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Torts II. Negligence

Torts II. Negligence

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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), PNR’s 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 train’s 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 attorney’s 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 train’s 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 train’s 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 Borja’s failure to blow the locomotive’s 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 court’s 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 court’s 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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00 commencing from the time of the filing of the complaint. the perimeter wall should be demolished at the latter’s expense. De Dios Realty and Surveying. INC.B. Inc.B. 2003 in CA-G. CV No.M. a factual matter that has not been demonstrated. the petition is DENIED. conducted all the previous surveys for the subdivision's developer.19[19] In view of the foregoing. De Dios' integrity and competence. and gave the Tanjangcos the option to sell and the Cuasos the option to buy the encroaching portion of the land. and to Engr. 242245 4 and 2829615 respectively. In the event that the Cuasos were unable and unwilling to purchase the said portion. De Dios for his failure to undertake an accurate relocation survey. the RTC rendered a Decision in favor of the Tanjangcos. Thus.B. was dismissed for lack of cause of action. Paraz for its failure to ascertain the proper specifications of their house. It. The Cuasos also faulted Corinthian for approving their relocation survey and building plans without verifying their accuracy and in making representations as to Engr. ordered C. We will now discuss the liability of petitioner PNR. The RTC likewise held that C. De Dios. C. dated March 30. 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. Corinthian referred Engr. Inc. The Tanjangcos filed a Motion for Reconsideration 9 of the said RTC Decision which the RTC. De Dios). which reversed and set aside the Decision3 of the Regional Trial Court (RTC) of Quezon City. they would not have been involved in a boundary dispute with the Tanjangcos.R. The Cuasos alleged that had Corinthian exercised diligence in performing its duty. (Corinthian).6 Unfortunately. at a price to be agreed upon by the parties within sixty (60) days from receipt of the said Decision.B. Paraz all appealed to the CA. On the other hand. the Cuasos filed a Third-Party Complaint 8 against Corinthian. however. The Cuasos ascribed negligence to C. The Antecedents: Respondents-spouses Reynaldo and Maria Luisa Tanjangco (the Tanjangcos) own Lots 68 and 69 covered by Transfer Certificates of Title (TCT) No. As Geodetic Engineer Democrito De Dios (Engr. 54906 is hereby AFFIRMED. Paraz was grossly negligent in not taking into account the correct boundaries of Cuasos’ lot when it constructed the house. Paraz and Engr. Thus.. 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. Before. 19 20 21 22 which is managed by petitioner Corinthian Gardens Association. to post a flagman or watchman to warn the public of the passing train amounts to negligence.: 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. It ruled that the Cuasos’ perimeter wall encroached on the land of the Tanjangos by 87 square meters. Paraz to pay moral and exemplary damages as well as attorney’s fees to the Tanjangcos and the Cuasos. during and after the construction of the said house. 4 . 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. Corinthian conducted periodic ocular inspections in order to determine compliance with the approved plans pursuant to the Manual of Rules and Regulations of Corinthian. The liability is primary and can only be negated by showing due diligence in the selection and supervision of the employee. a relocation survey was necessary. respondent. SPOUSES REYNALDO and MARIA LUISA TANJANGCO. the Tanjangcos.B. No amicable settlement was reached between the parties. their perimeter fence encroached on the Tanjangcos’ Lot 69 by 87 square meters. petitioner. No. The RTC also ordered the Cuasos to pay monthly rentals of P2. Paraz & Construction Co. respondents-spouses Frank and Teresita Cuaso (the Cuasos) own Lot 65 which is adjacent to the Tanjangcos’ lots. vs. Paraz) as builder.very least. 7 Eventually. operating under the business name D. (C. De Dios. Quezon City.000. denied in its Order10 dated June 28. J. CV No. the Cuasos. thereby. 2008 CORINTHIAN GARDENS ASSOCIATION. De Dios to the Cuasos. ruled that the Cuasos were builders in good faith. and SPOUSES FRANK and TERESITA CUASO.R. Dissatisfied with the RTC ruling. and C. SO ORDERED.B. 1993. 160795 June 27. The third-party complaint against Corinthian and Engr. The Decision of the Court of Appeals dated March 31.R. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G. located at Corinthian Gardens Subdivision. On March 30. DECISION NACHURA.B. after the Cuasos constructed their house employing the services of C. It. the Cuasos opined that Corinthian should also be held answerable for any damages that they might incur as a result of such construction. on the other hand.. however.22[22] WHEREFORE. exposing them to litigation. prompting the Tanjangcos to file with the RTC a suit against the Cuasos for Recovery of Possession with Damages. 1993. 43217. 1993. the Tanjangcos demanded that the Cuasos demolish the perimeter fence but the latter failed and refused. thus. Before the Cuasos constructed their house on Lot 65. 2003 in CA-G.

They were. 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.000. De Dios for their failure to file an appeal assailing the said Decision before this Court. because what is sought to be demolished is part of their residence. This failure to contest the CA decision before this Court was fatal to their cause.000.B. In its Resolution13 dated November 14. 29 While it is true that this Court noted the Memorandum and Supplemental Memorandum filed by the Cuasos. the Cuasos filed a Comment/Manifestation12 praying that they be allowed to adopt Corinthian’s Motion for Reconsideration. and impleading the Cuasos as one of the respondents being the third-party plaintiffs in the RTC. They failed to show proof that there is material and substantial invasion of their right to warrant the issuance of an injunctive writ. any action taken by this Court on Corinthian’s petition would not benefit the Cuasos for they did not appeal the adverse decision against them. hence. It is axiomatic that to be entitled to the injunctive writ. they argued that the Cuasos are now estopped from questioning the enforcement of the CA Decision since they issued a manager’s check to pay the money judgment. their right to injunctive relief had not been clearly and unmistakably demonstrated.14 In compliance.On appeal. there must be a showing that the invasion of the right is material and substantial. This Court cannot grant to the 5 . Paraz and Engr. Here. became binding and final as to them. and P150. Hence. 2007. The CA also imposed six percent (6%) interest per annum on all the awards. ordered to pay the Tanjangcos P100. 2005. as they accepted the CA ruling. 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. one must show that there exists a right to be protected which is directly threatened by the act sought to be enjoined. 450. 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. C. such notation was made only insofar as Corinthian made them respondents in this petition. 451 and 549 of the New Civil Code. on the other hand. Only Corinthian filed a Motion for Reconsideration 11 of the CA Decision within the 15-day reglementary period. They argued that before any execution can be carried out. Corinthian filed the instant Petition for Review on Certiorari assailing the CA Decision and Resolution.00. 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. About six (6) months later. or on August 12.00 as attorney’s fees. or a total of fifteen percent (15%) to all judgment sums and amounts that the Cuasos shall eventually pay under the decision. 20 which was also granted by the RTC in its Order21 dated December 18. The denial was based on sound legal principles. Also. 27 Their right to maintain the said fence had been declared inferior to the Tanjangcos’ right to the demolition of the fence. and that there is an urgent and paramount necessity for the writ to issue in order to prevent serious damage. It bears stressing that the Cuasos failed to appeal the ruling of the CA. is personal to Corinthian.24 The Tanjangcos opposed the Cuasos' application for TRO.00 as exemplary damages. Indeed. after the CA judgment had become final and executory as to the Cuasos. 16 which were both noted by this Court in its Resolutions dated January 10.00 for the use. 2005 17 and February 2. The Tanjangcos then moved for the execution of the judgment against the Cuasos.B. It had the effect of an admission that they indeed acted in bad faith. 2003 Decision of the CA against the Cuasos will not preempt the outcome of the said pending incidents. However. 2003. It held that the Cuasos acted in bad faith in land-grabbing the 87 square meter-portion of Lot 69 as of April 5. They claimed that no amount of money will compensate for the damage they stand to suffer should any demolition subsequently prove to be wrongful. which would demolish the Cuasos’ perimeter fence. was dismissed for lack of merit. Correlatively. Paraz and/or Engr. 18 respectively. Accordingly. This Court gave due course to Corinthian’s petition and required the parties to submit their respective memorandum. 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. 2006. the implementation of the January 31. they possess no clear and unmistakable legal right that merits protection through the writ of preliminary injunction. They countered that the only pending matter with this Court is the appeal by Corinthian. they cannot obtain affirmative relief from this Court by reason or on account of the appeal taken by Corinthian. they added. the Cuasos submitted their Memorandum15 and Supplement to Memorandum. The appeal. 25 In this Court's Resolution dated July 18. that the right of complainant is clear and unmistakable. The Cuasos’ appeal against the Tanjangcos. the enforcement of the writ of execution. C. likewise. In the meantime.000. C. the CA reversed and set aside the RTC Decision. according to the Cuasos. we denied the Cuasos' application for TRO and/or writ of preliminary injunction for lack of merit. Paraz and Engr.B. Other than the filing of an Opposition 22 and a Motion for Reconsideration 23 before the RTC. the CA already issued a partial entry of judgment against the Cuasos. specifically the demolition of the perimeter fence. Corinthian. also with interest of six percent (6%) per annum. 28 As a matter of fact. the CA denied Corinthian’s Motion for Reconsideration. Such determination. 1989. They averred that the premature demolition of the alleged encroaching perimeter wall and other improvements will cause grave and irreparable damage to them. The Cuasos were ordered to pay monthly rentals of P10. 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. is manifestly prejudicial to their interest.000. 2003. will in turn determine whether or not they were in good faith in constructing the house. therefore. De Dios. Finally. Furthermore. On the third-party complaints. as moral damages. 26 In the Cuasos’ case. The decision of the CA. no such exception exists as shown by the facts earlier narrated. No motion for reconsideration was filed by the Cuasos. P50. or that a change in the situation of the parties occurred. 2006. enjoyment and occupancy of the lot from 1989 up to the time they vacate the property considering the location and category of the same. De Dios were all found negligent in performing their respective duties and so they were ordered to contribute five percent (5%) each. the CA allowed the Tanjangcos to exercise the rights granted under Articles 449.

00. P2. as governed by Article 2176 of the Civil Code. the Tanjangcos contend that a court can take judicial notice of the general increase in the rentals of real estate. the primordial issue to be resolved in this case is whether Corinthian was negligent under the circumstances and. but he cannot seek modification or reversal of the judgment or claim affirmative relief unless he has also appealed. if so.. and (3) the connection of cause and effect between the fault or negligence and the damages incurred. and that Corinthian. and determines liability according to that standard. While the issue of Corinthian's alleged negligence is factual in character.e. Thus. by regularly demanding and accepting membership dues. 2176.000. must be wary of its responsibility to protect the rights and interests of its members. 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. we find Corinthian negligent. 37 By this test. Cuaso[. that the survey relocation plan was never submitted for Corinthian's approval. Tanjangco on account of the encroachment made by Sps.33 On the other hand. Inc. that while Corinthian conducts actual site inspections.00 which was not prayed for by the Tanjangcos in their complaint and in the absence of evidence adduced by the parties. after a meticulous review of the evidence on record. 30 An appellee who is not an appellant may assign errors in his brief where his purpose is to maintain the judgment. as in this case. As a result. The Tanjangcos pray that this Court sustain the ruling of the CA. or file a petition for certiorari. it finds no legal basis for the CA to unilaterally increase the amount of the adjudged rent from P2. Such fault or negligence. thereby resulting in the encroachment on the Tanjangcos’ property.00. 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. then he is guilty of negligence. structural and sanitary plans for Cuasos' house. 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. as reasonable compensation for the use and enjoyment of the portion of the lot encroached upon. It. an animal. 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. liable to pay 5% of the judgment money to Sps. is not entitled to any affirmative relief. adopts the standard supplied by the imaginary conduct of the discreet paterfamilias in Roman law. 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.00 to P10.32 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. in effect. contrary to its own Manual of Rules and Regulations.000. 38 a review by this Court is proper because the CA's factual findings differ from those of the RTC's. we now go to the main issues raised by Corinthian. 34 The instant case is obviously one for tort. Indeed.Cuasos any affirmative relief as they did not file a petition questioning the CA ruling. 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. A negligent act is one from which an ordinary prudent person in the actor's position. the Tanjangcos stand by the ruling of the CA and opine that Corinthian was negligent in approving the building plan of the Cuasos. The law. the Tanjangcos suffered damage in having been deprived of the use of that portion of their lot encroached upon. It is a fundamental principle that a party who does not appeal. to wit: a) Whether or not there is legal basis for the Court of Appeals to hold petitioner Corinthian Gardens Association. Consequently. it is clear that Corinthian failed to exercise the requisite diligence in insuring that the Cuasos abide by its Manual of Rules and Regulations. The law considers what would be reckless. With this matter put to rest.000. is obliged to pay for the damage done. 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. Lastly. the inspection and approval of the building plans are limited to "table inspection" only. there being fault or negligence. blameworthy.39 Thus. Likewise. if there is no pre-existing contractual relation between the parties. 6 . and that Corinthian approved the building plan with the good faith and due diligence required under the circumstances. i. that the acceptance of the builder's bond did not make Corinthian automatically liable for the encroachment and for damages.000. Paraz and Engr. 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. we hold that the CA committed no reversible error when it deviated from the findings of fact of the RTC. or negligent in a man of ordinary intelligence and prudence. (2) the fault or negligence of the defendant or some other person for whose act he must respond.B. in the same or similar circumstances. which provides: ART. The CA's findings and conclusions are substantiated by the evidence on record and are more in accord with law and reason. to P10. 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. 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. whether such negligence contributed to the injury suffered by the Tanjangcos. 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. A negligent act is an inadvertent act. the sole petitioner in this case. thus. Whoever by act or omission causes damage to another. 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. is called a quasi-delict and is governed by the provisions of this Chapter. 35 Undeniably. 31 This applies to C. or a force of nature. In every tort case filed under this provision. plaintiff has to prove by a preponderance of evidence: (1) the damages suffered by the plaintiff. a third person. De Dios who likewise failed to assail the aforementioned CA Decision.

and 3) the prevailing rate of rentals in the vicinity. Pertinently." Moreover. Corinthian does not imply that while it may take the benefits from the Builder’s cash bond. its so-called "table inspection" approval of the Cuasos’ building plans is no less of an approval. this Court declared that the reasonable amount of rent could be determined not by mere judicial notice. the proposition that the inspection is merely a "table inspection" and. our ruling in Spouses Badillo v. or ought to be known to judges because of their judicial functions. not on mere judicial notice. and in the conduct of periodic inspections of on-going construction projects within the subdivision. is unacceptable.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. but by supporting evidence: x x x A court cannot take judicial notice of a factual matter in controversy.and of all others who have their dwelling units or abodes therein. or which are capable of unquestionable demonstration. Surely. Likewise.B. but downright unchristian and iniquitous. all renovations. additions and improvements to a finished house except electrical wiring. But contrary to Corinthian's arguments. as a matter of law and justice. However. thus. Bollos [G. The Association will not allow the entry of construction materials and process identification cards for workers if the above conditions are not complied with.41 It is not just or equitable to relieve Corinthian of any liability when. 40 By its Manual of Rules and Regulations. Reversing the RTC. inclusive of the construction of perimeter walls. Paraz Construction to secure the performance of their undertaking. As we have said earlier. That is the law of life . For duties and responsibilities always go hand in hand with rights and privileges. Corinthian was not organized solely for the defendants Cuasos. thus: A. courts may fix the reasonable amount of rent for the use and occupation of a disputed property. which in this case is the subject of dispute between the Tanjangcos and the Cuasos. Clearly. After all. the necessary and inevitable consequences which law and justice attach to such negligence must. as approvals come and go. In Herrera v.or ought to be. the trial court awarded rent to the defendants in a forcible entry case. 1997]. 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. Corinthian can impose sanctions for violating these rules. however. Court of Appeals [272 SCRA 141. 2002]. will have to be approved by the Association. in the approval of building plans. Indeed. 138258. and sanctions imposed for violations could be disregarded. which were based on the evidence presented before the trial court. Thus. To put it matter-of-factly and bluntly. in 7 . The court may take judicial notice of matters of public knowledge. this Court relied on the CA's factual findings. 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. Under the same parity of reasoning. there can be no judicial notice on the rental value of the premises in question without supporting evidence. because evidence is required for a court to determine the proper rental value. the court must "allow the parties to be heard thereon. Rules and Regulations No new construction can be started unless the building plans are approved by the Association and the appropriate Builder’s cash bond and pre-construction fees are paid. at the very least. its Manual of Rules and Regulations stipulates in Section 3 thereof (under the heading Construction). the RTC therein took account of the following factors: 1) the realty assessment of the land. could simply rely on their own appreciation of land values without considering any evidence. the trial court relied. 5-Corinthian) from the defendants-appellants Cuasos and the third-party defendant C. Moreover. therefore." and not actual site measurement. petitioners herein erred in assuming that courts. Tayag42 is instructive: Citing Sia v. if the supposed inspection is merely a "table inspection" and the approval granted to every member is a mere formality. May 5. 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 determining reasonable rent. contributed to the injury suffered by the Tanjangcos. by its very own rules. repairs. through its representative. And then again third party defendant-appellee Corinthian Garden required the posting of a builder’s cash bond (Exh. it may. It goes without saying that this Manual of Rules and Regulations applies to all . Compliance therewith would not be mandatory. should exempt Corinthian from liability. Truly.or it does not apply at all. On the second issue.and that is the law of every civilized society. To accept some such postulate is to put a premium on negligence. 2) the increase in realty taxes. This uniform factual finding of the RTC and the CA was based on the evidence presented below. 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. To borrow a popular expression. in determining the amount of rent. is responsible in insuring compliance with the approved plans. Before taking such judicial notice. It is an axiom of equity that he who receives the benefits must share the burdens.R. In sum. And since it is an approval tainted with negligence. No. but on the evidence presented before it. a court may fix the reasonable amount of rent. 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. It is also the subdivision of the plaintiffs-spouses Tanjangcos . Pilate-like. then the purpose of the rules would be defeated." Hence. mere judicial notice is inadequate. In that case. That is not only unjust and immoral. but it must still base its action on the evidence adduced by the parties. 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. what is sauce for the gander is sauce for the goose . also necessarily attach to Corinthian. Corinthian’s failure to prevent the encroachment of the Cuasos’ perimeter wall into Tanjangcos’ property – despite the inspection conducted – constitutes negligence and. 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. January 18. it is reasonable to assume that Corinthian.

R. and moral damages. Similarly.) At least P72. 1981. Municipality of Moncada.760.800. filed a complaint9 for damages against the PNR before the RTC of Manila.00 as actual damages representing cost of the Mercedes Benz car to plaintiff Juan Manuel M. as well as the physical injuries suffered by Garcia. CV No. All told. January 25. attorney’s fees and cost of suit. and that it has no legal duty to put up a bar or red light signal in any such crossing. to plaintiff Juan Manuel M. and that the flagman or switchman was only equipped with a hand flashlight.) P200. 2006 PHILIPPINE NATIONAL RAILWAYS. T-71. 2.) At least P64.R. J. Hao.16 8 . Thus. No. WHEREFORE. was brought via ambulance to the same hospital. 15 As counterclaim. 5 A certain James Harrow6 brought Rhonda Brunty to the Central Luzon Doctor’s Hospital in Tarlac. DECISION CALLEJO.00 for compensatory damages to plaintiff Ethel Brunty representing lost or unearned income of Rhonda Brunty. Garcia and at least P1. 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. Garcia and Mercelita were already approaching the railroad crossing at Barangay Rizal.12 In its Answer. of their property for almost a decade. Costs against petitioner. Ethel Brunty and Garcia. 83-18645.m. When PNR did not respond. Garcia. where she was pronounced dead after ten minutes from arrival. the petition is DENIED. driving at approximately 70 km/hr. 11 They prayed for the payment of the following damages: 1.00 as unearned or lost income of said plaintiff. The assailed decision affirmed with partial modification the ruling3 of the Regional Trial Court (RTC) of Manila. The case was raffled to Branch 20 and was docketed as Civil Case No. together with her Filipino host Juan Manuel M.000.m. unaware of the railroad track up ahead and that they were about to collide with PNR Train No. Mercelita. Mercelita was instantly killed when the Mercedes Benz smashed into the train.) Attorney’s fees equivalent to at least 15% of the total award to plaintiffs herein.61 as actual damages representing medical expenses to plaintiff Juan Manuel M. 169891 November 2. He was transferred to the Manila Doctor’s Hospital. 1980. Prior to her departure. Petitioner.) Such amounts of moral and exemplary damages as may be warranted by the evidence adduced. traveled to Baguio City on board a Mercedes Benz sedan with plate number FU 799. 1980. including rightful possession.000.) Such amounts of moral and exemplary damages as may be warranted by the evidence adduced. SO ORDERED. she. daughter of respondent Ethel Brunty and an American citizen. The Decision of the Court of Appeals is AFFIRMED. and clear warning signs strategically posted on the sides of the road before the railroad crossing. in the instant case.000. and 7. Branch 20. Mercelita.. vs. By then. was on its way to Tutuban. Garcia for the death of Rhonda Brunty. the two other passengers suffered serious physical injuries. The driver disregarded the warning signs.. directing petitioner Philippine National Railways (PNR) to indemnify respondents Ethel Brunty and Juan Manuel M. and litigation expenses. ETHEL BRUNTY and JUAN MANUEL M. Metro Manila 4 as it had left the La Union station at 11:00 p. January 24. the CA committed no reversible error. 5. Rhonda Brunty. Moncada.057. drove past a vehicle.7 On July 28.) P2. They alleged that the death of Mercelita and Rhonda Brunty. Ethel Brunty sent a demand letter 8 to the PNR demanding payment of actual. SR. Rhonda Brunty.Spouses Catungal v. It countered that the immediate and proximate cause of the accident was Mercelita’s negligence. as a result of her daughter’s death. we find no cogent reason to disturb the monthly rental fixed by the CA. Garcia. visible. We noted therein that the respondent denied the petitioners the benefits. Garcia. driven by Rodolfo L. compensatory. 14 By way of special and affirmative defense. T-71. the Tanjangcos were deprived of possession and use of their property for more than two decades through no fault of their own. it stressed that it had the right of way on the railroad crossing in question. It was about 12:00 midnight. Garcia.00 as actual and compensatory damages to plaintiff Ethel Brunty. 6. 47567 and its Resolution 2 denying the motion for reconsideration thereof. By 2:00 a. GARCIA. more particularly the pilot and operator of the train.10 Plaintiffs likewise averred that PNR failed to supervise its employees in the performance of their respective tasks and duties.: This is a Petition for Review on Certiorari of the Decision 1 of the Court of Appeals (CA) in CA-G. Tarlac. the whistle blasts of the oncoming train and the flashlight signals to stop given by the guard. and later to the Makati Medical Center for further treatment. driven by Alfonso Reyes. It insisted that there were adequate.000. Tarlac.. who had suffered severe head injuries. They pointed out that there was no flagbar or red light signal to warn motorists who were about to cross the railroad track. 4. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G. it prayed that it be awarded actual and compensatory damages.43 we considered the increase in the award of rentals as reasonable given the particular circumstances of each case. and to pay actual and moral damages. PNR Train No. to plaintiff Ethel Brunty. Respondents. came to the Philippines for a visit sometime in January 1980. and that he had the last clear chance to avoid the accident.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. 3.

35 The appellate court affirmed the findings of the RTC as to the negligence of the PNR. and at a moderate speed. III. 37 The PNR. they have the last clear chance to prevent or avoid an unwanted accident from taking place. Chemical Industries of the Philippines. 29 the car was driven in a careful and diligent manner. the findings of the RTC should prevail. Thirty Thousand Pesos (P30.00) Philippine Currency. 40 Lastly. 4. Moncada. it would have reached a different conclusion. the assailed decision is hereby AFFIRMED with PARTIAL MODIFICATIONS.760. Inc. premises considered. Tarlac.A. 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. petitioner avers that since there is freedom of control and greater maneuverability on the part of motor vehicles. for the death of Rhonda Brunty formerly a resident of 1595 Ashland Avenue. having been a non-resident alien who did not own a property in the Philippines. comes before this Court in this Petition for Review on Certiorari on the following grounds: I. 33 The CA rendered the assailed Decision 34 on August 15. Mercelita’s contributory negligence should not have been ignored. considering that the decisions of the RTC and the CA vary as to whether or not Mercelita was guilty of contributory negligence. raising the following errors: I. the CA did not agree with the RTC’s findings on the contributory negligence of Mercelita. II.00).20 Aggrieved. now petitioner. 26 At the very least.38 Petitioner insists that the proximate cause of the mishap was Mercelita’s disregard of traffic rules and regulations. The dispositive portion reads: WHEREFORE.31 Ethel Brunty is a non-resident alien who can rightfully file the instant case.Plaintiffs filed an Amended Complaint 17 dated July 28. 5. 3. 41 In their Comment42 on the petition.25 It likewise questioned the award of damages on the Mercedes Benz as well as the grant of attorney’s fees.00.000. the PNR appealed the case to the CA.S. Thus. 28 appellant was negligent in not exercising due diligence of a good father of a family in the supervision of its employees. SO ORDERED. 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. 39 Moreover. respondents reiterate the findings of the RTC and the CA that the breach by petitioner of its legal duty to provide adequate and 9 . 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. 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. (Chemphil). Garcia’s employer. Seventy-Two Thousand Seven Hundred Sixty Pesos (P72.21 In its Brief. as party plaintiff. Illinois. 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. the driver of the Mercedes Benz. IF PROPERLY CONSIDERED. the services rendered by the funeral parlor of the deceased. SO ORDERED. 1986 to include. U. The fallo reads: WHEREFORE. THE COURT OF APPEALS ERRED IN NOT APPLYING THE DOCTRINE OF LAST CLEAR CHANCE IN THE INSTANT CASE. 2005. 18 After trial on the merits. increasing the death indemnity award from P30. and deleting the award for damages sustained by the Mercedes Benz.32 and they are entitled to recover damages from appellant. could not be considered guilty of contributory negligence.. the RTC rendered its Decision 19 on May 21.00) Philippine Currency for moral and actual damages due the heirs of Rhonda Brunty. particularly the train operator Alfonso Reyes. Had the court considered the fact that Mercelita had overtaken another vehicle a few yards before the railroad track. Des Plaines. judgment is hereby rendered in favor of the plaintiffs Ethel Brunty and Juan Manuel M. Mercelita was guilty of contributory negligence. PNR insisted that the sole and proximate cause of the accident was the negligence and recklessness of Garcia and Mercelita. Considering the circumstances prevailing at the time of the fatal accident. 2.00 to P50. II. One Million Pesos (P1. with due regard to all traffic rules and regulations at that particular time. THE COURT OF APPEALS ERRED IN MANIFESTLY OVERLOOKING CERTAIN RELEVANT FACTS NOT DISPUTED BY THE PARTIES AND WHICH. III. 30 the doctrine of "last clear chance" is not applicable.00) Philippine Currency for damages sustained by the Mercedes Benz. appellees countered that appellant was grossly and recklessly negligent in not properly providing the necessary equipment at the railroad crossing in Rizal.000. Garcia and against the defendant Philippine National Railways directing the latter to pay the former the sum of: 1. it is obvious that in railroad crossings. and.000. and the expenses in transferring the remains of Rhonda Brunty to the United States. Costs of suit. It held that Mercelita could not have foreseen the harm that would befall him and the two other passengers under the prevailing circumstances. 1990 in favor of plaintiffs.36 However. THE TRIAL COURT ERRED IN ADJUDGING DEFENDANT-APPELLANT PNR LIABLE FOR THE DAMAGES SUFFERED BY PLAINTIFF-APPELLEE’S MERCEDES BENZ IN THE AMOUNT OF SEVENTY-TWO THOUSAND SEVEN HUNDRED AND SIXTY PESOS (P72.000. 27 For their part. petitioner asserts.000.00) Philippine Currency as and for attorney's fees. thus. THE LOWER COURT ERRED IN AWARDING ATTORNEY’S FEES TO THE PLAINTIFFSAPPELLEES. THE FINDINGS OF FACT OF THE COURT OF APPEALS ARE CONTRARY TO THOSE OF THE TRIAL COURT REGARDING CONTRIBUTORY NEGLIGENCE OF THE RESPONDENTS’ DRIVER.000. Fifty Thousand Pesos (P50. who claimed to have paid for the latter’s medical and hospitalization expenses.760.

48 this Court held that negligence is want of the care required by the circumstances. Such failure is evidence of negligence and disregard of the safety of the public. would do. Thus.45 Lastly. and (3. 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. good. more so. 56 Moreover. Thus. reject. The law. It is. is obliged to pay for the damage done. flagman or switchman.) lack of proper lighting within the area. the defenses ordinarily available in actions for diligence are barred and the contributory negligence of the person injured is no defense. 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. 46 The Court is thus tasked to answer the following factual questions: (1) As between petitioner and Mercelita. the application in this case of the doctrine of last clear chance is likewise in question. x x x54 Moreover.m. It is a relative or comparative. by act or omission.51 The established rule is that factual findings of the CA affirming those of the trial court are conclusive and binding on this Court. or signal light. in effect. it would still be impossible to know or see that there is a railroad crossing/tracks ahead. which duties pertain both in the operation of trains and in the maintenance of the crossings. by act or omission. at a sufficient elevation from such road as to admit a free passage of vehicles of every kind. or some person for whose acts he must respond was guilty. jurisprudence50 has laid down the following test: Did defendant. term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require.necessary public safety device and equipment within the area or scene of the accident was the proximate cause of the mishap. the person is guilty of negligence. Whoever. and safe crossings and erect at such points. As to whether or not Mercelita was guilty of contributory negligence. even if there was a flagman stationed at the site as claimed by PNR (petitioner). in the exercise of its appellate jurisdiction. Tarlac presented as evidence by PNR itself would yield the following: (1. viz: Article 2176. use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not. sufficient. and warn persons of the necessity of looking out for trains. was negligent was thoroughly discussed by both the RTC and 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. 52 The records of the instant case show that both the RTC and the CA carefully examined the factual circumstances surrounding the case. (2. (2) negligence. As such. Such fault or negligence. adopts the standard supposed to be supplied by the imaginary conduct of the discreet pater familias of the Roman law. only questions of law may be put into issue. 47 In Corliss v. we agree with petitioner. cannot be entertained. or set aside the trial court’s evaluation and findings. however. In a long line of cases. to give notice of the proximity of the railway. the trial court is in the best position to evaluate and observe the conduct and demeanor of the witnesses presented during the trial. there being fault or negligence. Negligence is the omission to do something which a reasonable man. in doing the alleged negligent act. even if there is no law or ordinance requiring it because public safety demands that said device or equipment be installed. a sign with large and distinct letters placed thereon. or the doing of something which a prudent and reasonable man would not do. it is imperative on the part of the PNR to provide adequate safety equipment in the area. and we find no cogent reason to disturb the same.) absence of flagbars or safety railroad bars. causes damage to another. contributing as a legal cause to the harm he has suffered. at an unholy hour as 2:00 a. it is liable for damages for violating the provisions of Article 2176 of the New Civil Code. whose negligence resulted in the unfortunate collision? (2) Is Mercelita (the driver of the Mercedes Benz) guilty of contributory negligence? Finally. In petitions for review under Rule 45 of the Revised Rules of Court. the Court held that in order to sustain a claim based on quasi-delict. 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. and (3) connection of cause and effect between such negligence and damage. every corporation constructing or operating a railway shall make and construct at all points where such railway crosses any public road. 58 In view of the foregoing. That there was negligence on the part of PNR is. 49 In determining whether or not there is negligence on the part of the parties in a given situation. the following requisites must concur: (1) damage to plaintiff. is called a quasi-delict and is governed by the provisions of this Chapter. beyond cavil. has the vested right to modify. The finding of negligence by the RTC. 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. Considering the circumstances prevailing at the time of the fatal accident. the CA. The issue of who. likewise.44 As to the application of the doctrine of last clear chance. or semaphores. or that there is an approaching train from the Moncada side of the road since one’s view would be blocked by a cockpit arena. not an absolute. respondents claim that said issue is being raised for the first time in this petition. of which defendant. guided by those considerations which ordinarily regulate the conduct of human affairs. Contributory negligence is conduct on the part of the injured party. it must be shown that he performed an act that brought about his injuries in disregard of warning or signs of an 10 . 43 While it is true that as a general rule. which falls below the standard to which he is required to conform for his own protection. as affirmed by the CA. x x x xxxx x x x An examination of the photographs of the railroad crossing at Moncada. 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.57 This Court has previously determined the liability of the PNR for damages for its failure to put a cross bar. 59 To hold a person as having contributed to his injuries. if there is no pre-existing contractual relation between the parties.53 Applying the foregoing requisites. and questions of fact as a general rule. Manila Railroad Company. between the parties.) inadequacy of the installed warning signals. we affirm the factual findings of the CA as well as its conclusion on petitioner’s negligence. respondents cite foreign jurisprudence stating that if the violation is one which gives rise to liability per se for any resulting injury.

Hence. the earlier finding of contributory negligence on the part of Mercelita.000. As to the amount of damages awarded.64 Respondents. 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. Inc. Teehankee. premises considered. or guesswork as to the fact and amount of damages.000.71 and in Metro Manila Transit Corporation v.000. in fact.00 as moral damages to the heirs of Rhonda Brunty is proper. 11 . negligence is contributory only when it contributes proximately to the injury. 68 In the instant case. aimed at repairing the wrong done.000. or where it is impossible to determine whose fault or negligence caused the loss.000. Ong. does not apply. the only effect such contributory negligence could have is to mitigate liability. bereft of any allegation and proof as to the relationship between Mercelita (the driver) and Rhonda Brunty. and even now. SO ORDERED. WHEREFORE. between the negligence of the party and the succeeding injury. likewise.000. 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. Mercelita should not have driven the car the way he did. serious anxiety. as the heirs of Rhonda Brunty undeniably incurred expenses for the wake and burial of the latter. the Decision of the Court of Appeals dated August 15. the place was not properly illuminated. Actual or compensatory damages are those awarded in order to compensate a party for an injury or loss he suffered. therefore. temperate damages of P25. wounded feelings.00 to the heirs of the deceased. 60 To prove contributory negligence.61 The court below found that there was a slight curve before approaching the tracks. In a legal sense. We note that the damages awarded by the appellate court consist of (1) P50. fright. and similar injury unjustly caused a person.00 for the death of Rhonda Brunty and attorney’s fees amounting to P50. as will be discussed later.. besmirched reputation. and in lieu thereof. for the reason alone that they cannot produce receipts. However. while his acts contributed to the collision. They arise out of a sense of natural justice.00 as moral damages was held in keeping with the purpose of the law. 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.000.1âwphi1 As to whether or not the doctrine of last clear chance is applicable. although not proximate. while in Macalinao v. we rule in the negative. Heirs of Malecdan. Yet. the one who had the last clear opportunity to avoid the loss but failed to do so. 65 This is in lieu of actual damages as it would be unfair for the victim’s heirs to get nothing. which generally has the effect of mitigation of liability.impending danger to health and body. had overtaken a vehicle a few yards before reaching the railroad track.00. it is still necessary to establish a causal link. and not simply a condition for its occurrence. the latter never interposed an appeal before the CA nor even before this Court.000. Stated differently. v. and Mercelita was not familiar with the road. they must be duly proved with a reasonable degree of certainty. indemnity of P50. we find that an award of P500.000. Court of Appeals. 66 The relatives of the victim who incurred physical injuries in a quasi-delict are not proscribed from recovering moral damages in meritorious cases. conjecture. sustain the award of moral damages in favor of the heirs of Rhonda Brunty.000. but are designed to compensate and alleviate in some way the physical suffering. the moral suffering of the heirs of Rhonda Brunty was sufficiently established by Ethel Brunty in her deposition. which. is chargeable with the loss. or worst. It seemed to me that losing her was just like losing my own life. Jr.00 was held sufficient. despite the death of their kin. However.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.00 is likewise proper. Pursuant to Article 217962 of the New Civil Code. 67 We. A court cannot rely on speculation. there is no end to our bereavement.000. one’s view was blocked by a cockpit arena. who had the last fair chance to prevent the impending harm by the exercise of due diligence. In so many ways. the antecedent negligence of plaintiff does not preclude him from recovering damages caused by the supervening negligence of defendant. The record is. social humiliation. failed to present evidence for such damages. To be recoverable. we hold that the above doctrine finds no application in the instant case. but must depend upon competent proof that they have suffered. moral damages must nevertheless be somehow proportional to and in approximation of the suffering inflicted. The award of actual damages is deleted. yet. however. the award of actual damages cannot be sustained. In view of recent jurisprudence.000. she was my life. specifically on the award of actual and moral damages in the aggregate amount of P1.00.74 the amount of P50. and on evidence of the actual amount thereof. a modification of the same is in order. 63 The proximate cause of the injury having been established to be the negligence of petitioner.00 as indemnity for the death of Rhonda Brunty.000.000. they nevertheless do not negate petitioner’s liability. Although incapable of pecuniary computation.00 as actual and moral damages due the heirs of Rhonda Brunty. however. In Victory Liner.00 is awarded to the heirs of Rhonda Brunty. we deem it proper to award temperate damages in the amount of P25. hence. it was also established that Mercelita was then driving the Mercedes Benz at a speed of 70 km/hr and.00 as and by way of attorney’s fees. 73 the award of P100. mental anguish. 2005 is AFFIRMED WITH MODIFICATIONS. were awarded for the injuries suffered by Garcia. (2) P1. moral shock. is not applicable in this case.000.72 we awarded moral damages in the amount of P1. 1âwphi1 Considering the circumstances attendant in this case. No damages.000.70 In People v. however. The award of moral damages is reduced to P500. Moral damages are not punitive in nature.00 pursuant to prevailing jurisprudence. and (3) P50.

