G.R. No.

156037

May 28, 2007

MERCURY DRUG CORPORATION, Petitioner,

vs.
SEBASTIAN M. BAKING, Respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review on Certiorari 1 assailing the Decision2 dated May 30, 2002 and Resolution dated November 5,
2002 of the Court of Appeals in CA-G.R. CV No. 57435, entitled "Sebastian M. Baking, plaintiff-appellee, versus Mercury Drug Co. Inc.,
defendant-appellant."
The facts are:
On November 25, 1993, Sebastian M. Baking, respondent, went to the clinic of Dr. Cesar Sy for a medical check-up. On the following day, after
undergoing an ECG, blood, and hematology examinations and urinalysis, Dr. Sy found that respondents blood sugar and triglyceride were above
normal levels. Dr. Sy then gave respondent two medical prescriptions Diamicron for his blood sugar and Bcenalize tablets for his
triglyceride.gtd
Respondent then proceeded to petitioner Mercury Drug Corporation (Alabang Branch) to buy the prescribed medicines. However, the saleslady
misread the prescription for Diamicron as a prescription for Dormicum. Thus, what was sold to respondent was Dormicum, a potent sleeping
tablet.
Unaware that what was given to him was the wrong medicine, respondent took one pill of Dormicum on three consecutive days November 6,
1993 at 9:00 p.m., November 7 at 6:00 a.m., and November 8 at 7:30 a.m.
On November 8 or on the third day he took the medicine, respondent figured in a vehicular accident. The car he was driving collided with the car
of one Josie Peralta. Respondent fell asleep while driving. He could not remember anything about the collision nor felt its impact.
Suspecting that the tablet he took may have a bearing on his physical and mental state at the time of the collision, respondent returned to Dr. Sys
clinic. Upon being shown the medicine, Dr. Sy was shocked to find that what was sold to respondent was Dormicum, instead of the prescribed
Diamicron.
Thus, on April 14, 1994, respondent filed with the Regional Trial Court (RTC), Branch 80 of Quezon City a complaint for damages against
petitioner, docketed as Civil Case No. Q-94-20193.
After hearing, the trial court rendered its Decision dated March 18, 1997 in favor of respondent, thus:
WHEREFORE, premises considered, by preponderance of evidence, the Court hereby renders judgment in favor of the plaintiff and against the
defendant ordering the latter to pay mitigated damages as follows:
1. P250,000.00 as moral damages;
2. P20,000.00 as attorneys fees and litigation expenses;
3. plus % of the cost of the suit.
SO ORDERED.
On appeal, the Court of Appeals, in its Decision, affirmed in toto the RTC judgment. Petitioner filed a motion for reconsideration but it was
denied in a Resolution dated November 5, 2002.
Hence, this petition.
Petitioner contends that the Decision of the Court of Appeals is not in accord with law or prevailing jurisprudence.
Respondent, on the other hand, maintains that the petition lacks merit and, therefore, should be denied.
The issues for our resolution are:
1. Whether petitioner was negligent, and if so, whether such negligence was the proximate cause of respondents accident; and
2. Whether the award of moral damages, attorneys fees, litigation expenses, and cost of the suit is justified.

Article 2176 of the New Civil Code provides:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions
of this Chapter.
To sustain a claim based on the above provision, the following requisites must concur: (a) damage suffered by the plaintiff; (b) fault or
negligence of the defendant; and, (c) connection of cause and effect between the fault or negligence of the defendant and the damage incurred by
the plaintiff. 3
There is no dispute that respondent suffered damages.
It is generally recognized that the drugstore business is imbued with public interest. The health and safety of the people will be put into jeopardy
if drugstore employees will not exercise the highest degree of care and diligence in selling medicines. Inasmuch as the matter of negligence is a
question of fact, we defer to the findings of the trial court affirmed by the Court of Appeals.
Obviously, petitioners employee was grossly negligent in selling to respondent Dormicum, instead of the prescribed Diamicron. Considering
that a fatal mistake could be a matter of life and death for a buying patient, the said employee should have been very cautious in dispensing
medicines. She should have verified whether the medicine she gave respondent was indeed the one prescribed by his physician. The care
required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business
which the law demands.41awphi1.nt
Petitioner contends that the proximate cause of the accident was respondents negligence in driving his car.
We disagree.
Proximate cause is defined as any cause that produces injury in a natural and continuous sequence, unbroken by any efficient intervening cause,
such that the result would not have occurred otherwise. Proximate cause is determined from the facts of each case, upon a combined
consideration of logic, common sense, policy, and precedent. 5
Here, the vehicular accident could not have occurred had petitioners employee been careful in reading Dr. Sys prescription. Without the potent
effects of Dormicum, a sleeping tablet, it was unlikely that respondent would fall asleep while driving his car, resulting in a collision.
Complementing Article 2176 is Article 2180 of the same Code which states:
ART. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for
whom one is responsible.
xxx
The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.
xxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed the diligence of a good father
of a family to prevent damage.
It is thus clear that the employer of a negligent employee is liable for the damages caused by the latter. When an injury is caused by the
negligence of an employee, there instantly arises a presumption of the law that there has been negligence on the part of the employer, either in
the selection of his employee or in the supervision over him, after such selection. The presumption, however, may be rebutted by a clear showing
on the part of the employer that he has exercised the care and diligence of a good father of a family in the selection and supervision of his
employee. 6 Here, petitioner's failure to prove that it exercised the due diligence of a good father of a family in the selection and supervision of its
employee will make it solidarily liable for damages caused by the latter.
As regards the award of moral damages, we hold the same to be in order. Moral damages may be awarded whenever the defendants wrongful
act or omission is the proximate cause of the plaintiffs physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar injury in the cases specified or analogous to those provided in Article 2219 of the
Civil Code.7
Respondent has adequately established the factual basis for the award of moral damages when he testified that he suffered mental anguish and
anxiety as a result of the accident caused by the negligence of petitioners employee.

