of evidence showing a reasonable connection between Dr. Tuaos alleged breach of duty and the damage sustained by Peters right eye. This, they did not do. In reality, petitioners

complaint for damages is merely anchored on a statement in the literature of Maxitrol identifying the risks of its use, and the purported comment of Dr. Agulto another doctor not presented as witness before the RTC concerning the prolonged use of Maxitrol for the treatment of EKC.

It seems basic that what constitutes proper medical treatment is a medical question that should have been presented to experts. If no standard is established through expert medical witnesses, then courts have no standard by which to gauge the basic issue of breach thereof by the physician or surgeon. The RTC and Court of Appeals, and even this Court, could not be expected to determine on its own what medical technique should have been utilized for a certain disease or injury. Absent expert medical opinion, the courts would be dangerously engaging in speculations.

All told, we are hard pressed to find Dr. Tuao liable for any medical negligence or malpractice where there is no evidence, in the nature of expert testimony, to establish that in treating Peter, Dr. Tuao failed to exercise reasonable care, diligence and skill generally required in medical practice. Dr. Tuaos testimony, that his treatment of Peter conformed in all respects to standard medical practice in this locality, stands unrefuted. Consequently, the RTC and the Court of Appeals correctly held that they had no basis at all to rule that petitioners were deserving of the various damages prayed for in their Complaint.

WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed Decision dated 27 September 2006 and Resolution dated 3 July 2007, both of the Court of Appeals in CA-G.R. CV No. 68666, are hereby AFFIRMED. No cost.

SO ORDERED.

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