12 .R. Thereafter. Suspects after taking the money and jewelries fled on board a Marson Toyota unidentified plate number. is hereby REVERSED and SET ASIDE. and that robberies and hold-ups are foreseeable risks in that those engaged in the pawnshop business are expected to foresee. two (2) male unidentified persons entered into the said office with guns drawn. 1987 and known as Agencia de R. the corporate debt or credit is not the debt or credit of a stockholder.3 Petitioner Sicam sent respondent Lulu a letter dated October 19.000. J.7 and that the parties’ transaction was that of a pledgor and pledgee and under Art. the CA reversed the RTC. 1987 but petitioner Sicam failed to return the jewelry. 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.C. Metro Manila. to secure a loan in the total amount of P59. 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. CV No.00. SICAM. It appears that on different dates from September to October 1987. respondent Lulu joined by her husband. respondents.500. (petitioner corporation) seeking to annul the Decision 1 of the Court of Appeals dated March 31. Parañaque Police Station as follows: Investigation shows that at above TDPO. 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. ordering the appellees to pay appellants the actual value of the lost jewelry amounting to P272. respondent Lulu then wrote a letter 4 to petitioner Sicam expressing disbelief stating that when the robbery happened. dismissing respondents’ complaint as well as petitioners’ counterclaim. 1993. 17 Aguirre Ave. that robbery is a fortuitous event which exempts the victim from liability for the loss. the dispositive portion of which reads as follows: WHEREFORE. 88-2035. On September 28.. DECISION AUSTRIA-MARTINEZ. while victims were inside the office. petitioner Sicam filed a Motion to Dismiss as far as he is concerned considering that he is not the real party-in-interest. in CA G.C. 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. moral and exemplary damages as well as attorney's fees.: Before us is a Petition for Review on Certiorari filed by Roberto C.of the Regional Trial Court of Makati. The RTC held that petitioner Sicam could not be made personally liable for a claim arising out of a corporate transaction. and attorney' fees of P27. The incident was entered in the police blotter of the Southern Police District. Jr. Court of Appeals . Branch 62. On October 19.. Cesar Jorge. JORGE and CESAR JORGE.R. 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. the pawnshop as a pledgee is not responsible for those events which could not be foreseen. 56633. In a Decision dated March 31. 1987 informing her of the loss of her jewelry due to the robbery incident in the pawnshop. The RTC denied the motion in an Order dated November 8. that they are at least guilty of contributory negligence and should be held liable for the loss of jewelries. citing the case of Austria v. the RTC rendered its Decision 6 dated January 12.Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G. 1993. that in the Amended Complaint of respondents. Sicam located at No. BF Homes Parañaque. No. all jewelry pawned were deposited with Far East Bank near the pawnshop since it had been the practice that before they could withdraw. 1989. advance notice must be given to the pawnshop so it could withdraw the jewelry from the bank. Jorge (respondent Lulu) pawned several pieces of jewelry with Agencia de R. Petitioner Sicam filed his Answer contending that he is not the real party-in-interest as the pawnshop was incorporated on April 20. 1988. The case was docketed as Civil Case No. vs. they asserted that "plaintiff pawned assorted jewelries in defendants' pawnshop". On November 2.C. (petitioner Sicam) and Agencia de R. Sicam". 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. 2007 ROBERTO C. 2003. Respondent Lulu then requested petitioner Sicam to prepare the pawned jewelry for withdrawal on November 6. petitioners. 159617 August 8. 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. Respondents appealed the RTC Decision to the CA. C. Inc. and its Resolution2 dated August 8.8 In finding petitioner Sicam liable together with petitioner corporation. premises considered. LULU V. 1987. 2003.00. 1174 of the Civil Code. SICAM and AGENCIA de R.200. Suspects asked forcibly the case and assorted pawned jewelries items mentioned above. two armed men entered the pawnshop and took away whatever cash and jewelry were found inside the pawnshop vault. and that as a consequence of the separate juridical personality of a corporation. 5 After trial on the merits. Respondents subsequently filed an Amended Complaint to include petitioner corporation. 2003. Sicam. Inc.00. Sicam.C. and the Decision dated January 12. the instant Appeal is GRANTED. Sicam. Respondents opposed the same. 1987. The CA concluded that both petitioners should be jointly and severally held liable to respondents for the loss of the pawned jewelry. 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. Lulu V.

creating the wrong impression to respondents and the public as well. the evidence on record shows that at the time respondent Lulu pawned her jewelry. The latter exception allows one to contradict an admission by denying that he made such an admission. (2) Petitioners were adjudged negligent as they did not take insurance against the loss of the pledged jelweries. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. Respondents filed their Comment and petitioners filed their Reply thereto. the general rule that a judicial admission is conclusive upon the party making it and does not require proof. WHEN IT ADOPTED UNCRITICALLY (IN FACT IT REPRODUCED AS ITS OWN WITHOUT IN THE MEANTIME ACKNOWLEDGING IT) WHAT THE RESPONDENTS ARGUED IN THEIR BRIEF. 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. does not require proof. The receipts issued after such alleged incorporation were still in the name of " Agencia de R. petitioners point out that the CA’s 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. 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. WHICH ARGUMENT WAS PALPABLY UNSUSTAINABLE. 14 The theory of corporate entity was not meant to promote unfair objectives or otherwise to shield them. is the present owner of Agencia de R. we find no justification to absolve petitioner Sicam from liability. Balgos. Generally. the CA cannot rule against said conclusive assertion of respondents. and (2) when it is shown that no such admission was in fact made. or at the very least. (3) In Hernandez v. 2003.15 Notably. expressly referred to petitioner Sicam as the proprietor of the pawnshop notwithstanding the alleged incorporation in April 1987. in his letter 16 dated October 15. 5-6 of the Appellants’ brief. all bear the words "Agencia de R. Section 4 Rule 129 of the Rules of Court provides that an admission. Sicam. however.12 This rule. Thus. is not without exceptions. the CA is bound to decide the case on that basis. as follows: (1) Respondents conclusively asserted in paragraph 2 of their Amended Complaint that Agencia de R. 9 Anent the first assigned error. 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 parties subsequently submitted their respective Memoranda. the victim of robbery was exonerated from liability for the sum of money belonging to others and lost by him to robbers. we find that it expressed clearly and distinctly the facts and the law on which it is based as required by Section 8. and (3) By reason of the above infirmities. 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."10 Petitioners argue that the reproduced arguments of respondents in their Appellants’ Brief suffer from infirmities. although it is true that indeed the CA findings were exact reproductions of the arguments raised in respondents’ (appellants’) brief filed with the CA. Chairman. Even petitioners’ counsel.Petitioners’ motion for reconsideration was denied in a Resolution dated August 8. Inc. 1987 addressed to the Central Bank. the instant petition for review with the following assignment of errors: THE COURT OF APPEALS ERRED AND WHEN IT DID. Atty. 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. IT OPENED ITSELF TO REVERSAL BY THIS HONORABLE COURT. Article VIII of the Constitution. after a careful examination of the records." thus inevitably misleading. i. Sicam. Upon examination of the Decision. Sicam Pawnshop. made by a party in the course of the proceedings in the same case. 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. 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. The CA correctly pierced the veil of the corporate fiction and adjudged petitioner Sicam liable together with petitioner corporation. AND WHEN IT DID. 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.e. we find the same to be not fatally infirmed. insurance companies refused to cover pawnshops and banks because of high probability of losses due to robberies.C. 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. C. Commission on Audit (179 SCRA 39. and therefore. Hence. in all the pawnshop receipts issued to respondent Lulu in September 1987. THE COURT OF APPEALS ERRED. admits of two exceptions. As correctly observed by the CA. (2) The issue resolved against petitioner Sicam was not among those raised and litigated in the trial court. Anent the second error. Marcial T. C. To begin with. However. 45-46). as long as these are legally tenable and supported by law and the facts on records. We find no merit in the petition. but it is judicial notice that due to high incidence of crimes. Sicam. 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. 17 The Committee on the Revision of the Rules of Court explained the second exception in this wise: 13 . that the pawnshop was owned solely by petitioner Sicam and not by a corporation. verbal or written. to wit: (1) when it is shown that such admission was made through palpable mistake. the pawnshop was owned by petitioner Sicam himself." notwithstanding that the pawnshop was allegedly incorporated in April 1987. IT OPENED ITSELF TO REVERSAL.C.

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. (c) the occurrence must be such as to render it impossible for the debtor to fulfill obligations in a normal manner.C. 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. One's negligence may have concurred with an act of God in producing damage and injury to another. The amended complaint itself asserts that "plaintiff pawned assorted jewelries in defendant's pawnshop. or when it is otherwise declared by stipulation. 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. Jr. When the effect is found to be partly the result of a person's participation -whether by active intervention." It has been held that " as a consequence of the separate juridical personality of a corporation. if it can be foreseen. In the pretrial brief filed by petitioner Sicam. and. showing that the immediate or proximate cause of the damage or injury was a fortuitous event would not exempt one from liability. 1987. averred as follows: Roberto C.the whole occurrence is humanized and removed from the rules applicable to acts of God.18 (Emphasis supplied). it is necessary that one has committed no negligence or misconduct that may have occasioned the loss. 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. neglect or failure to act -. 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.19 Unmistakably. 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. no person shall be responsible for those events which could not be foreseen or which. nor is the stockholder's debt or credit that of a corporation. 1174. He cannot now ask for the dismissal of the complaint against him simply on the mere allegation that his pawnshop business is now incorporated. insofar as petitioner Sicam is concerned. though foreseen. 26 14 . the alleged admission made in respondents' Amended Complaint was taken "out of context" by petitioner Sicam to suit his own purpose. as it was not an issue raised and litigated before the RTC. 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. Fortuitous events by definition are extraordinary events not foreseeable or avoidable. We are not persuaded. Ineluctably. Petitioners insist that they are not liable since robbery is a fortuitous event and they are not negligent at all. 20 In fact. as is commonly believed but it must be one impossible to foresee or to avoid. i. (b) it must be impossible to foresee the event that constitutes the caso fortuito or. but cites the admission "out of context. The mere difficulty to foresee the happening is not impossibility to foresee the same. Sicam was named the defendant in the original complaint because the pawnshop tickets involved in this case did not show that the R." 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. Markedly. He merely added "that defendant is not now the real party in interest in this case. 23 The burden of proving that the loss was due to a fortuitous event rests on him who invokes it. (d) the obligor must be free from any participation in the aggravation of the injury or loss. nonetheless.. Moreover. Article 1174 of the Civil Code provides: Art. 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. by the trial court in its Decision in this manner: x x x The defendant Roberto Sicam. Sicam. Sicam. or that his admission was taken out of context. respondents. although erroneously. it must be impossible to avoid. It is a matter of defense. not enough that the event should not have been foreseen or anticipated. The next question is whether petitioners are liable for the loss of the pawned articles in their possession.C.x x x if a party invokes an "admission" by an adverse party. x x x that the party can also show that he made no "such admission". in their Opposition to petitioners’ Motion to Dismiss Amended Complaint. the basic issue was whether he is the real party in interest against whom the complaint should be directed. he submitted that as far as he was concerned. the corporate debt or credit is not the debt or credit of the stockholder. the merit of which can only be reached after consideration of the evidence to be presented in due course.24 And. It is therefore." then the one making the "admission" may show that he made no "such" admission. Sicam Pawnshop was a corporation. In paragraph 1 of his Answer. were inevitable.e. 22 To constitute a fortuitous event. he admitted the allegations in paragraph 1 and 2 of the Complaint. or when the nature of the obligation requires the assumption of risk. in view of the alleged incorporation of the pawnshop. not in the sense in which the admission is made to appear." the rule would not really be providing for a contradiction of the admission but just a denial. he subsequently moved for the dismissal of the complaint as to him but was not favorably acted upon by the trial court. the issue was squarely passed upon. 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.21 Clearly. While it is true that respondents alleged in their Amended Complaint that petitioner corporation is the present owner of the pawnshop. Except in cases expressly specified by the law. This Court sustains the contention of the defendant Roberto C. the pawnshop business initiated by him was incorporated and known as Agencia de R. We likewise find no merit in petitioners' contention that the CA erred in piercing the veil of corporate fiction of petitioner corporation. in order for a fortuitous event to exempt one from liability.

how much more a pawnshop. Did you come to know how the vault was opened? A. and those who in any manner contravene the tenor thereof. your honor. particularly Article 2099 of the Civil Code. 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. To be considered as such. negligence. Petitioners were guilty of negligence in the operation of their pawnshop business. 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. Do you have security guards in your pawnshop? A. that which is expected of a good father of a family shall be required. In Co v. Or if there was one. The fact that a thing was unlawfully and forcefully taken from another's rightful possession.32 revealing that there were no security measures adopted by petitioners in the operation of the pawnshop. that he had sufficient training in securing a pawnshop. 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. 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. This means that petitioners must take care of the pawns the way a prudent person would as to his own property. just like carnapping. or the doing of something which a prudent and reasonable man would not do.28 Just like in Co. Court of Appeals. petitioners merely presented the police report of the Parañaque Police Station on the robbery committed based on the report of petitioners' employees which is not sufficient to establish robbery. It does not foreclose the possibility of negligence on the part of herein petitioners. Article 1173 of the Civil Code further provides: Art. and subsidiarily. 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. Carnapping does not foreclose the possibility of fault or negligence on the part of private respondent. 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 15 . as in cases of carnapping. are liable for damages. would do.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. Evidently. Such report also does not prove that petitioners were not at fault. 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. provides that the creditor shall take care of the thing pledged with the diligence of a good father of a family. On the contrary. contradicts petitioners’ defense of fortuitous event. A police report of an alleged crime. Yes. 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. does not suffice to establish the carnapping. mortgage and antichresis. Carnapping per se cannot be considered as a fortuitous event. I am asking you how were the robbers able to enter despite the fact that there was a security guard? A. does not automatically give rise to a fortuitous event. The combination is off. If the law or contract does not state the diligence which is to be observed in the performance. Sir. However.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. Those who in the performance of their obligations are guilty of fraud. No one open (sic) the vault for the robbers? A. if these robbers can rob a bank. Petitioner Sicam’s testimony. In this connection. by the very evidence of petitioners. other than the police report of the alleged carnapping incident. Q. petitioners failed to show that they were free from any negligence by which the loss of the pawned jewelry may have been occasioned. carnapping entails more than the mere forceful taking of another's property.Petitioner Sicam had testified that there was a security guard in their pawnshop at the time of the robbery. In accordance with the Rules of Evidence. The provision on pledge. Robbery per se. guided by those considerations which ordinarily regulate the conduct of human affairs. 1173. in effect. to wit: Art. 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 Parañaque they pretended to pawn an article in the pawnshop. When negligence shows bad faith. to which only private respondent is privy. 1170. the provisions on pledge. Then how come that the robbers were able to enter the premises when according to you there was a security guard? A. 31 It is want of care required by the circumstances. paragraph 2 shall apply. Moreover. the special laws and regulations concerning them shall be observed. Q. the provisions of Articles 1171 and 2201. Petitioner Sicam testified. thus: Court: 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. He likewise testified that when he started the pawnshop business in 1983. Gangan30 that negligence is the omission to do something which a reasonable man. is not a fortuitous event. of time and of the place. Q. 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. Q. Q. No one your honor it was open at the time of the robbery. so one of my employees allowed him to come in and it was only when it was announced that it was a hold up. When the pawnshop is official (sic) open your honor the pawnshop is partly open. The very measures which petitioners had allegedly adopted show that to them the possibility of robbery was not only foreseeable. Yes sir. We expounded in Cruz v. A. Further. or delay. no other evidence was presented by private respondent to the effect that the incident was not due to its fault. but actually foreseen and anticipated.

17 Insurance of Office Building and Pawns – The office building/premises and pawns of a pawnshop must be insured against fire. 38 We found in Austria that under the circumstances prevailing at the time the Decision was promulgated in 1971. the Central Bank considered it not feasible to require insurance of pawned articles against burglary. 17. the robbery happened ten years previously. the robbery. Court of Appeals. he went to Manila to encash two checks covering the wages of the employees and the operating expenses of the project. unlike in Austria. We held that Hernandez was not 16 .m. The robbery in the pawnshop happened in 1987. it is even doubtful that there was a security guard. that Maria Abad was guilty of negligence. 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. it would only be sufficient that the unforeseen event. not one of petitioners' employees who were present during the robbery incident testified in court. Obviously. 114. the workers would have to wait until July 5. spend the night there. 764 which took effect on October 1. Bulacan. Maria Abad received from Guillermo Austria a pendant with diamonds to be sold on commission basis. he decided to encash the check because the project employees would be waiting for their pay the following day. thinking it was the safer one.. the preponderance of evidence shows that petitioners failed to exercise the diligence required of them under the Civil Code. The RTC ruled in favor of Austria. In contrast. 34 Thus. and this can be done by preponderance of evidence. however. However we did not hold Abad liable for negligence since. or. 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. which is the normal procedure in the handling of funds. the processing of the check was delayed and was completed at about 3 p.. the cases of Austria v. and the robbers jumped out of the jeep and ran. At that time. took place without any concurrent fault on the debtor’s part.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). Petitioner Sicam testified that once the pawnshop was open. he took a passenger jeep bound for Bulacan. Considering petitioner Sicam's testimony that the robbery took place on a Saturday afternoon and the area in BF Homes Parañaque at that time was quiet. Moreover. 1174 of the Civil Code. Rules and Regulations for Pawnshops. Instead of taking the precaution to protect them. Nevertheless. 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. However. but the Abads set up the defense that the robbery extinguished their obligation. 1983. providing no difficulty for the robbers to cart away the pawned articles. they let open the vault. Austria filed an action against Abad and her husband (Abads) for recovery of the pendant or its value. However for some reason. and leave for Ternate the following day.45 pistols each. we found petitioners negligent in securing their pawnshop as earlier discussed. and considering the above-quoted amendment. the alleged security guard was not presented at all to corroborate petitioner Sicam's claim. 1973. Pawnshop Regulation Act.35 Hernandez v. a Friday. Chairman. The Commission on Audit found Hernandez negligent because he had not brought the cash proceeds of the checks to his office in Ternate. Hernandez chased the robbers and caught up with one robber who was subsequently charged with robbery and pleaded guilty. i.m. While the jeep was on Epifanio de los Santos Avenue. the earliest time. 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. The incident became the subject of a criminal case filed against several persons. 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. 1961. where no negligence was committed. 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.e. We. He chose the second option. 33 Significantly. it is provided that pawns pledged must be insured. which were allegedly poked at the employees. Nevertheless. We held that for the Abads to be relieved from the civil liability of returning the pendant under Art. Commission on Audit 36 and Cruz v. where the requirement that insurance against burglary was deleted. Insurance of Office Building and Pawns. as the Abads failed to prove robbery. he had two choices: (1) return to Ternate. Thus. 1980. find no application to the present case. 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. to wit: Sec. In the morning of July 1. the debtor must. by an insurance company accredited by the Insurance Commissioner. but which Abad failed to subsequently return because of a robbery committed upon her in 1961. Cavite for safekeeping. 374. when the main office would open. or (2) take the money with him to his house in Marilao. The other robber who held the stolen money escaped. since it is quite impossible that he would not have noticed that the robbers were armed with caliber . The CA. Furthermore. in addition to the casus itself. Cavite that same afternoon and arrive early evening. where the victims of robbery were exonerated from liability. which took effect on July 13. the combination was already off. there was more reason for petitioners to have exercised reasonable foresight and diligence in protecting the pawned jewelries. and which was issued pursuant to Presidential Decree No. precaution and vigilance that the circumstances justly demanded. when criminality had not reached the level of incidence obtaining in 1971. be free of any concurrent or contributory fault or negligence. to wit: Sec. however. if committed. In Austria. (emphasis supplied). a little past 3 p. the jeep was held up and the money kept by Hernandez was taken.the premises. that to be free from liability for reason of fortuitous event. In Hernandez. 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. Teodoro Hernandez was the OIC and special disbursing officer of the Ternate Beach Project of the Philippine Tourism in Cavite. In fact. otherwise. Gangan37 cited by petitioners in their pleadings. this Section was subsequently amended by CB Circular No.

.negligent in deciding to encash the check and bringing it home to Marilao. Unlike in Hernandez where the robbery happened in a public utility. and (2) that choosing Marilao as a safer destination. thus — . 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. as its berthing space. respondents. 1998 FAR EASTERN SHIPPING COMPANY. that the records did not show any specific act of negligence on her part and negligence can never be presumed. 17 . which paved the way for the robbers to easily cart away the pawned articles.238. G. WHEREFORE. Senen C. In Cruz. J. 2003 and its Resolution dated August 8. On June 20. the robbery in this case happened in petitioners' pawnshop and they were negligent in not exercising the precautions justly demanded of a pawnshop. SO ORDERED. the M/V PAVLODAR. and the cellphone was not recovered. She then reported the incident to the police authorities. Camanava District Director of Technological Education and Skills Development Authority (TESDA). 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. 2003. Victor Kavankov. the robbery in this case took place in the pawnshop which is under the control of petitioners. said decision seemed logical at that time. 1996 and its resolution 2 dated July 31. Petitioners had the means to screen the persons who were allowed entrance to the premises and to protect itself from unlawful intrusion. 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. she did not have a government assigned vehicle. Gavino ordered the anchor dropped. Gavino and Manila Pilots' Association. . the Decision of the Court of Appeals dated March 31. The vessel was assigned Berth 4 of the Manila International Port. Cruz. and in view of the comparative hazards in the trips to the two places. owned and operated by the Far Eastern Shipping Company (FESC for brevity's sake). the risk of theft would have also been present. 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. boarded the Light Rail Transit (LRT) from Sen. Republic SUPREME Manila EN BANC of the Philippines COURT G. vs. 1980. We reversed the ruling and found that riding the LRT cannot per se be denounced as a negligent act more so because Cruz’s mode of transit was influenced by time and money considerations. a non-working. arrived at the Port of Manila from Vancouver. 130150 October. flying under the flagship of the USSR. 24072. Far Eastern Shipping Company. Dr. 1997 in CA-G. respondents. Puyat Avenue to Monumento when her handbag was slashed and the contents were stolen by an unidentified person. Unlike in the Cruz case.R. No. because to encash the check on July 5. petitioner. 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. however. that because of her relatively low position and pay. When the vessel was already about 2.R. beside him. petitioner. There is no dispute about the facts as found by the appellate court. Gavino ordered the engine stopped. entitled "Philippine Ports Authority.000 feet from the pier. British Columbia at about 7:00 o'clock in the morning. PHILIPPINE PORTS AUTHORITY and FAR EASTERN SHIPPING COMPANY. Among those stolen were her wallet and the government-issued cellular phone. When the vessel reached the landmark (the big church by the Tondo North Harbor) one-half mile from the pier. 130068 October 1. a Saturday.R. with the master of the vessel. would have caused discomfort to laborers who were dependent on their wages for sustenance. Captain Roberto Abellana was tasked by the Philippine Port Authority to supervise the berthing of the vessel. 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. 4. 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. the next working day after July 1. vs. and she requested that she be freed from accountability for the cellphone.00.: 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. The COA found no sufficient justification to grant the request for relief from accountability. she was not expected to have her own vehicle or to ride a taxicab. Gavino boarded the vessel at the quarantine anchorage and stationed himself in the bridge. 1998 MANILA PILOTS ASSOCIATION. except for the insurance aspect. Filonila O. 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. She also reported the loss to the Regional Director of TESDA. No. Costs against petitioners. are AFFIRMED. REGALADO. Plaintiff-Appellee vs. being nearer. CV No. the thief was not located. Bulacan instead of Ternate. 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. The sea was calm and the wind was ideal for docking maneuvers. the vessel lifted anchor from the quarantine anchorage and proceeded to the Manila International Port. COURT OF APPEALS and PHILIPPINE PORTS AUTHORITY. After a briefing of Gavino by Kavankov of the particulars of the vessel and its cargo.

No. Gavino and Manila Pilots' Association in the event that it be held liable. docketed as Civil Case No. Kavankov likewise noticed that the anchor did not take hold.00 representing actual damages and the costs of suit. avers that respondent court's errors consisted in disregarding and misinterpreting Customs Administrative Order No. as the former took over the helm of MV Pavlodar when it rammed and damaged the apron of the pier of Berth No. stresses the concurrent negligence of Capt. Before the right anchor and additional shackles could be dropped. (Exhibit "7-Far Eastern Shipping). but on the provisions of Customs Administrative Order No. the trial court ordered the defendants therein jointly and severally to pay the PPA the amount of P1. now as petitioner in this case. the bow of the vessel rammed into the apron of the pier causing considerable damage to the pier. a complaint for a sum of money against Far Eastern Shipping Co. as well as for merely relying on 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. 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. the same cost the Philippine Ports Authority the amount of P1. 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. the master cannot be faulted for relying absolutely on the competence of the compulsory pilot. the master is justified in relying on the pilot. Gavino. 130068. The vessel sustained damage too. 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.R. 7 and accordingly modified said decision of the trial court by holding MPA. Gavino. Their concurrent negligence was the immediate and proximate cause of the collision between the vessel and the pier — Capt. 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. Branch 39. 4. MPA and Capt. Kavankov filed his sea protest (Exhibit "1Vessel"). in not holding Senen C. he was solely responsible for the damage caused upon the pier apron. it ruled instead that the liability of MPA is anchored. and 5. 15-65 which limits the liability of MPA. 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.25 (Exhibits "D" and "E"). 8 Neither Far Eastern Shipping Co. and Capt. Gavino thereafter gave the "full-astern" code. 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. solely liable for the damage caused by the vessel to the pier. 11 On the other hand. Per contract and supplemental contract of the Philippine Ports Authority and the contractor for the rehabilitation of the damaged pier. for his negligence in the conduct of docking maneuvers for the safe berthing of the vessel. in not granting herein petitioner's claim against pilot Senen C. Gavino submitted his report to the Chief Pilot ( Exhibit "1-Pilot") who referred the report to the Philippine Ports Authority ( Exhibit 2-Pilot"). 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.132. Said pilots' association asseverates that it should not be held solidarily liable with Capt. 3 On January 10. 2. (briefly. Capt. In G. as the basis of their solidary liability for damages sustained by PPA. Viktor Kabankov. Abellana. 1985. 6 This being so. the Philippine Ports Authority (PPA. The left anchor. Kabankov beside him all the while on the bridge of the vessel.Kavankov relayed the orders to the crew of the vessel on the bow. 1983. Gavino. in not awarding any amount of counterclaim prayed for by the petitioner in its answer. not an 18 . as held by respondent court is only a member. After Gavino noticed that the anchor did not take hold. Senen C. in its comment. he ordered the engines half-astern. predictably in full agreement with the ruling of respondent court on the solidary liability of FESC. for brevity). were dropped. Gavino. A commotion ensued between the crew members. Capt. along with its co-defendants therein. the harbor pilot. with two (2) shackles. 4 praying that the defendants therein be held jointly and severally liable to pay the plaintiff actual and exemplary damages plus costs of suit. the anchor did not take hold as expected. for short) and Capt. and Capt. which was assigned to the Second Division of this Court. R. 9 Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of the incident. filed before the Regional Trial Court of Manila. it was the compulsory pilot. under compulsory pilotage. MPA. not on Article 2180 of the Civil Code. In a decision dated August 1. Gavino. 3. When Gavino inquired what was all the commotion about. A brief conference ensued between Kavankov and the crew members. It posits that the vessel was being piloted by Capt.300. originally assigned to the Court's First Division and later transferred to the Third Division. No. in holding that the master had not exercised the required diligence demanded from him by the circumstances at the time the incident happened. If the master does not observe that a compulsory pilot is incompetent or physically incapacitated. * shipmaster of MV Pavlodar. 4 of the Manila International Port. 15-65.053. through the Solicitor General. In other words. who was then on the pier apron. 83-14958. 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. Consequently.126. in G. 130150. Gavino who. Kavankov assured Gavino that there was nothing to it. 5 The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the pilot of a commercial vessel. FESC imputed that the Court of Appeals seriously erred: 1. Gavino and the Manila Pilots' Association. and not the owners of the vessel. still solidarily liable to PPA but entitled MPA to reimbursement from Capt. noticed that the vessel was approaching the pier fast. Gavino during the berthing procedure. Abellana likewise submitted his report of the incident (Exhibit "B"). However. who was in command and had complete control in the navigation and docking of the vessel. 10 Respondent PPA. The speed of the vessel did not slacken.. Gavino with Capt. Kabankov. at the port of destination.

commenced with the filing by FESC through counsel on August 22. 2. 130150. said case was consolidated with G. or any other tribunal or agency. the Court of Appeals. aside from the other requirements contained in pertinent provisions of the Rules of Court therefor. of legal age. 1997 or until September 27.R. which is assigned to the Court's Second Division. Gavino. These provisions are clear and unambiguous as regards MPA's liability without need for interpretation or construction. That I am the Manager. 130068 and G. No.R. 15-65 in relation to MPA's constitution and by-laws which spell out the conditions of and govern their respective liabilities. 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. Sec. Rule 42 of the 1997 Rules of Civil Procedure 19 incorporates the former Circular No. 20 Said motion contained the following certification against forum shopping 21 signed by Atty. G. counsel for MPA states that the former had retired from active pilotage services since July 28. Atty. Rule 42 of the Revised Rules of Civil Procedure I. This motion having been granted. (Emphasis ours. 18 Prefatorily. 15-65 clearly established MPA's solidary liability. 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. the Court of Appeals. or any other tribunal or agency. or any other tribunal or agency. Tria. the second paragraph of Section 2. that to the best of my own knowledge. The records show that the law firm of Del Rosario and Del Rosario through its associate. likewise through representations by the Solicitor General.R. No. That I have caused the preparation of this Petition for Review on Certiorari. the Court of Appeals or any other tribunal or agency. it is legally binding and has the same statutory force as any valid statute. thereof. 15-65 is a mere regulation issued by an administrative agency pursuant to delegated legislative authority to fix details to implement the law. 1994 and has ceased to be a member of petitioner pilots' association. There being no employer-employee relationship. being a substantive law. 16 Upon motion 17 by FESC dated April 24. No. He is not joined as a petitioner in this case since his whereabouts are unknown. the local agent of petitioner in this case. he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. 13 As for Capt.employee. 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. 130068. Gavino. with the end in view of preventing the filing of multiple complaints involving the same issues in the Supreme Court. that to the best of my own knowledge. 15 On the other hand.R. instead of the provisions of the Civil Code on damages which. FESC subsequently filed its petition on September 26. MPA and Capt. or any other tribunal or agency. depose and state: 1. 1997 of a verified motion for extension of time to file its petition for thirty (30) days from August 28. public respondent PPA. 1997. Rule 45 in relation to Section 2. it must be mentioned that the conduct of the respective counsel for FESC and PPA leaves much to be desired.R. No. 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. Lopez. the Court of Appeals. and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court. 22 to wit: VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING in compliance with Section 4(e). That I have read the same and the allegations therein contained are true and correct based on the records of this case. that if I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court. Although Customs Administrative Order No. Teodoro P. 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. Gavino and FESC for damages. 3. no such action or proceeding is pending in the Supreme Court. assumes the same supportive stance it took in G. and in its application to the fullest extent of the provisions of Customs Administrative Order No. 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. to the displeasure and disappointment of this Court. no such action or proceeding is pending in the Supreme Court. Lopez on September 24. the Court of Appeals or different divisions thereof. Claims Department of Filsov Shipping Company.) For petitions for review filed before the Supreme Court. the Court of 19 . or any other tribunal or agency. 4. is the counsel of record for FESC in both G. 15-65 and the constitution and by-laws of MPA. 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. Section 4(e). or any other tribunal or agency. 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. 130150. 130068 in declaring its total accord with the ruling of the Court of Appeals that MPA is solidarily liable with Capt. It further avers that the disputed provisions of Customs Administrative Order No. No. and expressed full accord with the appellate court's holding of solidary liability among itself. this time bearing a "verification and certification against forum-shopping" executed by one Teodoro P. that if I/we should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court. Herbert A. Herbert A.R. if there is such other action or proceeding. 130068. 1998 in G. No. Court of Appeals or different divisions thereof or any other tribunal or agency. 1997. 12 It further argues that there was erroneous reliance on Customs Administrative Order No. the Court of Appeals or different divisions thereof. he must state the status of the same. More particularly. after being duly sworn. I/we undertake to report that fact within five (5) days therefrom to this Honorable Court. 2. on matters of compliance with procedural requirements. 1997.

R. and not always the counsel whose professional services have been retained for a particular case. 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. 31 Being an officer of the court. Atty. 27 Candidness. Rule 45. I undertake to report the fact within five (5) days therefrom to this Honorable Court. Amparo. the Court treated infractions of the new Rules then with relative liberality in evaluating full compliance therewith. it cannot feign non-knowledge of the existence of such other petition because FESC itself filed the motion for consolidation in G. 130150 was posted by registered mail on August 29.R. A lawyer should not only help attain these objectives but should likewise avoid any unethical or improper practices that impede. 130068 is defective and could have been a ground for dismissal thereof. 1998. 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. But considering that it was a superfluity at that stage of the proceeding. speedy and orderly administration of court proceedings. the Court of Appeals or any other tribunal or agency. Petitioner has not commenced any other action or proceeding involving the same issues in this Honorable Court. is essential for the expeditious administration of justice.R. the law firm of Del Rosario and Del Rosario.R. Like the court itself. entitled Far Eastern Shipping Co. by reasonable estimation it would be fair to conclude that when FESC filed its petition in G. the Court of Appeals or different Divisions thereof. For failure to make such disclosure. Jesus P. Courts are entitled to expect only complete honesty from lawyers appearing and pleading before them. the initial certification appended to the motion for extension of time to file petition in G. I undertake to report the fact within five (5) days therefrom to this Honorable Court. 130150 of these two cases on April 24. No. Tria is procedurally deficient. No. we shall consider the verification signed in behalf of MPA by its counsel. without prejudice to the filing of criminal action against the guilty party. we find that the petition filed by MPA in G. 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. Rule 42 in relation to Section 4. to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. Nevertheless. the members of said law firm sorely failed to observe their duties as responsible members of the Bar. 2 of the Circular shall likewise constitute contempt of court. obstruct or prevent their realization. fairness and good faith to the court. 23 Counsel of record for MPA. No. The lawyer may also be subjected to disciplinary proceedings. inter alia: 3. Moreover. Lopez in behalf of FESC cures that defect to a certain extent. correct and inexpensive adjudication of cases and the prompt satisfaction of final judgments. 33 We cannot allow this state of things to pass judicial muster. It must be stressed that the certification against forum shopping ordained under the Rules is to be executed by the petitioner. he is an instrument to advance its ends — the speedy. Amparo. 32 Sad to say. 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. despite the inaccuracies earlier pointed out. As between the lawyer and the courts. Petitioner.) Inasmuch as MPA's petition in G. 130150 as substantial compliance inasmuch as it served the purpose of the Rules 20 . charged as he is with the primary task of assisting in the speedy and efficient administration of justice.R. 26 He is an officer of the court exercising a privilege which is indispensable in the administration of justice. 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. Atty. and constitutes a valid cause for dismissal of the petition. it would appear that the aforequoted certification accompanying the petition in G. (Italics supplied for emphasis. efficient. impartial.R. It is disturbing to note that counsel for FESC. but to the best of his knowledge. In view of the fact that at around the time these petitions were commenced. and not by counsel. Hence.Appeals.) Reviewing the records. 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. a lawyer owes candor. displays an unprofessional tendency of taking the Rules for granted. therefore. it would do well to remind all concerned that the penal provisions of Circular No. Hence. the certification subsequently executed by Teodoro P. 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. 130150 then pending with the Third Division was duly filed on August 29.. 28-91 which remain operative provides. — xxx xxx xxx (c) The submission of a false certification under Par. the 1997 Rules of Civil Procedure had just taken effect. In the same vein. Penalties. it being unnecessary to file such a certification with a mere motion for extension. 29 More specifically. a lawyer has a responsibility in the proper administration of justice.R. No. 24 (Emphasis supplied. It is clearly equivalent to non-compliance with the requirement under Section 2. or any other tribunal or agency. No. who is in the best position to know whether he or it actually filed or caused the filing of a petition in that case. a certification against forum shopping by counsel is a defective certification. It was therefore incumbent upon FESC to inform the Court of that fact through its certification against forum shopping. in G. we shall disregard such error. especially towards the courts. 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. a lawyer is obliged to observe the rules of procedure and not to misuse them to defeat the ends of justice. there is an action or proceeding pending in this Honorable Court. 1997 with a copy thereof furnished on the same date by registered mail to counsel for FESC. vs. Obviously it is the petitioner. No. 130068 on September 26. 30 It behooves a lawyer. No. 28 Candor in all dealings is the very essence of honorable membership in the legal profession." 25 Scouring the records page by page in this case. 130068 executed in behalf of FESC by Atty. in his verification accompanying said petition dutifully revealed to the Court that — xxx xxx xxx 3. or any other tribunal or agency. Besides. 1997 and taking judicial notice of the average period of time it takes local mail to reach its destination.

130150 in that it took only six (6) extensions. It bears stressing that procedural rules are instruments in the speedy and efficient administration of justice. 46 Now.R." 41 Similarly. 1997. despite the fact that said office was required to file its comment way back on November 12. They should be used to achieve such end and not to derail it. for short) composed of Assistant Solicitor General Roman G.R. finally. Bello III to Romeo C. petitioner is required to furnish it with a copy of the petition under pain of dismissal of the petition for failure otherwise. 130150. before the comment was finally filed. entitled "Far Eastern Shipping Co. 130068. No. represented PPA throughout the appellate proceedings in both G. by needlessly extending the pendency of these cases through its numerous motions for extension. 11. (FESC) had also taken an appeal from the said decision to this Honorable Court. the pleadings filed. The OSG is reminded that just like other members of the Bar. docketed as G. the same legal team of the Office of the Solicitor General (OSG. from the point of view of G. 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. correlatively by way of a judicial once-over. they have the added duty to abide by the policy of the State to promote a high standard of ethics in public service.R. or passing through rivers or straits within a pilotage district. which was docketed as G. 130150 and was presumably fully acquainted with the facts and issues of the case. or a total of 180 days. 130068. 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.of informing the Court of the pendency of another action or proceeding involving the same issues. as part of the government bureaucracy. In G. 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. It took several changes of leadership in the OSG — from Silvestre H. The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage pursuant to Section 8. 130150 and entitled "Manila Pilots' Association. Guerrero very much later in the proceedings. courteous and adequate service to the public. 35 This. with the addition of Assistant Solicitor General Pio C. in G. respondent Far Eastern Shipping Co. the respective duties and responsibilities of the compulsory pilot and the master have been specified by the same regulation in this wise: Sec. in G. No. it took eight (8) motions for extension of time totaling 210 days. a copy thereof was inadvertently furnished to MPA which. 130068 or G. . 1998. 34 Counsel for PPA did not make matters any better. In case of compulsory pilotage. Despite the fact that. 03-85. if only as a matter of professional courtesy. 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. every vessel engaged in coastwise and foreign trade shall be under compulsory pilotage. and the evidence presented by the parties in the two petitions. it would have been more desirable and expedient in this case to have furnished its therein co-respondent FESC with a copy thereof. — For entering a harbor and anchoring thereat. Respondents. to perform and discharge its duties with the highest degree of professionalism. Del Rosario and Solicitor Luis F. — On compulsory pilotage grounds. 130068.R. The OSG. Rule 42. Another thing that baffles the Court is why the OSG did not take the inititive of filing a motion for consolidation in either G. or shifting from one berth or another. a warning that no further extensions shall be granted. it prefaces its discussions thus — Incidentally. No. 43 These ethical duties are rendered even more exacting as to them because. 44 Furthermore.. Instead.R.R.R. versus Philippine Ports Authority and Far Eastern Shipping Co. one of the defendants-appellants in the case before the respondent Court of Appeals. it is incumbent upon the OSG. thus unduly delaying the resolution of these cases. as well as docking and undocking at any pier/wharf. It must be emphasized that the Court can resolve cases only as fast as the respective parties in a case file the necessary pleadings. 37 The OSG fared slightly better in G. Galvez — before the comment in behalf of PPA was finally filed. the Manila Pilots' Association (MPA). Petitioner. While not entirely a case of first impression. Control of vessels and liability for damage . 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. No. it took the OSG an inordinately and almost unreasonably long period of time to file its comment. No." 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. Compulsor Pilotage Service . Ricardo P. It could not have been unaware of the pendency of one or the other petition because. came very close to exhausting this Court's forbearance and has regrettably fallen short of its duties as the People's Tribune. No. After a judicious examination of the records of this case. This is most certainly professionally unbecoming of the OSG. 47 which provides that: Sec. we shall write finis to the endless finger-pointing in this shipping mishap which has been stretched beyond the limits of judicial tolerance. . Thereby. it states — Incidentally. Court of Appeals and Philippine Ports Authority. Article III of Philippine Ports Authority Administrative Order No. has taken a separate appeal from the said decision to this Honorable Court. we shall discuss the issues seriatim and. No. before favoring it with the timely submission of required pleadings. save for the Solicitor General at the time. . Simon.R. vs. 21 . on the merits of the case. dela Cruz and. 8. was a non-party. No. inasmuch as the matters raised in both petitions beg for validation and updating of well-worn maritime jurisprudence. 130068. the canons under the Code of Professional Responsibility apply with equal force on lawyers in government service in the discharge of their official tasks. 40 Besides. we find no cogent reason to reverse and set aside the questioned decision. 130150. as if to test the patience of the Court.R. as government counsel.R. 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. 38 And while it properly furnished petitioner MPA with a copy of its comment. No.R. No. being counsel for respondent in both cases. 130068 and G. intelligence and skill 45 and to extend prompt.