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 own peculiar facts. However, it must be commensurate to the loss or injury suffered. 8 Taking into consideration the attending
circumstances here, we are convinced that the amount awarded by the trial court is exorbitant. Thus, we reduce the amount of moral damages
from P250,000.00 toP50,000.00 only.
In addition, we also deem it necessary to award exemplary damages. Article 2229 allows the grant of exemplary damages by way of example or
correction for the public good. As mentioned earlier, the drugstore business is affected with public interest. Petitioner should have exerted utmost
diligence in the selection and supervision of its employees. On the part of the employee concerned, she should have been extremely cautious in
dispensing pharmaceutical products. Due to the sensitive nature of its business, petitioner must at all times maintain a high level of
meticulousness. Therefore, an award of exemplary damages in the amount of P25,000.00 is in order.1awphi1.nt
On the matter of attorneys fees and expenses of litigation, it is settled that the reasons or grounds for the award thereof must be set forth in the
decision of the court.9 Since the trial courts decision did not give the basis of the award, the same must be deleted. In Vibram Manufacturing
Corporation v. Manila Electric Company,10 we held:
Likewise, the award for attorneys fees and litigation expenses should be deleted. Well-enshrined is that "an award for attorneys fees must be
stated in the text of the courts decision and not in the dispositive portion only"(Consolidated Bank and Trust Corporation (Solidbank) v. Court
of Appeals, 246 SCRA 193 [1995] and Keng Hua Paper Products, Inc. v. Court of Appeals, 286 SCRA 257 [1998]). This is also true with the
litigation expenses where the body of the decision discussed nothing for its basis.
WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 57435 are
AFFIRMED with modification in the sense that (a) the award of moral damages to respondent is reduced from P250,000.00 to P50,000.00; (b)
petitioner is likewise ordered to pay said respondent exemplary damages in the amount of P25,000.00; and (c) the award of attorneys fees and
litigation expenses is deleted.
Costs against petitioner.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 161946

November 14, 2008

MEDARDO AG. CADIENTE, petitioner,

vs.
BITHUEL MACAS, respondent.
DECISION
QUISUMBING, Acting C.J.:
For review on certiorari are the Decision1 dated September 16, 2002 and the Resolution2 dated December 18, 2003 of the Court of Appeals in
CA-G.R. CV No. 64103, which affirmed the Decision3of the Regional Trial Court (RTC) of Davao City, Branch 10, in Civil Case No. 23,723-95.
The facts are undisputed.
Eyewitness Rosalinda Palero testified that on July 19, 1994, at about 4:00 p.m., at the intersection of Buhangin and San Vicente Streets in Davao
City, 15-year old high school student Bithuel Macas, herein respondent, was standing on the shoulder of the road. She was about two and a half
meters away from the respondent when he was bumped and run over by a Ford Fiera, driven by Chona C. Cimafranca. Rosalinda and another
unidentified person immediately came to the respondent's rescue and told Cimafranca to take the victim to the hospital. Cimafranca rushed the
respondent to the Davao Medical Center.
Dr. Hilario Diaz, the orthopedic surgeon who attended to the respondent, testified that the respondent suffered severe muscular and major vessel
injuries, as well as open bone fractures in both thighs and other parts of his legs. In order to save his life, the surgeon had to amputate both legs
up to the groins.4
Cimafranca had since absconded and disappeared. Records showed that the Ford Fiera was registered in the name of herein petitioner, Atty.
Medardo Ag. Cadiente. However, Cadiente claimed that when the accident happened, he was no longer the owner of the Ford Fiera. He alleged
that he sold the vehicle to Engr. Rogelio Jalipa on March 28, 1994, 5 and turned over the Certificate of Registration and Official Receipt to Jalipa,
with the understanding that the latter would be the one to cause the transfer of the registration.
The victim's father, Samuel Macas, filed a complaint 6 for torts and damages against Cimafranca and Cadiente before the RTC of Davao City,
Branch 10. Cadiente later filed a third-party complaint 7against Jalipa.