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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before the actual incident. you said that when the command to lower the anchor was given. I believe that Capt. did you observe anything irregular in the maneuvering by Capt. I believe that the anchor did not hold the ship. you are leading the court to understand that there was nothing irregular in the docking of the ship? A Yes sir. I did say that. Witness. all the time. Q And so whatever the pilot saw. at the beginning. Q Because of that. is that right? A This command was executed by the third mate and boatswain. is that correct? A Yes sir. Q If you knew that the shackles were not enough to hold the ship. is that what you mean? A Yes sir. Gavino thought that the anchor could keep or hold the vessel. Capt.Q Being most concerned with the safety of your vessel. in your opinion. that is right. . Kavankov. you said that you did not intervene with the duties of the pilot and that. there could not have been an incident. you could also see from that point of view? A That is right. is that correct? A That is right. I knew that. did you not make any protest to the pilot? A No sir. Q By that answer. I believed that the vessel will dock alongside the pier. 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. sir. xxx xxx xxx Solicitor Abad (to the witness) Q Now. 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. Q And whatever sound the captain . I did not intervene because I believed that the command of the pilot to be correct. you were standing with the pilot on the bridge of the vessel before the inicident happened. 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. Gavino would hear from the bridge. I did not doubt it because I believe Capt. in the maneuvering of your vessel to the port. Q Now. you consider docking maneuvers a serious matter. I did not observe. it was a usual docking. were you not? A Yes sir. the 2 shackles were not enough to hold the vessel. Q What about in the last portion of the docking of the ship. after the incident. 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 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. . Gavino or his condition? Court: Q Not the actuation that conform to the safety maneuver of the ship to the harbor? A No sir. you could also hear? A That is right. Solicitor Abad (to the witness) Q As a captain of M/V Pavlodar. Q So from the beginning. during the initial period of the docking. was there anything unusual or abnormal that happened? A None Your Honor. is it not? A Yes sir. 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. the ship was placed in imminent danger? A No sir. Mr. 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. 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. did you observe whether or not the ship. I was standing with the pilot. you can only intervene if the ship is placed in imminent danger. whose command will prevail. you also could read. Q By that statement of yours. Q In your observation before the incident actually happened. did you ever intervene in the command of the pilot? A Yes sir. that is right. Witness. 25 . that was my assumption. Court (to the witness) Q Mr. if the anchor was dropped earlier and with more shackles. Q You want us to understand that you did not see an imminent danger to your ship. Q Did you know that the 2 shackles were dropped? A Yes sir. there was nothing unusual that happened. you have not intervened in any manner to the command of the pilot? A That is right. it is possible. in case of imminent danger to the vessel? A I did nor consider the situation as having an imminent danger. xxx xxx xxx Q Assuminp that you disagreed with the pilot regarding the step being taken by the pilot in maneuvering the vessel. Q What is possible? A I think. xxx xxx xxx Q Alright. Capt. Q Whatever the piler can read from the panel of the bridge. you were not competent whether the 2 shackles were also dropped to hold the ship? A No sir. earlier in today's hearing. it was obeyed. Q You want us to understand. I believed that there was no imminent danger. up to the very last moment. 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.

Gavino's anxious assessment of the situation: Q When a pilot is on board a vessel. after the anchor was dropped. . he obeyed all your orders.Q Since it affects not only the safety of the port or pier. Solicitor Abad: Never mind. he already said yes sir. me and Capt. that is right. as you said that you agreed all the while with the orders of Capt. your Honor. there was no danger to the ship? A Yes sir. Q Because. Court (to the witness) Q You were in full accord with the steps being taken by Capt. Gavino because you relied on his knowledge. which he thinks the pilot is not maneuvering correctly. is it not? A That is right. as he said. Gavino (thought) that the anchor will hold the ground.ke him away from his command or remove the command from him. he is not competent? A Yes. Q In this case. 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. danger. 74 This cavalier appraisal of the event by Capt. Capt. Q But at no time during the maneuver did you issue order contrary to the orders Capt. I mean that it was usual condition of any man in time of docking to be alert. gave to him. Catris: In fact. sir. the Master of the vessel testified here that he was all along in conformity with the orders you. Can you tell. Court: May proceed. was there any point in time that you felt that the vessel was in imminent danger. Q But insofar as competence. 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. that is my opinion. Q So that. otherwise. I will reform the question. Gavino. the Master of the vessel. is that correct? A Yes sir. on redirect examination. the Captain always has the prerogative to countermand the pilot's order. I should t. Gavino made? A No sir. I was alerted. Q Since. Gavino very closely at the time he was making his commands? A I was close to him. is that correct? A Yes sir. Kabankov fortified his apathetic assessment of the situation: Q Now. Q In what way? A In any case. 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. I assume that you were watching Capt. xxx xxx xxx Solicitor Abad (to the witness) Q Is it not a fact that the vessel bumped the pier? A That is right. Q And this alert vou assumed was the ordinary alertness that you have for normal docking? A Yes sir. 73 Further. del Rosario: Already answered. Q And after a few moments when the anchor should have taken hold the seabed bur not done (sic). That is why they hire a pilot in an advisory capacity. it bumped the pier. Kabankov is disturbingly antipodal to Capt. on his familiarity of the seabed and shoals and other surroundings or conditions under the sea. Q Do you mean to tell us that even if the anchor was supposed to take hold of the bottom and it did not. I was alerted but there was no danger. efficiency and functional knowledee of the seabed which are vital or decisive in the safety ( sic) bringing of a vessel to the port. or goes to port or reaches port? A Yes. the vessel was not in imminent. and. Gavino's orders? A Yes sir. at that time. Del Rosario: May I ask that the question . but still. that is right. as matter of fact. your Honor. but it does not take away from the Captain his prerogative to countermand the pilot. Court: Yes. Atty. you would have issued order that would supersede his own order? A In that case. A No. it is the piler's command which should be followed at that moment until the vessel is. but also the safety of the vessel and the cargo. is that correct? A Yes sir. Q And you were alerted that somebody was wrong? A Yes sir. you already were alerted that there was danger to the ship. because the anchor dragged on the ground later. . if in the course of giving such normal orders for the saf(e) docking of the MV Pavlodar. the safety of the vessel rest(s) upon the Captain. your Honor. Q And that is the same alertness when the anchor did not hold onto the ground. 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. Q And that you were also alert for any possible mistakes he might commit in the maneuvering of the vessel? A Yes sir. as you expected. there was no imminent danger to the vessel. I was hearing his command and being executed. there was not a disagreement between you and the Captain of the vessel in the bringing of the vessel to port? A No. Catris: 26 . you were alerted that there was danger already on hand? A No sir. Q So that you were in full accord with all of Capt. Q For the main reason that the anchor of the vessel did not hold the ground as expected? A Yes sir.

His choice to rely blindly upon the pilot's skills. and even displace him in case he is intoxicated or manifestly incompetent. and not to abandon the vessel entirely to the pilot . the master is not wholly absolved from his duties while the pilot is on board. . in The Steamship China vs. He even ventured the opinion that the accident occurred because the anchor failed to take hold but that this did not alarm him because. While the "full-astern'' maneuver momentarily arrested the momentum of the vessel. and may advise with him. It has been held that the incompetence of the navigator. Supreme Court. the U. who by this time was proven ill-equipped to cope with the situation. so I immediately ordered to push the bow at a fourth quarter. 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. to the point that despite being appraised of a notice of alert he continued to relinquish control of the vessel to Gavino. While the pilot doubtless supersedes the master for the time being in the command and navigation of the ship. it is the duty of the master to prevent accident. Hence. 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. for the conclusions of the Court of Appeals adjudging both Capt. too late.But in this instance of docking of the MV Pavlodar. although a little bit arrested. Irrefragably. Kabankov negligent. and even observed that the order given to drop the anchor was done at the proper time. The use of the two (2) tugboats was insufficient. 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. Even then. Captain Viktor Kavankov had been a mariner for thirty-two years before the incident. in his testimony. at the back of the vessel in order to swing the bow away from the pier and at the same time. The momentum of the vessel was not arrested. through Mr. this time through Mr. 2nd. the U. obligation to attend to the safety of the vessel . emphatically ruled that: Nor are rye satisfied with the conduct of the master in leaving the pilot in sole charge of the vessel . when exceptional circumstances exist. Kavankov did nothing to prevent the vessel from hitting the pier simply because he relied on the competence and plan of Gavino. The vessel was already about twenty (20) meters away from the pier when Gavino gave the "full-astern" order. but that. Gavino and Capt. at the very least. Under normal circumstances. continued ( sic) the vessel going straightforward with its bow towards the port (Exhibit "A-1 ). while the master sees that his officers and crew duly attend to the pilot's orders. but that there are certain duties he has to discharge (notwithstanding there is a pilot on board) for the benefit of the owners. The findings of the trial court on this aspect is noteworthy: For. and bound to see that there is a sufficient watch on deck. 75 These conflicting reactions can only imply. not only to urge upon the pilot to use every precaution. The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel. the anchor was not holding. Kavankov stood supinely beside Gavino. Kavankov categorically admitted that. then. Justice Brown.int Gavino. In 1895. Kavankov supinely stood by. 79 (Italics for emphasis. 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. xxx xxx xxx It is apparent that Gavino was negligent but Far Eastern's employee Capt. As early as 1869. Capt. the master of the vessel or its crew makes the vessel unseaworthy (Tug Ocean Prince versus United States of America. Kavankov was negligent. except so far as her navigation is concerned. neglectful relinquishment of duty by the shipmaster. Justice Swayne. All along. 78 that it is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity. and that the men are attentive to their duties. at his discretion. Even as Gavino gave mere "halfastern" order. The momentum of the vessel. xxx xxx xxx The stark incompetence of Kavankov is competent evidence to prove the unseaworthiness of the vessel. Kavankov was fully aware of the bulk and size of the vessel and its cargo as well as the weight of the vessel. I think. as well as the vessel's response to each of the commands. it was. . it is undisputed that the master of the vessel had the corresponding duty to countermand any of the orders made by the pilot. and. while the pilot Gavino may indeed have been charged with the task of docking the vessel in the berthing space. . he himself is bound to keep a vigilant eye on the navigation of the vessel. 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. page 1151). (N)orwithstanding the pilot has charge. 77 We find strong and well-reasoned support in time-tested American maritime jurisprudence. and in all cases of great necessity. worse. Walsh. in case of imminent danger to the vessel and the port. Kavankov chose to rely blindly upon his pilot. doing nothing but relay the commands of Gavino.S. the claws of the anchor did not hitch on to any hard object in the seabed. . 584 F. and his orders must be obeyed in all matters connected with her navigation. the Appellant FESC is likewise liable for the damage sustained by the Appellee. Kavankov refused to act even as Gavino failed to act. In fact. Kavankov admitted that all throughour the man(eu)vering procedures he did not notice anything was going wrong. Instead. Supreme Court declared. I ordered for a full astern of the engine. . Kavankov was beside Gavino. but to insist upon such being taken . Inscrutably. He is still in command of the vessel.S.) 27 . tantamount to negligence.there was still time to drop a second anchor. 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. in cases of danger which he does not foresee. 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. and even maneuver the vessel himself. . When Gavino was (in) the command of the vessel. relaying the commands or orders of Gavino to the crewmembers-officers of the vessel concerned. by then. He was thus fully aware of the docking maneuvers and procedure Gavino undertook to dock the vessel. when the anchor and two (2) shackles were dropped to the sea floor. Capt. on which much of our laws and jurisprudence on the matter are based. unmindful disregard or.

a pilot is responsible only for his own personal negligence. is in discharge of his functions. or persons or property thereon or on shore. Such negligence of the pilot in the performance of duty constitutes a maritime tort. The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel. and that the master's negligence in failing to give timelt admonition to the pilot proximately contributed to the injury complained of. the master should have acted accordingly.) Though a compulsory pilot might be regarded as an independent contractor. the vessel was in the charge of a pilot with the master on the bridge of the vessel beside said pilot. 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. all the more. if there be anything which concurred with the fault of the pilot in producing the accident. that he negligently failed to suggest to the pilot the danger which was disclosed. exercising that reasonable vigilance which the master of a ship should exercise. The fact that the law compelled the master to take the pilot does not exonerate the vessel from liability. There was evidence to support findings that piaintiff's injury was due to the negligent operation of the Atenas. . and this is precisely the reason why he decided not to countermand any of the latter's orders. since. and they must be left to recover the amount as well as they can against him. 91 In the United States. (Emphasis ours. and to third parties for damages sustained in a collision. Under the circumstances of this case. . but by admiralty law. 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. or should have observed. Kabankov was just as negligent as Capt. . the owners of a vessel are not personally liable for the negligent acts of a compulsory pilot. Kabankov concurred with Capt. which might have been conducive to the damage. a shipowner is not liable for injuries inflicted exclusively by the negligence of a pilot accepted by a vessel compulsorily. liable for his negligent act. Capt. a pilot is personally liable for damages caused by his own negligence or default to the owners of the vessel. 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. into danger. But if no such reasons are present. in the words of the court. however. whether such danger is to the vessel upon which the pilot is. . if the master observes that the pilot is incompetent or physically incapable. 92 But the liability of the ship in rem does not release the pilot from the consequences of his own negligence. where a compulsory pilot is in charge of a ship. 89 or.) Still in another case involving a nearly identical setting. he is at all times subject to the ultimate control of the ship's master. the owners are liable. Where. the owners of the vessel are. His failure amounted to negligence and renders the respondent liable. there is no exemption from liability. Since. United Fruit Co . in cases of danger which he does not foresee. 80 which. 88 The exemption from liability for such negligence shall apply if the pilot is actually in charge and solely in fault. with a similar scenario where at and prior to the time of injury. involved compulsory pilotage. who is required by law to be accepted. known to the master. A master of a vessel is not without fault in acquiescing in canduct of a pilot which involves apparent and avoidable danger . but the negligence of the master or crew contributed thereto. Gavino. It is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity. the captain of a vessel alongside the compulsory pilot was deemed to be negligent. by the provisions of the statute the pilot is compulsory only in the sense that his fee must be paid. Gavino's decisions. 87 At common law. the fault or negligence of a compulsory pilot is imputable to the vessel and it may be held liable therefor in rem. and is not in compulsory charge of the vessel. or not. the burden of proof is upon the party claiming benefit of the exemption from liability.. 86 But even beyond that. and are not under necessity to look to the pilot from whom redress is not always had for compensation. according to his discretion. 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. he did not have to wait for the happenstance to occur before countermanding or overruling the pilot. 90 Except insofar as their liability is limited or exempted by statute. and means of avoiding such danger. The parties who suffer are entitled to have their remedy against the vessel that occasioned the damage.In Jure vs. or was likely to go. It must be shown affirmatively that the pilot was at fault. if his negligence was not the sole cause of the injury. A phase of the evidence furnished support for the inferences . like the present petitions. then it is the dury of the master to refuse to permit the pilot to act. 85 we defer to the findings of the trial court. He may exercise it. By his own admission. In general. he cannot be held accountable for damages proximately caused by the default of others. calling for the intervention of the master. Inasmuch as both lower courts found Capt. We are of opinion that the evidence mentioned tended to prove conduct of the pilot. 82 In sum. 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. Gavino negligent." 81 (Emphasis supplied. 83 The master of a vessel must exercise a degree of vigilance commensurate with the circumstances . The owners of the vessel are responsible to the injured party for the acts of the pilot. observed. giving rise to a case of danger or great necessity. that the pilot was so navigating the vessel that she was going. . the master being required to permit him to navigate it. 94 28 . and in all cases of great necessity. and that there was no fault on the part of the officers or crew. 84 Inasmuch as the matter of negligence is a question of fact. especially as this is affirmed by the Court of Appeals. 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. Since the colliding vessel is prima facie responsible. the court therein ruled: The authority of the master of a vessel is not in complete abeyance while a pilot. our own evaluation is that Capt. but is employed voluntarily. by expressing full agreement therewith Capt. Even though the pilot is compulsory. and acting in conformity to his directions operate as a discharge of responsibility of the owners. if a situation arose where the master. It cannot be maintained that the circumstance of having a pilot on board. but not blindly. 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. or to another vessel. In the face of imminent or actual danger. then the master is justified in relying upon the pilot. the vessel master and owners are liable. "he was in a position to exercise his superior authority if he had deemed the speed excessive on the occasion in question.

300. witness for PPA. Pascual Barral. 102 As for the amount of damages awarded by the trial court. 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. . 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. It was the negligence of the pilot alone which was the proximate cause of the collision. it may appear that one of them was more culpable... . Where their concurring negligence resulted in injury or damage to a third party. but that P1. A Yes sir. . was known to pilots and local navigators. No actor's negligence ceases to be a proximate cause merely because it does not exceed the negligence of other actors. without the negligence or wrongful acts of the other concurrent rortfeasor. although acting independently. 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.77. and that the duty owed by them to the injured person was not the same. was increased by almost two in the actual payment. as it does in this case. 100 There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the total damage. 95 China Navigation Co. . . Obviously. vs. (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." Nonetheless. was guilty of negligence. we find the same to be reasonable. The testimony of Mr. that negligence in order to render a person liable need not be the sole cause of an injury. 97 have withstood the proverbial test of time and remain good and relevant case law to this day. that took almost two years? A Yes sir. the Court in Yap Tico & Co. That was why the contract was decreased. the pilot deviated from the ordinary and safe course. it was closed. 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. we declare that our rulings during the early years of this century in City of Manila vs. everything. Q Now.999. and which did not result from the failure of the owners to equip the vessel with the most modern and improved machinery. must be held responsible for an accident which was solely the result of the mistake of the pilot in not giving proper orders. Ltd. without heeding the warnings of the ship captain.999. . et al. Gambe. Accordingly. 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. Q Yes. It may be said. Where the concurrent or successive negligent acts or omissions of two or more persons. where several causes combine to produce injuries. and that such cause is not attributable to the person injured. .999. is the proximate cause of the injury. the captain was blameless. he is liable for such damages as usually and naturally flow therefrom.77.627. Q May it not happen that by natural factors. Q Even if or even natural elements cannot affect the damage? A Cannot. and that negligence having been the proximate cause of the damages.999. A The area was corresponding.300.By way of validation and in light of the aforecited guidepost rulings in American maritime cases. but that in the reconstruction of the pier. xxx xxx xxx Q You said in the cross-examination that there were six piles damaged by the accident. 99 Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened. the damage was somewhere in 1980. PPA drove and constructed 8 piles. A Including the reduced areas and other reductions.300. and I don't see chat he can be held responsible for damage when the evidence shows. 96 and Yap Tica & Co. they become joint tortfeasors and are solidarily liable for the resulting damage under Article 2194 101 of the Civil Code. Vidal . . In China Navigation Co.40 and the final one is P1. . the real amount was P1. as a general rule. . Q In other words. A Yes sir. Q (A)nd the two square meters. though uncharted. a pilot is ". City of Manila stands for the doctrine that the pilot who was in command and complete control of a vessel. without a substantial reason. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury. and not the owners. that the officers and crew of the ship failed to obey his orders. 98 but only under the circumstances obtaining in and demonstrated by the instant petitions.300. It is sufficient that his negligence. sir. it is impossible to determine in what proportion each contributed to the injury and either of them is responsible for the whole injury. According to the Court. are in combination the direct and proximate cause of a single injury to a third person. on cross and redirect examination. It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone. . . Anderson. 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. Consistent with the pronouncements in these two earlier cases. 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. A It was increased. this P1. It took place in 1980 and you started the repair and reconstruction in 1982. Will you explain to us why there was change in the number of piles from the original number? 29 . concurring with one or more efficient causes other than piaintiff's. vs. 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. Q For the eight piles.124. It was this careless deviation that caused the vessel to collide with a pinnacle rock which. It is (the) final cost already. Q Why was it increased? A The original was 48 and the actual was 46. but on a slightly different tack.77 does not represent only for the six piles that was damaged as well as the corresponding two piles. a person is not relieved from liability because he is responsible for only one of them.77 included the additional two new posts.

300. — If a payment is made from the reserve fund of an association on account of damages caused by a member thereof. Indemnity Insurance and Reserve Fund — a) Each Pilots' Association shall collectively insure its membership at the rate of P50. on different places. G. 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. therefore. As a general rule. which timery amended this applicable maritime regulation. . the Court finds that the amount of P1. in the absence of employer-employee relationship and in applying Customs Administrative Order No. as basis for the adjudged solidary liability of MPA and Capt. the members of which shall promulgate their own By-Laws not in conflict with the rules and regulations promulgated by the Authority. Luzon Stevedoring Corp. not only because it appears to be a mere afterthought.300. Q Nonetheless. 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. 4 being unsafe and unreliable.00 is justified. the relevant provisions of PPA Administrative Order No. Sec. Senen Gavino and Manila Pilots Association are solidariiy liable to pay this amount to plaintiff. XXXI. We have to redesign. The pertinent provisions in Chapter I of Customs Administrative Order No.00 in the Manila Pilotage District) to the reserve fund. 03-85. . from civil responsibility for damages to life or property resulting from the acts of members in the performance of their duties. We cannot drive the piles at the same point where the piles are broken or damaged or pulled out. Secondly.000. if you drove the original number of piles.000. 17. 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. — In all pilotage districts where pilotage is compulsory. II.000. 106 FESC's imputation of PPA's failure to provide a safe and reliable berthing place is obtuse. You have to redesign the driving of the piles. the doctrine of res ipsa loquitur best expounded upon in the landmark case of Republic vs. the excess shall be paid by the personal funds of the member concerned. state: Art. No.00 for each pilot. Capt. . would not that have sustained the same load? A It will not suffice. Subsequent amendments thereto shall likewise be submitted for approval. such member shall reimburse the association in the amount so paid as soon as practicable.00 each member to cover in whole or in part any liability arising from any accident resulting in damage to vessel(s).000. and he shall have been found at fault. Firstly. We cannot get required bearing capacity.053. the reserve fund shall be P2. IV Sec. in the following manner: 1) Each pilot in the Association shall contribute from his own account an amount of P4. 103 We quote the findings of the lower court with approval. — Nothing in these regulations shall relieve any pilots' association or members thereof. being tardily raised only in this petition. sir. the various estimates and plans justify the cost of the port construction price. six. The Court inevitably finds that the plaintiff is entitled to an award of P1. 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. 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. 30 . and for this purpose. 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. This fund shall not be considered part of the capital of the Association nor charged as an expense thereof. in the manner hereinafter prescribed. Gavino. 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. 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. and you will note that in the reconstruction.00 (P6. 15-65. — A pilots' association shall not be liable under these regulations for damage to any vessel.053. 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. Pilots' Association — The Pilots in a Pilotage District shall organize themselves into a Pilots' Association or firm. Q Why not. PAR.A In piers where the piles are withdrawn or pulled out. XXVIII. PAR. Gavino. PAR. individually or collectively. Capt. . why could you not drive the same number of piles and on the same spot? A The original location was already disturbed. you cannot re-drive or drive piles at the same point. we redesigned such that it necessitated 8 plies. there shall be created and maintained by the pilots or pilots' association.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.R. 105 Except insofar as their liability is limited or exempted by statute.00 which represents actual damages caused by the damage to Berth 4 of the Manila International Port. or other property. it being understood that if the association is held liable for an amount greater than the amount abovestated. although perhaps it is a modest pier by international standards. 15-65 are: PAR. There was. XXVII. In Manila. Co-defendants Far Eastern Shipping. Correlatively. no error on the part of the Court of Appeals in dismissing FESC's counterclaim. 130150 This consolidated case treats on whether the Court of Appeals erred in holding MPA jointly and solidarily liable with its member pilot. but also because there is no allegation or evidence on record about Berth No. XXXIV. 25.000. With regards to the amount of damages that is to be awarded to plaintiff. a reserve fund equal to P1. (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. The area is already disturbed.

It is so stated in American law. 109 Where under local statutes and regulations.000. which adds to the procedural or enforcing provisions of substantive law. This is clarified by the Solicitor General: Moreover. 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. individually or collectively. it is noteworthy. the provisions of Customs Administrative Order No. The relation of a pilot to his association is not that of a servant to the master.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. which as an implementing rule has the force and effect of law. Customs Administrative Order No. The Court a quo. or when the law or the nature of the obligation requires solidarity. the rights and liabilities between a pilots' association and an individual member depend largely upon the constitution. 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 Appellant Gavino was not and has never been an employee of the MPA but was only a member thereof. . clearly Article 2180 108 of the Civil Code is inapplicable since there is no vicarious liability of an employer to speak of. the pilot involved shall be entitled to his full dividend. The Court of Appeals properly applied the clear and unequivocal 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. pilot associations lack the necessary legal incidents of responsibility. can validly provide for solidary liability. In doing so. 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. 1207 of the Civil Code provides that there is solidary liability only when the obligation expressly so states. (3) the power of dismissal. They are not the employer of their members and exercise no control over them once they take the helm of the vessel. correctly based MPA' s liability not on the concept of employer-employee relationship between Capt. 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. The law speaks of the entire reserve fund required to be maintained by the pilots' association to 31 . 15-65 does not categorically characterize or label MPA's liability as solidary in nature. from any civil. MPA and Capt. as follows: The well established rule is that pilot associations are immune to vicarious liability for the tort of their members. without prejudice to subsequent reimbursement from the pilot at fault. Customs Administrative Order No. 6) When the reimbursement has been completed as prescribed in the preceding paragraph. articles or by-laws of the association. 15-65. . Gavino and itself. 15-65. 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 is in fact limited to seventy-five percent (75 %) of its prescribed reserve fund. In that sense. c) Liability of Pilots' Association — Nothing in these regulations shall relieve any Pilots' Association or members thereof. it has equal. in tandem with the by-laws of the MPA. They are also not partnerships because the members do not function as agents for the association or for each other.00 to the reserve fund. 181 SCRA 266). Nonetheless. is legally binding and receives the same statutory force upon going into effect. 15-65: The Appellant MPA avers that. (2) the payment of wages. 15-65. XXVIII of Customs Administrative Order No. 107 There being no employer-employee relationship. while affirming the trial court's finding of solidary liability on the part of FESC. 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. 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. supra. statutory force and effect as a regular statute passed by the legislature. The Court of Appeals. Plainly. True. Gavino which precludes the application of Article 2180 of the Civil Code. 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.We note the Solicitor General's comment hereon. said administrative order. We are in accord with MPA's pose. Customs Administrative Order No. to wit: . Gavino. 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. but on the provisions of Customs Administrative Order No. Ultimately. 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. subject to appropriate government regulations. 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. 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. Art. Nevertheless. contrary to the findings and disquisitions of the Court a quo. and for this purpose. it was just being consistent with its finding of the non-existence of employer-employee relationship between MPA and Capt. he shall reimburse the Association in the amount so paid as soon as practicable. (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. they have been held not liable for damages caused by the default of a member pilot. Case law teaches Us that. contrary to petitioner's pretensions. for an employer-employee relationship to exist. Thereafter. the confluence of the following elements must be established: (1) selection and engagement of employees. but of an associate assisting and participating in a common purpose. did not state the factual basis on which it anchored its finding that Gavino was the employee of MPA. not lower.

or contracts any illness directly caused by such employment. INC. Cesareo Perez and Meliton C. And even if the association is held liable for an amount greater than the reserve fund. namely: (1) the accident must arise out of the employment. — When any employee receives a personal injury from any accident arising out of and in the course of the employment. by Act No. and (3) it must not be caused by the "notorious negligence" of the employee. in the interest of just. then.R. Discussing this 32 . This motion was granted and the complaint dismissed. The latter. defendant-appellee. the consolidated petitions for review are DENIED and the assailed decision of the Court of Appeals is AFFIRMED in toto. 1952. 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. vs. 42): The phrase "due to and in the pursuance of" used in section 2 of Act No. 1954 ELENA AMEDO.. the sum of P2. 1950. he was drowned. performing his duties as such ordinary seaman on defendant's M/S "Pilar II". he jumped into the water to retrieve a 2-peso bill belonging to him. by Republic Act 772. 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. by an order dated December 11. his employer shall pay compensation in the sums and to the persons hereinafter specified. plaintiff appealed to this Court. at or about 11:30 o'clock in the morning while the said Filomeno Managuit was in the course of his employment. Inc.. Hence. 1952. namely. In her original complaint. dismissed without costs." Hence. read: Sec. prior to its latest amendment. Herbert A. 3812 to "arising out of and in the course of". CONCEPCION. 1950. Injuries not covered . while the deceased Filomeno Managuit was on board M/S "Pilar II" as such seaman. and as a consequence of which. 1950. 39. 113 WHEREFORE. the mother of the deceased seaman. Almario and Jose T. Referring to the first two requirements. No.40 as compensation for the death of her son. specifically its associate. Parducho for appellant. (2) by drunkenness on the part of the laborer who had the accident. 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. plaintiff Elena Amedo sought to collect from defendant Rio y Olabarrieta. — 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. Counsel for FESC. L-6870 May 24. 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.. The point in issue is whether such accident occurred under the three (3) conditions aforementioned. Are consideration of this action having been denied. 772. Admittedly. 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. paragraph 4 of which alleges: That on May 27. which was anchored then about 1 1/2 miles from the seashore of Arceli Dumarang.1952 or after the accident upon which plaintiff bases her cause of action. rendered a decision affirming the order appealed from. accordingly.: This case was instituted on October 18. speedy and orderly administration of justice. Palawan. 3428. 1949. Del Rosario and Solicitor Luis F. without costs.answer (for) whatever liability arising from the tortious act of its members. Lajom for appellee. by Commonwealth Act No. 4. A motion to dismiss this amended complaint upon the ground of failure to state a cause of action was granted and the case. RIO Y OLABARRIETA. Plaintiff's claim is admittedly predicated upon Act No. otherwise known as the Workmen's Compensation Act. the case is once again before us on appeal. plaintiff-appellant. Sec. in Afable et al. consequently. Assistant Solicitor General Roman G. 3812. or the result of the nature of such employment. Tria. the complaint does not state a cause of action. first. the law firm of Del Rosario and Del Rosario. in the consideration of this case. Atty. on October 30. 2. in view of all of the foregoing. we shall disregard the provisions of said Republic Act No. (58 Phil. 1949 at about 11:30 o'clock in the morning. On November 1. M. SO ORDERED. (3) by notorious negligence of the same.038. Simon. vs. 3428 was changed in Act No. 210 and. we said. 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 original members of the legal team of the Office of the Solicitor General assigned to this case. plaintiff filed an amended complaint." and that. lastly. on December 22. Singer Sewing Machine Co. Grounds for compensation . who worked for the defendant as a seaman of the M/S Pilar II. the death of Filomeno Managuit was due to an accident. The main allegation of said original complaint was: That on May 27. accordingly. 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. but "without prejudice to the right of the plaintiff. J. 2428. (2) it must happen in the course of the employment. 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. Filomeno Managuit. however. A motion for the reconsideration of this order having been denied. Let copies of this decision be spread upon the personal records of the lawyers named herein in the Office of the Bar Confidant. which. took effect on June 20. The same was amended. Sections 2 and 4 of Act No. Republic of the Philippines SUPREME COURT Manila EN BANC G.

vs. 1 W. and he may reasonably pick it up again. 1938. Anderson (S.. (Mobile and M. 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 as he picked up the bill from the floor something accidentally fell upon him and injured him. or retrieving his shoes from a car into which a fellow worker had thrown it (Donovan vs. as Filomeno had. was it caused by his "notorious negligence"? The phrase "notorious negligence" has been held to be tantamount to "gross negligence". Parham. and at the "place" where-according to the amended complaint-he was working. C. However.. Risks to which all persons similarly situated are equally exposed and not traceable in some special degree to the particular employment are excluded.. sustaining physical injuries as a consequence thereof.. The negligence must amount to a reckless disregard of the safety of person or property. or worse. or worse.. distinguishable from accidents occurring while the laborer or employee is answering a call of nature. that he could not have been but conscious of the probable consequences" of his carelessness and that he was "indifferent.C. It was the result of a risk peculiar to his work as a seaman or incidental to such work. as the lines which he was repairing came into contact with those of the Manila Electric. 232). it may be conceded that the death of Filomeno took place "in the course of" his employment.. Div. Palawan. while he was driving on the wrong side of the highway. 684. to save or protect a property of the employer... It is. In such case. 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.. Filomeno failed to exercise "even slight care and diligence. referring to a laborer who was run over by a car. 2nd 860. Thus. 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. p. His case is easily distinguishable from that of Cuevo vs. Cameron [1882] 6 Colo. Similarly. 197 Dietzen Co. involving a truck driver who died. he may reasonably drop his pipe.. The blowing of his 2-peso bill may have grown out of. a laborer on board a truck who stood up as it was approaching a curve and fell over when the vehicle turned the curved. would have been exposed had he. or arisen from. The Province of Pampanga (G. But.E. vs.) 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. July 21.and he was doing a thing which a man while working may reasonably do-a workman of his sort may reasonably smoke." (Wall vs. Indeed. if. his act being obviously innocent. The City of Manila (G. Industrial Board. 542. 69 Ga. 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. he would surely be entitled to compensation. (62 Phil." (See Ramos vs. to the danger of injury to person or property of others. Mindanao Lumber Co. decided February 24. 37744. Industrial Board (283 Ill. he having worn rubber shoes despite the fact that the roof was wet. 116 N.. (Fitzgerald vs. 1933).. 2nd ed. jumped into the sea. 40 Off. 279 Ill.545). Hijos de I. and circumstances under which the accident takes place. E. one mile and a half from the seashore of Arceli. So. R. Compania General de Tabacos (56 Phil. in the words of the Lord President in Lauchlan vs. while Filomeno Managuit was working. No. 15.) It cannot be denied that in jumping into the sea. such as a passenger thereof or an ordinary visitor. 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. Y. the latter was not "the origin or cause of said accident. The Manila Electric Co . 877. The hazardous nature of this act was not due specially to the nature of his employment. see.. The Law Governing Labor Disputes in the Philippines by Francisco. it could be said. 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. said: "The words "arising out of" refer to the origin or cause of the accident and are descriptive of its character. an hour. de la Rama and Co . or took place in the course of the employment. S. 737). 853). while the words `in the course of' refer to the time. Aschcraft [1872] 48 Ala. App. Jumping into 33 . Co.R. It was a risk to which any person on board the M/S Pilar II. his employment. was held guilty of gross negligence..C. The same conclusion was reached in De la Cruz vs.. in that it happened at the "time" when. 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. 6 N. also. Hence. Clarke & Sons.W.. Gaz.. Irrespective of whether or not the accident in question arose out of.. 943). No. Poblete et al. Dumarang. No.. So.. when he tried to board it while moving backward. as he fell therefrom. place. therefore be careful in handling the wires. at a speed of 40 to 50 km. the Supreme Court of Illinois in the case of Muller Construction Co. that "He had the right to be at the place . 255 App.. and is indifferent. The case of Reyes vs. 653). As he tried to drive away the mosquitoes and flying ants which bothered him. 3474). R. (57 Phil.. 148. 529). 1028. has been defined as follows: Gross negligence is define to be the want of even slight care and diligence.phrase. also." Adopting a liberal view. L. the employee involved therein. (40 Off. in turn." ." that he displayed a "reckless disregard of the safety" of his person. 29112.an employee of the Bureau of Posts who died by electrocution. his 2-peso bill merely fell from his pocket. To the same effect was the decision in Jahara vs.. to the danger of injury. 1 B. or picking up his pipe. vs. who appeared to be a good swimmer. which had fallen. or throwing away his cigarette (Columbia Casualty Co. he fell to the ground and his knee and left pelvis bumped against the cement sidewalk. C. 258). he was within the time during which he was employed . was held to be guilty of gross negligence. in the case of Government of the Philippines vs. there is more reason to hold that his death was caused by his notorious negligence. Bush Terminal Co. the board slipped off the wheel of the roller.) 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. 275. he having been previously warned that the service of electric light had been reestablished and that he should. 11. vs. Again in Guilas vs. the accident which produced this tragic result did not "arise out of" his employment. 1933) referred to a watchman assigned to a road-roller. 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. also. his death was the consequence of his decision to jump into the water to retrieve said bill. which. 118 N. 45669. likewise. July 18. Gaz. 9th Suppl. R. Barredo (G. having acted in obedience to an order of his foreman.

Petitioner. J. it being alleged. “The records show that pursuant to a request made by this Commission on March 28.: The Marinduque Iron Mines Agents Inc. June 30. “that on August 23. Anyway we are not shown how its failure to cross-examine the witnesses prejudiced the Petitioner’s position. the Public Defender of Boac.” Upon making such promise — Petitioner argues — she elected one of the remedies. potent and obvious.” it consists of an affidavit wherein. Note further that a question may be raised whether she could bind the other heirs of the deceased. to the latter. — In case an employee suffers an injury for which compensation is due under this Act by any other person besides his employer.” It is the Petitioner’s contention that Criminal Case No. denied its liability under the Workmen’s Compensation Act. In an investigation conducted on February 8. Sumangga. The contention may not be sustained. No. vs. because it was given notice. Inchausti Co. Marinduque. SECOND DIVISION [G.. was allowed to examine the records of the case including the sworn declaration of Ma. in accordance with law. to examine (and cross-examine) the witnesses against it. the deceased Mamador together with other laborers of the Respondent-corporation. He has paid nothing however. while trying to overtake another truck on the company road. Lenze who was assisted by counsel. the danger which it entails being clear. Petitioner maintains that this claim is barred by section 6 of the Workmen’s Compensation Law. or sue such other person for damages. to appear before him in an investigation. chan roblesvirtualawlibraryand in case compensation is claimed and allowed in accordance with this Act.R. Coll. Geronimo Ma.) boarded a truck belonging to the latter. and the second on May 29. when neither of them appeared. shall succeed the injured employee to the right of recovering from such person what he paid:chanroblesvirtuallawlibrary Provided. and the adverse party is afforded opportunity to examine and rebut the same which was done in this instance. 1951. 1953. also employed by the corporation. 1953. we have already decided in Nava vs. In view of the foregoing the decision appealed from is hereby affirmed. Coll was then taken down in a question and answer method. “It appears. thru its Vice President. At any rate. The sworn testimony of Mr. is entirely different. 1491 and its outcome constituted an election by the employee (or his heirs) to sue the third person. the Respondent company thru Mr. Respondents. is the effect of the deceased’s having violated the employer’s prohibition against laborers riding the haulage trucks. Petitioner’s grievance does not rest on any sound basis. 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. for the sum of 150 pesos. chan roblesvirtualawlibrarynot the amount. The most important aspect of this appeal. inasmuch as all the widow promised was to forego the offender’s criminal prosecution. INC. which was then driven by one Procopio Macunat. it turned over and hit a coconut tree. Ma. and therefore had the chance. such excess shall be delivered to the injured employee or any other person entitled thereto. In its second proposition. Mamador’s widow promised “to forgive Macunat for the wrong committed and not to bring him before the authorities for prosecution. 1956. however. According to Respondents. without contradiction that the heirs did not intervene therein and have not so far received the indemnity ordered by the court. The sum paid by the employer for compensation or the amount of compensation to which the employee or his dependents are entitled. That in case the employer recovers from such third person damages in excess of those paid or allowed under this Act. questions by certiorari the order of the Workmen’s Compensation Commissioner confirming the referee’s award of compensation to the heirs of Pedro Mamador for his accidental death. as amended. Coll and was given all the opportunity to rebut the same by additional evidence. However. (Marinduque Iron Mines Agents Inc. in Bo. under this Act. Section 6 provides as follows:chanroblesvirtuallawlibrary “Sec. 1491 was not a suit for damages against the third person. it shall be optional with such injured employee either to claim compensation from his employer. at 6:chanroblesvirtuallawlibrary00 a.” Procopio Macunat was prosecuted. Marinduque. Coll and the general manager of the Respondent company. Coll. 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. 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. the employer who paid such compensation or was found liable to pay the same.” In our opinion. 34 . L-8110. (Criminal Case No. Mr. this Commission wrote the Respondent company to comment on the enclosed copy of the sworn declaration of Ma. Only the right to compensation is disputed. (against the third person) and is barred from the other remedy (against the employer). In his first proposition Petitioner challenges the validity of the proceedings before the Commission. and on its way to their place of work at the mine camp at Talantunan. such election having the effect of releasing the employer.m. asserting it had not been given the opportunity to cross-examine the opposing witnesses. appeared. Eric Lenze. shall not be admissible as evidence in any damage suit or action. COLL. convicted and sentenced to indemnify the heirs of the deceased. resulting in the death of said Mamador and injury to the others. THE HEIRS OF PEDRO MAMADOR and GERONIMO MA.the sea.] MARINDUQUE IRON MINES AGENTS. THE WORKMEN’S COMPENSATION COMMISSION. first on May 12. 1491). On August 18. thru Referee Ramon Villaflor. notified Respondent Geronimo Ma. DECISION BENGZON. 1954 by the undersigned referee. after deduction of the expenses of the employer and the costs of the proceedings.” says the award. 1953 to investigate the above-entitled case. when only Mr. Mogpog. 6. Criminal Case No. The Respondent company. 2 As to the alleged “amicable settlement. 1953. without special pronouncement as to costs. It is so ordered. Liability of third parties.

Chairperson.. concur... however. G. Ilao-Oreta did not arrive at the scheduled time for the procedure.Petitioner claims such violation was the laborer’s “notorious negligence” which..) This order of the employer (prohibition rather) couldn’t be of a greater obligation than the rule of a Commission or board. it surely was not “notorious” negligence. 1999 at 2:00 p.. JJ. No. However there is practical unanimity in the proposition that violation of a rule promulgated by a Commission or board is not negligence per se..versus - SPOUSES EVA MARIE and BENEDICTO NOEL RONQUILLO. the chief of the Reproductive Endocrinology and Infertility Section. Reyes. if any at all.. even granting there was negligence. 427. Supposing Mamador knew the prohibition.. Ilao-Oreta.. J... we can attribute to him a desire to end his life. and no prior notice of its cancellation was received. The procedure was scheduled on April 5. A.... Concepcion Ilao-Oreta (Dr. (C. Does violation of this order constitute negligence? Many courts hold that violation of a statute or ordinance constitutes negligence per se.” There is no doubt that mere riding on haulage truck or stealing a ride thereon is not negligence. And the referee correctly considered this violation as possible evidence of negligence. to be performed by Dr. CARPIO. 691) Getting or accepting a free ride on the company’s haulage truck couldn’t be gross negligence. it is believed. with costs against Petitioner....J. x ..: Respondents. since the prohibition had nothing to do with personal safety of the riders. 2007 . Eva Marie agreed to undergo a laparoscopic procedure whereby a laparascope would be inserted through the patient’s abdominal wall to get a direct view of her internal reproductive organ in order to determine the real cause of her infertility. said the referee. “can we truthfully say that he boarded the fatal truck with full apprehension of the existence of the danger. J. It is argued that there was notorious negligence in this particular instance because there was the employer’s prohibition. “no danger or risk was apparent. chan roblesvirtualawlibrarybut it declared that under the circumstance. Upon Dr.. checked in at the St..m. Jur... and even in the presence of doubt.m.. of said date. 1999 in. Separate Opinions MONTEMAYOR. concurs in the result... ordinarily.... spouses Eva Marie Ronquillo (Eva Marie) and Noel Benedicto (Noel) Ronquillo (the Ronquillo spouses or the spouses). 65. At around 7:00 a.. Luke’s Medical Center where she was.. Promulgated: October 11. Yet the employer does not point out in the record evidence to that effect. but this question does not seem to have been raised below or in the appeal. They thus consulted petitioner. precludes recovery. had not been blessed with a child despite several years of marriage. Correctly. Unless of course. Nevertheless.. because transportation by truck is not dangerous per se. TINGA.. Manila... CARPIO MORALES. accompanied by her husband Noel.L.. Ilao-Oreta).. Bautista Angelo. 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.. The Commission has not declared that the prohibition was known to Mamador. Reyes. at the time material to the case. Respondents. J..B. It turned out that the doctor was on a return flight from Hawaii to.. I believe that the injury suffered herein was not in the course of the employments.. It couldn’t be.... and VELASCO. SECOND DIVISION CONCEPCION ILAO-ORETA. Dr. Nowhere in the records of this case can we find the slightest insinuation of that desire.. neither did it arise out of it... JR... under the law. Dr. Luke’s Medical Center and underwent preoperative procedures including the administration of intravenous fluid and enema. because as the referee found.” (38 Am. and Endencia. Others consider the circumstances.S. Padilla.m. chan roblesvirtualawlibrarybut it may be evidence of negligence..: I concur in the result. that an ordinary prudent man would try to avoid? I do not believe so. Ilao-Oreta’s advice. 172406 Present: QUISUMBING.” There being no other material point raised in the petition for review.. Eva Marie.. an obstetrician-gynecologist-consultant at the St. the laborer could not be declared to have acted with negligence. of April 5. the award of compensation is hereby affirmed. J.. p. Vol. and arrived at 10:00 p.-x DECISION CARPIO MORALES. JJ.. the same must be resolved in his favor. Such finding is virtually a finding of fact which we may not overrule in this certiorari proceeding...R... Petitioner. 35 . Concepcion. J..

On May 18, 1999, the Ronquillo spouses filed a complaint 23[1] against Dr. IlaoOreta and the St. Luke’s 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, attorney’s 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. Luke’s 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 court’s decision as follows:
26

WHEREFORE, the trial Court’s 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 attorney’s 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 ATTORNEY’S 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

36

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 o’clock 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 o’clock, 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 didn’t want to talk to me, and that she didn’t 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 “I’m 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 doctor’s 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 didn’t 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

37

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 doctor’s 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 attorney’s 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: Isn’t 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. Luke’s . . . Q: A: But did you demand? No, I did not demand because…

WITNESS: I’m 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-Oreta’s 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. Luke’s 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

Following Eastern Shipping Lines.70. P2.50 less the unused medicine in the amount of P127. however. The documented claim for hospital and medical expenses of the spouses is detailed in the Statement of Account issued by the hospital.80) was debited from the P5.288.711.416. Ilao-Oreta at the rate of 6% per annum from the time of the filing of the complaint on May 18.520. and 2. 1999. leasehold acquisition. 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. the pertinent entries of which read: xxxx BALANCE DUE (2.711. in terms of training and seminars. the witness affirmed that Panacor incurred losses.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 claim for actual damages should be received with extreme caution since it is only based on bare assertion without support from independent evidence. WHEREFORE. In his testimony.000.” The remaining balance of P2.” which was an ordinary private writing allegedly itemizing the capital expenditures and losses from the failed operation of Panacor.30)52[30] ======= As extrapolated from the above-quoted entries in the Statement of Account. it failed to show how and in what manner the same were substantiated by the claimant with reasonable certainty.70 (the gross hospital charges of P2.30.711.30 was the amount refundable to the spouses.000.50 4/5/1999 1699460 DEPOSIT–OFFICIAL RECEIPT (5.In the instant case. Premiere’s failure to prove actual expenditure consequently conduces to a failure of its claim. the court cannot rely on mere assertions. speculations.00 as the total expenditures incurred by Panacor.00) (5. The award of moral and exemplary damages and attorney’s fees is SO ORDERED.000 deposit53[31] to thus leave a balance of the deposit in the amount of P2. at the rate of 12% per annum until satisfaction.000. v.416. SECOND DIVISION GROSS HOSPITAL CHARGES 2. upon finality of this judgment. the petition is GRANTED.00) ________ 4/5/1999 SECOND 0284893 UNUSED MED 0439534 (65. Hence. to bear interest at a rate of 6% per annum from the time of the filing of the complaint on May 18.54[32] this Court awards interest on the actual damages to be paid by Dr. and at 12% per annum from the finality of this judgment until its satisfaction. which the trial court erroneously denominated as “confinement fee. procurement of vehicles and office equipment without.25) FLOOR PHENERGAN 2 ML 50MG ______ (127. was not testified to by any witness to ascertain the veracity of its content. the actual damages were proven through the sole testimony of Themistocles Ruguero. In determining actual damages.288. Although the lower court fixed the sum of P4. Inc. specifically. 1999 and. the vice president for administration of Panacor.80) 49 50 51 52 53 54 39 . The documentary evidence marked as Exhibit “W. adducing receipts to substantiate the same. conjectures or guesswork but must depend on competent proof and on the best evidence obtainable regarding the actual amount of loss. DELETED. Court of Appeals .55) FLOOR HINOX 500 MG CAP SECOND 0284894 UNUSED MED 0439893 (62.

TINGA.. Petitioner. awarded Eva Marie only actual damages in the total amount of P9.. she estimated that she would arrive in Manila in the early morning of April 5. Luke’s Medical Center for breach of professional and service contract and for damages before the Regional Trial Court (RTC) of Batangas City. accompanied by her husband Noel. exemplary damages. 172406 Present: QUISUMBING. JR.. CARPIO. the costs of litigation.. Aware that her trip from Hawaii to Manila would take about 12 hours.. J. to be performed by Dr.939 and costs of suit. of April 4.m. x .. They prayed for the award of actual damages including alleged loss of income of Noel while accompanying his wife to the hospital.58[4] the St.. had not been blessed with a child despite several years of marriage. at the time material to the case.57[3] Dr... 1999.m. by Decision 60[6] of April 21.. Eva Marie agreed to undergo a laparoscopic procedure whereby a laparascope would be inserted through the patient’s abdominal wall to get a direct view of her internal reproductive organ in order to determine the real cause of her infertility. inclusive of a stop-over at the Narita Airport in Japan.versus - On May 18. At around 7:00 a.. IlaoOreta and the St.. No. and any cause of action they have would be against Dr. Ilao-Oreta).. 1999 at 2:00 p. Branch 84 of the Batangas RTC. finding Dr. 2007 .. however. She thus believed in utmost good faith that she would be back in Manila in time for the scheduled conduct of the laparoscopic procedure. 2006.m.. attorney’s fees. It turned out that the doctor was on a return flight from Hawaii to.-x DECISION CARPIO MORALES. and VELASCO.. 1999. of said date. Luke’s Medical Center and underwent preoperative procedures including the administration of intravenous fluid and enema... the Ronquillo spouses filed a complaint 55[1] against Dr..: Respondents. Dr. They thus consulted petitioner. Ilao-Oreta’s advice. Respondents. spouses Eva Marie Ronquillo (Eva Marie) and Noel Benedicto (Noel) Ronquillo (the Ronquillo spouses or the spouses). It found no adequate proof that Noel had been deprived of any job contract while attending to his wife in the hospital. the chief of the Reproductive Endocrinology and Infertility Section.R.. however.. Eva Marie. checked in at the St. 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. G. Ilao-Oreta grossly negligent. In its Answer. 1999 in.... moral damages. and other available reliefs and remedies.... Manila. 1999 for Manila. Ilao-Oreta. the Court of Appeals. Promulgated: October 11. Dr.. She failed to consider the time difference between Hawaii and the Philippines.56[2] In her Answer. of April 5. J.......CONCEPCION ILAO-ORETA. Upon Dr. CARPIO MORALES...m. Luke’s Medical Center contended that the spouses have no cause of action against it since it performed the pre-operative procedures without delay. Chairperson. and arrived at 10:00 p. Luke’s Medical Center where she was... The procedure was scheduled on April 5. 61[7] modified the trial court’s decision as follows: SPOUSES EVA MARIE and BENEDICTO NOEL RONQUILLO.. 2001. an obstetrician-gynecologist-consultant at the St. Concepcion Ilao-Oreta (Dr.. 55 56 57 58 59 60 61 40 . By Decision59[5] of March 9.... and no prior notice of its cancellation was received. finding that the failure of the doctor to arrive on time was not intentional.. Ilao-Oreta did not arrive at the scheduled time for the procedure. JJ... Ilao-Oreta. On appeal by the spouses.......

because her telephone number was written in the chart. Q: A: Q: Were you able to contact them? I was able to reach Mr. Ilao-Oreta. can you tell us the reason why you missed that operation? (b) P25. Dr. and they told me that she has already left at around 7:00. SO ORDERED. 69[15] The records show that before leaving for Hawaii.000. 64[10] THE COURT A QUO RESPONDENTS. Ronquillo? 62 63 64 65 66 67 68 69 70 41 . 2001 is affirmed. so in the morning I went to my office early at 8:00 and looked for her chart. immediately sought to rectify the same.00 as exemplary damages. I looked at my ticket and so I was to leave Hawaii on April 4 at around 4:00 o’clock in the afternoon. subject to the modification that the amount of actual damages. upon arrival in Manila. and instructed the hospital staff to perform pre-operative treatments. 66 [12] THE COURT A QUO ERRED IN INCREASING THE AWARD OF ACTUAL DAMAGES IN FAVOR OF RESPONDENTS. Mrs.000. I asked about the patient. Q: And after calling the hospital. It evinces a thoughtless disregard of A: I called immediately the hospital and I talked with the nurses. what happened? A: I wanted to call the plaintiffs. what did you do? THE COURT A QUO [ERRED] IN AWARDING ATTORNEY’S FEES TO RESPONDENTS. for which both defendantsappellees are jointly and severally liable to plaintiffs-appellants. Ilao-Oreta left an admitting order with her secretary for one of the spouses to pick up. 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.000. what did you tell Mr.40. then I have so much time and I can easily do the case at 2:00 o’clock. thus: [ATTY SINJAN] Q: So.70[16] These acts of the doctor reflect an earnest intention to perform the procedure on the day and time scheduled.62[8] (Underscoring supplied) Hence. Ronquillo. Ilao-Oreta is also held liable to pay plaintiff-appellants the following: (a) P50. defendant-appellee Dr. Dr. ILAO-ORETA] A: When I scheduled her for the surgery. 68[14] It is characterized by want of even slight care. In the course of your conversation. so I was computing 12 hours of travel including stop-over.67[13] “Gross negligence” implies a want or absence of or failure to exercise slight care or diligence. Ronquillo. then probably I would be in Manila early morning of April 5. So. I called them right away. is increased to P16. or the entire absence of care. not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. Q: So when you arrived at 10:00 [PM] in Manila. Furthermore. acting or omitting to act in a situation where there is a duty to act.WHEREFORE. the trial Court’s decision dated March 9.069.65[11] ERRED IN AWARDING EXEMPLARY DAMAGES TO [DR. The records also show that on realizing that she missed the scheduled procedure. and (c) P20. apprised Eva Marie of the necessary preparations for the procedure. you know it skipped my mind the change in time. consequences without exerting any effort to avoid them. the present Petition for Review 63[9] of Dr.00 as attorney’s fees. but I didn’t have their number at that time.00 as moral damages.

Ronquillo told me “I’m sorry.A: I apologized to him. Q: What else did you tell him. Dr. Luke’s . I said I was sorry about the time that I missed the surgery. . SINJIAN: That will be all. Dra. oppressive or malevolent manner.73[19] (Underscoring in original) thus persuades. Neither are the spouses entitled to recover exemplary damages in the absence of a showing that Dr..m. if any? her appointment with respondent Eva Marie Ronquillo. ILAO-ORETA]: . petitioner was not in the pursuit or performance of conduct which any ordinary person may deem to probably and naturally result in injury. Dr. Thus. Ronquillo because I wanted to apologize to her personally. ATTY. Ilao-Oreta regarding the claims which you have allegedly incurred. and then Mr. A: I asked him whether I can talk with Mrs. your Honor. Ilao-Oreta. Ronquillo was shouting angrily that she didn’t want to talk to me.75[21] nor to award of attorney’s fees as. ATTY LONTOK: May we move. Her argument that Although petitioner failed to take into consideration the time difference between the Philippines and Hawaii. Augusto Reyes of St. reflect gross negligence as defined above. WITNESS [DR. you did not make any demand on Dr. Ilao-Oreta acted in a wanton. for the striking out of the answer. on April 5. and that she didn’t want re-scheduling of the surgery . however. Ronquillo having to undergo another [b]arium enema. SINJIAN: Q: Isn’t it true that before instituting this present case. Eva Marie herself testified: ATTY. the spouses are not entitled to recover moral damages. The doctor’s act did not. Unlike in situations where the Supreme Court had found gross negligence to exist. the situation then did not present any clear and apparent harm or injury that even a careless person may perceive. the only purpose of which was to determine the real cause of infertility and not to treat and cure a life threatening disease. COURT: Remain on the record. The doctor’s negligence not being gross. . because of the failed laparoscopic surgery operation? A [EVA MARIE]: I will tell the truth. LONTOK: The witness is still explaining. 73 74 75 76 71 72 42 .74[20] and it is of common human knowledge that excitement attends its preparations. . 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. Q: A: But did you demand? No. . reckless. we cannot re-schedule the surgery. . Ilao-Oreta called him up after she arrived in Manila as related by her. 1999 without considering the time difference between the Philippines and Hawaii. contrary to the finding of the Court of Appeals that the spouses “were compelled to litigate and incur expenses to protect their interest. this is purely hearsay. your Honor. .”71[17] (Underscoring supplied) Noel admitted that indeed Dr.72[18] The evidence then shows that Dr. Her negligence could then be partly attributed to human frailty which rules out its characterization as gross. I did not demand because… ATTY. and I told him that I can do the case right that same day without Mrs. Q: And what did he say? A: I could hear on the background that Mrs. 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.” 76[22] the records show that they did not exert enough efforts to settle the matter before going to court. Ilao-Oreta had just gotten married and was preparing for her honeymoon. in merely fixing the date of It bears noting that when she was scheduling the date of her performance of the procedure. fraudulent.

000. procurement of vehicles and office equipment without. Luke’s Medical Center in Quezon City and the alleged P500 spent on food in the hospital canteen. conjectures or guesswork but must depend on competent proof and on the best evidence obtainable regarding the actual amount of loss. it failed to show how and in what manner the same were substantiated by the claimant with reasonable certainty.50 4/5/1999 1699460 DEPOSIT–OFFICIAL RECEIPT (5. SINJIAN: Q: So it was to Dr. Oreta to settle things and reimburse all the money that I spent from the hospital. was not testified to by any witness to ascertain the veracity of its content.00) (5. 78[24] The Court of Appeals also included the alleged P300 spent on fuel consumption from the spouses’ residence at San Pascual. Before instituting this case? No. specifically. Q: A: Q: A: But you did not demand anything or write to Dr. Dr. In his testimony. the Court of Appeals and the trial court included expenses which the spouses incurred prior to April 5. leasehold acquisition. Hence.WITNESS: I’m explaining first.” which was an ordinary private writing allegedly itemizing the capital expenditures and losses from the failed operation of Panacor. So Premiere Development Bank v. the claim for actual damages should be received with extreme caution since it is only based on bare assertion without support from independent evidence.80) 77 78 79 80 81 82 83 43 . both of which are unsubstantiated by independent or competent proof. Augusto Reyes that you talked? A: Yes.55) FLOOR HINOX 500 MG CAP SECOND 0284894 UNUSED MED 0439893 (62. ATTY.520. the actual damages were proven through the sole testimony of Themistocles Ruguero. and he even suggested Dr.000. however.79[25] The only piece of documentary evidence supporting the food and fuel expenses is an unsigned listing. the vice president for administration of Panacor.77[23] (Underscoring supplied) Finally. adducing receipts to substantiate the same. and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted.00) ________ 4/5/1999 SECOND 0284893 UNUSED MED 0439534 (65. Batangas to the St. Ilao-Oreta’s prayer for the reduction of actual damages is well-taken. The documented claim for hospital and medical expenses of the spouses is detailed in the Statement of Account issued by the hospital. the court cannot rely on mere assertions. they cannot be included in the computation of the amount of actual damages. Premiere’s failure to prove actual expenditure consequently conduces to a failure of its claim. Article 2201 of the Civil Code provides: In contracts and quasi-contracts. Although the lower court fixed the sum of P4.000. Dr. the witness affirmed that Panacor incurred losses. speculations. in terms of training and seminars.80[26] As the fuel and food expenses are not adequately substantiated.416.82 [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.00 as the total expenditures incurred by Panacor. In determining actual damages.25) FLOOR PHENERGAN 2 ML 50MG ______ (127. Court of Appeals 81[27] instructs: In the instant case. Oreta to personally talk to me. The documentary evidence marked as Exhibit “W. 1999 when the breach of contract complained of occurred. the pertinent entries of which read: xxxx GROSS HOSPITAL CHARGES 2. Augusto Reyes told me that he will hold the meeting for me and Dr. 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. Oreta? No. In fixing the amount of actual damages.

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. Inc. the sum of P31.000. As a result of its injuries the horse died.30 was the amount refundable to the spouses. The bridge is shown to have a length of about 75 meters and a width of 4. The plaintiff received contusions which caused temporary unconsciousness and required medical attention for several days. upon finality of this judgment. Court of Appeals . that being the proper side of the road for the machine. As the defendant neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. jr. 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. As the automobile approached. Seeing that the pony was apparently quiet. it as struck on the hock of the left hind leg by the flange of the car and the limb was broken. at the rate of 12% per annum until satisfaction.288. He continued his course and after he had taken the bridge he gave two more successive blasts. 1999. P2.000 deposit85[31] to thus leave a balance of the deposit in the amount of P2. 84 85 86 In this action the plaintiff. going at the rate of about ten or twelve miles per hour. for appellant. seeks to recover of the defendant. to bear interest at a rate of 6% per annum from the time of the filing of the complaint on May 18. J. From a judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability the plaintiff has appealed.288. 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.416. and we are of the opinion that he is so liable.50 less the unused medicine in the amount of P127. E. The plaintiff. which the trial court erroneously denominated as “confinement fee. The horse fell and its rider was thrown off with some violence. In the nature of things this change of situation occurred while the automobile was yet 44 . It appears that upon the occasion in question the plaintiff was riding on his pony over said bridge.BALANCE DUE (2. Campbell for appellee. In so doing.711. vs. Following Eastern Shipping Lines. La Union. there being then no possibility of the horse getting across to the other side. as it appeared to him that the man on horseback before him was not observing the rule of the road.70. being perturbed by the novelty of the apparition or the rapidity of the approach.R. However.. as damages alleged to have been caused by an automobile driven by the defendant. As the defendant started across the bridge. and 2.30)84[30] ======= As extrapolated from the above-quoted entries in the Statement of Account. it appears. 1918 AMADO PICART. 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. and the rider had made no sign for the automobile to stop. he pulled the pony closely up against the railing on the right side of the bridge instead of going to the left. STREET. 1912. The pony had not as yet exhibited fright.86[32] this Court awards interest on the actual damages to be paid by Dr. Alejo Mabanag G. he had the right to assume that the horse and the rider would pass over to the proper side. Amado Picart. the defendant approached from the opposite direction in an automobile. The occurrence which gave rise to the institution of this action took place on December 12. but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not be done. on the Carlatan Bridge. and at 12% per annum from the finality of this judgment until its satisfaction. 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. at San Fernando. L-12219 March 15.711.: the Philippines COURT plaintiff-appellant. the defendant guided it toward his left. No. the petition is GRANTED. instead of veering to the right while yet some distance away or slowing down. Frank Smith. Ilao-Oreta at the rate of 6% per annum from the time of the filing of the complaint on May 18. defendant-appellee. WHEREFORE.711. DELETED.. 1999 and. When he had gotten quite near. In so doing the defendant assumed that the horseman would move 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. saw the automobile coming and heard the warning signals. FRANK SMITH.30.” The remaining balance of P2. 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.70 (the gross hospital charges of P2. Before he had gotten half way across. The award of moral and exemplary damages and attorney’s fees is SO ORDERED. v. JR.80 meters. continued to approach directly toward the horse without diminution of speed. the defendant.80) was debited from the P5. Republic of SUPREME Manila EN BANC G.

31 Phil. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. (7 Phil. have recognized that the course which he was pursuing was fraught with risk. S. 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. As will be seen the defendant's negligence in that case consisted in an omission only. Rep.) 45 . to the effect that the subject matter of the action had been previously adjudicated in the court of a justice of the peace. Could a prudent man. The liability of the company arose from its responsibility for the dangerous condition of its track. placed in the position of the defendant. to assist in transporting iron rails from a barge in Manila harbor to the company's yards located not far away. It goes without saying that the plaintiff himself was not free from fault. It will be noted that the negligent acts of the two parties were not contemporaneous. 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. But in view of the known nature of horses. 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). The car was in consequence upset. foresee harm as a result of the course actually pursued? If so. (See U. But as we have already stated. deceived into doing this by the fact that the horse had not yet exhibited fright. Banzuela and Banzuela. 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. Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. in the case under consideration. it could be received in evidence to reduce the damages which would otherwise have been assessed wholly against the other party. He was.. Hence they can be expected to take care only when there is something before them to suggest or warn of danger. 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.some distance away. 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. 564. When the defendant exposed the horse and rider to this danger he was. without reference to the prior negligence of the other party. where the defendant was actually present and operating the automobile which caused the damage. In a case like the one now before us. guilty of contributory negligence in walking at the side of the car instead of being in front or behind. Rep. Gulf and Pacific Co.a point upon which it is unnecessary to express an opinion -. 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. followed by ignoring of the suggestion born of this prevision. and are not supposed to be. negligent in the eye of the law. we think. This Court there held that while contributory negligence on the part of the person injured did not constitute a bar to recovery. In this connection it appears that soon after the accident in question occurred. seeing that there were no other persons on the bridge. 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. in our opinion. 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. as a laborer. A prudent man. The rails were conveyed upon cars which were hauled along a narrow track.. 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 -. Reasonable foresight of harm. and it was his duty either to bring his car to an immediate stop or. Stated in these terms. would in our opinion. then he is guilty of negligence. They are not. the defendant ran straight on until he was almost upon the horse. At the preliminary investigation the defendant was discharged by the magistrate and the proceedings were dismissed. Instead of doing this. omniscient of the future. The decision in the case of Rkes vs. blameworthy. he might get exited and jump under the conditions which here confronted him. for he was guilty of antecedent negligence in planting himself on the wrong side of the road. or negligent in the man of ordinary intelligence and prudence and determines liability by that. and in such case the problem always is to discover which agent is immediately and directly responsible. if the animal in question was unacquainted with automobiles. Under these circumstances the law imposed on the defendant the duty to guard against the threatened harm. 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.the action of the justice of the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect. 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. A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer. 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. to take the other side and pass sufficiently far away from the horse to avoid the danger of collision. 359) should perhaps be mentioned in this connection. The defendant company had there employed the plaintiff. is always necessary before negligence can be held to exist. there was an appreciable risk that. it was the duty of the actor to take precautions to guard against that harm. at the moment of the accident. The law considers what would be reckless. The control of the situation had then passed entirely to the defendant. Atlantic. the defendant was also negligent. vs. since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. 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 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. the rails slid off. and would therefore have foreseen harm to the horse and the rider as reasonable consequence of that course. and the plaintiff's leg was caught and broken.

. 330. ABAD. J. 68405. concur. JR.: Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court.. Johnson..R. concurring: After mature deliberation. Again. Separate Opinions MALCOLM. 2010 x------------------------------------------------------------------------------------x DECISION NACHURA. J. assailing the Decision 87[1] dated January 2. G. No. ALBAYDA. Torres. the "last clear chance" rule is applicable. July 6. J. PERALTA. if a traveler when he reaches the point of collision is in a situation to extricate himself and avoid injury. Metcalf [1917].. and Fisher. with costs of other instances. JJ. But Justice Street finds as a fact that the negligent act of the interval of time. Petitioners. and judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200). C.. The other damages claimed by the plaintiff are remote or otherwise of such character as not to be recoverable. (Note especially Aiken vs. reserves his vote. and MENDOZA. In other words... medical expenses of the plaintiff. Avanceña. his negligence in reaching that position becomes the condition and not the proximate cause of the injury and will not preclude a recovery. 2006 and the Resolution88[2] dated March 30. Arellano. Respondent.From what has been said it results that the judgment of the lower court must be reversed.J. 102 Atl. Consequently. NACHURA. This rule cannot be invoked where the negligence of the plaintiff is concurrent with that of the defendant. I do so because of my understanding of the "last clear chance" rule of the law of negligence as particularly applied to automobile accidents. and that at the moment the plaintiff had no opportunity to avoid the accident. Carson.versus - 87 88 46 . Araullo. So ordered. and lawful interest on the whole to the date of this recovery. J. CV No. Chairperson.. JJ. I have finally decided to concur with the judgment in this case. AMANDO C. 172200 Present: CARPIO. The sum here awarded is estimated to include the value of the horse. 2006 of the Court of Appeals (CA) in CA-G. his negligence at that point will prevent a recovery. when a traveler has reached a point where he cannot extricate himself and vigilance on his part will not avert the injury. the loss or damage occasioned to articles of his apparel.R. Promulgated: SGT.) Republic of the Philippines Supreme Court Manila SECOND DIVISION THE HEIRS OF REDENTOR COMPLETO and ELPIDIO ABIAD.

VAB.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. He immediately rendered assistance and brought Albayda to PAFGH for emergency treatment. the Office of the City Prosecutor issued a resolution. He likewise asked for exemplary damages in the amount of Two Hundred Thousand Pesos (P200. had already reduced his speed to twenty (20) kilometers per hour even before reaching the intersection of 8th and 11th Streets. in accordance with traffic rules and regulations and common courtesy to his fellow motorists. Albayda.000. he found Albayda lying on the road and holding his left leg. causing him to suddenly lose control of the bicycle and hit the rear door on the right side of the taxicab.00) per court appearance. Branch 45. inclusive of his anticipated operations. Petitioner Redentor Completo (Completo). 92[6] recommending the filing of an information for reckless imprudence resulting in physical injuries against Completo. riding a bicycle along 11 th Street.96[10] In his answer to the amended complaint. Completo filed a counter-charge of damage to property through reckless imprudence against Albayda. Albayda filed a complaint for damages before the Regional Trial Court (RTC) of Pasay City.00). besmirched reputation. Thus. on August 27. Luna Road. 91[5] Conciliation between the parties before the barangay failed. bearing Plate No. causing serious physical injuries. his wife abandoned him in May 1998. 95[9] He further stated that aggravating the physical sufferings. and social humiliation resulting from his injuries. located at Villamor Air Base (VAB). Jr. 1997. 93[7] The case was raffled to the Metropolitan Trial Court of Pasay City. and he claimed that he incurred actual damages totaling Two Hundred Seventy-Six Thousand Five Hundred Fifty Pesos (P276. The countercharge of damage to property was recommended dismissed. mental anguish. 1997 until February 11.The Facts The facts of the case are as follows: Respondent Amando C. VAB. he was carefully driving the taxicab along 8 th Street. frights. 1998 until March 22. because there was a fracture in his left knee and there was no orthopedic doctor available at PAFGH. On the other hand. 1998. serious anxiety. 527th Base Security Squadron. where Albayda manifested his reservation to file a separate civil action for damages against petitioners Completo and Abiad. Albayda rode his bicycle at a very high speed. he was confined therein. now represented by his heirs. He was again hospitalized at PAFGH from February 23. 1997. while Albayda was on his way to the office to report for duty. on August 27. when suddenly he heard a strange sound from the rear right side of the taxicab.90[4] The amended complaint alleged that. Pasay City. Albayda filed a complaint for physical injuries through reckless imprudence against Completo before the Office of the City Prosecutor of Pasay City. Completo alleged that. plus One Thousand Pesos (P1.00). (Albayda) is a Master Sergeant of the Philippine Air Force. Albayda was brought to the Philippine Air Force General Hospital (PAFGH) inside VAB. and left their children in his custody. On January 13.000. 520 th Airbase.00) as moral damages. was the taxi driver of a Toyota Corolla.000. The pain he suffered required him to undergo medical physiotherapy for a number of years to regain normality of his left knee joint. The case was docketed as Civil Case No. From August 27. 98[12] 89 90 91 92 93 94 95 96 97 98 47 .89[3] Albayda and Completo figured in an accident along the intersection of 8th and 11th Streets. When he stopped to investigate. Philippine Air Force. the taxi driven by Completo bumped and sideswiped him. owned and operated by co-petitioner Elpidio Abiad (Abiad).550. Quezon City.97[11] Completo also asserted that he was an experienced driver who. was in the employ of Abiad.00) and attorney’s fees of Twenty-Five Thousand Pesos (P25. He thus demanded the amount of Six Hundred Thousand Pesos (P600.000. PYD-128. In contrast. However. 1998. 1998. moral shock. 98-1333. at the time of the accident. he was immediately transferred to the Armed Forces of the Philippines Medical Center (AFPMC) on V. wounded feelings.

grimacing in pain. Thereafter. (Dr. He was at the corner of 9 th and 8th Streets when the taxicab passed by him. On December 8.m. Michael Navarro (Navarro). running at an unusual speed. The taxicab at that moment was about ten (10) meters away from Albayda. and his purpose in filing the complaint was to harass petitioners and unjustly enrich himself at their expense. (Dr. He saw Albayda fall to the ground. Santiago). Ranny Santiago. and Dr.103[17] 99 100 101 102 103 48 . 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. Rito Barrosa. The bicycle ridden by Albayda reached the intersection of 8 th and 11th Streets before the taxicab hit it. he saw a taxicab. The side of the bicycle was hit by the taxicab at the intersection of 11th and 8th Streets. 1997. Jr. 1998.The deep indentation on the rear right door of the taxicab was caused by the impact of Albayda’s body that hit the taxicab after he had lost control of the bicycle. Barrosa). Dr. 102[16] On direct examination. Dr. PYD-128. Navarro testified that. a pretrial conference was held.. on August 27. 100[14] After submission of the parties’ respective pleadings. Ana. Magtira) as witnesses in open court. with Plate No.. The normal speed should have been twentyfive (25) kilometers per hour. Navarro reiterated that the taxicab was running quite fast. the RTC issued a pretrial order. Jr. trial on the merits ensued. coming from 11 th Street. at around 1:45 p.101[15] Albayda presented himself. Armando Sta. The accident and the physical injuries suffered by Albayda were caused by his own negligence. Dr. Manuel Fidel Magtira (Dr.99[13] Completo maintained that Albayda had no cause of action. On cross-examination.

but because of subsisting pain. at around 1:40 p. But after some time. 1997. just stared at him. Its driver. Albayda’s left leg was drilled on and attached to traction. Magtira testified that he rendered free medical service at AFPMC. When somebody shouted to bring him to the hospital. who brought him to PAFGH. When his leg was drilled. it was so painful that he had to shout. he continued to suffer pain in his leg. On cross-examination. he was transferred that same afternoon to AFPMC. On cross-examination.109[23] At AFPMC. Magtira testified that Albayda was readmitted at AFPMC on January 25. He underwent reflexology and therapy which offered temporary relief from pain. He treated Albayda for three (3) months. the orthopedic surgeon who treated Albayda when the latter was admitted at AFPMC. After his release from the hospital. called levia.108[22] Upon examination.104[18] in order to avoid further swelling. but the victim had other medical problems. testified that the cause of the injury was “hard impact.Dr. and they were waiting for the availability of the implant. two (2) persons. 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. It was a long implant with screws. hit his left knee and threw him off until he fell down on the road. No orthopedic doctor was available at PAFGH. Thus. Albayda attained functional range of motion. Upon evaluation.107[21] Albayda testified that he was thirty-six (36) years old and a soldier of the Armed Forces of the Philippines. they had to do osteoplasty 106[20] of the malunion. Barrosa. Santiago. where he was confined until February 11. 110[24] 104 105 106 107 108 109 110 49 . and then moved backwards. 105[19] Dr. The implant was supposed to be placed on the lateral aspect of the proximal leg or the levia. he said that there was a separation of the fragments of the proximal leg. the pain was caused by traumatic arthritis brought about by malunion of the lateral trivial condial. He had to stop at the corner of 11th and 8th Streets because an oncoming taxicab was moving fast. The taxicab stopped about ten meters away. he had to undergo therapy and reflexology again. the injured extremity. he was riding his bike on his way to the office. one of whom was Dr. the part with the separation. like an increase in sugar level. the taxicab still bumped the front tire of his bike..m. helped him and carried him into the taxicab driven by Completo. On August 27.” and recommended an operation to alleviate the suffering. An operation of the soft tissue release was conducted for him to mobilize his knee joint and attain proper range of motion. Completo. it was found that Albayda suffered fracture in his left knee and that it required an operation. Dr. 1998. He recommended surgery. After the operation. located on 916 Street. They placed the victim on knee traction or calcaneal traction. However. VAB. which was another operation. 1999 because of complaints of pain and limitation of motion on the knee joint.

112[26] On cross-examination. That afternoon.00) every session since April 1997. He also asked for P600. he was brought to the AFPMC. Three Hundred Pesos (P300.00 per day for six months. and his place of work was only six (6) meters away. when the steel that would be installed in his leg arrives. He demanded P25. for his caretaker.00 as attorney’s fees and P1..000.. After the accident.00) each day during his six (6) months of confinement. On June 24.00 in moral damages because Completo did not lend him a helping hand. and his duty was from 2 p. for his twice weekly reflexology. Albayda spent Thirty Pesos (P30.m. 113[27] 111 112 113 50 . to 8 p. One Thousand Pesos (P1.000.000. he could no longer walk. he continued to suffer pain.m. As of the date of his testimony in court.m. he was operated on again. 1999. Nonetheless. 111[25] For his food. Wire and screw were installed so that he could bend his knee. on the date of the incident. he was scheduled for another operation in January 2000. he was not in a hurry to go to his place of work because it was only about 1:45 p. for his bed pan.00). When he was discharged from the hospital.000.00 for every court appearance of his lawyer. he was brought to PAFGH. P300. 1999. and he would be suffering deformity for the rest of his life. Albayda testified that.On January 25. Albayda was readmitted at AFPMC and operated on. he was the base guard at VAB.m. and at 3:00 p.

with Plate No. from 10:00 a. the latter fell to the ground. while he was travelling along 8th Street.. and he was going east coming from the west. On August 27. VAB. Abiad. The bicycle was coming from 11 th Street.m. he was driving the taxicab. Completo testified that when Albayda hit the rear right door of the taxicab.116[30] On cross-examination. It was only a matter of seconds when he rushed to the scene of the accident. he immediately alighted from the taxicab. he was on his way home when a bicycle bumped his taxicab at the intersection of 8th and 11th Streets. and Benjamin Panican (Panican) testified for the defense. When he heard a noise. The taxicab backed up fifteen (15) seconds later. At around 1:45 p. since February 1997. The bicycle was travelling from south to north. PYD-128. He carried Albayda and drove him to the hospital.117[31] 114 115 116 117 51 .114[28] Completo. Albayda lay 2 meters away from the corner of 8th and 11th Streets.115[29] Completo alleged that he had been employed as taxi driver of FOJS Transport. He was certain that it was not Completo who carried the victim into the taxicab.m. 1997. Barrosa’s testimony during cross-examination emphasized that he was with 2 other persons when he carried Albayda into the taxicab driven by Completo. owned by Abiad.Dr. He denied that he stopped about 10 meters away from the place where Albayda fell.

the trial court rendered a decision.00 is awarded in favor of appellee. He saw a bicycle bump the rear right side of the taxicab. Panican testified that the bicycle was running fast and that he saw it bump the taxicab. Completo never figured in a vehicular accident since the time he was employed in February 1997. P400. Abiad required the former to show his bio-data.000. When Completo applied as a driver of the taxicab.000. appellants Redentor Completo and Elpidio Abiad are solidarily liable to pay appellee Amando C. moral damages in favor of appellee is REDUCED to Php 4. carried Albayda. aside from being a soldier.Panican testified that he worked as an airconditioner technician in a shop located on 8th Street corner 11th Street. Then. 121[35] the dispositive portion of which reads: WHEREFORE.122[36] 118 119 120 121 122 123 124 52 . 2000. Abiad would wake up early and personally check all the taxicabs. the temperate and moral damages shall earn legal interest at 6% per annum computed from the date of promulgation of Our Decision.00 as actual damages. The CA affirmed the trial court with modification in a Decision123[37] dated January 2. said temperate and moral damages. until full payment.000. 6. SO ORDERED. the driver of the taxicab alighted. he was working in front of the shop near the roadside. Being the operator of taxicab. Accordingly. in Civil Case No.000. the award of Php 46. the defendants [Completo and Abiad] are hereby ordered to pay the plaintiff [Albayda] the following sum: 1. Jr. SO ORDERED. judgment is hereby rendered in favor of the plaintiff [Albayda] and against the defendants [Completo and Abiad]. Albayda. temperate damages in the amount of Php 40.00 awarded by the trial court. viz. Abiad averred that Completo was a good driver and a good man.118[32] When questioned by the trial court.00 as attorney’s fees. 2006. [and] P25. and brought him to the hospital. Branch 117.124[38] Costs against the defendants [Completo and Abiad]. Costs against appellants. as well as the attorney’s fees in the amount of Php 25. On the date and time of the incident. 200. in lieu of 6% per annum. premises considered. upon finality of Our Decision. The assailed Decision dated 31 July 2000 rendered by the Regional Trial Court of Pasay City. 2. 3. said moral and temperate damages shall earn legal interest at the rate of 12% per annum. 98-1333 is hereby AFFIRMED with the following MODIFICATIONS: 1.000. The taxicab already passed the intersection of 11th and 8th Streets when the bicycle arrived.119[33] Abiad testified that.000.00. 120[34] On July 31. 5.00 as actual damages is DELETED. and driver’s license. P46. Completo and Abiad filed an appeal. the appeal is DENIED for lack of merit. he was also a franchise holder of taxicabs and passenger jeepneys. NBI clearance. 2.000.: WHEREFORE. 3.00 as moral damages.

the Court of Appeals reversed the trial court’s Decision and absolved respondent from civil liability under Article 2180 of the Civil Code. the trial court rendered its decision in favor of petitioners. premises considered. He left earlier and requested sales agents Matibag and Herbolario to look after the gun store while he and defendant Morales were away. DECISION CARPIO. 2010 ALFREDO P. (Alfred). 3 On 8 April 1998. In its Decision 5 dated 11 May 2005. (4) P100. Pacis] and against the defendant [Jerome Jovanne Morales] ordering the defendant to pay plaintiffs — (1) P30.437. 7 The trial court held that the accidental shooting of Alfred which caused his death was partly due to the negligence of respondent’s employee Aristedes Matibag (Matibag). The Facts On 17 January 1995. The Trial Court’s 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.4 Respondent appealed to the Court of Appeals. There can be no employer-employee relationship where the element of control is absent. Pacis and Cleopatra D.00 as moral damages. judgment is hereby rendered in favor of the plaintiffs [Spouses Alfredo P. still respondent cannot be held liable since no negligence can be attributed to him. The dispositive portion of the decision reads: WHEREFORE. the bullet hitting the young Alfred in the head. Furthermore. then 17 years old and a first year student at the Baguio Colleges Foundation taking up BS Computer Science. PACIS and CLEOPATRA D. By agreement of the parties. Alfred Dennis Pacis. They were sales agents of the defendant. J. Defendant Morales was in Manila at the time. It went off. petitioners Alfredo P. the Court of Appeals ruled that even if respondent is considered an employer of Matibag. A criminal case for homicide was filed against Matibag before branch VII of this Court. this petition.000. The latter followed and handed the gun to Matibag.Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G. Matibag. Matibag and Jason Herbolario (Herbolario) were employees of respondent even if they were only paid on a commission basis. 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. No. SN-H34194 (Exhibit "Q"). vs.: 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. an AMT Automag II Cal. 12.000.R. The gun. who was the regular caretaker of the gun store was also not around. Hence. 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. (5) P50. Matibag asked Alfred Dennis Pacis to return the gun.R. 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. 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. As explained by the Court of Appeals: 53 . 1991. 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. the caretakers of the gun store. 60669.65 as actual damages for the hospitalization and burial expenses incurred by the plaintiffs. SO ORDERED. The gun store was owned and operated by defendant Jerome Jovanne Morales. JEROME JOVANNE MORALES. PACIS.00 as indemnity for the death of Alfred Pacis. The facts as found by the trial court are as follows: On January 19. 6 Petitioners filed a motion for reconsideration. Respondent. Baguio City. and at that particular time. the young Alfred Dennis Pacis got hold of the same. unless respondent proved that he observed the diligence of a good father of a family to prevent the damage.000. however. (2) P29. Attracted by the sight of the gun. His employee Armando Jarnague. 22 Rimfire Magnum with Serial No. With Alfred Pacis at the time of the shooting were Aristedes Matibag and Jason Herbolario. 4 of the Revised Penal Code. Pacis (petitioners) filed with the trial court a civil case for damages against respondent Jerome Jovanne Morales (respondent). Thus. The bullet which killed Alfred Dennis Pacis was fired from a gun brought in by a customer of the gun store for repair. Jr. was left by defendant Morales in a drawer of a table located inside the gun store. CV No.00 as attorney’s fees. respondent is liable for the damages caused by Matibag on the occasion of the performance of his duties.00 as compensatory damages. Under the Civil Code. was acquitted of the charge against him because of the exempting circumstance of "accident" under Art. which the Court of Appeals denied in its Resolution dated 19 August 2005. Pacis and Cleopatra D.000. Petitioners are the parents of Alfred Dennis Pacis. Respondent is the owner of the gun store. Petitioners. 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. Article 2180 of the Civil Code does not apply in this case and respondent cannot be held liable. a 17-year old student who died in a shooting incident inside the Top Gun Firearms and Ammunitions Store (gun store) in Baguio City. (3) P100. It appears that Matibag and Herbolario later brought out the gun from the drawer and placed it on top of the table. par. 169467 February 25.