In answer, Jalipa claimed that he was no longer the owner of the Ford Fiera at the time of the accident. He alleged that he sold the vehicle to
Abraham Abubakar on June 20, 1994.8 He thus filed a fourth-party complaint 9 against Abubakar.
After trial, the court ruled:
WHEREFORE, judgment is rendered in favor of the plaintiff declaring Atty. Medardo Ag. Cadiente and Engr. Rogelio Jalipa jointly
and severally liable for damages to the plaintiff for their own negligence as stated above, and ordering them to indemnify the plaintiff
jointly and severally as follows:
(a) P300,000.00 as compensatory damages for the permanent and almost total disability being suffered by him;
(b) P150,000.00 for moral damages;
(c) P18,982.85 as reimbursement of medical expenses;
(d) P30,000.00 for attorney's fees; and
(e) costs of suit.
SO ORDERED.10
On appeal, the Court of Appeals held that the findings of the trial court were in accordance with the established facts and was supported by the
evidence on record. Thus, it decreed as follows:
WHEREFORE, premises considered, the instant appeal is DENIED and the decision of the Regional Trial Court of Davao City in
Civil Case No. 23723-95 is hereby AFFIRMED.
SO ORDERED.11
From the aforequoted decision of the Court of Appeals and the subsequent denial of the motion for reconsideration, only Cadiente appealed to
this Court.
The instant petition alleges that the Court of Appeals committed serious errors of law in affirming the decision of the trial court. Petitioner
Cadiente raises the following as issues:
I.
WAS THERE CONTRIBUTORY NEGLIGENCE ON THE PART OF THE INJURED PARTY?
II.
ARE BOTH DEFENDANT CADIENTE AND THIRD-PARTY DEFENDANT JOINTLY AND SEVERALLY LIABLE TO THE
INJURED PARTY?
III.
THE HONORABLE COURT OF APPEAL[S] COMMIT[T]ED GRAVE LEGAL ERROR IN ORDERING DEFENDANT
CADIENTE AND THIRD-PARTY DEFENDANT JALIPA JOINTLY AND SEVERALLY LIABLE. 12
Essentially, the issues to be resolved are: (1) Whether there was contributory negligence on the part of the victim; and (2) whether the petitioner
and third-party defendant Jalipa are jointly and severally liable to the victim.
The petitioner contends that the victim's negligence contributed to his own mishap. The petitioner theorizes that if witness Rosalinda Palero, who
was only two and a half meters away from the victim, was not hit by the Ford Fiera, then the victim must have been so negligent as to be
bumped and run over by the said vehicle.13
The petitioner further argues that having filed a third-party complaint against Jalipa, to whom he had sold the Ford Fiera, the Court of Appeals
should have ordered the latter to reimburse him for any amount he would be made to pay the victim, instead of ordering him solidarily liable for
damages.14
The respondent, for his part, counters that the immediate and proximate cause of the injuries he suffered was the recklessly driven Ford Fiera,
which was registered in the petitioner's name. He insists that when he was hit by the vehicle, he was standing on the uncemented portion of the
highway, which was exactly where pedestrians were supposed to be. 15

The respondent stresses that as the registered owner of the Ford Fiera which figured in the accident, the petitioner is primarily liable for the
injury caused by the said vehicle. He maintains that the alleged sale of the vehicle to Jalipa was tainted with irregularity, which indicated
collusion between the petitioner and Jalipa. 16
After a careful consideration of the parties' submissions, we find the petition without merit.
Article 2179 of the Civil Code provides:
When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his
negligence was only contributory, the immediate and proximate cause of the injury being the defendant's lack of due care, the plaintiff
may recover damages, but the courts shall mitigate the damages to be awarded.
The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover
damages in full, but must proportionately bear the consequences of his own negligence. The defendant is thus held liable only for the damages
actually caused by his negligence. 17
In this case, records show that when the accident happened, the victim was standing on the shoulder, which was the uncemented portion of the
highway. As noted by the trial court, the shoulder was intended for pedestrian use alone. Only stationary vehicles, such as those loading or
unloading passengers may use the shoulder. Running vehicles are not supposed to pass through the said uncemented portion of the highway.
However, the Ford Fiera in this case, without so much as slowing down, took off from the cemented part of the highway, inexplicably swerved to
the shoulder, and recklessly bumped and ran over an innocent victim. The victim was just where he should be when the unfortunate event
transpired.
Cimafranca, on the other hand, had no rightful business driving as recklessly as she did. The respondent cannot be expected to have foreseen that
the Ford Fiera, erstwhile speeding along the cemented part of the highway would suddenly swerve to the shoulder, then bump and run him over.
Thus, we are unable to accept the petitioner's contention that the respondent was negligent.
Coming now to the second and third issues, this Court has recently reiterated in PCI Leasing and Finance, Inc. v. UCPB General Insurance Co.,
Inc.,18 that the registered owner of any vehicle, even if he had already sold it to someone else, is primarily responsible to the public for whatever
damage or injury the vehicle may cause. We explained,
Were a registered owner allowed to evade responsibility by proving who the supposed transferee or owner is, it would be easy for
him, by collusion with others or otherwise, to escape said responsibility and transfer the same to an indefinite person, or to one who
possesses no property with which to respond financially for the damage or injury done. A victim of recklessness on the public
highways is usually without means to discover or identify the person actually causing the injury or damage. He has no means other
than by a recourse to the registration in the Motor Vehicles Office to determine who is the owner. The protection that the law aims to
extend to him would become illusory were the registered owner given the opportunity to escape liability by disproving his ownership. 19
In the case of Villanueva v. Domingo,20 we said that the policy behind vehicle registration is the easy identification of the owner who can be held
responsible in case of accident, damage or injury caused by the vehicle. This is so as not to inconvenience or prejudice a third party injured by
one whose identity cannot be secured.21
Therefore, since the Ford Fiera was still registered in the petitioner's name at the time when the misfortune took place, the petitioner cannot
escape liability for the permanent injury it caused the respondent, who had since stopped schooling and is now forced to face life with nary but
two remaining limbs.
WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision dated September 16, 2002 and Resolution dated December 18,
2003 of the Court of Appeals in CA-G.R. CV No. 64103 are hereby AFFIRMED. Costs against the petitioner.
SO ORDERED.
LEONARDO A. QUISUMBING
Acting Chief Justice