CV No. 8 The Issues Petitioners raise the following issues: I. We REINSTATE the trial court’s Decision dated 8 April 1998. As a gun store owner. until the cylinder or action is open and he has personally checked that the weapon is completely unloaded. a business dealing with dangerous weapons requires the exercise of a higher degree of care. there being fault or negligence. Article 2176 states: Art. such as dangerous weapons or substances. We agree. based on a person’s own negligence.14 Indeed. He submits that he kept the firearm in one of his table drawers. THE APPELLATE COURT COMMITTED GRAVE. Much as We sympathize with the family of the deceased.1avvphi1 Under PNP Circular No. the law imposes a duty on the actor to refrain from that course or take precaution against its mischievous results. 9 The Ruling of the Court We find the petition meritorious. if there is no pre-existing contractual relation between the parties. petitioners opted to file an independent civil action for damages against respondent whom they alleged was Matibag’s employer. Furthermore. defendantappellant is not to be blamed. x x x. a higher degree of care is required of someone who has in his possession or under his control an instrumentality extremely dangerous in character. 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. under Article 2176 of the Civil Code is primary and direct. Whoever by act or omission causes damage to another. The test of negligence is this: "x x x. he may be allowed to handle the same. He placed it inside the drawer and locked it. Could a prudent man. 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. Firearms should be stored unloaded and separate from ammunition when the firearms are not needed for ready-access defensive use. such as when a customer is interested to purchase any of the firearms. is called quasi-delict and is governed by the provisions of this Chapter. and the failure to do so constitutes negligence. In the first place. AUTHENTIC RECORDS AND TESTIMONIES PRESENTED DURING THE TRIAL WHICH NEGATE AND CONTRADICT ITS FINDINGS. is obliged to pay for the damage done.R.13 the liability of the employer. 2176. Unlike the subsidiary liability of the employer under Article 103 12 of the Revised Penal Code. 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. This case involves the accidental discharge of a firearm inside a gun store. 15 Unlike the ordinary affairs of life or business which involve little or no risk. Whatever happened to the deceased was purely accidental. 54 . respondent should never accept a firearm from another person. or any person for that matter. in the position of the person to whom negligence is attributed. in which case. Indeed. respondent should have made sure that it was not loaded to prevent any untoward accident. 9. 60669. otherwise his License to Operate Dealership will be suspended or canceled. 809). 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 fault or negligence. the defective gun should have been stored in a vault.Granting arguendo that an employer-employee relationship existed between Aristedes Matibag and the defendant-appellant. Petitioners based their claim for damages under Articles 2176 and 2180 of the Civil Code." 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. we find that no negligence can be attributed to him. Smith (37 Phil. WHEREFORE. 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. Negligence is best exemplified in the case of Picart vs. In this case. Under Article 116110 of the Civil Code. It was taken away without his knowledge and authority. entitled the "Policy on Firearms and Ammunition Dealership/Repair. much less the degree of care required of someone dealing with dangerous weapons. respondent did not exercise the degree of care and diligence required of a good father of a family. Such person in possession or control of dangerous instrumentalities has the duty to take exceptional precautions to prevent any injury being done thereby.16 With more reason." 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.18 Clearly. foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so.17 For failing to insure that the gun was not loaded. We SET ASIDE the 11 May 2005 Decision and the 19 August 2005 Resolution of the Court of Appeals in CA-G. instead of enforcing their claim for damages in the homicide case filed against Matibag. This case for damages arose out of the accidental shooting of petitioners’ son. 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. He puts [sic] that his store is engaged in selling firearms and ammunitions. II. 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. we GRANT the petition. 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. He exercised due diligence in keeping his loaded gun while he was on a business trip in Manila. respondent himself was negligent. as would exempt him from liability in this case. Before accepting the defective gun for repair. Respondent has the duty to ensure that all the guns in his store are not loaded. 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 PETITIONER’S CLEAR RIGHTS TO THE AWARD OF DAMAGES. ammunitions and other related items.

000 for attorney’s fees and an unspecified amount for loss of income and exemplary damages. (3) petitioners were not negligent in the maintenance of the counter. pinning her stomach. intraperitoneal sec.522. AGUILAR. 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. to laceration. Makati City. Makati City.000 for moral damages. private respondents demanded upon petitioners the reimbursement of the hospitalization.SO ORDERED. on the hospital bed. It ruled that the proximate cause of the fall of the counter on ZHIENETH was her act of clinging to it. her young body pinned by the bulk of the store’s giftwrapping counter/structure. it could not be considered as an attractive nuisance. was already capable of contributory negligence. Private respondents appealed the decision. Additionally. therefore. In the afternoon of 9 May 1983. CV 37937 and the resolution ii[2]denying their motion for reconsideration. LEONARDO KONG. The assailed decision set aside the 15 January 1992 judgment of the Regional Trial Court (RTC). the testimony of one of the store’s former employees. massive. docketed as Civil Case No. supervision and control of its employees. Private respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH). 129792. Rupture. HONORABLE COURT OF APPEALS. ZHIENETH. Complete transection.R. In their answer with counterclaim. it never fell nor collapsed for the past fifteen years since its construction.A. December 21. private respondents asserted that ZHIENETH should be entitled to the conclusive presumption that a child below nine (9) years is incapable of contributory negligence. petitioners denied any liability for the injuries and consequent death of ZHIENETH. the trial court reasoned that the counter was situated at the end or corner of the 2nd floor as a precautionary measure hence. operations manager. triggering its eventual collapse on her. had no business climbing on and clinging to it. Hemorrhage. Further. 7119 wherein they sought the payment of P157. Hematoma. Shock. 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. Petitioners Leonardo Kong. The injuries she sustained took their toil on her young body.R. The trial court also held that CRISELDA’s negligence contributed to ZHIENETH’s accident. and (4) petitioners were not liable for the death of ZHIENETH. She looked behind her. iv[4] The cause of her death was attributed to the injuries she sustained. lungs. The next day ZHIENETH lost her speech and thereafter communicated with CRISELDA by writing on a magic slate. (L) lobe liver 3. She was six years old. No. Petitioners also emphasized that the counter was made of sturdy wood with a strong support. medical bills and wake and funeral expensesvi[6] which they had incurred. respectively. (2) CRISELDA was negligent in her care of ZHIENETH. sec. still it was physically impossible for her to have propped herself on the counter. 4th position. JR.: In this petition for review on certiorari under Rule 45 of the Rules of Court. It has been in existence for fifteen years. In its decisionvii[7] the trial court dismissed the complaint and counterclaim after finding that the preponderance of the evidence favored petitioners.86 for actual damages. 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. viii[8] The counter was higher than ZHIENETH. petitioner Jarco Marketing Corporation maintained that it observed the diligence of a good father of a family in the selection. afterwhich the structure and the girl fell with the structure falling on top of her. P300. duodenum 5. FIRST DIVISION [G. C. none of private respondents’ witnesses testified on how the counter fell. petitioners seek the reversal of the 17 June 1996 decision i[1] of the Court of Appeals in C. CRISELDA and ZHIENETH were at the 2nd floor of Syvel’s Department Store. who accompanied ZHIENETH when she was brought to the emergency room of the Makati Medical Center belied petitioners’ theory that ZHIENETH climbed the 55 . was guilty of contributory negligence since she climbed the counter. No. 7119 and ordered petitioners to pay damages and attorney’s fees to private respondents Conrado and Criselda (CRISELDA) Aguilar. CONRADO C. And even if ZHIENETH. and supervisor. P20. Also. The provisional medical certificatev[5] issued by ZHIENETH’s attending doctor described the extent of her injuries: Diagnoses: 1. Contusion. AGUILAR and CRISELDA R. Petitioner Jarco Marketing Corporation is the owner of Syvel’s Department Store. 1999] JARCO MARKETING CORPORATION. Branch 60 in Civil Case No.. DECISION DAVIDE. Its structure was safe and well-balanced. She had a small frame (four feet high and seventy pounds) and the counter was much higher and heavier than she was. stomach. attributing as errors of the trial court its findings that: (1) the proximate cause of the fall of the counter was ZHIENETH’s misbehavior. In absolving petitioners from any liability. Although shocked. Jose Tiope and Elisa Panelo are the store’s branch manager. extensive. iii[3] ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. vs. ZHIENETH was crying and screaming for help. CRISELDA was quick to ask the assistance of the people around in lifting the counter and retrieving ZHIENETH from the floor. anterior & posterior walls 4. G. severe.J. petitioners. to intra-abdominal injuries due to blunt injury 2. retroperitoneal 6. She then beheld her daughter ZHIENETH on the floor. JOSE TIOPE and ELISA PANELO. Gerardo Gonzales. It believed petitioners’ witnesses who testified that ZHIENETH clung to the counter. ZHIENETH too. Petitioners refused to pay. respondents. They sought the dismissal of the complaint and an award of moral and exemplary damages and attorney’s fees in their favor. at six (6) years old. Makati City. Consequently. severe CRITICAL After the burial of their daughter. In contrast. private respondents filed a complaint for damages. She died fourteen (14) days after the accident or on 22 May 1983.

Gonzales claimed that when ZHIENETH was asked by the doctor what she did.000. They explained that ZHIENETH’s death while unfortunate and tragic.000 was awarded for the death of ZHIENETH. with legal interest (6% p. But the latter ignored their concern. premises considered.86 as reimbursement for hospitalization expenses incurred.00 by way of compensatory damages for the death of Zhieneth Aguilar. 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. P100. Further. Under these circumstances. who heard ZHIENETH comment on the incident while she was in the hospital’s emergency room should receive credence. his testimony might have been tarnished by ill-feelings against them.”ix[9] Accordingly. 3. private respondents principally reiterated their arguments that neither ZHIENETH nor CRISELDA was negligent at any time while inside the store.000. the judgment of the lower court is SET ASIDE and another one is entered against [petitioners]. was petitioners’ negligence in failing to institute measures to have the counter permanently nailed.) from 27 April 1984. It found that petitioners were negligent in maintaining a structurally dangerous counter. For their part. and (2) in case of a finding of negligence. however. decided in favor of private respondents and reversed the appealed judgment. The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It is also for these reasons that parents are made accountable for the damage or injury inflicted on others by their minor children.86 as actual damages. who was below seven (7) years old at the time of the incident. I did not come near the counter and the counter just fell on me. xiii[13] thus: WHEREFORE. the findings and conclusions of the Court of Appeals are substantiated by the evidence on record. The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or attributable to negligence. the amount representing the hospitalization expenses incurred by private respondents as evidenced by the hospital's statement of account. any finding of negligence on the part of the private respondents would necessarily negate their claim for damages. petitioners argued that private respondents raised purely factual issues which could no longer be disturbed. Finally. P20. In fact. Petitioners also assail the credibility of Gonzales who was already separated from Syvel’s at the time he testified. ZHIENETH’s 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. The injury in the instant case was the death of ZHIENETH. The Court of Appeals declared that ZHIENETH. petitioners adverted to the trial court’s rejection of Gonzales’ testimony as unworthy of credence. On the other hand. We deny the petition. P99. ordering them to pay jointly and severally unto [private respondents] the following: 1.420. with legal interest (6% p. the criminal casex[10] for homicide through simple negligence filed by private respondents against the individual petitioners was dismissed. The Court of Appeals then awarded P99. was an accident for which neither CRISELDA nor even ZHIENETH could entirely be held faultless and blameless. Gonzales’ testimony on ZHIENETH’s spontaneous declaration should not only be considered as part of res gestae but also accorded credit. The proximate cause was ZHIENETH’s act of clinging to the counter. and finally. Truth to tell. 4. 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. It reasoned that since a child under nine (9) years could not be held liable even for an intentional wrong. It was inconsequential that the counter had been in use for some time without a prior incident. Moreover. Petitioners now seek the reversal of the Court of Appeals’ decision and the reinstatement of the judgment of the trial court.) from 27 April 1984.000. a verdict of acquittal was rendered in their favor. Private respondents sought a reconsideration of the decision but the same was denied in the Court of Appeals’ resolutionxiv[14] of 16 July 1997.420. It was top heavy and the weight of the upper portion was neither evenly distributed nor supported by its narrow base. petitioners justified that it was not necessary. Thus. through her failure to provide the proper care and attention to her child while inside the store. Costs. “[N]othing. where said negligence was the proximate cause of the injury sustained. and 5. P50. hence. a compensatory damage of P50.counter. then the six-year old ZHIENETH could not be made to account for a mere mischief or reckless act. xii[12] It denied an award for funeral expenses for lack of proof to substantiate the same. the counter was defective. was absolutely incapable of negligence or other tort. The Court of Appeals faulted the petitioners for this omission. unstable and dangerous.a. The Court of Appeals. petitioners could not be held responsible for the accident that befell ZHIENETH. and concluded that the incident that befell ZHIENETH could have been avoided had petitioners repaired the defective counter. It found them biased and prejudiced. The counter was shaped like an inverted “L”xi[11] with a top wider than the base. the testimony of Gonzales. As to private respondent’s claim that the counter should have been nailed to the ground. private respondents vigorously maintained that the proximate cause of ZHIENETH’s death. ZHIENETH replied. Petitioners primarily argue that the Court of Appeals erred in disregarding the factual findings and conclusions of the trial court. This and CRISELDA’s contributory negligence. This act in turn caused the counter to fall on her. They stress that since the action was based on tort. Instead.00 as moral and exemplary damages. It instead gave credit to the testimony of disinterested witness Gonzales. Two former employees of petitioners had already previously brought to the attention of the management the danger the counter could cause.00 in the concept of attorney’s fees. We quote the dispositive portion of the assailed decision. they acted without fault or negligence for they had exercised due diligence on the matter. nullified private respondents’ claim for damages. whether the same was attributable to private respondents for maintaining a 56 . 2. a downward pressure on the overhanging portion or a push from the front could cause the counter to fall.a. The counter had been in existence for several years without any prior accident and was deliberately placed at a corner to avoid such accidents.

Maat is fond of putting display decorations on tables.”xviii[18] Accident and negligence are intrinsically contradictory. which is not caused by fault of any person and which could not have been prevented by any means suggested by common prudence. or the doing of something which a prudent and reasonable man would not do. xxx Q Will you please describe the counter at 5:00 o’clock [sic] in the afternoon on [sic] May 9 1983? A At that hour on May 9. i. event or happening. did you hear or notice anything while the child was being treated? A At the emergency room we were all surrounding the child. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof. Intercalate “wala po. thus: Part of res gestae. xix[19] The test in determining the existence of negligence is enunciated in the landmark case of Picart v. Maat about that counter which is [sic] shaky and since Mr. will you please describe the gift wrapping counter. then he is guilty of negligence. Panelo when you told her that the counter was shaky? 57 . statements accompanying an equivocal act material to the issue.e. will you please describe that to the honorable Court? A I told her that the counter wrapper [sic] is really in good [sic] condition. petitioners did. 1983. COURT Granted. corroborated the testimony of Gonzales. it can collapse at anytime. 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. so I also did not do anything about the counter. Panelo. whereby such other person suffers injury. xxiv [24] [Emphasis supplied] Ramon Guevarra. 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. may be given in evidence as part of the res gestae. An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. hindi po ako lumapit doon. 1983. xxx Q And what did you do? A I informed Mr. your Honor. another former employee. that counter was standing beside the verification counter. BELTRAN Yes. 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.xxi[21] We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETH’s death could only be attributed to negligence. 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. sir. I did not come near the counter and the counter just fell on me. for the protection of the interest of another person. BELTRAN) You want the words in Tagalog to be translated? ATTY. he even told me that I would put some decorations. xv[15] It is “a fortuitous circumstance. I told her that we had to nail it. Accident occurs when the person concerned is exercising ordinary care. So. that degree of care. We therefore accord credence to Gonzales’ testimony on the matter. it was shaky. And when the doctor asked the child “what did you do. Sadly.” Q (COURT TO ATTY.” the child said “nothing. may be received as part of the res gestae. But since I told him that it not [sic] nailed and it is shaky he told me “better inform also the company about it. one cannot exist with the other.xvii[17] Negligence is “the failure to observe. Q When that gift wrapping counter was transferred at the second floor on February 12.” xvi[16] On the other hand.” And since the company did not do anything about the counter. Q And what was the answer of Ms. an event happening without any human agency. Under the circumstances thus described. precaution and vigilance which the circumstances justly demand.”xxii[22] This testimony of Gonzales pertaining to ZHIENETH’s statement formed (and should be admitted as) part of the res gestae under Section 42. Q When you said she. also. ZHIENETH performed no act that facilitated her tragic death.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.defective counter or to CRISELDA and ZHIENETH for failing to exercise due and reasonable care while inside the store premises. or if happening wholly or partly through human agency.. Smith. a child of such tender age and in extreme pain. guided by those considerations which ordinarily regulate the conduct of human affairs. and giving it a legal significance. to have lied to a doctor whom she trusted with her life.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. Basta bumagsak. would do. 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. It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally considered declarations and admissions. Rule 130 of the Rules of Court. negligence is the omission to do something which a reasonable man. it was shaky . through their negligence or omission to secure or make stable the counter’s base. to whom are you referring to [sic]? A I am referring to Ms. an event which under the circumstances is unusual or unexpected by the person to whom it happens. it is unthinkable for ZHIENETH. And since the top of it was heavy and considering that it was not nailed. since the top is heavy.

Costs against petitioners. Since negligence may be a felony and a quasi-delict and required discernment as a condition of liability.A She told me “Why do you have to teach me. conclusively presumed to be incapable of negligence. et al. the instant petition is DENIED and the challenged decision of the Court of Appeals of 17 June 1996 in C. the counter just fell on her. PangasinanPrivate respondent Edgardo Aquino was a teacher therein. petitioner Panelo and another store supervisor were personally informed of the danger posed by the unstable counter. J. 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.. In 1963. At that time. Initially. Buenaventura C.R. Shaped like an inverted “L. sir. Evangelista for petitioners.R. either criminal or civil. 1983 up to May 9. no injury should have occurred if we accept petitioners’ theory that the counter was stable and sturdy. Yet. At this precise moment. Modesto V. Panelo or any employee of the management do to that (sic) xxx Witness: None. another teacher by the name of Sergio 58 . EDGARDO AQUINO. Manuel P. xxx [30] CRISELDA too. 1988 FEDERICO YLARDE and ADELAIDA DORONIO petitioners. did Ms. You are only my subordinate and you are to teach me?” And she even got angry at me when I told her that. No. WHEREFORE.xxvii[27] In the instant case. It is settled that when the issue concerns the credibility of witnesses. No. vs." a case which originated from the Court of First Instance of Pangasinan.e. by analogy. They never nailed the counter. it was not durable after all. 36390-R entitled "Federico Ylarde. Therefore. and its top laden with formica. private respondent Mariano Soriano was the principal of the Gabaldon Primary School. No. we apply the conclusive presumption that favors children below nine (9) years old in that they are incapable of contributory negligence. the appellate courts will not as a general rule disturb the findings of the trial court.xxv[25] [Emphasis supplied] Without doubt. Sangco stated: In our jurisdiction. L-33722 July 29. therefore. GANCAYCO. 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. It protruded towards the customer waiting area and its base was not secured. CV 37937 is hereby AFFIRMED.xxviii[28] former Judge Cezar S. i. the allegation that Gonzales and Guevarra’s 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. For if that was the truth. and is.: In this petition for review on certiorari seeking the reversal of the decision of the Court of Appeals in CA-G. and the gift-wrapping counter was just four meters away from CRISELDA. The rule. under our law. at the time ZHIENETH was pinned down by the counter.xxvi[26] However. later to the latter’s hand. vs. ZHIENETH was near her mother and did not loiter as petitioners would want to impress upon us. Anent the negligence imputed to ZHIENETH. is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law. huge. [Emphasis supplied] Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the counter. neither initiated any concrete action to remedy the situation nor ensure the safety of the store’s employees and patrons as a reasonable and ordinary prudent man would have done. 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.” the counter was heavy. as confronted by the situation petitioners miserably failed to discharge the due diligence required of a good father of a family. Pastor for respondent Mauro Soriano. She even admitted to the doctor who treated her at the hospital that she did not do anything. 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. unless it is shown that he has acted with discernment. a person under nine years of age is conclusively presumed to have acted without discernment. should be absolved from any contributory negligence. Further. MAURO SORIANO and COURT OF APPEALS. On the issue of the credibility of Gonzales and Guevarra. what if any. We are again caned upon determine the responsibility of the principals and teachers towards their students or pupils. respondents. et al. she was just a foot away from her mother. ZHIENETH held on to CRISELDA’s waist. In his book. They only nailed the counter after the accident happened.A. which is in a better position to determine the same. on that account.R. it was reasonable and usual for CRISELDA to let go of her child. a frail sixyear old could not have caused the counter to collapse. Edgardo Aquino. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G. The trial court has the distinct advantage of actually hearing the testimony of and observing the deportment of the witnesses. xxxii[32] The time and distance were both significant. G. Cabanela for respondent Edgardo Aquino. petitioners failed to bring their claim within the exception. in view of all the foregoing. a child under nine years of age is. the school was fittered with several concrete blocks which were remnants of the old school shop that was destroyed in World War II. exempt from criminal liability. a public educational institution located in Tayug. xxxi[31] CRISELDA momentarily released the child’s hand from her clutch when she signed her credit card slip. Thus. SO ORDERED. petitioners failed to establish that the former’s testimonies were biased and tainted with partiality. Realizing that the huge stones were serious hazards to the schoolchildren. 1983.. xxx Q From February 12.

Novelito Ylarde died. 5. pinning him to the wall in a standing position. Francisco Alcantara. private respondent Aquino allegedly told the children "not to touch the stone. he was able to bury ten of these blocks all by himself. We hold that he cannot be made responsible for the death of the child Ylarde. 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. Prognosis very poor.existing contractual relation between the parties. 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. in which case it is the head thereof who shall be answerable. Court of Appeals . as earlier 59 . left inguinal region and suprapubic region. as principal. Ylarde sustained the following injuries: 1.) MELQUIADES A. the concrete block caught him before he could get out. 1 Three days later. who shall be held liable as an exception to the general rule. teachers in general shall be liable for the acts of their students except where the school is technical in nature. Fracture. At this point. This Court went on to say that in a school of arts and trades. private respondent Soriano did not give any instruction regarding the digging. it is the head thereof. dug until the excavation was one meter and forty centimeters deep. the applicable provision of Article 2180 states: Art. petitioners in this case. simple. In other words. so long as they remain in their custody. Intraperitoneal and extrapertitoneal extravasation of blood and urine about 2 liters. Alonso. he ordered them to dig beside a one-ton concrete block in order to make a hole wherein the stone can be buried. As a result thereof. On the other hand. The following day. 2. after class dismissal on October 7. These four pupils — Reynaldo Alonso. 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. without any warning at all. (Sgd. From the foregoing. he being the head of an academic school and not a school of arts and trades. The work was left unfinished. bilateral. playfully jumped into the pit. private respondent Edgardo Aquino gathered eighteen of his male pupils. and only he. (2) that Aquino exercised the utmost diligence of a very cautious person. if there is no pre. Lacerated wound. Ylarde's parents. symphesis pubis 7. BRAVO Physician on Duty. 2176. the Court has come to the conclusion that the provision in question should apply to all schools. academic as well as non-academic. there being fault or negligence. We rule that private respondent Soriano. x x x xxx xxx xxx Lastly. REMARKS: 1. 3. 2. Contusion with hematoma. . Deciding to help his colleague. 6. This is in line with Our ruling in Amadora vs. the remaining Abaga jumped on top of the concrete block causing it to slide down towards the opening. We explained: After an exhaustive examination of the problem.Banez started burying them one by one as early as 1962. Ismael Abaga and Novelito Ylarde. Besides. 2 On appeal. and (3) that the demise of Ylarde was due to his own reckless imprudence. both private respondents can be held liable for damages. it is only the head of the school who can be held liable. applying the said doctrine to this case. 4 wherein this Court thoroughly discussed the doctrine that under Article 2180 of the Civil Code. Ruptured (macerated) urinary bladder with body of bladder almost entirely separated from its neck. 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. following the first part of the provision." Hence. In fact. 2180. the Court of Appeals affirmed the Decision of the lower court. aged ten to eleven. Then. However. Alonso and Alcantara were able to scramble out of the excavation on time but unfortunately fo Ylarde. Before leaving. left lateral aspect of penile skin with phimosis 4. 1963. 3 The issue to be resolved is whether or not under the cited provisions. Then. private respondent Aquino and his four pupils got out of the hole. When the depth was right enough to accommodate the concrete block. responsibility for the tort committed by the student will attach to the teacher in charge of such student. teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices. Private respondent wanted to borrow from Banez the key to the school workroom where he could get some rope. is called a quasi-delict and is governed by the provisions of this Chapter. 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. This is the general rule. Being their teacher-in-charge. gluteal region. Above were incurred by crushing injury. Abrasion." A few minutes after private respondent Aquino left. three of the four kids. private respondent Aquino called four of the original eighteen pupils to continue the digging. filed a suit for damages against both private respondents Aquino and Soriano. also after classes. is obliged to pay for the damage done. Whoever by act or omission causes damage to another. it is only the teacher and not the head of an academic school who should be answerable for torts committed by their students. 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. Alcantara and Ylarde. Article 2176 of the Civil Code provides: Art. Contusion with ecchymosis entire scrotal region. In the case of establishments of arts and trades. as clearly admitted by private respondent Aquino. Such fault or negligence. cannot be held liable for the reason that the school he heads is an academic school and not a school of arts and trades. Where the school is academic rather than technical or vocational in nature. In the same case. As regards the principal.

As such.000. The degree of care required to be exercised must vary with the capacity of the person endangered to care for himself. 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. The contention that private respondent Aquino exercised the utmost diligence of a very cautious person is certainly without cogent basis. 6 Bearing this in mind. it was not only him but the three of them who jumped into the hole while the remaining boy jumped on the block. 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. 8 Furthermore. Moreover. an obviously attractive nuisance.. He is liable for damages. and more so. planting trees. WHEREFORE. causing injury on the unfortunate child caught by its heavy weight. Benj. This should not be the case.R. With this in mind. 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.000. mature laborers and not ten-year old grade-four pupils. Due to his failure to take the necessary precautions to avoid the hazard. 60 . FISH AND ELECTRIC CO. Left by themselves. and the like as these undertakings do not expose the children to any risk that could result in death or physical injuries.00 SO ORDERED. From a review of the record of this case.00 (3) Moral damages 20. 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. S. In ruling that the child Ylarde was imprudent. capacity. 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. 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. 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. Nor was there any showing that it was included in the lesson plan for their Work Education. plaintiff-appellee. INC. The court is not persuaded that the digging done by the pupils can pass as part of their Work Education. It should be remembered that he was only ten years old at the time of the incident. in view of the foregoing. knowledge and experience under the same or similar circumstances. vs. 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. 1930 CULION ICE. it is clear that he only did what any other ten-year old child would do in the same situation. PHILIPPINE MOTORS CORPORATION. but his conduct should be judged according to the average conduct of persons of his age and experience. may result in an accident. petitioners base the alleged liability of private respondent Aquino on Article 2176 which is separate and distinct from that provided for in Article 2180. (4) went to a place where he would not be able to check on the children's safety. a grown. it was but natural for the children to play around. 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. (2) required the children to remain inside the pit even after they had finished digging. We cannot charge the child Ylarde with reckless imprudence. No. 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. 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. 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. Going back to the facts. L-32611 November 3. Tired from the strenuous digging. His actuations were natural to a boy his age. Ohnick for appellee. and (5) left the children close to the excavation. Needless to say. Were it not for his gross negligence.00 (2) Exemplary damages 10. Republic of the Philippines SUPREME COURT Manila EN BANC G. the excavation should not be placed in the category of school gardening. (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. discretion. defendant-appellant. it is evident that the lower court did not consider his age and maturity. 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. Since the stone was so heavy and the soil was loose from the digging. A minor should not be held to the same degree of care as an adult. the unfortunate incident would not have occurred and the child Ylarde would probably be alive today.000. 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.man of thirty-five. they just had to amuse themselves with whatever they found. Gibbs and McDonough for appellant. A reasonably prudent person would have foreseen that bringing children to an excavation site. Everything that occurred was the natural and probable effect of the negligent acts of private respondent Aquino. 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. From this. he is expected to be playful and daring.. Ylarde's parents suffered great anguish all these years. leaving them there all by themselves.pointed out. it was also a natural consequence that the stone would fall into the hole beside it.

In this connection it must be remembered that when a person holds himself out as being competent to do things requiring professional skill. supplied from the tank already in use. Cranston accordingly repaired to the office of the Philippine Motors Corporation and had a conference with C. as general manager. with costs. Cranston was the representative of the plaintiff in the City of Manila. which the members of the crew were unable to subdue. as the court found. and their escape was safely effected. visited the Gwendoline while it lay at anchor in the Pasig River. the date of the filing of the complaint. on the evening of January 30. or other fuel. with interest and costs. to take to a boat. and when passing near Cavite.net In the course of the preliminary work upon the carburetor and its connections. who agreed to do the job. This tank was connected with the carburetor by a piece of tubing. or engineer. with the understanding that payment should be made upon completion of the work. 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. it was observed that the carburetor was flooding. operate. already saturated with gasoline. and at the time of the incident with which we are here concerned.1925. lawphil. burst into flames. In the course of the trial Quest remained outside of the engine compartment and occupied himself with making distillate. of said company. the hydrostatic pressure in the carburetor was greater than the delicate parts of the carburetor could sustain. with interest at 6 per centum per annum from March 24. Upon preliminary inspection of the engine. the engine was tried with gasoline as a fuel.350. consisting of a low grade of oil mixed with distillate. it had authority to deal in all sorts of machinery engines and motors. was trickling freely from the lower part to the carburetor to the floor. Cranston decided. whence the fire was quickly communicated to the highly inflammable material near-by.: This action was instituted in the Court of First Instance of Manila by the Culion Ice.000. as well as to build.m. Ordinarily a back fire from an engine would not be followed by any disaster. but the Gwendoline was reduced to a mere hulk. Quest. with the result that when the fuel line was opened. The temporary tank in which the mixture was prepared was apparently at too great an elevation from the carburetor. and that the gasoline. and a Zenith carburetor was chosen as the one most adapted to the purpose. if practicable. other than he fact that the engine stopped a few times. Fish & Electric Co. The plaintiff and defendant are domestic corporations. would have taken precautions to avoid. to switch to the new fuel supply. They were therefore compelled. which was apparently not well fitted at the point where it was connected with the tank. The value of the boat. in the City of Manila.. before the accident occured. and was told by Mc Kellar. In January. which a prudent mechanic. until satisfaction of the judgment. 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.. The purpose of this arrangement was to enable the operator to start the engine on gasoline and then. to have the engine on the Gwendoline changed from a gasoline consumer to a crude oil burner. but. expecting thereby to effect economy in the cost of running the boat.D. the external parts of the carburetor. J.STREET. a firm dealing in tractors. had full charge of the corporations in all its branches. A moment later a back fire occurred in the cylinder chamber. chiefly by a mechanic whom Quest took with him to the boat. with a view to ascertaining what proportion of the two elements would give best results in the engine. which had its office on Ongpin Street. or a little later. 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. but he appeared to think lightly of the matter and said that. As the boat was coming in from this run.m. This was no doubt the cause of the flooding of the carburetor. when the engine had gotten to running well. This fact was called to Quest's attention.E. and the result was that. He therefore made known his desire to McLeod & Co. that he might make inquiries of the Philippine Motors Corporations. In this work Quest had the assistance of the members of the crew of the Gwendoline. The proof shows that Quest had had ample experience in fixing the engines of automobiles and tractors.1927.850. H. but it does 61 . switched to the tube connecting with the new mixture. as the fire spread. The result of this experiment was satisfactory. owing no doubt to the use of an improper mixture of fuel. when sold. Quest. under its charter. Quest. at about 7:30 p. when the back fire occurred. the flooding would disappear. Quest came to the conclusion that the principal thing necessary to accomplish the end in view was to install a new carburetor. was P10. the engine stopped. Owing to this fact the fuel mixture leaked from the tank and dripped sown into the engine compartment. after the engine had been operating for a few moments. 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. in company with Cranston. After this had been done the mechanic. but in this case the leak along the pipe line and the flooding of the carburetor had created a dangerous situation. buy and sell the same and the equipment therof. As a result of the aforesaid interview. The Philippine Motors Corporation was at this time engaged in business as an automobile agency. who had been directed by Cranston to place themselves under Quest's directions. The next problem was to introduce into the carburetor the baser fuel. and the work of effecting the change in the engine was begun and conducted under the supervision of Quest. The back fire may have been due either to the fact that the spark was too advanced or the fuel improperly mixed. 1925. From this judgment the defendant appealed. the wreck. The salvage from. Inc. and connection again had to be made with the gasoline line to get a new start. After this appliance had been installed. and instantly the carburetor and adjacent parts were covered with a mass of flames. its manager.. After preliminary experiments and adjustments had been made the boat was taken out into the bay for a trial run at about 5 p. This caused a flame to shoot back into the carburetor. for the purpose of recovering from the Philippine Motors Corporation the sum of P11. The first part of the course was covered without any untoward development. versed in repairs of this nature. Upon hearing the cause the trial court gave judgment in favor of the plaintiff to recover of the defendant the sum of P9. brought only the sum of P150. 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.

at Pineda's drug store for filling. the prescription was prepared and returned to Santos in the form of six papers marked. JJ.850. The prescription read — "clorato de potasa — 120 gramos — en seis papelitos de 20 gramos. Binondo. 444. 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. concur. but was not used. yet the origin of the fire in not so inscrutable as to enable us to say that it was casus fortuitus. having some sick horses.. took the three remaining packages to the Bureau of Science for examination. Romualdez and Villa-Real. the defendant. SANTIAGO PINEDA. of the penal provisions of the Pharmacy Law. and after Quest had ceased to be manager of the defendant corporation and had gone back to the United States. and it seems rather strained to hold that the defendant corporation had thereby become bailee of the boat. Drs. the defendant corporation was in the position of a bailee and that. put two of the packages in water the doses to two of his sick horses. Quest was not in charge of the navigation of the boat on this trial run. 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. 1918 THE UNITED STATES. Calle Santo Cristo. the two chemists also went to the drug 62 . with interest. L-12858 January 22. But a person skilled in that particular sort of work would. of the Bureau of Science. thereupon. are not bailees. There was here. defendant-appellant.. the defendant bases the contention that the action should be considered stale. under their contract. Certainly. C. One Feliciano Santos. vs." Santos. Ostrand. As a consequence of such possession and special property. a blameworthy antecedent inadvertence to possible harm. Santiago Pineda. This action was instituted about two years after the accident in question had occured.not appear that he was experienced in the doing of similar work on boats. Manila. It would not have occured but for Quest's carelessness or lack of skill. In other words Quest did not use the skill that would have been exhibited by one ordinarily expert in repairing gasoline engines on boats. The burning of the Gwendoline may be said to have resulted from accident. Upon these facts. The two horses. para caballo. to which had been given the preparation. Francisco and Lualhati for appellant. Avanceña. 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. Cristo 442. city of Manila. the bailee is given a lien for his compensation.Arellano Law Foundation Republic of the Philippines SUPREME COURT Manila EN BANC G. under the belief that he had purchased the potassium chlorate which he had asked for. 444. His employment contemplated the installation of new parts in the engine only.: This appeal requires a construction and an application. and their rights and liabilities are determined by the general rules of law. The trial judge seems to have proceeded on the idea that. and this constitutes negligence. Malcolm. For this reason. is a registered pharmacist of long standing and the owner of a drug store located at Nos. awarding damages to the plaintiff in the amount of P9. as a consequence. we think have been sufficiently warned from those circumstances to cause him to take greater and adequate precautions against the danger. As a rule workmen who make repairs on a ship in its owner's yard. plaintiff-appellee. Peña and Darjuan. We are unable to accede to this point of view. with costs against the appellant. presented a copy of a prescription obtained from Dr. must be affirmed. but this accident was in no sense an unavoidable accident. 442. It results that the judgment appealed from. The Lawphil Project . The test of liability is not whether the injury was accidental in a sense. but whether Quest was free from blame. No. on the part of Quest. or a mechanic who repairs a coach without taking it to his shop. Villamor. MALCOLM.J. Acting Attorney-General Paredes for appellee.R. inasmuch as Quest had control of the Gwendoline during the experimental run. Another package was mixed with water for another horse. 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. J. died shortly afterwards.00 — en seis papeles — para caballo — Sto. At the instance of Santos. "Botica Pineda — Clorato potasa — 120. 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. Santos. on analysis found that the packages contained not potassium chlorate but barium chlorate. and even supposing that our theory as to the exact manner in which the accident occurred might appear to be in some respects incorrect. These ideas seem to be incompatible with the situation now under consideration. and it is so ordered. The true bailee acquires possession and what is usually spoken of as special property in the chattel bailed. and which on other occasions Santos had given to his horses with good results. Richardson." Under the supervision of Pineda. 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. in our opinion. for the first time.

or both. examination are established. The purpose is to ascertain defendant's knowledge and intent. (Moore vs. including. 150 U. upon conviction. The profession of pharmacy.) 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. in the following term: Every pharmacist shall be responsible for the quality of all drugs. But appellant has confused this maxim and this rule with certain exceptions thereto. sold or offered for sale. Buencamino. S. medicine. section 2676. As a pharmacist. direction. in order that human life may not be constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicine.store of the defendant and bought potassium chlorate. the Supreme Court of Connecticut has said must be held to signify "the highest practicable degree of prudence. 938. there is a certain discretion on the part of the trial judge which a court of errors will not interfere with. and fraudulent intent may even be established. defendant is a pharmacist. it should be noted. section 751). objections to the testimony on the ground of irrelevancy are not favored. What the appellant is here relying on is the maxim res inter alios acta . a veterinarian. potassium chlorate is not. section 17. and found that death was the result of poisoning. And finally it is provided that it shall be unlawful for him to sell any drug or poison under any "fraudulent name. Thus. It would leave the innocent purchaser of drugs. Connors [1912]. or poison so used. [1893]. pp. and poisons he may sell or keep for sale. accident in good faith is possibly excluded. It has been said that there is no better evidence of negligence than the frequency of accidents. that it was false. 2236. "ordinary care" with reference to the business of a druggist. medicines. without good reason so devitalize the law." It is the one word "fraudulent" which has given the court trouble. chemical. The Pharmacy Law was first enacted as Act No. or pretense. for each offense. What did the Legislature intend to convey by this restrictive adjective? Were we to adhere to the technical definition of fraud. it would be difficult. The proof demonstrates the contrary. 597. 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. prepare. or poison under any fraudulent name . be punished by a fine of not more than five hundred dollar. that he made it with the intention that it should be acted upon by the purchaser. to convict any druggist of a violation of the law. and is calculated to prejudice the accused." The Administrative Code. at the mercy of any unscrupulous vendor. as amended. if not impossible. the evidence of other offenses committed by a defendant is inadmissible. negligence is intensified. unless it manifestly appear that the testimony has no legitimate bearing upon the question at issue. 57. we may remark. and the examination and registration of pharmacists. chemicals. and is now found as Chapter 30 of the Administrative Code. Nor is there an attempt to draw the mind away from the point at issue and thus to prejudice defendant's case. 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." "care of a special high degree.. C. The third assignment contains the points we should consider. be punished by a fine not to exceed two hundred pesos. and to fix his negligence. Whenever the necessity arises for a resort to circumstantial evidence. which when analyzed was found to be barium chlorate." Even under the first conservative expression. Responsibility for the quality of drugs is fixed by section 17 of the Pharmacy Law. therefore. 1921. or to explain the conduct of a particular person. performed an autopsy on the horses.. who must blindly trust in the good faith and vigilance of the pharmacist. As a general rule. and it shall be unlawful for any person whomsoever to manufacture. High qualification for applicants for the pharmaceutical. he is made responsible for the quality of all drugs and poisons which he sells. Turning to the law." (Tombari vs. 940. 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.) 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. L. thoughtfulness. The effort is not to convict the accused of a second offense. either from the nature of the inquiry or the failure of direct proof. it has been said again and again. Any drug. 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. The same section of the Pharmacy Law also contains the following penal provision: "Any person violating the provisions of this Act shall. medicine. a somewhat difficult question concerning which the briefs have given little assistance. that the purchaser acted in reliance upon it. We should not. and finally contains sundry provisions relative to the practice of pharmacy. medicine. chemical. which substance proved on analysis to be barium chlorate. The prosecution would have to prove to a reasonable degree of certainty that the druggist made a material representation. and that the purchased thereby suffered injury. sell. was barium chlorate and not potassium chlorate. is a poison. S.. in the discretion of the court. These are the provisions of law. 85 Conn. as amended (now Administrative Code [1917]. although it tends to prove the commission of another offense by the defendant. 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.) Dr. and 2382. U. The responsibility of the druggist to use care has been variously qualified as "ordinary care. or to adulterate any drug. The law provides for a board of pharmaceutical examiners. or administer any prescription. 63 . Four assignments of error are made. chemical. (See 10 R. was later amended by Act Nos. The program of subjects for the examination is wide. 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. and vigilance. which the appellant vigorously insists upon. drug. 1916. Evidence is admissible in a criminal action which tends to show motive. is one demanding care and skill. 597. (Barium chlorate. pursuant to which prosecution has been initiated and which it is now incumbent upon us to construe. If the defendant has on more than one occasion performed similar acts. or by imprisonment for not more than ninety days." "the highest degree of care known to practical men. certain points therein as bearing on our present facts must be admitted. and most exact and reliable safeguards consistent with the reasonable conduct of the business.