WE CONCUR:
CONCHITA CARPIO MORALES
Associate Justice
DANTE O. TINGA
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice
ARTURO D. BRION
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of
the Court's Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.
REYNATO S. PUNO
Chief Justice
THIRD DIVISION
NATIONAL POWER G.R. No. 165969
CORPORATION,
Petitioner, Present:
YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
- versus - CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
Promulgated:
HEIRS OF NOBLE CASIONAN,
Respondents. November 27, 2008
x--------------------------------------------------x
DECISION
REYES, R.T., J.:

PETITIONING power company pleads for mitigation of awarded damages on ground of contributory negligence. But is the victim in this case
partly to blame for his electrocution and eventual demise?
This is a review on certiorari of the Decision[1] of the Court of Appeals (CA) which found the National Power Corporation (NPC) liable for
damages for the death of Noble Casionan due to electrocution from the companys high tension transmission lines.

The Facts

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

Respondents are the parents of Noble Casionan, 19 years old at the time of the incident that claimed his life on June 27, 1995. He
would have turned 20 years of age on November 9 of that year. Noble was originally from Cervantes, Ilocos Sur. He worked as a pocket miner in
Dalicno, Ampucao, Itogon, Benguet.

A trail leading to Sangilo, Itogon, existed in Dalicno and this trail was regularly used by members of the community. Sometime in the
1970s, petitioner NPC installed high-tension electrical transmission lines of 69 kilovolts (KV) traversing the trail. Eventually, some of the
transmission lines sagged and dangled reducing their distance from the ground to only about eight to ten feet. This posed a
great threat to passersby who were exposed to the danger of electrocution especially during the wet season.

As early as 1991, the leaders of Ampucao, Itogon made verbal and written requests for NPC to institute safety measures to protect
users of the trail from their high tension wires. On June 18, 1991 and February 11, 1993, Pablo and Pedro Ngaosie, elders of the community,
wrote Engr. Paterno Banayot, Area Manager of NPC, to make immediate and appropriate repairs of the high tension wires. They reiterated the
danger it posed to small-scale miners especially during the wet season. They related an incident where one boy was nearly electrocuted.

In a letter dated March 1, 1995, Engr. Banayot informed Itogon Mayor Cresencio Pacalso that NPC had installed nine additional poles
on their Beckel-Philex 60 KV line.They likewise identified a possible rerouting scheme with an estimated total cost of 1.7 million pesos to
improve the distance from its deteriorating lines to the ground.

On June 27, 1995, Noble and his co-pocket miner, Melchor Jimenez, were at Dalicno. They cut two bamboo poles for their pocket
mining. One was 18 to 19 feet long and the other was 14 feet long. Each man carried one pole horizontally on his shoulder: Noble carried the
shorter pole while Melchor carried the longer pole. Noble walked ahead as both passed through the trail underneath the NPC high tension
transmission lines on their way to their work place.

As Noble was going uphill and turning left on a curve, the tip of the bamboo pole he was carrying touched one of the dangling high
tension wires. Melchor, who was walking behind him, narrated that he heard a buzzing sound when the tip of Nobles pole touched the wire for
only about one or two seconds. Thereafter, he saw Noble fall to the ground. Melchor rushed to Noble and shook him but the latter was already
dead. Their co-workers heard Melchors shout for help and together they brought the body of Noble to their camp.

A post-mortem examination by Dra. Ignacia Reyes Ciriaco, Municipal Health Officer of Itogon, Benguet, determined the cause of
death to be cardiac arrest, secondary to ventricular fibulation, secondary to electrocution. [2] She also observed a small burned area in the middle
right finger of the victim.