A. 208 N. A plea of accident and mistake cannot excuse for they cannot take place unless there be wanton and criminal carelessness and neglect. mistake is negligence and care is no defense. We cannot say that one holding himself out as competent to handle such drugs. The druggist is responsible as an absolute guarantor of what he sells.. and it should not be forgotten that the case we consider are civil in nature. 195. having rightful access to them. and the skill employed must correspond with the superior knowledge of the business which the law demands. 387. 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. he is liable for the injury done to A. However. it must be that the druggist warrants that he will deliver the drug called for. Hollenkemp [1852]. The vendor and the vendee do not stand at arms length as in ordinary transactions. have been held guilty of manslaughter. it cannot be that the Philippine Legislature intended to use the word "fraudulent" in all its strictness. as arsenic for calomel.) Bearing these general principles in mind. 57 L. So ordered. who are guilty of negligence in the sale of medicine when death ensues in consequence. Consequently. In a case.) Under the other conception. This view is borne out by Spanish translation. for example in filling a prescription calling for potassium chlorate give instead to the customer barium chlorate. 600. a poison. Winchester [1852]. or even one innocent drug. or persons engaged in vending drugs and medicines by retail. Williams and Faxon [1913]. calculated to produce a certain effect. A. in consequence of the false label. if they carelessly label a poison as a harmless medicine. the care required must be commensurate with the danger involved. and sent it so labeled into the market. 108. For example. following Thomas vs. 563. 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. which has repeatedly been termed the leading case on the subject and which has been followed by the United States Supreme Court. cantharides for or mixed with snakeroot and Peruvian bark.. and that of an aggravated form. 56 L. 50 W. are injured by using it as such medicine. which we are permitted to consult to explain the English text. supra. etc. 1 Lewin. R." what is made unlawful is the giving of a false name to the drug asked for. Throughout the criminal law. the Supreme Court of Kentucky said: As applicable to the owners of drug stores. (See Knoefel vs. placing the burden on him to show that the mistake was under the circumstances consistent with the exercise of due care. Faxon. it should be caveat venditor. So in a case where a druggist filled an order for calomel tablets with morphine and placed the morphine in a box labeled calomel." The usual badges of fraud. In civil cases. deception.) The rule of caveat emptor cannot apply to the purchase and sale of drugs. and who does so. without fault on their part. and remembering particularly the care and skill which are expected of druggist. sentencing the defendant to pay a fine of P100. His mistake. In the Spanish "supuesto" is used. run the same rigorous rules.. E. Instead of caveat emptor. let him be certain that he does not sell to a purchaser or send to a patient one drug for another. Atkins. delivery of a poisonous drug by mistake by the druggist is prima facie negligence. 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. C.) The "skill" required of a druggist is denominated as "high" or "ample. Under one conception. and had used extraordinary care and diligence in preparing or compounding the medicines as required.]. 644. without prejudice to any civil action which may be instituted.." (Nat. that he had been very careful and particular. and of the most disastrous effect. The nature of drugs is such that examination would not avail the purchaser anything. it was said: It is not suggested. (Fleet vs. for the druggist. place this poison in a package labeled "potassium chlorate. apothecaries or apothecary clerks. Knoefel vs. C. 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. In view of the tremendous an imminent danger to the public from the careless sale of poisons and medicines. If he does these things. 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. Ward [1879].. It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. If B negligently sells poison under the guise of a beneficial drug to A. Dec. falsify. Y. 169. In a decision which stands alone. The judgment of the lower court. is affirmed with the cost of this instance against the appellant. S. and to pay the costs. if under all the circumstances the fact of occurrence is attributed to the druggist as a legal fault.. it was undoubtedly a mistake and unintentional. Savings Bank vs. [N. it was a mistake of the gravest kind. he cannot escape civil responsibility.) The druggist cannot. but out of the duty which the law imposes on him to avoid acts in their nature dangerous to the lives of others.. If it was furnished by the clerk. 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. are liable to all persons who. in and of itself. where a customer calls upon a druggist for a harmless remedy. Middleton [1902]. Jackson [1902]. 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. that the act of furnishing the wrong drug in this case was willful. the question of negligence or ignorance is irrelevant. was negligence. the druggist is made liable for any injury approximately resulting from his negligence. nor can we apprehend that it is in any wise probable. 100 U. R. it was said. and injury must be present-but not scienter. Y." (Peters vs. "Pharmacists or apothecaries who compound or sell medicines. How the misfortune occurs is unimportant.) In other words. gross negligence.235. 2 Seld. upon the alleged pretext that it was an accidental or an innocent mistake.) In reality. the legal maxim should be reversed. That is to say. Atkins [1907]. (See Tessymond's Case [1828]. Va.. (Smith's Admrx. 64 . 484. in place of another sent for and designed to produce a different effect. vs. Such excuses will not avail him. with subsidiary imprisonment in case of insolvency. 81 N. and this word is certainly not synonymous with "fraudulent. See also Willson vs. in which the proof of negligence is considered as material." and expect to escape responsibility on plea of mistake. under the most favorable aspect for himself. 428. 56 Am.

De Leon went to the Betterliving.132[8] Before heading to work the following morning. Charles Milla. 129[5] On the same evening.. Parañaque. ang pagkakamali ay kapabayaan at ang pagkalinga ay hindi angkop na dipensa. Regional Trial Court (RTC) in Parañaque. and REYES. J. De Leon consulted Dr. and had just arrived from abroad. RAUL DE LEON. 130[6] Republic of the Philippines Supreme Court Manila THIRD DIVISION MERCURY DRUG CORPORATION and AURMELA GANZON. The Facts Respondent Raul T.IN REALITY. The same friend happened to be a doctor. CHICO-NAZARIO. JJ. for the druggist. 128[4] On October 17. mistake is negligence and care is no defense. Dr. J. No. branch of Mercury Drug Store Corporation to buy the prescribed medicines. Chairperson.131[7] The latter prescribed the drugs “Cortisporin Opthalmic” and “Ceftin” to relieve his eye problems. 1999. G. he noticed that his left eye was reddish. He also had difficulty reading. Respondent. . The first Resolution granted respondent’s motion to dismiss while the second denied petitioner’s motion for reconsideration. 2008 129 130 131 132 133 x--------------------------------------------------x DECISION REYES.T. This is a petition for review on certiorari126[2] of two Resolutions127[3] of the Court of Appeals (CA). 133[9] He showed his prescription to 125 126 127 128 Promulgated: October 17. Milla about his irritated left eye. he met a friend for dinner at the Foohyui Restaurant.. Petitioners. R. AUSTRIA-MARTINEZ. Aside from exchanging pleasantries.125[1] Sa isang parmasyutika.versus NACHURA.R.: 65 . De Leon was the presiding judge of Branch 258. 165622 Present: YNARES-SANTIAGO.

she gave him the only available “Cortisporin Solution” in the market.148[24] De Leon filed a complaint for damages against Mercury Drug. a pharmacist assistant. Moreover. about the day’s incident. Ms. 143[19] In fact. with his left eye still red and teary. respondent felt searing pain. even the piece of paper De Leon presented upon buying the medicine can not be considered as proper prescription.150[26] It pointed out that the proximate cause of De Leon’s unfortunate experience was his own negligence. two sales persons went to his office and informed him that their supervisor was busy with other matters. 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.149[25] Mercury Drug denied that it was negligent and therefore liable for damages. but the pain did not subside. 139 [15] Only then did he discover that he was given the wrong medicine. instead of the prescribed eye drops.”140[16] De Leon returned to the same Mercury Drug branch.137[13] Instead of relieving his irritation. it was her supervisor who apologized and informed De Leon that they do not have stock of the needed Cortisporin Opthalmic.141[17] When he confronted Ganzon why he was given ear drops.”155[31] Accordingly. “Cortisporin Otic Solution.142[18] she did not apologize and instead brazenly replied that she was unable to fully read the prescription. the sheriff applied 2-3 drops on respondent’s left eye. what was written on the piece of paper De Leon presented to Ganzon was “Cortisporin Solution.153[29] Also.147[23] Having been denied his simple desire for a written apology and explanation.136[12] As instructed. Askuna. Vivian K. 146[22] Instead. 138[14] He immediately rinsed the affected eye with water. 134[10] Subsequently. 154[30] Furthermore.135[11] At his chambers. through its president. he paid for and took the medicine handed over by Ganzon. 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. 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 66 .petitioner Aurmela Ganzon. De Leon requested his sheriff to assist him in using the eye drops. Mercury Drug explained that there is no available medicine known as “Cortisporin Opthalmic” in the Philippine market.144[20] De Leon wrote Mercury Drug.145[21] It did not merit any response.

159[35] In ruling in favor of De Leon.163[39] In fact. 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 67 .Moreover. she entertained De Leon’s purchase request only because he was a regular customer of their branch.164[40] Said the court: When the injury is caused by the negligence of a servant or employee. As moral damages defendants is (sic) ordered to pay ONE HUNDRED THOUSAND PESOS (Php 100.00 plus litigation expenses. Mercury Drug was first to be negligent.165[41] Dissatisfied with the RTC ruling.160[36] The RTC ruled that although De Leon may have been negligent by failing to read the medicine’s label or to instruct his sheriff to do so. Mercury Drug Store is to pay ONE HUNDRED FIFTYTHREE PESOS AND TWENTY-FIVE CENTAVOS (Php 153. the RTC rendered judgment in favor of respondent.25).000.00) as exemplary damages. Defendant ( sic) Mercury Drug Store is to pay plaintiff attorney’s fees of P50. paid and took the drug without any objection meant he understood what he was buying. the value of the medicine. 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. Due to defendants callous reaction to the mistake done by their employee which forced plaintiff to litigate. De Leon moved for the appeal’s dismissal. For pecuniary loss suffered.00). the court finds for the plaintiff. Raising technical grounds. 2008. xxxx The theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant. Mercury Drug Store and defendant Aurmila (sic) Ganzon are ordered to pay plaintiff the amount of THREE HUNDRED THOUSAND PESOS (Php 300. 156[32] It lacked the required information concerning the attending doctor’s name and license number.158[34] RTC Disposition On April 30. the RTC ratiocinated: she further presumed that by merely putting the drug by the counter wherein plaintiff looked at it. Mercury Drug and Ganzon elevated the matter to the CA. even the piece of paper De Leon presented upon buying the medicine can not be considered as proper prescription. 2003. Accordingly.000. she did so without fully reading what medicine was exactly being bought.000. CA Disposition On July 4. the CA issued a resolution which granted De Leon’s motion and dismissed the appeal. she did not take a good look at said prescription. 157[33] According to Ganzon. SO ORDERED.161[37] Ganzon dispensed a drug without the requisite prescription. Said the appellate court: The proximate cause of the ill fate of plaintiff was defendant Aurmila ( sic) Ganzon’s negligent exercise of said discretion.162[38] Moreover. or in the supervision over him after the selection or both. the dispositive portion of which reads: WHEREFORE. it was what De Leon was attempting to buy. she presumed that since what was available was the drug Cortisporin Otic Solution. To serve as a warning to those in the field of dispensing medicinal drugs discretion of the highest degree is expected of them. they filed their respective briefs. She gave a prescription drug to a customer who did not have the proper form of prescription.

II THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DISMISSING PETITIONER’S APPEAL DESPITE SUBSTANTIAL COMPLIANCE WITH SECTION 1(F).175[51] The importance of an appellant’s brief cannot be gainsaid. We find no faithful compliance on the part of the movants that will call for the liberal application of the Rules.166[42] xxxx “The premise that underlies all appeals is that they are merely rights which arise form a statute. keeping in mind the circumstances obtaining in each case. These rules were designed to assist the appellate court in the accomplishment of its tasks. 2004. CA (134 SCRA 331). RULE 60 AND SECTION 13. therefore. It is to this end that rules governing pleadings and practice before the appellate court were imposed. they must be exercised in the manner prescribed by law. 167[43] On October 5. 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 68 . Assignment of Errors/issues. The very wording of the rule uses the word “may” instead of “shall.” xxxx x x x If the statement of fact is unaccompanied by a page reference to the record.169[45] The CA opined: In the case under consideration. 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 PETITIONER’S APPEAL BASED ON THE CASES OF DE LIANA VS. the Statement of Facts. to enhance the orderly administration of justice.” This indicates that it is only directory and not mandatory.As pointed out by the plaintiff-appellee. the CA denied Mercury Drug’s and Ganzon’s joint motion for reconsideration. We find this procedural lapse justify the dismissal of the appeal. 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. 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. Although mindful that litigation is not a game of technicalities. Dismissal of an appeal under Rule 50 is discretionary. RULE 44 OF THE RULES OF COURT. pursuant to Section 1(f). and overall. Arguments/ Discussions in the Brief make no references to the pages of the records. Statement of the Case. it may be stricken or disregarded all together.168[44] the CA found no persuasive reasons to relax procedural rules in favor of Mercury Drug and Ganzon. 174[50] Sound discretion must be exercised in consonance with the tenets of justice and fair play. Rule 50 of the 1997 Rules of Civil Procedure x x x.171[47] (Underscoring supplied) Our Ruling The appeal succeeds in part. on its own motion or on that of the appellee. 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. CA (370 SCRA 349) AND HEIRS OF PALOMINIQUE VS.

However. and (2) to assist the court in arriving at a just and proper conclusion. Mercury Drug and Ganzon referred to the exhibits. the issues raised. and attachments of the case. Court of Appeals . These were found to have substantially complied with the requirements of Section 13(c) and (d) of Rule 44. the appellant’s 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 69 .186[62] Moreover. CA. we hold that the respondent Court of Appeals did not err when it did not dismiss the appeal based on the allegation that appellant’s brief failed to comply with the internal rules of said court. 177[53] The absence of page reference to the record is a ground for dismissal. Statements of Facts. 187[63] When notified of such defects. there is substantial compliance with the requirements of Section 13(c). 178[54] However. (d). whimsically. Court of Appeals 191[67] is likewise misplaced.188[64] Instead. the instant case is not on all fours with De Liano. It is a requirement intended to ultimately aid the appellate court in arriving at a just and proper conclusion of the case. but discretionary on the part of the appellate court. Reliance on Heirs of Palomique v. the same is not fatal to their cause since the references they made enabled the appellate court to expeditiously locate the portions referred to. a statement of the questions of law involved. x x x The Appellant’s brief may not have referred to the exact pages of the records. the appellant’s brief lacked a Subject Index and a Table of Cases and Authorities. and (f) of Rule 44. TSN.questions in controversy. 179[55] When citations found in the appellant’s brief enable the court to expeditiously locate the portions of the record referred to. In De Liano. the appellant’s brief in Yuchengco v.181[57] this Court ruled that the citations contained in the appellant’s brief sufficiently enabled the appellate court to expeditiously locate the portions of the record referred to. They were in substantial compliance with the rules.190[66] In the case under review.182[58] Similar to the instant case. they continued to argue that their errors were harmless. This Court has held that the failure to properly cite reference to the original records is not a fatal procedural lapse. such dismissal is not mandatory. and the laws necessary for the disposition of the same. the Statement of the Case.176[52] It is considered a vehicle of counsel to convey to the court the essential facts of a client’s case. and the application one desires of it by the court. Despite its deficiencies.189[65] All these omissions and non-compliance justified the dismissal of the appeal by the CA. defendants-appellants failed to amend their brief to conform to the rules.180[56] In De Leon v. The Court said: Nothing in the records indicate that it was exercised capriciously. Court of Appeals183[59] contained references to Exhibits and Transcript of Stenographic Notes and attachments. nature of the case. and Statements of Arguments had no page references to the record. In Heirs of Palomique. the law to be applied. or with a view of permitting injury upon a party litigant.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. as earlier discussed. x x x184[60] It is true that in De Liano v. although there were no page references to the records. however. the brief is sufficient in form and substance as to apprise the appellate court of the essential facts. For the same reasons.

but which turned out to be the potently deadly barium chlorate.193[69] Rules of procedure are intended to promote. Had he cautiously read the medicine bottle label. the potassium chlorate demanded by complainant had been intended for his race horses.198[74] In the United States case of Tombari v. Mercury Drug and Ganzon failed to exercise the highest degree of diligence expected of them. 204[80] In our own jurisdiction. together with the failure to make page references to the record to support the factual allegations. justified the dismissal of the appeal. Baking are illustrative. Mercury Drug and Ganzon can not exculpate themselves from any liability. have laid salutary rules for the protection of human life and human health.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. Pineda205[81] and Mercury Drug Corporation v. And such mistake cannot be countenanced or tolerated. Mercury Drug and Ganzon pointed out that De Leon’s own negligence was the proximate cause of his injury.of facts. not to defeat. They argued that any injury would have been averted had De Leon exercised due diligence before applying the medicine on his eye. this Court has allowed exceptions to the stringent rules governing appeals. he would have known that he had the wrong medicine. his race horses died of poisoning only a few hours after. cannot be heard to say that his mistake by which he furnishes a customer the most deadly of drugs for those comparatively harmless. Denying that they were negligent. substantial justice. 206[82] In Pineda. petitioners are still liable. and druggists must exercise care of a specially high degree. both here and abroad. They should not be applied in a very rigid and technical sense. in place of another sent for and designed to produce a different effect. the highest degree of care and diligence is expected of them.202[78] Smith’s Admrx v. as it is a mistake of the gravest kind and of the most disastrous effect. Hollenkemp. in the past. upon the alleged pretext that it was an accidental or innocent mistake. 197[73] Likewise. When complainant mixed with water what he thought and believed was potassium chlorate.195[71] It has. druggists must exercise the highest practicable degree of prudence and vigilance. In other words. Middelton203[79] teaches Us that one holding himself out as competent to handle drugs. 194[70] For reasons of justice and equity. United States v. the highest degree of care known to practical men. The wisdom of such a decision is unquestionable. Conners. His mistake. under the most favorable aspect for himself. refused to sacrifice justice for technicality. As active players in the field of dispensing medicines to the public. so that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicines. is negligence.196[72] However. and the most exact and reliable safeguards consistent with the reasonable conduct of the business. is not in itself gross negligence. having rightful access to them.199[75] it was ruled that the profession of pharmacy demands care and skill. numerous decisions. brushing aside technicalities. cannot escape responsibility. calculated to produce a certain effect. 207[83] 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 70 . the damage and loss would have been irreparable. 200[76] In Fleet v.192[68] This critical omission. 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. If the victims had been human beings instead of horses.

Ganzon could have easily verified whether the medicine she gave De Leon was. Consequently. De Leon relied on the expertise and experience of Mercury Drug and its employees in dispensing to him the right medicine. Though incapable of pecuniary 208 209 210 211 212 213 214 215 216 217 218 219 71 . It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. Absent the required certainty in the dispensation of the medicine. wounded feelings. Moral damages include physical suffering. the buyer and seller do not stand at arms length.209[85] Baking was given a potent sleeping tablet. there instantly arises a presumption of law that there has been negligence on the part of the employer. 219[95] Mercury Drug and Ganzon’s defense that the latter gave the only available Cortisporin solution in the market deserves scant consideration. serious anxiety. fright. As a buyer. at the very least. which the pharmacist misread as Dormicum. 216[92] This Court has ruled that in the purchase and sale of drugs. Worse. indeed. They were grossly negligent in dispensing ear drops instead of the prescribed eye drops to De Leon. Baking figured in a vehicular accident. The award of damages is proper and shall only be reduced considering the peculiar facts of the case. they have once again attempted to shift the blame to their victim by underscoring his own failure to read the label. besmirched reputation. it must be that the druggist warrants that he will deliver the drug called for. mental anguish.215[91] In the more recent Mercury Drug. instead of medicines to stabilize his blood sugar. 211[87] He fell asleep while driving. The Court said: x x x Considering that a fatal mistake could be a matter of life and death for a buying patient. social humiliation. involving no less than the same petitioner corporation. and the skill employed must correspond with the superior knowledge of the business which the law demands. 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. She should have verified whether the medicine she gave respondent was indeed the one prescribed by his physician. 210[86] On the third day of taking the wrong medicine. she could have refused De Leon’s purchase of the drug. the prescribed one or. 213[89] This Court once more reiterated that the profession of pharmacy demands great care and skill. In cases where an injury is caused by the negligence of an employee. either in the selection or supervision of one’s employees. It reminded druggists to exercise the highest degree of care known to practical men. the said employee should have been very cautious in dispensing medicines.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 care required must be commensurate with the danger involved.the care and diligence of a good father of the family. Sebastian Baking went to the Alabang branch of Mercury Drug208[84] and presented his prescription for Diamicron.218[94] The Court emphasized: x x x The nature of drugs is such that examination would not avail the purchaser anything.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 one’s absolute honesty and peculiar learning. 214[90] Mercury Drug failed to overcome such presumption. consulted her supervisor. moral shock. and similar injury.

Therefore.00. SO ORDERED. J.000. however.00 to P50. We find the amount awarded by the trial court to be excessive. Furthermore they are not liable for honest mistakes of judgment . 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.224 [100] In addition. This Court can not tolerate any form of negligence which can jeopardize the health and safety of its loyal patrons. the drugstore business is affected by public interest. They do not even warrant a good result. Petitioner should have exerted utmost diligence in the selection and supervision of its employees. Not only does a pharmacy owe a customer the duty of reasonable care.000. 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. We also deem it necessary to reduce the award of exemplary damages from the exorbitant amount of P300. petitioner must at all times maintain a high level of meticulousness. such claims are most often brought as a civil action for damages under Article 2176 of the Civil Code.220[96] Moral damages are not intended to impose a penalty to the wrongdoer or to enrich the claimant at the expense of defendant. Due to the sensitive nature of its business. NINEVETCH CRUZ.00 is in order.: Doctors are protected by a special rule of law. respectively. this Court will not countenance the cavalier manner it treated De Leon. Following the precedent case of Mercury Drug.000. .000. the award of damages must be commensurate to the loss or injury suffered.000. 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. As mentioned earlier. No. 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: 72 . Moreover. as a criminal case under Article 365 of the Revised Penal Code 4 with which the civil action for damages is impliedly instituted.000.00 only. 2 In this jurisdiction. Republic SUPREME Manila THIRD DIVISION of the Philippines COURT G. the country’s biggest drugstore chain.00 only. They are not insurers against mishaps or unusual consequences. WHEREFORE. in that the award of moral and exemplary damages is reduced to P50. We reduce the amount from P100.computation. COURT OF APPEALS and LYDIA UMALI. 220 221 222 223 224 225 FRANCISCO. moral damages may be recovered if they are the proximate result of defendant’s wrongful act or omission. The Decisions of the CA and the RTC in Parañaque City are AFFIRMED WITH MODIFICATION. respondents. The petitioner and one Dr. petitioner.00 to P25. This can not be more real for Mercury Drug. 1997 DR.225[101] (Emphasis supplied) It is generally recognized that the drugstore business is imbued with public interest.00 and P25. 1 The present case against petitioner is in the nature of a medical malpractice suit. On the part of the employee concerned.000. .R.223[99] Taking into consideration the attending facts of the case under review. 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. vs. she should have been extremely cautious in dispensing pharmaceutical products. 122445 November 18. 3 and in some instances. 222[98] However. but it is also duty-bound to accord one with respect. an award of exemplary damages in the amount of P25. They are not guarantors of care. the petition is PARTIALLY GRANTED.

1991. 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. and incompetent manner. The operating staff then went inside the petitioner's clinic to take their snacks. 365 of the Revised Penal Code. and causing by such failure. Some thirty minutes after. . Rowena then noticed her mother. 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. who was attached to an oxygen tank. Her death certificate states "shock" as the immediate cause of death and "Disseminated Intravascular Coagulation (DIC)" as the antecedent cause. careless. accused Dra. 15 Rowena and her other relatives. being then the attending anaesthesiologist and surgeon. Ercillo re-operated on her because there was blood oozing from the abdominal incision. Angeles arrived. However. 1991. the MTCC found the following circumstances as sufficient basis to conclude that she was indeed negligent in the performance of the operation: . 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. before her mother was wheeled into the operating room. Dr. in the City of San Pablo. during and/or after a surgical operation causing by such negligence. and scheduled her for a hysterectomy operation on March 23. 18 Upon Lydia's arrival at the San Pablo District Hospital.000. including the lack of preparation and foresight needed to avert a tragedy. arising from an alleged medical malpractice. she was wheeled into the operating room and the petitioner and Dr.00 as indemnity for her death. the accused above named. The petitioner called Lydia into her office and the two had a conversation.That on or about March 23. Rowena tried to persuade her mother not to proceed with the operation. Gerald Blood Bank and the same was brought by the attendant into the operating room. There was no showing that before the operation. Lydia Umali was pronounced dead. About one hour had passed when Dr. They arrived at the said hospital at around 4:30 in 9 the afternoon of the same day. 12 According to Rowena. Angeles then informed petitioner and Dr. First the antecedent facts. the court finds the accused Dra. 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. her sister and two aunts waited outside the operating room while Lydia underwent operation. On March 22. carelessness. prosecution witness. . 19 The attending physicians summoned Dr. gasping for breath.M. 20 While the petitioner was closing the abdominal wall. Laguna. Cruz had conducted a cardio pulmonary clearance or any typing of the blood of the patient. and therefore guilty under Art. and incompetence. and she is hereby sentenced to suffer the penalty of 2 months and 1 day imprisonment of arresto mayor with costs. While they were waiting. 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 73 . at 3:00 o'clock in the morning. 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. 1991 as the latter was to be operated on the next day at 1:00 o'clock in the afternoon. 1991. 1991. After the lapse of a few hours. 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. 16 But at around 10:00 o'clock P. Republic of the Philippines and within the jurisdiction of this Honorable Court. Lydia was already in shock and possibly dead as her blood pressure was already 0/0. they were not able to comply with petitioner's order as there was no more type "A" blood available in the blood bank. when Dr. 11 Rowena and her mother slept in the clinic on the evening of March 22. . Rowena and her other relatives then boarded a tricycle and followed the ambulance. Lydia's unstable condition necessitated her transfer to the San Pablo District Hospital so she could be connected to a respirator and further examined. Lydia then informed Rowena that the petitioner told her that she must be operated on as scheduled. head of the Obstetrics and Gynecology Department of the San Pablo District Hospital. 22 In convicting the petitioner. and failing to supply or store sufficient provisions and facilities necessary to meet any and all exigencies apt to arise before. Bartolome Angeles. Ercillo went out of the operating room and instructed them to buy tagamet ampules which Rowena's sister immediately bought. the Municipal Trial Court in Cities (MTCC) of San Pablo City rendered a decision. San Pablo City. Cruz conducted the operation. is supported by the evidence on record. Thereafter. Ercillo that there was nothing he could do to help save the patient. did then and there. the untimely death of said Lydia Umali on the day following said surgical operation. imprudent. namely her husband. a person arrived to donate blood which was later transfused to Lydia. 1991. Lina Ercillo not guilty of the offense charged for insufficiency of evidence while her co-accused Dra. Prior to March 22. 1994. Lydia was given the fresh supply of oxygen as soon as it arrived. the dispositive portion of which is hereunder quoted as follows: WHEREFORE. Rowena asked the petitioner if the operation could be postponed. 1995 affirming petitioner's conviction with modification that she is further directed to pay the heirs of Lydia Umali P50. the patient died. she went into shock and her blood pressure dropped to 60/50. They bought type "A" blood from the St. Ercillo came out again this time to ask them to buy blood for Lydia. 1991. On March 4. Ninevetch Cruz is hereby held responsible for the death of Lydia Umali on March 24. in a negligence ( sic). 21 Thus. 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. Hence this petition for review on certiorari assailing the decision promulgated by the Court of Appeals on October 24. Rowena Umali De Ocampo. Dr. Unfortunately. the petitioner informed them that the operation was finished. there was lack of provision like blood and oxygen to prepare for any contingency that might happen during the operation. 13 Because of the untidy state of the clinic. imprudence. 14 The following day. Lina Ercillo pleaded not guilty to the above-mentioned charge. 8 In substance. Lydia was examined by the petitioner who found a "myoma" 10 in her uterus. respectively. on March 24. the clinic was untidy. accompanied her mother to the Perpetual Help Clinic and General Hospital situated in Balagtas Street. 5 Trial ensued after both the petitioner and Dr.

Obviously. negligence and lack of foresight and skill of appellant (herein petitioner) in handling the subject patient before and after the operation. Cruz to proceed with the surgery. but such was not anymore available from the source. time and place. together with a driver of the petitioner. and that the son-in-law of the patient. degree of intelligence. she had no ready antibiotics. the failure to subject the patient to a cardio-pulmonary test prior to the operation. care and skill in the treatment of his patients. Wilfred L. Cruz who actually did the operation. had to rush to the San Pablo City District Hospital to get the much-needed oxygen. The court also noticed in Exh. there is no evidence to indicate that she should be held jointly liable with Dra. 25 This Court. however. 28 Further. Lina Ercillo. physical condition. and even the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner. et al. Ninevetch Cruz because of loss of blood during the operation of the deceased for evident unpreparedness and for lack of skill. it has been recognized that expert testimony is usually necessary to support the conclusion as to causation. but by the unquestionable knowledge of expert witnesses. The court finds that Lydia Umali died because of the negligence and carelessness of the surgeon Dra. The petitioner just appears to have been in a hurry to perform the operation. the anaesthesiologist. they were also asked to buy type "A" blood for the patient. the bleeding parameters of the patient." 24 And likewise affirming the petitioner's conviction. The prosecution's expert witnesses in the persons of Dr. . which was not emergency in nature. a doctor in effect represents that. 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. that the oxygen given to the patient was empty. Moreover. and other circumstances regarding persons. 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. they were again asked to procure more type "A" blood. the reason why the patient was brought for operation at the San Pablo City District Hospital. that after the surgery. 30 The 74 . While we may grant that the untidiness and filthiness of the clinic may not by itself indicate negligence. such as bleeding time and clotting time? There is no showing that these were done. the alleged "unverified statement of the prosecution witness" remains unchallenged and unrebutted.. neither did she get the family's consent to the operation. 23 The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's declaration of "incompetency. For whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is. 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. it nevertheless shows the absence of due care and supervision over her subordinate employees. The elements of reckless imprudence are: (1) that the offender does or fails to do an act. which are standard requirements before a patient is subjected to surgery. 27 this Court stated that in accepting a case. Floresto Arizala and Dr. but she opted not to testify. 1991. 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. 26 In the recent case of Leonila Garcia-Rueda v. including judges. properly typed and cross-matched. Pascasio.whole thing the moment it was open ( sic) and surgeon must be prepared for any eventuality thereof. he will employ such training. 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. 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. proof thereof should have been offered. 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. If she did all these. Nieto Salvador. Anyway. (3) that it be without malice. this conclusion is still best arrived at not through the educated surmises nor conjectures of laymen. she did not prepare the patient. All these conclusively show that the petitioner had not prepared for any unforeseen circumstances before going into the first surgery. 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. 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. that after an hour. there are a lot of questions that keep nagging Us. Did the petitioner determine as part of the pre-operative evaluation. 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. This could only give rise to the presumption that she has nothing good to testify on her defense. thus: . Moreover. these are overwhelming evidence of recklessness and imprudence. oxygen. Was the patient given any cardio-pulmonary clearance. but was elective or prescheduled. With respect to Dra. having the needed training and skill possessed by physicians and surgeons practicing in the same field. she did not prepare a medical chart with instructions for the patient's care. . All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness. As such. a matter of expert opinion. in the generality of cases. even as the family wanted a postponement to April 6. inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge. taking into consideration his employment or occupation. and no sufficient oxygen supply. the omission of any form of blood typing before transfusion. (4) that material damage results from the reckless imprudence. or at least a clearance by an internist. Indeed. the surgeon should answer for such negligence. no prepared blood. and certain medicines. But there is none. the lack of provisions such as blood. Jr. "F-1" that the sister of the deceased wished to postpone the operation but the patient was prevailed upon by Dra. (2) that the doing or the failure to do that act is voluntary. the Court of Appeals echoed similar observations. and (5) that there is inexcusable lack of precaution on the part of the offender.

100 c. . which. "A-1-b"? A. ordinarily blood is found inside the blood vessel. "negligence. There was incision wound (sic) the area just below the navel. 36 (Emphasis supplied.) Dr. How about the intestines and mesenteries are place ( sic) with blood clots noted between the mesenteric folds. Only as to the autopsy report no. A. And the last paragraph of the postmortem findings which I read: Uterus. with some surface nodulation of the fundic area posteriorly. Cachero: Q. 91-09. as in the instant case. That is my signature.. . Do you affirm the truth of all the contents of Exh.." In other words. And were you able to determine the cause of death by virtue of the examination of the specimen submitted by Dr. Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic. . Intestines and mesenteries are pale with blood clots noted between the mesentric folds.5 x 5. They are missing. and without which the result would not have occurred. 34 where the attending physician was absolved of liability for the death of the complainant's wife and newborn baby.. unless the contrary is sufficiently established. infraumbilical area.c. the absence of the fourth element of reckless imprudence: that the injury to the person or property was a consequence of the reckless imprudence. Can you tell the us what could have caused this hemorrhagic shock ? A. Q. . St. that petitioner was recklessly imprudent in the exercise of her duties as a surgeon. . whose signature is that? A.c. 32 This presumption is rebuttable by expert opinion which is so sadly lacking in the case at bench. and the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner do indicate. sir. Q. In the peritoneal cavity.. You mentioned on your "Post Mortem Findings" about surgical incision. . What could have the effect of that loss of blood ? A. . During that time there are no ovaries. Other visceral organs. And what could have caused this blood? A. 14:0 cm. Q. Inc. Yes. right pelvic gutter stomach empty. You mentioned about your Autopsy Report which has been marked as Exh. How about the ovaries and adnexal structures? A. 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. this Court held that: In order that there may be a recovery for an injury. There appears here a signature above the typewritten name Floresto Arizala. "A-1b". midline. left paracolic gutter 200 c. even without expert testimony. sir.. . mesentric area. the lack of provisions. ." 35 (Emphasis supplied. . . 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 .) The foregoing was corroborated by Dr. the connection between the negligence and the injury must be a direct and natural sequence of events.. Well hemorrhagic shock is the result of blood loss. sir. Surgical sutures were noted on the operative site. it must be shown that the "injury for which recovery is sought must be the legitimate consequence of the wrong done. Yes. however. sir. the time and place and everything after the post mortem findings. Blood were ( sic) outside as a result of the injuries which destroyed the integrity of the vessel allowing blood to sip (sic) out.. Cut-section shows diffusely pale myometrium with areas of streak induration. Arizala who conducted an autopsy on the body of the deceased summarized his findings as follows: Atty. 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. It must be remembered that when the qualifications of a physician are admitted. Hemoperitoneum: 300 s. no matter in what it consists. sir. In litigations involving medical negligence.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. Q. in natural and continuous sequence. . .s.. Q. Q.5 x 5. Unattended hemorrhage. . can you tell the court the cause of death? A. The cause of death is: Gross findings are compatible with hemorrhagic shock. 50 c. pale. By the nature of the postmortem findings indicated in Exh . unbroken by intervening efficient causes. Q. anterior abdominal area. Well. And there were likewise sign of surgical sutures? A. will you please explain on (sic) this? A. no cogent proof exists that any of these circumstances caused petitioner's death. will you please explain that on ( sic) your own language or in ordinary. the plaintiff has the burden of establishing appellant's negligence and for a reasonable conclusion of negligence. they are mostly perritonial blood . Arizala? 75 . Luke's Hospital. will you please explain that in your own language? A. right paracolic gutter. Q. . sir. The ovaries and adnexal structures are missing with the raw surfaces patched with clotted blood. 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. 33 In Chan Lugay v. . pearshaped and pale measuring 7. the negligence must be the proximate cause of the injury . . sir. Nieto Salvador: Q." And "the proximate cause of an injury is that cause. Q. sir. unbroken by any efficient intervening cause.0 cm. the failure to conduct pre-operation tests on the patient. A-1-B. You mean to say there are no ovaries? A. Q. cannot create a right of action unless it is the proximate cause of the injury complained of . Jr. sir. produces the injury. Q.c. Thus. . sir. For.