Police investigators who visited the site of the incident confirmed that portions of the high tension wires above the trail hung very low,
just about eight to ten feet above theground. They noted that the residents, school children, and pocket miners usually used the trail and had to
pass directly underneath the wires. The trail was the only viable way since the other side was a precipice. In addition, they did not see any danger
warning signs installed in the trail.

The elders and leaders of the community, through Mayor Cresencio Pacalso, informed the General Manager of NPC in Itogon of the
incident. After learning of the electrocution, NPC repaired the dangling and sagging transmission lines and put up warning signs around the area.

Consequently, the heirs of the deceased Noble filed a claim for damages against the NPC before the Regional Trial Court (RTC) in
Benguet. In its answer, NPC denied being negligent in maintaining the safety of the high tension transmission lines. It averred that there were
danger and warning signs installed but these were stolen by children.Excavations were also made to increase the necessary clearance from the
ground to about 17 to 18 feet but some towers or poles sank due to pocket mining in the area.

At the trial, NPC witnesses testified that the cause of death could not have been electrocution because the victim did not suffer
extensive burns despite the strong 69 KV carried by the transmission lines. NPC argued that if Noble did die by electrocution, it was due to his
own negligence. The company counter-claimed for attorneys fees and cost of litigation.

RTC Disposition

On February 17, 1998, the RTC decided in favor of respondents. The fallo of its decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendant NPC as follows:
1. Declaring defendant NPC guilty of Negligence (Quasi-Delict) in connection with the death of Noble Casionan;
2. Ordering NPC as a consequence of its negligence, to pay the plaintiffs Jose and Linda Casionan, as heirs of the
deceased, Noble Casionan, the following Damages:
a. P50,000.00 as indemnity for the death of their son Noble Casionan;
b. P100,000.00 as moral damages;
c. P50,000.00 as exemplary damages;
d. P52,277.50 as actual damages incurred for the expenses of burial and wake in connection with the
death of Noble Casionan;
e. P720,000.00 as the loss of unearned income; and
f. P20,000.00 as attorneys fees and the cost of suit; and
3. Dismissing the counter claim of the NPC for lack of merit. [3]

The RTC gave more credence to the testimony of witnesses for respondents than those of NPC who were not actually present at the
time of the incident. The trial court observed that witnesses for NPC were biased witnesses because they were all employed by the company,
except for the witness from the Department of Environment and Natural Resources (DENR). The RTC found:
Melchor Jimenez was very vivid in his account. He declared that he and Noble Casionan cut two bamboo poles,
one 14 feet and the other about 18 feet. The shorter bamboo pole was carried by Noble Casionan and the longer bamboo pole
was carried by him. And they walked along the trail underneath the transmission lines. He was following Noble Casionan.
And when they were going uphill in the trail and Noble Casionan was to turn left in a curve, the bamboo pole of Casionan
swung around and its tip at the back touched for one or two seconds or for a split moment the transmission line that was
dangling and a buzzing sound was heard. And Casionan immediately fell dead and simply stopped breathing. What better
account would there be than this? Melchor Jimenez was an eye witness as to how it all happened.[4] (Emphasis added)

The RTC ruled that the negligence of NPC in maintaining the high-tension wires was established by preponderance of evidence. On
this score, the RTC opined:

2. On the matter of whether plaintiffs have a cause of action against defendant NPC, obviously, they would have. x
x x This negligence of the NPC was well established and cannot be denied because previous to this incident, the attention of
NPC has already been called by several requests and demands in 1991, 1993 and 1995 by elders and leaders of the
community in the area to the fact that their transmission lines were dangling and sagging and the clearance thereof from the
line to the ground was only 8 to 10 feet and not within the standard clearance of 18 to 20 feet but no safety measures were
taken. They did not even put danger and warning signs so as to warn persons passing underneath. [5] (Emphasis added)

Disagreeing with the ruling of the trial court, NPC elevated the case to the CA. In its appeal, it argued that the RTC erred in ruling that NPC was
liable for Nobles death. Further,even assuming that Noble died of electrocution, the RTC erred in not finding that he was guilty of contributory
negligence and in awarding excessive damages.

CA Disposition

On June 30, 2004, the CA promulgated its decision, disposing as follows:

WHEREFORE, the appealed Decision is hereby AFFIRMED, with the MODIFICATION that the amount of moral
damages is REDUCED to Fifty Thousand Pesos (P50,000.00); and the award of attorneys fees in the sum of Twenty
Thousand Pesos (P20,000.00) is DELETED.[6]

The CA sustained the findings of fact of the trial court but reduced the award of moral damages from P100,000.00 to P50,000.00. The CA further
disallowed the award of attorneys fees because the reason for the award was not expressly stated in the body of the decision.

Issues

The following issues are presented for Our consideration: (i) Whether the award for damages should be deleted in view of the contributory
negligence of the victim; and (ii) Whether the award for unearned income, exemplary, and moral damages should be deleted for lack of factual
and legal bases.[7]

Our Ruling

That the victim Noble died from being electrocuted by the high-tension transmission wires of petitioner is not contested by
petitioner. We are, however, asked to delete or mitigate the damages awarded by the trial and appellate courts in view of what petitioner alleges
to be contributory negligence on the part of the victim.

As a rule, only questions of law may be entertained on appeal by certiorari under Rule 45. The finding of negligence on the part of petitioner by
the trial court and affirmed by the CA is a question of fact which We cannot pass upon since it would entail going into factual matters on which
the finding of negligence was based.[8] Corollary to this, the finding by both courts of the lack of contributory negligence on the part of the victim
is a factual issue which is deemed conclusive upon this Court absent any compelling reason for Us to rule otherwise.

But even if We walk the extra mile, the finding of liability on the part of petitioner must stay.

Petitioner contends that the mere presence of the high tension wires above the trail did not cause the victims death. Instead, it was
Nobles negligent carrying of the bamboo pole that caused his death. It insists that Noble was negligent when he allowed the bamboo pole he was
carrying to touch the high tension wires. This is especially true because other people traversing the trail have not been similarly electrocuted.

Petitioners contentions are absurd.

The sagging high tension wires were an accident waiting to happen. As established during trial, the lines were sagging around 8 to 10
feet in violation of the required distance of 18 to 20 feet. If the transmission lines were properly maintained by petitioner, the bamboo pole
carried by Noble would not have touched the wires. He would not have been electrocuted.

Petitioner cannot excuse itself from its failure to properly maintain the wires by attributing negligence to the victim. In Ma-ao Sugar
Central Co., Inc. v. Court of Appeals,[9] this Court held that the responsibility of maintaining the rails for the purpose of preventing derailment
accidents belonged to the company. The company should not have been negligent in ascertaining that the rails were fully connected than
to wait until a life was lost due to an accident. Said the Court:
In this petition, the respondent court is faulted for finding the petitioner guilty of negligence notwithstanding its
defense of due diligence under Article 2176 of the Civil Code and for disallowing the deductions made by the trial court.
Investigation of the accident revealed that the derailment of the locomotive was caused by protruding rails which
had come loose because they were not connected and fixed in place by fish plates. Fish plates are described as strips of iron
8" to 12" long and 3 " thick which are attached to the rails by 4 bolts, two on each side, to keep the rails aligned. Although
they could be removed only with special equipment, the fish plates that should have kept the rails aligned could not be found
at the scene of the accident.
There is no question that the maintenance of the rails, for the purpose, inter alia, of preventing derailments, was
the responsibility of the petitioner, and that this responsibility was not discharged. According to Jose Reyes, its own witness,
who was in charge of the control and supervision of its train operations, cases of derailment in the milling district were

frequent and there were even times when such derailments were reported every hour. The petitioner should therefore have
taken more prudent steps to prevent such accidents instead of waiting until a life was finally lost because of its negligence. [10]

Moreover, We find no contributory negligence on Nobles part.

Negligence is the failure to observe, for the protection of the interest of another person, that degree of care, precaution, and vigilance
which the circumstances justly demand, whereby such other person suffers injury. [11] On the other hand, contributory negligence is conduct on
the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard which he is
required to conform for his own protection.[12] There is contributory negligence when the partys act showed lack of ordinary care and foresight
that such act could cause him harm or put his life in danger. [13] It is an act or omission amounting to want of ordinary care on the part of the
person injured which, concurring with the defendants negligence, is the proximate cause of the injury. [14]

The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled
to recover damages in full but must bear the consequences of his own negligence. [15] If indeed there was contributory negligence on the part of
the victim, then it is proper to reduce the award for damages. This isin consonance with the Civil Code provision that liability will be mitigated
in consideration of the contributory negligence of the injured party. Article 2179 of the Civil Code is explicit on this score:
When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants
lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.

In Ma-ao Sugar Central, it was held that to hold a person as having contributed to his injuries, it must be shown that he performed an
act that brought about his injuries in disregard of warnings or signs on an impending danger to health and body. This Court held then that the
victim was not guilty of contributory negligence as there was no showing that the caboose where he was riding was a dangerous place and that
he recklessly dared to stay there despite warnings or signs of impending danger. [16]

In this case, the trail where Noble was electrocuted was regularly used by members of the community. There were no warning signs to inform
passersby of the impending danger to their lives should they accidentally touch the high tension wires. Also, the trail was the only viable way
from Dalicon to Itogon. Hence, Noble should not be faulted for simply doing what was ordinary routine to other workers in the area.