Yes. anytime and to any persons (sic). This pathologic examination are (sic) compatible with the person who died. Doctor. 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. (2) allowing a cut blood vessel to get out of control.A. the cutting or the operations done in the body? A. Q. or may be set in the course of operation. Q. sir. I bothered enough to know that they were sutured. Doctor even a patient after an operations (sic) would suffer hemorrage what would be the possible causes of such hemorrage (sic)? A. Q: As a matter of fact. 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. sir. sir. or may be (sic) he died after the operation . Possible. the findings of all three doctors do not preclude the probability that DIC caused the hemorrhage and consequently. it will happen to anyone. Bu C. Dr. is that correct? A. Now. Salvador's elaboration on the matter: Atty. What could have caused this loss of blood? A. Q: So. However. in examining these structures did you know whether these were sutured ligature or plain ligature A: Ligature. sir. Court: Is it possible doctor that the loss of the blood was due on (sic) operation ? A. She died most probably before the actual complete blood loss. which cannot be prevented by anyone. Q. What could have caused the death of the victim ? A. Dr. DIC which is a clotting defect creates a serious bleeding tendency and when massive DIC occurs as a complication of surgery leaving raw surface. sir. Yes. Have you also examined the post mortem of Dr. it will happen to anyone.. Lydia's death. and by virtue of the autopsy report in connection with your pathology report. under that circumstance one of the possibility as you mentioned in ( sic) DIC? A. It is significant to state at this juncture that the autopsy conducted by Dr. hemorrhage or hemorrhagic shock during surgery may be caused by several different factors. Dr. (3) the subsequent loosening of the tie or suture applied to a cut blood vessel. sir. 39 (Emphasis supplied." 43 He testified further: Q. COURT: What do you think of the cause of the bleeding. Many. sir. Q. Definitely. sir. And you mentioned that this cannot be prevented? A. sir. Atty. the bleeding here is not related to any cutting or operation that I (sic) have done. Of course there are other cause (sic). Without knowledge of the autopsy findings it would be difficult for me to determine the cause of death. 42 And as testified to by defense witness. Another may be a blood vessel may be cut while on operation and this cause (sic) bleeding. 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. sir. sir. xxx xxx xxx Q. Bu C. Pascual: Q. Defense witness. 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 . Especially so doctor when there was no blood replacement ? A. sir. Thus.) According to both doctors. Or there is a failure to ligate a vessel of considerable size? A. is that correct? A: Well. And you also mentioned that it may be possible also to some clotting defect. Q. Castro. 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. as likewise testified to by the expert witnesses in open court. 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. 41 On the other hand. Yes. Q. 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 . Among those would be what we call Intravascular Coagulation and this is the reason for the bleeding. Doctor. major hemorrhage occurs. you cannot recall because you did not even bothered ( sic) to examine. Yes.) The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause of death. Cachero: Q. 76 . Arizala's testimony: Q: Doctor. Can you even predict if it really happen (sic)? A. sir. Q. anytime. Castro also gave the following expert opinion: Q. if there was an operations ( sic) and it is possible that the ligature in the suture was (sic) become (sic) loose. Q. It means that a person died of blood loss . Q. sir. Based on my pathologist finding. 37 (Emphasis supplied. therefore. and (4) and a clotting defect known as DIC. sir. 40 Hence the following pertinent portion of Dr. Will you explain to us the meaning of hemorrhagic compatible ? A. it is (sic) becomes loose if proven. A patient who have undergone surgery. is that correct? During the operation there is lost (sic) of control of the cut vessel? A. sir. Yes. sir. the possible causes of hemorrhage during an operation are: (1) the failure of the surgeon to tie or suture a cut blood vessel. Not related to this one. hemorrhage due to DIC "cannot be prevented. Arizala? A. Or even if the vessel were ligated the knot may have slipped later on? A. May be (sic). Yes. 38 (Emphasis supplied). Q. In general sir. Yes. sir. sir.

only a preponderance of evidence is required to establish civil liability.000. doctor. the operated (sic) records. Q. WHEREFORE. 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. the award of moral and exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case.000.00) as civil liability. 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.000. sir.00) as moral damages. the post mortem findings on the histophanic (sic) examination based on your examination of record. there is no fault on the part of the surgeon. Thus. ATTY. 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. and FIFTY THOUSAND PESOS (P50. sir. sir. COURT: He is only reading the record. I did reserve because of the condition of the patient. 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. 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. Romero. Q. A precious life has been lost and the circumstances leading thereto exacerbated the grief of those left behind. Doctor you said that you went through the record of the deceased Lydia Umali looking for the chart. petitioner DR. Are there any specific findings of autopsy that will tell you whether this patient suffered among such things as DIC? A. Let a copy of this decision be furnished to the Professional Regulation Commission (PRC) for appropriate action. PASCUAL: Yes. Nevertheless. 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. cannot be attributed to the petitioner's fault or negligence. 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. Doctor based on your findings then there is knowing ( sic) the doctor would say whether the doctor her (sic) has been (sic) fault? ATTY. 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. ATTY. as attested to by an expert witness. JJ. Melo and Panganiban. her acquittal of the crime of reckless imprudence resulting in homicide. 77 .00) as exemplary damages. 45 The petitioner is a doctor in whose hands a patient puts his life and limb. A. there was no finding made. PASCUAL: Precisely based on this examination.Q. SO ORDERED. Well. concur. for while a conviction of a crime requires proof beyond reasonable doubt. this Court finds the petitioner civilly liable for the death of Lydia Umali.. sir. premises considered. While we condole with the family of Lydia Umali. Certainly. ONE HUNDRED THOUSAND PESOS (P100. Now. 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. No. MALVEDA: Not finding.

.. Petitioner. ... JESUS AGANA. INC. Respondents.x NATIVIDAD (Substituted by her children MARCELINO AGANA III. .... x.R.... Respondents.. 126297 .. ENRIQUE AGANA...versus - THE COURT OF APPEALS and NATIVIDAD and ENRIQUE AGANA.... Petitioner... and RAYMUND AGANA) and ENRIQUE AGANA ....x MIGUEL AMPIL............... EMMA AGANA ANDAYA. x..versus - THE COURT OF APPEALS and NATIVIDAD AGANA and ENRIQUE AGANA ....... Petitioners..... No... Respondents.....versus - THE COURT OF APPEALS and JUAN FUENTES.i FIRST DIVISION PROFESSIONAL SERVICES. JR.G. ....

AZCUNA.. and LEONARDO-DE CASTRO.R. 126467 G. JJ. No. .G. No. CORONA. SANDOVAL-GUTIERREZ. 127590 Present: PUNO.R.J. C.

Afterwards. 1984. her daughter found a piece of gauze protruding from her vagina. Dr. Miguel Ampil. Two (2) weeks thereafter. assailing the Court’s First Division Decision dated January 31. No. No. (PSI). Ampil diagnosed her to be suffering Thus. accompanied by her husband. 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.: As the hospital industry changes. petitioner in G. 1984. still suffering from pains. finding PSI and Dr. Before this Court is a motion for reconsideration filed by Professional Services. No. Natividad. Fuentes about it. 127590. assisted by the medical staff [1] of Medical During the surgery. performed an anterior resection surgery upon her. jointly and severally liable for medical negligence. the attending nurses entered these remarks: sponge count lacking 2 announced to surgeon searched done (sic) but to no avail continue for closure. Hence. Ampil took over. However. on April 11. A brief revisit of the antecedent facts is imperative. Dr. Natividad’s husband. 126297. Dr. she was advised to return to the Philippines. went to the United States to seek further treatment. completed the operation and closed the incision. Inc. to perform hysterectomy upon Natividad. On August 31. to permit Dr. They told her that the pain was the natural consequence of the surgical operation performed upon her. Ampil obtained the consent of Atty. Ampil and Dr. Dr.R. In the corresponding Record of Operation dated April 11. Natividad was told that she was free of cancer. necessitating the removal of certain portions of it. Ampil recommended that Natividad consult an oncologist to treat the cancerous nodes which were not removed during the operation. 126467. from “cancer of the sigmoid. 1984.Promulgated: February 11. Ampil was immediately . On May 9. After four (4) months of consultations and laboratory examinations. 2008 ---------x x-------------------------------------. Juan Fuentes.R. Natividad flew back to the Philippines. Natividad complained of excruciating pain in her anal region. Dr. Ampil. Dr. petitioner in G.---------- RESOLUTION SANDOVAL-GUTIERREZ. so must the laws and jurisprudence governing hospital liability. Fuentes performed and completed the hysterectomy. her sigmoid area had spread to her left ovary. Dr. 1984. 2007. 1984. On April 4. J. the operation appeared to be flawed. respondent in G.” City. Natividad Agana was admitted at the Medical City General Hospital (Medical City) because of difficulty of bowel movement and bloody anal discharge. he found that the malignancy in Thus.R. Enrique Agana. After a couple of days. She consulted both Dr.

estopped it from denying the existence of an employer-employee relationship between them under the doctrine of ostensible agency or agency by estoppel . PSI’s act of publicly displaying in the lobby of the Medical City the names and specializations of its accredited physicians. A recto-vaginal fistula had formed in her reproductive organ which forced stool to excrete through the vagina. prompting Natividad to seek treatment at the Polymedic General Hospital. Ampil and Dr. affirmed the assailed judgment with modification in the sense that the complaint against Dr. her vaginal vault. PSI stressed that the Court’s Decision in Ramos holding that “an employer-employee relationship in Further. Court of Appeals. On February 16. and third. that Natividad relied on the representation of the hospital in engaging the services of Dr. And lastly. rendered a Decision holding that PSI is jointly and severally liable with Dr. Despite Dr. Dr. . 1996.e. there is an employer-employee relationship between Medical City and Dr. Fuentes jointly and severally liable. Dr. On November 12. Ampil. there being no employer-employee relationship between it and its consultant. PSI contends that the Court erred in finding it liable under Article 2180 of the Civil Code. 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. Natividad died. Fuentes was dismissed. Quezon City a complaint for damages against PSI (owner of Medical City).5 inches in width. On January 31. i. object in her vagina -. 1993. the pains intensified.informed. Ampil. in its Decision dated September 6. through its First Division. Ampil and Dr. 1984. He proceeded to Natividad’s house where he managed to extract by hand a piece of gauze measuring 1. second. PSI maintains that the doctrine of corporate negligence is misplaced because the proximate cause of Natividad’s injury was 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. an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. The Court relied on Ramos v. On appeal. 2007. including Dr. Ampil. in October 1984. PSI. Ampil for the following reasons: first. Dr. Natividad underwent another surgery. Ampil’s negligence. PSI’s failure to supervise Dr. She was duly On March 17.a foul-smelling gauze measuring 1. the trial court rendered judgment in favor of spouses Agana finding PSI. the Court of Appeals. Dr. Ampil then assured Natividad that the pains would soon vanish. Fuentes. substituted by her above-named children (the Aganas). While confined thereat. pending the outcome of the above case. Ampil’s assurance. Ampil. Natividad and her husband filed with the Regional Trial Court.[2] holding that for the purpose of apportioning responsibility in medical negligence cases. Another surgical operation was needed to remedy the situation. Ramon Gutierrez detected the presence of a foreign The gauze had badly infected Thus. the Court. Branch 96. The motion lacks merit.5 inches in width.. 1986. Ampil and the Aganas filed with this Court separate petitions for review on certiorari. Dr. Dr.

evidence of accreditation by the appropriate board (diplomate). and references. and feedback from patients. the difficulty is only more apparent than real. This ruling proceeds from the following ratiocination in Ramos: We now discuss the responsibility of the hospital in this particular incident. After a physician is accepted. 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. interns and residents. nurses. fire and exercise real control over their attending and visiting “consultant” staff. interns and residents. either as a visiting or attending consultant. Doctors who apply for “consultant” slots. In other words. One such factor is the “control test” wherein the hospital exercises control in the hiring and firing of consultants. Thus. there is no employer-employee relationship between them. private hospitals hire. moderate grand rounds and patient audits and perform other tasks and responsibilities. hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. generally. like Dr. their educational qualifications. However. an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the former’s responsibility under a relationship of partia ptetas. Actually. This is particularly true with respondent hospital. the Court considered the peculiar relationship between a hospital and its consultants on the bases of certain factors. This being the case. In the first place. or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee. Ampil. we rule that for the purpose of allocating responsibility in medical negligence cases. and in the conduct of their work. contrary to PSI’s contention. conduct bedside rounds for clerks. the Court did not reverse its ruling in Ramos. hence. an employer-employee relationship exists between hospitals and their consultants.” who are allegedly not hospital employees. he is normally required to attend clinico-pathological conferences.As earlier mentioned. the doctrine in Ramos stays. Clearly. in its assailed Decision. the control exercised. A consultant remiss in his duties. Consequently. on the basis of the foregoing. Accordingly. is normally politely terminated. technically employees. visiting or attending. Ampil. for the purpose of allocating responsibility in medical negligence cases. both are jointly and severally liable to the Aganas. the control test is determining.e. the hiring. The unique practice (among private hospitals) of filling up specialist staff with attending and visiting “consultants. despite the granting of the said hospital’s motion for reconsideration. the physician’s performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics. While “consultants” are not. in Ramos. with the exception of the payment of wages. What it clarified was that the De Los Santos Medical Clinic did not exercise control over its consultant. a point which respondent hospital asserts in denying all responsibility for the patient’s condition. the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioner’s condition. i.. and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship. In assessing whether such a relationship in fact exists. . and/or for the privilege of admitting patients into the hospital. In addition to these. evidence of fellowship in most cases. the First Division. for the privilege of being able to maintain a clinic in the hospital. ruled that an employer-employee relationship “in effect” exists between the Medical City and Dr. are required to submit proof of completion of residency. presents problems in apportioning responsibility for negligence in medical malpractice cases.

( De Castro v.D. consistent with ordinary care and prudence. 629 (2000). Novant Health.” not employees of the hospital. 31 A. the hospital need not make express representations to the patient that the treating physician is an employee of the hospital. 702 F. rather a representation may be general and implied. 1210 [1988]) This exception is also known as the “doctrine of apparent authority. Carpio. xxx The doctrine of apparent authority essentially involves two factors to determine the liability of an independent contractor-physician. App. Mitchell. be permitted to falsify it. Inc. Article 1431 of the Civil Code provides that “[t]hrough estoppel. Even assuming that Dr. and to act upon such belief. still the said hospital is liable to the Aganas. but an independent contractor. The hospital may be liable if the physician is the “ostensible” agent of the hospital. intentionally and deliberately led another to believe a particular thing true. PSI merely offered a general denial of responsibility. however.3rd 958. [4] through Mr. In Nograles. A. Justice Antonio T. are “independent contractors. (Diggs v. Ampil was that he knew him to be a staff member of Medical City. the Court held: The question now is whether CMC is automatically exempt from liability considering that Dr. There is. 31 A. an admission or representation is rendered conclusive upon the person making it. xxx The second factor focuses on the patient’s reliance. (Diggs v. 453 [1969]. a hospital is not liable for the negligence of an independent contractorphysician.2d 851 (2006) citing Hylton v. by his own declaration. Estrada is an independent contractor-physician. The first factor focuses on the hospital’s 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. Agana categorically testified that one of the reasons why he chose Dr. par.D. Ampil is its employee. act. (Id. The argument lacks merit. Q Will you tell us what transpired in your visit to Dr. It is sometimes characterized as an inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or its agent.E. et al. ( Jones v. like Dr. Rule 131 of the Rules of Court. in any litigation arising out of such declaration. an exception to this principle. 628 S. Capitol Medical Center.2d 169 [2006]).2d 169 (2006)].. 819 N.” (Sometimes referred to as the apparent or ostensible agency theory. See also King v. et al. S. v. Philpott. In general. act or omission. . In this regard. 819 N. he cannot. Koontz.In the instant cases.C. maintaining that consultants. Novant Health. Ampil is not an employee of Medical City.” Estoppel rests on this rule: “Whether a party has. Atty. citing Sec.) 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. a prominent and known hospital . 137 Phil.3rd 958.Y. Inc. Ampil? . 138 N. 3.Y. [ King v.S.) The doctrine of apparent authority is a specie of the doctrine of estoppel. Mitchell. or omission. Supp. Ampil. Ginete. and cannot be denied or disproved as against the person relying thereon.

Unfortunately.[7] The duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician. was evasive. my daughter was his student in the University of the East School of Medicine at Ramon Magsaysay. This justifies Atty. I have known him to be a specialist on that part of the body as a surgeon. Ampil in connection with your wife’s illness? A First. 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. I have known Dr.[5] Clearly. Puruganan. And from there. Agana’s belief that Dr. he was a neighbor. 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. thus: Q We go back to the operative technique. 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. than his ordinary patients.[8] Such responsibility includes the proper supervision of the members of its medical staff . was this submitted to the hospital? . Ampil. The challenged Decision also anchors its ruling on the doctrine of corporate responsibility. a member of PSI’s the reported missing gauzes to the great prejudice and agony of its patient. 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.[6] In these cases. first. is justified in presuming that such agent has authority to perform the particular act in question . PSI had been remiss in its duty.A Well. and I told him about the case of my wife and he asked me to bring my wife over so she could be examined. Dr. because he is a neighbor. what was your reason for choosing to contact Dr. this was signed by Dr. It must be stressed that under the doctrine of apparent authority. Ampil was one of our consultants on how to establish that hospital. I have known him to be a staff member of the Medical City which is a prominent and known hospital. Atty. And third. Accordingly. 1984. Jocson. the circumstances yield a positive answer to the question. I have known that he was a specialist when it comes to that illness. I expect more than the usual medical service to be given to us. medical staff. April 2. It did not conduct an immediate investigation on Dr. Ampil was a member of the hospital’s staff. Ampil. Prior to that. second. second. Agcaoili On that particular occasion. he was staying in front of our house. and when my daughter opted to establish a hospital or a clinic. conversant with business usages and the nature of the particular business. PSI is estopped from passing the blame solely to Dr. who testified on whether the hospital conducted an investigation. I know him to be a staff member there. I saw Dr. Ampil at the Medical City. before that.

was it not your obligation. Agana Precisely. sir. sir. Dr. 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. your honor. Q You never did hear the hospital investigating the doctors involved in this case of those missing sponges. I am asking you if the hospital did a move.[9] . or did you hear something? x x x x x x A I think we already made a report by just saying that two sponges were missing. Q A Did the hospital investigate the surgeon who did the operation? I am not in the position to answer that. because I did not have any more followup of the case that happened until now. this was submitted to the hospital with the record of the patient.A Yes. Q As a witness to an untoward incident in the operating room. sir.. sir. if the hospital did a move. 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. Court By that answer. You do not answer my question with another question. 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. Atty. how will you recover. A Q A If you place yourself in the position of the hospital. it is up to the hospital to make the move. Q A Was the hospital immediately informed about the missing sponges? That is the duty of the surgeon. A I cannot answer that.

Jocson’s lack of concern for the patients. Did you go back to the record custodian? I did not because I was talking to Dr. it also failed to take an active step in fixing the negligence committed . SO ORDERED. thus: Q You said you relied on the promise of Dr. the entries of the dates.” The following testimony of Atty. Ampil under Article 2180 of the Civil Code. Moreover. Not only did PSI breach its duty to oversee or supervise all persons who practice medicine within its walls. He promised me. you went to the record custodian? I went to the record custodian to get the clinical record of my wife. Agana supports such findings.The above testimony obviously shows Dr. but also directly liable for its own negligence under Article 2176. Ampil. . among them. not only vicariously liable for the negligence of Dr. A Q A After your talk to Dr. This renders PSI.[10] In sum. Such conduct is reflective of the hospital’s manner of supervision. we DENY PSI’s motion for reconsideration with finality. there is merit in the trial court’s finding that the failure of PSI to conduct an investigation “established PSI’s part in the dark conspiracy of silence and concealment about the gauzes . WHEREFORE. we find no merit in the motion for reconsideration. Ampil and despite the promise you were not able to obtain the said record. Ampil. and I was given a portion of the records consisting of the findings. but not the operating procedure and operative report.

. The antecedent facts: On July 28. Chairperson... petitioner advised Editha to undergo a Dilatation and Curettage Procedure (D&C) or “raspa..R.AUSTRIA-MARTINEZ..: Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by Dr. La Union due to vaginal bleeding. Editha was admitted to the LMC on the same day. 1994. and REYES. Editha’s repeat pelvic sonogram[4] showed that aside from the fetus’ weak cardiac pulsation. J. . 159132 Petitioner. 2008x . Fe Cayao-Lasam (petitioner) seeking to annul the Decision[1] dated July 4. 2003 of the Court of Appeals (CA) in CA-G..” .SPOUSES CLARO and EDITHA RAMOLETE... SP No.-----------. J. Promulgated: Respondents.. A pelvic sonogram[2] was then conducted on Editha revealing the fetus’ weak cardiac pulsation. 62206. CHICO-NAZARIO.Republic of the Philippines Supreme Court Manila THIRD DIVISION FE CAYAO-LASAM. G. NACHURA. No. Upon advice of petitioner relayed via telephone.R. December 18.. three months pregnant Editha Ramolete (Editha) was brought to the Lorma Medical Center (LMC) in San Fernando. Due to persistent and profuse vaginal bleeding.[3] The following day. JJ.. Present: YNARES-SANTIAGO.-------------------------------x DECISION AUSTRIA-MARTINEZ..versus . no fetal movement was also appreciated.. respondent.

which was an extremely rare and very unusual case of abdominal placental implantation. the uterus would rupture just the same. 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). Mayo and Dr. Victor B. 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. should the bleeding become more profuse. Petitioner argued that whether or not a D&C procedure was done by her or any other doctor. petitioner agreed. Mayo allegedly informed Editha that there was a dead fetus in the latter’s womb.[13] taking the words of Editha to mean that she was passing out some meaty mass and clotted blood. she conducted another internal examination on Editha. she assumed that the abortus must have been expelled in the process of bleeding. but she advised Editha to return for check-up on August 5. After. on July 29. Editha persistently complained of her vaginal bleeding and her passing out of some meaty mass in the process of urination and bowel movement. Beatriz de la Cruz.[8] Among the alleged acts of negligence were: first. . Editha had to undergo a procedure for hysterectomy[6] and as a result.[5] she was found to have a massive intra-abdominal hemorrhage and a ruptured uterus. Dr. she performed an internal examination on Editha and she discovered that the latter’s cervix was already open. Editha was attended by Dr.[12] petitioner denied the allegations of negligence and incompetence with the following explanations: upon Editha’s confirmation that she would seek admission at the LMC. petitioner immediately suggested a D&C procedure instead of closely monitoring the state of pregnancy of Editha.On July 30. petitioner advised Editha to undergo D&C procedure which the respondents consented to. she has no more chance to bear a child. Dr. there would be no difference at all because at any stage of gestation before term. Editha was once again brought at the LMC. as she was suffering from vomiting and severe abdominal pains. 1994. visit or administer medication on Editha during her first day of confinement at the LMC. which the latter failed to do. petitioner visited Editha on the morning of July 28.[11] In her Answer. petitioner was very vocal in the operating room about not being able to see an abortus. Editha underwent laparotomy. petitioner performed the D&C procedure. 1994. Komiya.[10] third. 1994 during her rounds. Editha was discharged from the hospital the On September 16. which revealed that the latter’s cervix was still open. Juan V. 1994 against doctor’s advice and her unjustified failure to return for check-up as directed by petitioner that contributed to her life-threatening condition on September 16. thus. thus. 1994. it was Editha who insisted that she wanted to be discharged.[9] second. Petitioner contended that it was Editha’s gross negligence and/or omission in insisting to be discharged on July 31. 1994. petitioner recommended that a D&C procedure be performed on Editha without conducting any internal examination prior to the procedure. On November 7. that Editha’s hysterectomy was brought about by her very abnormal pregnancy known as placenta increta. petitioner discussed the possible D&C procedure. 1994. petitioner’s failure to check up. following day. Respondents alleged that Editha’s hysterectomy was caused by petitioner’s unmitigated negligence and professional incompetence in conducting the D&C procedure and the petitioner’s failure to remove the fetus inside Editha’s womb. on July 30 1994. Thus.

[19] PRC is not among the quasi-judicial bodies whose judgment or final orders are subject of a petition for review to the CA. 1999. the CA held that the Petition for Review under Rule 43 of the Rules of Court was an improper remedy. HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO APPEAL FROM THE DECISION OF THE BOARD OF MEDICINE TO THE PROFESSIONAL REGULATION[S] COMMISSION. 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. Respondent (Dr. Citing Section 26[20] of Republic Act (R. herein petition. 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. Lasam) cannot be faulted if she was not able to determine that complainant Editha is having an ectopic pregnancy interstitial. When complainant Editha was admitted at Lorma Medical Center on July 28. the Board of Medicine (the Board) of the PRC rendered a Decision. Simple curettage cannot remove a fetus if the patient is having an ectopic pregnancy. Obstetricians will assume that the pregnancy is within the uterus unless so specified by the Sonologist who conducted the ultra-sound. was improper. THAT PRC WAS EXCLUDED FROM THE PURVIEW OF RULE 43 OF THE RULES OF CIVIL PROCEDURE. as the enumeration of the quasi-judicial agencies in Rule 43 is exclusive. hers is a case of Ectopic Pregnancy Interstitial. Petitioner also dubbed her petition as one for certiorari[18] under Rule 65 of the Rules of Court.) No.[21] Hence. Therefore. On November 22. 2000. 2003. . 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. 1994 due to vaginal bleeding. a more extensive operation needed in this case of pregnancy in order to remove the fetus. OR WHERE THE DECISION WAS A PATENT NULLITY. 2382 or the Medical Act of 1959. the CA held that the plain. The D&C conducted on Editha is necessary considering that her cervix is already open and so as to stop the profuse bleeding. thus. EVEN ASSUMING.[15] Feeling aggrieved. since ectopic pregnancy is pregnancy conceived outside the uterus and curettage is done only within the uterus. 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. 3.[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. assailing the decision of the CA on the following grounds: 1. [17] Petitioner brought the matter to the CA in a Petition for Review under Rule 43 of the Rules of Court. the petition for review of the PRC Decision. respondents went to the PRC on appeal. filed at the CA.A. THE PETITIONER WAS NOT PRECLUDED FROM FILING A PETITION FOR CERTIORARI WHERE THE DECISION WAS ALSO ISSUED IN EXCESS OF OR WITHOUT JURISDICTION. In the Decision dated July 4. 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. ARGUENDO. the PRC rendered a Decision[16] reversing the findings of the Board and revoking petitioner’s authority or license to practice her profession as a physician. 2.On March 4.

IN ACCEPTING AND CONSIDERING THE MEMORANDUM ON APPEAL WITHOUT PROOF OF SERVICE TO HEREIN PETITIONER. 6. PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN TOTALLY DISREGARDING THE FINDING OF THE BOARD OF MEDICINE.[23] Petitioner cited Section 26 of Republic Act No. AS WELL AS THE TESTIMONY OF THE EXPERT WITNESS AUGUSTO MANALO. .[AND] 9.D.” to wit: Section 26. If the final decision is not satisfactory. AMOUNTING TO LACK OF JURISDICTION. 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. Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals.4. when allowed by law. 35. as a matter of right. . Appeal from judgment. 2382 or “The Medical Act of 1959. 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. 7. PRC COMMITTED GRAVE ABUSE OF DISCRETION. during the same period. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING PETITIONER’S LICENSE TO PRACTICE MEDICINE WITHOUT AN EXPERT TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF RESPONDENT EDITHAT [SIC] RAMOLETE’S INJURY. may appeal the Decision of the Board to the Commission. M. The respondent may appeal the decision of the Board within thirty days from receipt thereof to the Commission whose decision shall be final. Complainant. IV. Petitioner claims that the law does not allow complainants to appeal to the PRC from the decision of the Board. 35 OF THE RULES AND REGULATIONS GOVERNING THE REGULATION AND PRACTICE OF PROFESSIONALS. AND IN VIOLATION OF ART. 8. the respondent may ask for a review of the case. COROLLARY TO THE FOURTH ASSIGNED ERROR.[22] The Court will first deal with the procedural issues. which provides: Sec. may interpose an appeal from the Decision of the Board within the same period. She invokes Article IV. or may file in court a petition for certiorari. 5. has appealed to the Commissioner of Civil Service (now Professional Regulations Commission) and later to the Office of the President of the Philippines. WHICH HAD THE NECESSARY COMPETENCE AND EXPERTISE TO ESTABLISH THE CAUSE OF RESPONDENT EDITHA’S INJURY. SEC. 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. PRC’S 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. (Emphasis supplied) Petitioner asserts that a careful reading of the above law indicates that while the respondent. the complainant may interpose an appeal from the decision of the Board only when so allowed by law.

It is axiomatic that the right to appeal is not a natural right or a part of due process.[26] Moreover. there is no need.. For one. for any interpretation. the principle of double jeopardy finds no application in administrative cases. order or resolution of the Board may appeal to the Commission. order or resolution of the Board shall be final and executory after the lapse of fifteen (15) days from receipt of the decision. either the complainant or the respondent who has been aggrieved by the decision. (4) when a valid plea has been entered. 1. order or resolution of the Board to the Commission within fifteen (15) days from receipt thereof. 35.[25] These elements were not present in the proceedings before the Board of Medicine. (Amended by Res. Series of 1990). It is an elementary rule that when the law speaks in clear and categorical language. the new rules provide that “a party aggrieved” may file a notice of appeal. rather.[24] The Court does not agree. or the case was dismissed or otherwise terminated without the express consent of the accused. and paying the appeal and legal research fees. to wit: Sec. or the New Rules of Procedure in Administrative Investigations in the Professional Regulations Commission and the Professional Regulatory Boards. Thus. Double jeopardy attaches only: (1) upon a valid indictment. and (5) when the defendant was acquitted or convicted. as the proceedings involved in the instant case were administrative and not criminal in nature. 174. 06-342(A). which provides for the method of appeal. Appeal.[27] (Emphasis supplied) Whatever doubt was created by the previous provision was settled with said amendment. Period Non-Extendible. the PRC issued Resolution No. but a mere statutory privilege that may be exercised only in the manner prescribed by law.[30] Words and phrases used in the statute should be given their plain. The complainant/respondent may appeal the order. order or resolution may file a notice of appeal from the decision. A party aggrieved by the decision. 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.[31] . in the absence of legislative intent to the contrary.[28] In this case. and common usage or meaning.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. Such conclusion is bolstered by the fact that in 2006.The decision. The Court has already held that double jeopardy does not lie in administrative cases. and serving upon the adverse party a notice of appeal together with the appellant’s brief or memorandum on appeal. (2) before a competent court. order or resolution without an appeal being perfected or taken by either the respondent or the complainant. Interlocutory order shall not be appealable to the Commission. x x x[29] The above-stated provision does not qualify whether only the complainant or respondent may file an appeal. Petitioner is of the belief that the revocation of license to practice a profession is penal in nature. ordinary. 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. Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals cited by petitioner was subsequently amended to read: Sec. (3) after arraignment.

P. Social Security Commission. and from awards. orders or awards of Regional Trial Courts and quasijudicial agencies. and voluntary arbitrators authorized by law.[34] On this point. judgments.[39] (Emphasis supplied) Clearly. imply its exclusion from the coverage of said Rule.[41] . resolutions. Among these agencies are the Civil Service Commission. expert testimony is necessary to support the conclusion as to the cause of the injury. petitioner questions the PRC decision for being without an expert testimony to support its conclusion and to establish the cause of Editha’s injury. National Telecommunications Commission. Securities and Exchange Commission. conferred on the Court of Appeals “exclusive appellate jurisdiction over all final judgments. judgments final orders or resolutions of any quasi-judicial agency in the exercise of its quasi-judicial functions. The Court held: The law has since been changed. final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions . National Electrification Administration. x x x. the Court agrees with the petitioner.) Blg. Court of Appeals. Batas Pambansa Bilang 129 became effective and in its Section 29. Philippine Atomic Energy Commission. Agricultural Inventions Board. Sec. Blg. Office of the President. Department of Agrarian Reform under Republic Act No.This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals.Petitioner also submits that appeals from the decisions of the PRC should be with the CA. Trademarks and Technology Transfer. Insurance Commission. Central Board of Assessment Appeals. Employees Compensation Commission. in Yang v. Civil Aeronautics Board. the Court. Land Registration Authority. Government Service Insurance System. the PRC is not expressly mentioned as one of the agencies which are expressly enumerated under Section 1. Bureau of Patents.[40] lodged with the CA such jurisdiction over the appeals of decisions made by the PRC.[37] ruled that Batas Pambansa (B. Scope. On August 14. Construction Industry Arbitration Commission. Rule 43 of the Rules of Court provides: Section 1. decisions. Energy Regulatory Board. the enactment of B. instrumentalities. Anent the substantive merits of the case.[35] The Rule expressly provides that it should be applied to appeals from awards. Petitioner avers that in cases of medical malpractice. 6657. . 1981. 1.P. its absence from the enumeration does not. the precursor of the present Rules of Civil Procedure. boards or commissions except those falling under the appellate jurisdiction of the Supreme Court.” In virtue of BP 129. at least in the matter of the particular court to which appeals from the Commission should be taken. (Emphasis supplied) Indeed.[36] Specifically. by this fact alone. however. Rule 43 of the Rules of Court. Board of Investments. However. 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. appeals from the Professional Regulations Commission are now exclusively cognizable by the Court of Appeals. The phrase “among these agencies” confirms that the enumeration made in the Rule is not exclusive to the agencies therein listed. 129[38] conferred upon the CA exclusive appellate jurisdiction over appeals from decisions of the PRC.[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. 129.

to qualify as an expert witness.[50] According to him.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. either by the study of recognized authorities on the subject or by practical experience. Petitioner. Dr. the instrument cannot reach the site of the pregnancy. Manalo specializes in gynecology and obstetrics.[45] The breach of these professional duties of skill and care. Augusto M.[46] As to this aspect of medical malpractice. under similar conditions. 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. Manalo testified as follows: Atty. One. for it to further push the pregnancy outside the uterus. Manalo. expert testimony is essential. constitutes actionable malpractice. we want to be clarified on this matter. 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.”[51] In stating that the D&C procedure was not the proximate cause of the rupture of Editha’s uterus resulting in her hysterectomy.[42] In order to successfully pursue such a claim. and that the failure or action caused injury to the patient. Ruptured. and in like surrounding circumstances. and is a professor at the University of the Philippines. inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge. the determination of the reasonable level of care and the breach thereof. whereby the patient is injured in body or in health. as I have said earlier. I do not think so for two reasons. The condition which she found herself in on the second admission. his diagnosis of Editha’s case was “Ectopic Pregnancy Interstitial (also referred to as Cornual). or their improper performance by a physician surgeon. And. Will you please tell us whether that is true or not? Yah.[48] In the present case. Hidalgo: Q: Doctor.[43] There are four elements involved in medical negligence cases: duty. it has been recognized that expert testimony is usually necessary to support the conclusion as to causation. one must have acquired special knowledge of the subject matter about which he or she is to testify. presented the testimony of Dr. authored and co-authored various publications on the subject.[49] Dr. 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. who was clearly an expert on the subject. breach. injury and proximate causation.[47] Further. As Editha’s physician. A: . The complainant had testified here that the D&C was the proximate cause of the rupture of the uterus. on the other hand.[44] A physician-patient relationship was created when Editha employed the services of the petitioner. Generally.

then it would be a lot of time wasted. it was described as scanty scraping if I remember it right—scanty. if you have handled your patient. we do that. No. Because it would be very unusual. I Q: A: . In fact. Would you tell us whether there is any relation at all of the D&C and the rupture in this particular instance? I don’t think so for the two reasons that I have just mentioned.[52] (Emphases supplied) A: Clearly. And. even improbable that it would not be examined. He stated: Atty. why I don’t think so. Ragonton: Q: Doctor. I assume that it was checked. Q: In this particular case. correct and ideal dilatation and curettage procedure? Well. It was described as scanty and the color also. You can touch it. I think was described. So. it is evident that the D&C procedure was not the proximate cause of the rupture of Editha’s uterus. the patient stops bleeding. As a matter of fact. Because if you know your patient. it could have—the rupture could have occurred much earlier. During his cross-examination. A: Q: If you were the OB-Gyne who performed the procedure on patient Editha Ramolete. So there’s no way. automatically they are examined closely. when do you consider that you have done a good. you have to touch them. and wait a little more time. doctor. And. I was thinking a while ago about another reason. Dr. doctor. as a practicing OB-Gyne. It’s in front of you. the specimens are right there before your eyes. Q: A: And you would not mind checking those scant or those little parts that were removed? Well. 1994 which is about 1 ½ months after the patient was discharged. I think you should still have some reservations. she feels well. would it be your standard practice to check the fetal parts or fetal tissues that were allegedly removed? From what I have removed.No. because it is the triggering factor for the rupture. you also give telephone orders to your patients through telephone? Yes. the rupture occurred to have happened minutes prior to the hysterectomy or right upon admission on September 15. some of them will stick to the instrument and therefore to peel it off from the instrument. If the patient gets well. even after the procedure you may feel that you have scraped everything. Manalo testified on how he would have addressed Editha’s condition should he be placed in a similar circumstance as the petitioner. ‘no. if the patient recovers. the fact that it was described means. A: Q: A: There was [sic] some portions of the fetal parts that were removed? No. 2. right after the D&C or a few days after the D&C. But in this particular case. after the D&C was conducted. especially here in Manila because you know. 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. 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. if it is because of the D&C that rupture could have occurred earlier. yes.that it would not be possible for the instrument to reach the site of pregnancy. from the testimony of the expert witness and the reasons given by him. some of the symptoms you can interpret that comes with practice. Because even after the procedure. yes. 2.well. because when you scrape.