Petitioner further faults the victim in engaging in pocket mining, which is prohibited by the DENR in the area.
In Aonuevo v. Court of Appeals,[17] this Court ruled that the violation of a statute is not sufficient to hold that the violation was the
proximate cause of the injury, unless the very injury that happened was precisely what was intended to be prevented by the statute. In said case,
the allegation of contributory negligence on the part of the injured party who violated traffic regulations when he failed to register his bicycle or
install safety gadgets thereon was struck down. We quote:
x x x The bare fact that Villagracia was violating a municipal ordinance at the time of the accident may have
sufficiently established some degree of negligence on his part, but such negligence is without legal consequence unless it is
shown that it was a contributing cause of the injury. If anything at all, it is but indicative of Villagracias failure in fulfilling
his obligation to the municipal government, which would then be the proper party to initiate corrective action as a result.
But such failure alone is not determinative of Villagracias negligence in relation to the accident. Negligence is relative or
comparative, dependent upon the situation of the parties and the degree of care and vigilance which the particular
circumstances reasonably require. To determine if Villagracia was negligent, it is not sufficient to rely solely on the
violations of the municipal ordinance, but imperative to examine Villagracias behavior in relation to the contemporaneous
circumstances of the accident.
xxxx
Under American case law, the failures imputed on Villagracia are not grievous enough so as to negate monetary
relief. In the absence of statutory requirement, one is not negligent as a matter of law for failing to equip a horn, bell, or
other warning devise onto a bicycle. In most cases, the absence of proper lights on a bicycle does not constitute negligence
as a matter of law but is a question for the jury whether the absence of proper lights played a causal part in producing a
collision with a motorist. The absence of proper lights on a bicycle at night, as required by statute or ordinance, may
constitute negligence barring or diminishing recovery if the bicyclist is struck by a motorist as long as the absence of such

lights was a proximate cause of the collision; however, the absence of such lights will not preclude or diminish recovery if
the scene of the accident was well illuminated by street lights, if substitute lights were present which clearly rendered the
bicyclist visible, if the motorist saw the bicycle in spite of the absence of lights thereon, or if the motorist would have been
unable to see the bicycle even if it had been equipped with lights. A bicycle equipped with defective or ineffective brakes
may support a finding of negligence barring or diminishing recovery by an injured bicyclist where such condition was a
contributing cause of the accident.
The above doctrines reveal a common thread. The failure of the bicycle owner to comply with accepted safety
practices, whether or not imposed by ordinance or statute, is not sufficient to negate or mitigate recovery unless a causal
connection is established between such failure and the injury sustained. The principle likewise finds affirmation in Sanitary
Steam, wherein we declared that the violation of a traffic statute must be shown as the proximate cause of the injury, or that
it substantially contributed thereto. Aonuevo had the burden of clearly proving that the alleged negligence of Villagracia was
the proximate or contributory cause of the latters injury.[18] (Emphasis added)

That the pocket miners were unlicensed was not a justification for petitioner to leave their transmission lines dangling. We quote with
approval the observation of the RTCon this matter:
The claim of NPC that the pocket miners have no right to operate within the area of Dalicno, Itogon, Benguet as
there was no permit issued by DENR is beside the point. The fact is that there were not only pocket miners but also there
were many residents in the area of Dalicno, Ampucao, Itogon, Benguet using the trail. These residents were using this trail
underneath the transmission lines x x x. They were using this trail even before the transmission lines were installed in the
1970s by NPC. The pocket miners, although they have no permit to do pocket mining in the area, are also human beings who
have to eke out a living in the only way they know how. The fact that they were not issued a permit by the DENR to do pocket
mining is no justification for NPC to simply leave their transmission lines dangling or hanging 8 to 10 feet above the ground
posing danger to the life and limb of everyone in said community. x x x[19] (Emphasis added)

In sum, the victim was not guilty of contributory negligence. Hence, petitioner is not entitled to a mitigation of its liability.

II

We now determine the propriety of the awards for loss of unearned income, moral, and exemplary damages.

From the testimony of the victims mother, it was duly established during trial that he was earning P3,000.00 a month. To determine the
compensable amount of lost earnings, We consider (1) the number of years for which the victim would otherwise have lived (life expectancy);
and (2) the rate of loss sustained by the heirs of the deceased. Life expectancy is computed by applying the formula (2/3 x [80 - age at death])
adopted in the American Expectancy Table of Mortality or the Actuarial Combined ExperienceTable of Mortality. The second factor is computed
by multiplying the life expectancy by the net earnings of the deceased, i.e., the total earnings less expenses necessary in the creation of such
earnings or income and less living and other incidental expenses. The net earning is ordinarily computed at fifty percent (50%) of the gross
earnings. Thus, the formula used by this Court in computing loss of earning capacity is: Net Earning Capacity = [2/3 x (80 age at time of death)
x (gross annual income reasonable and necessary living expenses)]. [20]