[53] (Emphases supplied) From the foregoing testimony. the same would have been rectified if Editha followed the petitioner’s order to return for a check-up on August 4. The defenses in an action for damages.[56] In the present case. This advise was clear in complainant’s Discharge Sheet. depending on how familiar I am with the patient. So. 1994.see no reason for not allowing telephone orders unless it is the first time that you will be encountering the patient. he stated further that assuming that there was in fact a misdiagnosis. Manalo stated: . When the plaintiff’s own negligence was the immediate and proximate cause of his injury. do you discharge patients without seeing them? Sometimes yes. he cannot recover damages. and without which the result would not have occurred. 1994. of course before giving that order I ask about how she feels. late in the afternoon or late in the evening. in the testimony of Dr. Manalo. doctor. Medical malpractice. the immediate and proximate cause of the injury being the defendant’s lack of due care. We are on the question of telephone orders. So. the respondent could have examined her thoroughly. the chain of continuity as required in order that the doctrine of proximate cause can be validly invoked was interrupted. the Court notes the findings of the Board of Medicine: When complainant was discharged on July 31.[55] An injury or damage is proximately caused by an act or a failure to act. 2179. However. is often brought as a civil action for damages under Article 2176[54] of the Civil Code. Proximate cause has been defined as that which. 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. I have patients whom I have justified and then all of a sudden. And. I am not saying that that is the idle [sic] thing to do. and that there was nothing irregular in the way the petitioner dealt with Editha. with the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances. complainant failed to do so. Had she returned. in natural and continuous sequence. 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. Dr. This being the case. provided for under Article 2179 of the Civil Code are: Art.[57] x x x (Emphases supplied) Also. unbroken by any efficient intervening cause. it is clear that the D&C procedure was conducted in accordance with the standard practice. but the courts shall mitigate the damages to be awarded. that’s when I make this telephone orders. produces injury. would suddenly call they have decided that they will go home inasmuch as they anticipated that I will discharge them the following day. in our jurisdiction. That you have no idea what the problem is. the plaintiff may recover damages. and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. Q: A: But. 1994 or four (4) days after the D&C. But if his negligence was only contributory. herein respondent advised her to return on August 4. but I think the reality of present day practice somehow justifies telephone orders.

is a dynamic process. on the other hand avers that if the original registry receipt was not attached to the Memorandum on Appeal. in which no negligence can be attributed to the petitioner.[63] Respondents. it is clear that Editha’s omission was the proximate cause of her own injury and not merely a contributory negligence on her part. The continued growth of an ectopic pregnancy. Had Editha returned. the immediate cause of the accident resulting in Editha’s injury was her own omission when she did not return for a follow-up check up. based on the evidence presented in the present case under review. 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.[59] Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. as instructed for her follow-up evaluation. which did not attach the actual registry receipt but was merely indicated therein. The immediate cause of Editha’s injury was her own act. Thus. 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. The same holds true in the case at bar. PRC would not have entertained the appeal or accepted such pleading for lack of notice or proof of service on the other party. she cannot recover damages from the injury. until its eventual rupture. he cannot recover damages for the injury. is the proximate cause of the injury. petitioner could have conducted the proper medical tests and procedure necessary to determine Editha’s health condition and applied the corresponding treatment which could have prevented the rupture of Editha’s uterus.[66] In the present case. The D&C procedure having been conducted in accordance with the standard medical practice. in defiance of the petitioner’s advise.[65] It is a well-settled rule that when service of notice is an issue. The omission in not returning for a follow-up evaluation played a substantial part in bringing about Editha’s own injury. respondents did not present any proof that petitioner was served a copy of the Memorandum on Appeal. which. which contributed to the principal occurrence as one of its determining factors.[64] Also. Much change in physical findings could be expected in 1 ½ months. thus. v. Editha omitted the diligence required by the circumstances which could have avoided the injury. the Court held that said failure deprived the petitioner of procedural due process guaranteed by the Constitution.[58] It is undisputed that Editha did not return for a follow-up evaluation. which could have served as basis for the nullification of the proceedings in the appeal. National Labor Relations Commission. Inc. . concurring with the defendant’s negligence. Lastly.Granting that the obstetrician-gynecologist has been misled (justifiably) up to thus point that there would have been ample opportunity to rectify the misdiagnosis. In EDI-Staffbuilders International. in defiance of petitioner’s orders. because the registry receipt was already appended to the original copy of the Memorandum of Appeal filed with PRC.[62] Petitioner claims that a verification with the records section of the PRC revealed that on April 15. [67] in which the National Labor Relations Commission failed to order the private respondent to furnish the petitioner a copy of the Appeal Memorandum.[61] Again. It was one and a half months later that the patient sought consultation with another doctor.[60] Where the immediate cause of an accident resulting in an injury is the plaintiff’s own act. including the emergence of suggestive ones. respondents filed a Memorandum on Appeal before the PRC. The burden of proving notice rests upon the party asserting its existence. had the patient returned. the registry receipt could not be appended to the copy furnished to petitioner’s former counsel. Contributory negligence is the act or omission amounting to want of ordinary care on the part of the person injured. 1999. the rule is that the person alleging that the notice was served must prove the fact of service.

the proceedings before the PRC were null and void. Petitioners. WHEREFORE. Respondent. R. Thus. The Decision of the Board of Medicine dated March 4. All told. They are not guarantors of care. TUAÑO. The assailed Decision of the Court of Appeals dated July 4. No.versus - DR. G. SO ORDERED.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. PROSPERO MA. doctors are protected by a special rule of law. . THIRD DIVISION PETER PAUL PATRICK LUCAS. 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. ABBEYGAIL LUCAS AND GILLIAN LUCAS. 178763 Present: . No pronouncement as to costs. 62206 is hereby REVERSED and SET ASIDE. the petition is GRANTED. C. 2003 in CAGR SP No. 1999 exonerating petitioner is AFFIRMED. FATIMA GLADYS LUCAS.

the established factual antecedents of the present petition are: Sometime in August 1988... J.... Abbeygail Lucas and Gillian Lucas v.. ....R. Branch 150. Chairperson.. Tuaño. petitioners Peter Paul Patrick Lucas. C.. “Peter Paul Patrick Lucas. Abbeygail Lucas and Gillian Lucas seek the reversal of the 27 September 2006 Decision[2] and 3 July 2007 Resolution... 2009x ....: In this petition for review on certiorari[1] under Rule 45 of the Revised Rules of Court.. Fatima Gladys Lucas.. Prospero Ma. the Court of Appeals affirmed the 14 July 2000 Decision of the Regional Trial Court (RTC)..... Promulgated: April 21. CV No.. petitioner Peter Paul Patrick Lucas (Peter) contracted “sore eyes” in his right eye.. Tuaño.. C.....[3] both of the Court of Appeals in CA-G. CHICO-NAZARIO. dismissing the complaint filed by petitioners in a civil case entitled. 92-2482........ From the record of the case..YNARES-SANTIAGO. J. Abbeygail Lucas and Gillian Lucas v... JJ. and PERALTA. Makati City. Fatima Gladys Lucas..x DECISION CHICO-NAZARIO... AUSTRIA-MARTINEZ... Prospero Ma. 68666.... Fatima Gladys Lucas..” docketed as Civil Case No. entitled “Peter Paul Patrick Lucas. NACHURA...” In the questioned decision and resolution.

and (5) the ophthalmoscopy[4] on Peter’s eyes was used. Dr. Edwin Oca.D. otherwise. Tuaño. M. After examining both of Peter’s eyes. (4) the motility of Peter’s eyes was observed. and then just once a day. Maxitrol had to be withdrawn gradually. he performed “ocular routine examination” on Peter’s eyes. Tuaño specifically cautioned Peter that. Luke’s Medical Center.[9] To recall. because the EKC in his right eye had already resolved. feeling as if his eyes were about to “pop-out. Peter went back to Dr. Consequently. Peter was told by Dr. Tuaño told Peter to resume the maximum dosage of Blephamide. as substitute for the unavailable Maxitrol. Peter was unable to get a hold of Maxitrol. two (2) times a day for five (5) days.[7] a viral infection. Inc. to be used three (3) times a day for five (5) days. Dr. C. Tuaño for another check-up on 6 October 1988. (3) Peter’s eyes were palpated to check the intraocular pressure of each. Tuaño instructed Peter to resume the use of Maxitrol at six (6) drops per day. Tuano to take. As instructed. On that particular consultation. Tuaño for a follow-up consultation.D. M. Tuaño then prescribed Spersacet-C[6] eye drops for Peter and told the latter to return for follow-up after one week. Peter saw Dr. (2) Peter’s visual acuity were taken.” a headache and blurred vision. on 18 October 1988. Tuaño. Dr. Dr. Dr.On 2 September 1988. Tuaño.[8] a dosage of six (6) drops per day. To address the new problem with Peter’s right eye. Tuaño. Dr. On 21 September 1988. referred Peter to respondent. Upon consultation with Dr. being a steroid. Tuaño instructed the former to taper down[10] the dosage of Maxitrol.[13] Several days later. an ophthalmologist at St.. Dr. Peter returned to Dr. the EKC might recur. Upon examination. Tuaño prescribed to the former a steroid-based eye drop called Maxitrol. instead. Tuaño examined Peter’s eyes and discovered that the EKC was again present in his right eye. the same eye developed Epidemic Kerato Conjunctivitis (EKC). According to Dr. alleging severe eye pain. . wherein: (1) a gross examination of Peter’s eyes and their surrounding area was made. Tuaño told Peter that the “sore eyes” in the latter’s right eye had already cleared up and he could discontinue the Spersacet-C. Tuaño diagnosed that Peter was suffering from conjunctivitis[5] or “sore eyes.” Dr. Dr. So. On his way home. Tuaño examined Peter’s eyes and found that the right eye had once more developed EKC. Peter made use of his health care insurance issued by Philamcare Health Systems. Blephamide[12] another steroid-based medication. Tuaño on 9 September 1988. and that he was already taking Maxitrol to address the problem in his eye. for a possible consult. Tuaño at his clinic. (Dr. for an eye consult. but with a lower concentration. Peter narrated that it had been nine (9) days since the problem with his right eye began. The Philamcare Coordinator. However. Peter went to see Dr. as it was out of stock. (Philamcare). As a result. complaining of a red right eye and swollen eyelid. Dr. Peter had already been using Maxitrol prior to his consult with Dr. Dr. Prospero Ma. Tuaño). Dr.[11] Complaining of feeling as if there was something in his eyes.

On 26 November 1988. hence. Peter’s spouse. Peter returned to Dr. In acute purulent conditions of the eye. the anti-infective component.Dr. Thus. Tuaño prescribed a lower dosage of Blephamide. Tuaño supposedly brushed aside Peter’s concern as mere paranoia. and delayed wound healing. Tuaño’s clinic.” [14] It appeared that the EKC had spread to the whole of Peter’s right eye yet again. defects in visual acuity and fields of vision. Tuaño saw Peter once more at the former’s clinic on 4 November 1988. xxxx ADVERSE REACTIONS: Adverse reactions have occurred with steroid/anti-infective combination drugs which can be attributed to the steroid component. perforations have been known to occur with the use of topical steroids. Secondary infection: The development of secondary has occurred after use of combination containing steroids and antimicrobials. posterior subcapsular cataract formation. 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. If these products are used for 10 days or longer. and posterior. or the combination. The possibility of fungal invasion must be considered in any persistent corneal ulceration where steroid treatment has been used. Dr. Dr. but Dr. subcapsular cataract formation. Prolonged use may suppress the host response and thus increase the hazard of secondary ocular infractions. The reactions due to the steroid component in decreasing order to frequency are elevation of intra-ocular pressure (IOP) with possible development of glaucoma. complaining of “feeling worse. Reactions occurring most often from the presence of the anti-infective ingredients are allergic sensitizations. infrequent optic nerve damage. Employment of steroid medication in the treatment of herpes simplex requires great caution. in those diseases causing thinning of the cornea or sclera. Secondary bacterial ocular infection following suppression of host responses also occurs. Tuaño during said visit of the above-quoted warning against the prolonged use of steroids. steroids may mask infection or enhance existing infection. Exact incidence figures are not available since no denominator of treated patients is available. It was also about this time that Fatima Gladys Lucas (Fatima). Tuaño’s examination showed that only the periphery of Peter’s right eye was positive for EKC. Petitioners averred that Peter already made mention to Dr. Tuaño instructed Peter to resume the use of Maxitrol. even assuring him that the former was taking care of him . with damage to the optic nerve. intraocular pressure should be routinely monitored even though it may be difficult in children and uncooperative patients. Fungal infections of the correa are particularly prone to develop coincidentally with long-term applications of steroid. Dr.

Tuaño. the tonometer reading of Peter’s right eye yielded a high normal level. 21.0 Hg.0 Hg. Tuaño was at . i.”[23] Dr.[30] On 28 December 1988. Batungbacal (Dr. Dr. Tuaño addressed the problem by advising Peter to resume taking Diamox along with Normoglaucon. Hence. Tuaño told Peter to continue using Diamox and Normoglaucon. Fatima observed that Peter’s right eye appeared to be bloody and swollen. On 15 December 1988. while that of his left was 17. Dr. that the IOP of Peter’s right eye was still quite high at 41. Batungbacal’s diagnosis was Glaucoma[25] O. which merely ranged from 10. Dr. Tuaño discontinued Peter’s use of Diamox. Tuaño also required Peter to go for daily check-up in order for the former to closely monitor the pressure of the latter’s eyes. When Peter returned to Dr. Peter reported to Dr. Tuaño on 23 December 1988. Tuaño noted the hardness of Peter’s right eye.0 Hg to 21.[26] He recommended Laser Trabeculoplasty[27] for Peter’s right eye. Tuaño noted the recurrence of EKC in Peter’s right eye. Tuaño ordered[20] him to immediately discontinue the use of Maxitrol and prescribed to the latter Diamox[21] and Normoglaucon.[18] Since the tension in Peter’s right eye was way over the normal IOP.(Peter). Dr. who allegedly conducted a complete ophthalmological examination of Peter’s eyes. Tuaño. Dr.[24] Peter went to see another ophthalmologist. Considering.e. during one of Peter’s regular follow-ups with Dr. During the Christmas holidays.[19] Dr. Petitioners further alleged that after Peter’s 26 November 1988 visit to Dr. the doctor conducted another ocular routine examination of Peter’s eyes. Ramon T. Tuaño discovered that the tension in Peter’s right eye was 39.0 Hg. however.. With the use of a tonometer[16] to verify the exact intraocular pressure[17] (IOP) of Peter’s eyes. Peter continued to suffer pain in his right eye. Tuaño that he had been suffering from constant headache in the afternoon and blurring of vision. which seemed to “progress. 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. Upon examination. Tuaño.0 Hg.D. instead. Peter had no vision in his right eye.0 Hg. Dr. Batungbacal).[22] Dr. spouses Peter and Fatima rushed to the clinic of Dr.[28] the tonometer measured the IOP of Peter’s right eye to be 41.[29] again. Dr.” with the ache intensifying and becoming more frequent. Dr.[15] Thus. on 21 December 1988.0 Hg. Upon waking in the morning of 13 December 1988. But upon Peter’s complaint of “stomach pains and tingling sensation in his fingers. way above normal.

85 R and 0. I stopped the steroids immediately and has (sic) been treating him medically. Funduscopy[34] showed vertical cup disc of 0. Several tests were conducted thereat to evaluate the extent of Peter’s condition. A month ago.a loss as to how to balance the treatment of Peter’s EKC vis-à-vis the presence of glaucoma in the same eye. The latter resolved and he developed EKC for which I gave Maxitrol. M. Peter went to see Dr. I initially saw him Sept. I noted iris atrophy. OD. another ophthalmologist specializing in the treatment of glaucoma. Slit lamp evaluation[33] disclosed subepithelial corneal defect outer OD. however. Tuaño’s letter of referral to Dr. thus. It seems that the IOP can be controlled only with oral Diamox. On examination conducted vision was 20/25 R and 20/20L. I trust that this approach will prove reasonable for you and Peter. we may try D’epifrin[39] BID OD (despite low PAS). I suggest that we do a baseline visual fields and push medication to lowest possible levels. I think we should prescribe Timolol[37] BID[38] OD in lieu of Normoglaucon. Manuel B. 2. referred Peter to Dr.[31] Dr. Dr. Around 1 month of steroid treatment. Agulto). The lenses were clear. I feel that Peter Lucas has really sustained significant glaucoma damage. Peter Lucas for evaluation & possible management. Tuaño a letter containing the following findings and recommendations: Thanks for sending Peter Lucas.D. he noted blurring of vision & pain on the R.[32] On 29 December 1988. If the IOP is still inadequate. (Dr. [36] OD. and at the moment.[41] . I continued the steroids for the sake of the EKC. Tuaño. Tension curve 19 R and 15 L at 1210 H while on Normoglaucon BID OD & Diamox ½ tab every 6h po. I’m in favor of retaining Diamox or similar CAI. Rolly. so I took the IOP and it was definitely elevated. Agulto stated that: Referring to you Mr. then we should consider trabeculoplasty. Agulto at the latter’s clinic. the EKC has recurred and I’m in a fix whether to resume the steroid or not considering that the IOP is still uncontrolled.[40] If fields show further loss in say – 3 mos. If I may suggest further. Dr. 1988 because of conjunctivitis. Agulto.6 L with temporal slope R>L. The EKC was recurrent after stopping steroid drops. Zeiss gonioscopy[35] revealed basically open angles both eyes with occasional PAS. There was circumferential peripheral iris atrophy. Agulto wrote Dr.

which revealed that the latter had tubular vision[44] in his right eye. Tuaño advised Peter to come for regular check-up so his IOP could be monitored.D. Aquino conducted an extensive evaluation of Peter’s eyes. Agulto’s aforementioned letter. Again. On 13 January 1989. In May 1990 and June 1991. 13th. instituted on 1 September 1992. his legitimate child[48] with Fatima. Tuaño for the same.Peter went to see Dr. respectively. 16th and 20th of January 1989 for check-up and IOP monitoring. joined by: (1) Fatima. Just two days later. Tuaño instructed Peter to just continue using Diamox and Normoglaucon in the meantime. Obediently.0 Hg and 17. his natural child[47]. however. Claiming to have steroid-induced glaucoma[45] and blaming Dr. Dr.0 Hg. The case was docketed as Civil Case No. Dr. Dr. Regrettably. the said doctor informed Peter that his eyes were relatively normal.I. and D’epifrin were still not available in the market. and (3) Gillian. In the interregnum. bearing Dr. M. Mario V. Quezon City. on 2 January 1989. [42] as he had been without Diamox for the past three (3) days. so Dr. Peter went to see Dr. after Dr.0 Hg. while that of his left eye remained normal.D. before the RTC. Dr. the IOP of Peter’s right eye remained elevated at 21. (2) Abbeygail. . Peter. Lapuz). his spouse[46]. (Dr. Tuaño still gave him a prescription for Timolol B. Tuaño directed Peter to religiously use the Diamox and Normoglaucon. though the right one sometimes manifested maximum borderline tension.D. Tuaño on 31 December 1988. another ophthalmologist who specializes in the treatment of glaucoma and who could undertake the long term care of Peter’s eyes. an ophthalmologist. so Peter could immediately start using said medication. Timolol B. Branch 150. 92-2482. Aquino). was out of stock. Peter consulted Dr. as the tension of the latter’s right eye went up even further to 41. Tuaño on the 7 th. Aquino.D. Peter was prodded by his friends to seek a second medical opinion. Tuaño’s diagnosis of tubular vision in Peter’s right eye. referred Peter to Dr.I. Tuaño conducted a visual field study[43] of Peter’s eyes. Aquino essentially told Peter that the latter’s condition would require lifetime medication and follow-ups.I. Aquino also confirmed Dr.0 Hg in just a matter of two (2) days. in turn. who. Petitioners claimed that Dr. On 4 January 1989. Tuaño. According to petitioners.D. Peter underwent two (2) procedures of laser trabeculoplasty to attempt to control the high IOP of his right eye. Though Peter’s right and left eyes then had normal IOP of 21. Jaime Lapuz. in the meantime that Timolol B. (Dr. Dr. a civil complaint for damages against Dr. M.

The amount of P500. Fatima. as required in cases of prolonged use of said medicine. nausea.[54] . sinusitis. The amount of P200.000. heart palpitations. The amount of P300.. 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. and notwithstanding Peter’s constant complaint of intense eye pain while using the same. damages. Peter now needed close medical supervision forever.00 as and by way of exemplary 5. petitioners lived in constant fear of Peter becoming completely blind. The amount of P2.00 to spouses Lucas as and by way of actual damages plus such additional amounts that be proven during trial. The amount of P1.”[51] etc.[53] In the end. Tuaño’s grossly negligent conduct in prescribing to Peter the medicine Maxitrol for a period of three (3) months.000. his spouse. petitioners sought pecuniary award for their supposed pain and suffering. petitioners specifically averred that as the “direct consequence of [Peter’s] prolonged use of Maxitrol. rashes. Because of his present condition.000. 2. Collectively.000. [he] suffered from steroid induced glaucoma which caused the elevation of his intra-ocular pressure.000. without monitoring Peter’s IOP. he continually suffered from “headaches. as his condition made him highly irritable and sensitive. may 3.”[49] Petitioners additionally alleged that the visual impairment of Peter’s right eye caused him and his family so much grief.000. Petitioners particularly prayed that Dr. dizziness. Peter’s relationships with his spouse and children continued to be strained.00 as and by way of moral 4. The elevation of the intra-ocular pressure of [Peter’s right eye] caused the impairment of his vision which impairment is not curable and may even lead to total blindness.000.In their Complaint. with the possibility that more surgeries were still needed in the future. he had already undergone two (2) laser surgeries. damages. Tuaño be adjudged liable for the following amounts: 1. which were ultimately brought about by Dr.[52] and his two children had been deprived of the opportunity for a better life and educational prospects. chronic rhinitis.00 to plaintiff Peter Lucas as and by way of compensation for his impaired vision. became the breadwinner in the family.00 as and by way of attorney’s fees plus costs of suit. his mobility and social life had suffered.

The steroids provoked the latest glaucoma to be revealed earlier as [Peter] remained asymptomatic prior to steroid application. which meant that there was no increase in the tension or IOP. Tuaño explained that “[d]rug-induced glaucoma is temporary and curable. open angle glaucoma. Hence. is temporary. the instant complaint is dismissed for insufficiency of evidence.In rebutting petitioners’ complaint. The trial court reasoned that the “recognized standards of the medical community has not been established in this case. 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. and upon measuring the IOP of said eye.”[63] According to the RTC: . The counter claim (sic) is likewise dismissed in the absence of bad faith or malice on the part of plaintiff in filing the suit. as prescribed by Dr. it was determined for the first time that the IOP of the right eye had an elevated value. In particular. the intraocular pressure automatically is reduced. Tuaño argued that: [S]uch condition.” [56] Dr. i. the RTC dismissed Civil Case No. (2) the entire time he was treating Peter. 92-2482 “for insufficiency of evidence.”[55] Dr. the latter’s glaucoma can only be long standing glaucoma. Tuaño also clarified that (1) “[c]ontrary to [petitioners’] fallacious claim. as revealed by more current examination of [Peter]. From a medical point of view. Thus. because of the large C:D ratio. Tuaño. a possible side reaction to the use of steroid medications. [Peter’s] glaucoma can only be due to other causes not attributable to steroids. As soon as the intake of steroids is discontinued.”[59] Dr. Tuaño was negligent in his treatment of Peter’s condition. [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]. the record of the case was bereft of any evidence to establish that the steroid medication and its dosage..” and no hardening of the same could be detected. premises considered. But granting for the sake of argument that the “steroid treatment of [Peter’s] EKC caused the steroid induced glaucoma. he “continually monitored the intraocular pressure of [Peter’s eyes] by palpating the eyes and by putting pressure on the eyeballs. steroids have the side effect of increasing intraocular pressure. elevated intraocular pressure. Tuaño asserted that the “treatment made by [him] more than three years ago has no causal connection to [Peter’s] present glaucoma or condition. 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. much less has causation been established to render [Tuaño] liable. certainly not attributable to [his] treatment of more than three years ago x x x. and (3) it was only on 13 December 1988 that Peter complained of a headache and blurred vision in his right eye. Dr.[60] In a Decision dated 14 July 2000. caused Peter’s glaucoma.e.”[61] The decretal part of said Decision reads: Wherefore.[62] The RTC opined that petitioners failed to prove by preponderance of evidence that Dr.

the Decision appealed from is AFFIRMED.[64] The RTC added that in the absence of “any medical evidence to the contrary. the RTC accepted Dr.” Undaunted. a witness can testify only to those facts which he knows of his own personal knowledge. or whether the non taking (sic) by Dr. CV No. as EKC is only a viral infection which will cure by itself.[67] . therefore. Agulto was not presented by [petitioners] as a witness to confirm what he allegedly told Peter and.”[65] Correspondingly. the latter’s testimony is hearsay. plaintiff’s Exhibit ‘S’ even tends to support them.R. Tuaño of Peter Paul’s pressure a deviation from the norm or his non-discovery of the glaucoma in the course of treatment constitutes negligence.[Petitioners] failed to establish the duty required of a medical practitioner against which Peter Paul’s 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. Familiar and fundamental is the rule that hearsay testimony is inadmissible as evidence. Section 36 of the Rules of Court. The fallo of the judgment of the appellate court states: WHEREFORE. this court cannot accept [petitioners’] claim that the use of steroid is the proximate cause of the damage sustained by [Peter’s] eye. a medical practitioner who departed thereof breaches his duty and commits negligence rendering him liable.[66] The Court of Appeals faulted petitioners because they – [D]id not present any medical expert to testify that Dr. optic nerve damage was happening but no elevation of the eye pressure is manifested. CV No. Peter testified that Dr. There is nothing in the record to contradict such testimony. Tuano’s prescription of Maxitrol and Blephamide for the treatment of EKC on Peter’s right eye was not proper and that his palpation of Peter’s right eye was not enough to detect adverse reaction to steroid. 68666 denying petitioners’ recourse and affirming the appealed RTC Decision. the court is at a loss as to what is then the established norm of duty of a physician against which defendant’s conduct can be compared with to determine negligence. that the steroid treatment actually unmasked the condition that resulted in the earlier treatment of the glaucoma. Their appeal was docketed as CA-G.R. Without such testimony or enlightenment from an expert. Under Rule 130. On 27 September 2006. However. the Court of Appeals rendered a decision in CA-G. Dr. x x x. meaning. In fact. It is important and indispensable to establish such a standard because once it is established. Tuaño’s medical opinion that “Peter Paul must have been suffering from normal tension glaucoma. 68666. 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. petitioners appealed the foregoing RTC decision to the Court of Appeals.

MORAL AND EXEMPLARY DAMAGES. Therefore. and it was only then that he suspected that Peter belongs to the 5% of the population who reacts adversely to steroids. 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. COSTS OF SUIT. he cannot determine whether or not the latter would react adversely to the use of steroids. Hence. Tuaño’s medical judgment. 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 .[68] Petitioners’ Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated 3 July 2007. specifically the latter’s explanation that: [W]hen a doctor sees a patient. 1989. [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. 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. the Court of Appeals gave great weight to Dr. 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. THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT FINDING THE RESPONDENT LIABLE TO THE PETITIONERS’ FOR ACTUAL. AND III. this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court premised on the following assignment of errors: I. that it was only on December 13. II. ASIDE FROM ATTORNEY’S FEES. AS A RESULT OF HIS GROSS NEGLIGENCE.Like the RTC.

it may be gleaned from their allegations and arguments in the instant Petition. and contrary to the finding of the trial court and the Court of Appeals. Tuaño was grossly negligent in the treatment of Peter’s simple eye ailment is a simple case of cause and effect . 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. their claim for damages against Dr. [they] were more than able to establish that: Dr.prove. In effect. as well as of the RTC. as we are asked to revisit anew the factual findings of the Court of Appeals. said issue constitutes a question of fact. [Emphasis supplied. however. because. Tuaño himself gave sufficient evidence to establish his gross negligence that ultimately caused the impairment of the vision of Peter’s right eye. the determination of which is not within the ambit of this Court’s power of review under Rule 45 of the 1997 Rules Civil Procedure.[70] Elementary is the principle that this Court is not a trier of facts. Petitioners contend. as amended. that “[c]ontrary to the findings of the Honorable Court of Appeals. In any case. and exhibited an absence of competence and skills expected from him. respondent can readily be held liable for damages even without any expert testimony. Although petitioners may not explicitly invoke said exception. Tuaño ignored the standard medical procedure for ophthalmologists. Tuaño himself. only errors of law are generally reviewed in petitions for review on certiorari criticizing decisions of the Court of Appeals.[73] i. administered medication with recklessness. This question clearly involves a factual inquiry. [he] had no qualms whatsoever in prescribing said steroid to Peter without first determining whether or not the (sic) Peter belongs to the 5%. Tuaño.e. With mere documentary evidence and based on the facts presented by the petitioners.. by preponderance of evidence. Tuaño’s treatment of Peter.”[74] . Tuaño’s] knowledge that 5% of the population reacts adversely to Maxitrol. there was a medical expert presented by the petitioner showing the recklessness committed by [Dr. Questions of fact are not entertained.”[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 Peter’s eye. in their words – That Dr. and (2) whether or not negligence attended Dr. that “[d]espite [Dr. Tuaño] – Dr. but is contradicted by the evidence on record.] They insist that Dr. Evidently. petitioners would have us sift through the evidence on record and pass upon whether there is sufficient basis to establish Dr. Tuaño’s negligence in his treatment of Peter’s eye condition.[71] Nonetheless.

This standard level of care. for all intents and purposes. a physician-patient relationship is generated. is called a quasi-delict and is governed by the provisions of this Chapter. Petitioners’ position. care. represents that he has the needed training and skill possessed by physicians and surgeons practicing in the same field. such claim for damages is almost always anchored on the alleged violation of Article 2176 of the Civil Code. in sum. the patient or his heirs. and learning possessed by other persons in the same profession. thus. When a patient engages the services of a physician. “thus. Tuaño’s negligence in his improper administration of the drug Maxitrol. In this type of suit.”[75] Clearly. skill and diligence is a matter best addressed by expert medical testimony. the physician. liable for damages. the present controversy is a classic illustration of a medical negligence case against a physician based on the latter’s professional negligence. a physician is under a duty to [the former] to exercise that degree of care. also called medical malpractice suits. In medical negligence cases. (1) duty. if there is no pre-existing contractual relation between the parties. four essential (4) elements i. [78] Stated otherwise. care. and that as a proximate result of such failure. because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts in the field. which states that: ART. 2176. is that Peter’s glaucoma is the direct result of Dr. Whoever by act or omission causes damage to another.[79] . Such fault or negligence. and we are accordingly bound by the findings of fact made therein. there exist a physician-patient relationship between the doctor and the victim. All the four (4) elements must co-exist in order to find the physician negligent and. is obliged to pay for the damage done.We are not convinced. and that he will employ such training.[77] Thus. there being fault or negligence. and skill in the treatment of the patient.e. 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. [the latter] should be liable for all the damages suffered and to be suffered by [petitioners].[76] must be established by the plaintiff/s. (3) injury. For lack of a specific law geared towards the type of negligence committed by members of the medical profession. is required to prove by preponderance of evidence that the physician failed to exercise that degree of skill. the patient or his heirs suffered damages. in order to prevail. But just like any other proceeding for damages. (2) breach.. And in accepting a case. 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. The judgments of both the Court of Appeals and the RTC are in accord with the evidence on record. in treating his patient. and (4) proximate causation.

there is no question that a physician-patient relationship developed between Dr. 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. seeking a consult for the treatment of his sore eyes. Dr. which.There is breach of duty of care. unbroken by any efficient intervening cause. prescribed and administered medication with recklessness and exhibited an absence of the competence and skills expected of general practitioners similarly situated. as correctly pointed out by the Court of Appeals. unbroken by intervening efficient causes”. in order that there may be a recovery for an injury. and without which the result would not have occurred. Put in another way. Tuaño and Peter when Peter went to see the doctor on 2 September 1988. proof of breach of duty on the part of the attending physician is insufficient. the expert’s role is to present to the [court] a realistic assessment of the likelihood that [the physician’s] alleged negligence caused [the patient’s] injury. the connection between the negligence and the injury must be a direct and natural sequence of events. in the natural and continuous sequence. However. using the specialized knowledge and training of his field. [81] that is. the indispensability of expert testimonies. by the attending physician when the patient is injured in body or in health [and this] constitutes the actionable malpractice. In the case at bar. 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.[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. Maxitrol or neomycin/polymyxin B sulfates/dexamethasone ophthalmic ointment is a multiple-dose anti-infective steroid combination in sterile form for topical application. in order to establish the proximate cause [of the injury] by a preponderance of the evidence in a medical malpractice action.”[86] Unfortunately. an ophthalmologist. “[t]he onus probandi was on the patient to establish before the trial court that the physicians ignored standard medical procedure. produces the injury.[82] Just as with the elements of duty and breach of the same. because the question of whether the alleged professional negligence caused [the patient’s] injury is generally one for specialized expert knowledge beyond the ken of the average layperson. there was absolute failure on the part of petitioners to present any expert testimony to establish: (1) the standard of care to be implemented . it must be shown that the “injury for which recovery is sought must be the legitimate consequence of the wrong done. or the improper performance of such duty. the negligence must be the proximate cause of the injury. Even so. Admittedly. Tuaño. The deference of courts to the expert opinion of qualified physicians [or surgeons] stems from the former’s realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating. [85] It is the drug which petitioners claim to have caused Peter’s glaucoma. skill and diligence. [the patient] must similarly use expert testimony. in this case. prescribed Maxitrol when Peter developed and had recurrent EKC. for there must be a causal connection between said breach and the resulting injury sustained by the patient. And the proximate cause of an injury is that cause.[83] From the foregoing.[84] hence.

Petitioners maintain that Dr. In contrast. i. Tuaño was able to clearly explain that what is only required of ophthalmologists. It must be remembered that a physician is not an insurer of the good result of treatment. taking of the visual acuity of the patient. as prescribed by Dr. and using ophthalmoscopy on the patient’s eye – and he did all those tests/procedures every time Peter went to see him for follow-up consultation and/or check-up. he cannot determine immediately whether the latter would react adversely to the use of steroids. we have no means to determine whether he was able to comply with the same in his diagnosis and treatment of Peter.by competent physicians in treating the same condition as Peter’s under similar circumstances. Dr. carry some modicum of risk? Absent a definitive standard of care or diligence required of Dr.[89] The result is not determinative of the performance [of the physician] and he is not required to be infallible. thus. that Dr. Tuaño failed in his duty to exercise said standard of care that any other competent physician would use in treating the same condition as Peter’s under similar circumstances. Tuaño’s assertion that when a doctor sees a patient. We cannot but agree with Dr. and (3) that the injury or damage to Peter’s right eye.”[88] composed of five (5) tests/procedures – specifically. (2) that. Tuaño on 2 September 1988 and had exhibited no previous untoward reaction to that particular drug. 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. indeed. in cases such as Peter’s.. in his treatment of Peter. his glaucoma. Tuaño failed to follow in Peter’s case the required procedure for the prolonged use of Maxitrol. Tuaño under the circumstances. Petitioners assert that prior to prescribing 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.e. checking the motility of the eyes. [91] . is the conduct of standard tests/procedures known as “ocular routine examination. Petitioners’ failure to prove the first element alone is already fatal to their cause. gross examination of the eyes and the surrounding area.”[87] Yet again. admittedly. 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. all the doctor can do is map out a course of treatment recognized as correct by the standards of the medical profession. checking the intraocular pressure of the patient. Tuaño should have determined first whether Peter was a “steroid responder. Dr. was the result of his use of Maxitrol. Dr. Tuaño 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. Tuaño.[90] Moreover. 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. should be the subject of pecuniary reparation. constituted negligence and.

Philippine .[95] Visual acuity remains good until late in the course of the disease. that he has had various medical training.Also. But to say that said medication conclusively caused Peter’s glaucoma is purely speculative. A verdict in a malpractice action cannot be based on speculation or conjecture. Tuaño does not deny that the use of Maxitrol involves the risk of increasing a patient’s IOP. that he has authored numerous papers in the field of ophthalmology. Once more. In fact. Tuaño claims that Peter’s glaucoma “can only be long standing x x x because of the large C:D[97] ratio.[96] Hence. Causation must be proven within a reasonable medical probability based upon competent expert testimony. Tuaño is in a better position to determine and evaluate the necessity of using Maxitrol to cure Peter’s EKC vis-à-vis the attendant risks of using the same? That Dr. insidious course. petitioners failed in this regard. Dr. and that he held an assortment of positions in numerous medical organizations like the Philippine Medical Association.[93] The causation between the physician’s negligence and the patient’s injury may only be established by the presentation of proof that Peter’s glaucoma would not have occurred but for Dr. here and abroad. halos around lights and blurring of vision do not occur unless there has been a sudden increase in the intraocular vision. Peter was diagnosed with open-angle glaucoma. that he is a Diplomate of the Philippine Board of Ophthalmology. this was the reason why he made it a point to palpate Peter’s eyes every time the latter went to see him -. Tuaño’s supposed negligence and Peter’s injury still needed to be established. [94] In open-angle glaucoma. a fact which petitioners failed to rebut.so he could monitor the tension of Peter’s eyes. the causal connection between Dr. Tuaño’s actuations conformed to the standard of care and diligence required in like circumstances. Petitioners do not dispute Dr. 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 plaintiff’s injuries. Tuaño has the necessary training and skill to practice his chosen field is beyond cavil. Tuaño committed negligent acts in his treatment of Peter’s condition. Dr. Tuaño testified that he palpated Peter’s eyes every time the latter came for a check-up as part of the doctor’s ocular routine examination. Dr.[92] plaintiff must plead and prove not only that he has been injured and defendant has been at fault. he was the Chair of the Department of Ophthalmology and an Associate Professor at the University of the Philippines-Philippine General Hospital and St. Tuaño categorically denied petitioners’ claim that he never monitored the tension of Peter’s eyes while the latter was on Maxitrol. Dr. Luke’s Medical Center. respectively). that he occupies various teaching posts (at the time of the filing of the present complaint. This kind of glaucoma is characterized by an almost complete absence of symptoms and a chronic.” 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. Dr. Tuaño’s supposed negligent conduct. it is presumed to have so conformed in the absence of evidence to the contrary. but also that the defendant’s fault caused the injury. Tuaño’s regular conduct of examinations and tests to ascertain the state of Peter’s eyes negate the very basis of petitioners’ complaint for damages. Tuaño’s qualifications – that he has been a physician for close to a decade and a half at the time Peter first came to see him. As to whether Dr. Even if we are to assume that Dr.

The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the issue. a verdict must be returned in favor of plaintiff. once plaintiff makes out a prima facie case in his favor.[99] The party having the burden of proof must establish his case by a preponderance of evidence. Alas. [98] In making the judgment call of treating Peter’s EKC with Maxitrol. Philippine Board of Ophthalmology. which resulted in Peter’s glaucoma. otherwise. the party having the burden of proof must establish his case by a preponderance of evidence. deserve scant credit. Petitioners even gave an undertaking to the RTC judge that Dr. Agulto or Dr. et al.[102] Rule 133. though the preponderance is not necessarily with the greater number. Section 1 of the Revised Rules of Court provides the guidelines for determining preponderance of evidence. the nature of the facts to which they testify. as plaintiffs in the lower court. Aquino would be presented. the burden of proof was clearly upon petitioners. Tuaño’s so-called negligence. petitioners’ . Our disposition of the present controversy might have been vastly different had petitioners presented a medical expert to establish their theory respecting Dr. Tuaño’s alleged breach of duty and the damage sustained by Peter’s right eye. no followthrough on said undertaking was made. they did not do. Dr. Association of Philippine Ophthalmology Professors. in the course of trial in a civil case. 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. their means and opportunity of knowing the facts to which they are testifying.Academy of Ophthalmology. to establish their case by a preponderance of evidence showing a reasonable connection between Dr. their interest or want of interest. it means probability of truth. Tuaño’s part. In reality. In contrast. their intelligence. there is an inevitable presumption that in proper cases.[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. Tuaño took the necessary precaution by palpating Peter’s eyes to monitor their IOP every time the latter went for a check-up. Philippine Journal of Ophthalmology.[101] in the last analysis. Herein. However. In fact. The court may also consider the number of witnesses. and also their personal credibility so far as the same legitimately appear upon the trial. he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients. as in the instant case. petitioners’ bare assertions of negligence on Dr. the probability or improbability of their testimony. This. the witnesses’ manner of testifying. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto. thus: In civil cases. the record of the case reveals that petitioners’ counsel recognized the necessity of presenting such evidence. It must be remembered that when the qualifications of a physician are admitted. the duty or the burden of evidence shifts to defendant to controvert plaintiff’s prima facie case. unless the contrary is sufficiently established. without supporting expert medical opinions. and he employed the best of his knowledge and skill earned from years of training and practice. Philippine Society of Ophthalmic Plastic and Reconstructive Surgery.

Tuaño failed to exercise reasonable care. both of the Court of Appeals in CA-G. If no standard is established through expert medical witnesses. ii iii iv v . stands unrefuted. that his treatment of Peter conformed in all respects to standard medical practice in this locality. Agulto – another doctor not presented as witness before the RTC – concerning the prolonged use of Maxitrol for the treatment of EKC. Tuaño’s testimony. in the nature of expert testimony. WHEREFORE. Consequently. premises considered. Dr. Tuaño liable for any medical negligence or malpractice where there is no evidence. SO ORDERED.R. are hereby AFFIRMED. CV No. All told. and the purported comment of Dr. diligence and skill generally required in medical practice. Absent expert medical opinion. we are hard pressed to find Dr. The assailed Decision dated 27 September 2006 and Resolution dated 3 July 2007. to establish that in treating Peter.complaint for damages is merely anchored on a statement in the literature of Maxitrol identifying the risks of its use. then courts have no standard by which to gauge the basic issue of breach thereof by the physician or surgeon. Dr. It seems basic that what constitutes proper medical treatment is a medical question that should have been presented to experts. could not be expected to determine on its own what medical technique should have been utilized for a certain disease or injury. the instant petition is DENIED for lack of merit. The RTC and Court of Appeals. and even this Court. 68666. No cost. the courts would be dangerously engaging in speculations. 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.

vi vii viii ix x xi xii xiii xiv xv xvi xvii xviii xix xx xxi xxii xxiii xxiv xxv xxvi xxvii xxviii xxix xxx xxxi xxxii .

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