We sustain the trial court computation of unearned income of the victim:

x x x the loss of his unearned income can be computed as follows: two-thirds of 80 years, minus 20 years,
times P36,000.00 per year, equals P1,440,000.00. This is because Noble Casionan, at the time of his death, was 20 years old
and was healthy and strong. And, therefore, his life expectancy would normally reach up to 80 years old in accordance with
the above formula illustrated in the aforesaid cases. Thus, Noble Casionan had 60 more years life expectancy since he was
20 years old at the time of his death on June 27, 1995. Two-thirds of 60 years times P36,000.00 since he was earning
about P3,000.00 a month of P36,000.00 a year would be P1,440,000.00.
However, in determining the unearned income, the basic concern is to determine the damages sustained by the heirs or
dependents of the deceased Casionan. And here, the damages consist not of the full amount of his earnings but the support
they would have received from the deceased had he not died as a consequence of the unlawful act of the NPC. x x x The
amount recoverable is not the loss of the entire earnings but the loss of that portion of the earnings which the heirs would
have received as support. Hence, from the amount of P1,440,000.00, a reasonable amount for the necessary expenses of
Noble Casionan had he lived would be deducted. Following the ruling in People v. Quilaton, 205 SCRA 279, the Court
deems that 50 percent of the gross earnings of the deceased of P1,440,000.00 should be deducted for his necessary expenses
had he lived, thus leaving the other half of about P720,000.00 as the net earnings that would have gone for the support of his
heirs. This is the unearned income of which the heirs were deprived of. [21]

In quasi delicts, exemplary damages are awarded where the offender was guilty of gross negligence. [22] Gross negligence has been
defined to be the want or absence of even slight care or diligence as to amount to a reckless disregard of the safety of person or property. It
evinces a thoughtless disregard of consequences without exerting any effort to avoid them. [23]

Petitioner demonstrated its disregard for the safety of the members of the community of Dalicno who used the trail regularly when it
failed to address the sagging high tension wires despite numerous previous requests and warnings. It only exerted efforts to rectify the danger it
posed after a death from electrocution already occurred. Gross negligence was thus apparent, warranting the award of exemplary damages.

As to the award of moral damages, We sustain the CA reduction of the award. Moral damages are designed to compensate the claimant
for actual injury suffered and not to impose a penalty on the wrongdoer. It is not meant to enrich the complainant but to enable the injured party
to obtain means to obviate the moral suffering experience. Trial courts should guard against the award of exorbitant damages lest they be
accused of prejudice or corruption in their decision making. [24] We find that the CA correctly reduced the award from P100,000.00 to P50,000.00.

As for the award for attorneys fees, well-settled is the rule that the reason for the award must be discussed in the text of the courts
decision and not only in the dispositive portion. [25] Except for the fallo, a discussion on the reason for the award for attorneys fees was not
included by the RTC in its decision. The CA thus correctly disallowed it on appeal.

WHREFORE, the petition is DENIED and the appealed decision of the Court of Appeals AFFIRMED.
SO ORDERED.
EN BANC
[G.R. No. 70890. September 18, 1992.]
CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON. INTERMEDIATE APPELLATE COURT, FELIPE GOTIONG and
SHIRLEY GOTIONG, Respondents.
Alex Y. Tan, for Petitioners.
Mario D. Ortiz and Danilo V. Ortiz for Private Respondents.
SYLLABUS
1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY ARISING FROM CRIMINAL OFFENSES
COMMITTED BY THEIR MINOR CHILDREN; RULE. The parents are and should be held primarily liable for the civil liability arising
from criminal offenses committed by their minor children under their legal authority or control, or who live in their company, unless it is proven
that the former acted with the diligence of a good father of a family to prevent such damages. That primary liability is premised on the provisions
of Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their children 9 years of age or under, or over 9 but under
15 years of age who acted without discernment; and, with regard to their children over 9 but under 15 years of age who acted with discernment,
or 15 years or over but under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code. Under said
Article 2180, the enforcement of such liability shall be effected against the father and, in case of his death or incapacity, the mother. This was
amplified by the Child and Youth Welfare Code which provides that the same shall devolve upon the father and, in case of his death or
incapacity, upon the mother or, in case of her death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a
relative or family friend of the youthful offender. However, under the Family Code, this civil liability is now, without such alternative
qualification, the responsibility of the parents and those who exercise parental authority over the minor offender. For civil liability arising from
quasi-delicts committed by minors, the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.
DECISION
REGALADO, J.:
One of the ironic verities of life, it has been said, is that sorrow is sometimes a touchstone of love. A tragic illustration is provided by the instant
case, wherein two lovers died while still in the prime of their years, a bitter episode for those whose lives they have touched. While we cannot
expect to award complete assuagement to their families through seemingly prosaic legal verbiage, this disposition should at least terminate the
acrimony and rancor of an extended judicial contest resulting from the unfortunate occurrence.

In this final denouement of the judicial recourse the stages whereof were alternately initiated by the parties, petitioners are now before us seeking
the reversal of the judgment of respondent court promulgated on January 2, 1985 in AC-G.R. CV No. 69060 with the following decretal
portion:jgc:chanrobles.com.ph
"WHEREFORE, the decision of the lower court dismissing plaintiffs complaint is hereby reversed; and instead, judgment is hereby rendered
sentencing defendants, jointly and solidarily, to pay to plaintiffs the following amounts:chanrobles.com : virtual law library
1. Moral damages, P30,000.000;
2. Exemplary damages, P10,000.00;
3. Attorneys fees, P20,000.00, and costs.
However, denial of defendants-appellees counterclaims is affirmed." 1
Synthesized from the findings of the lower courts, it appears that respondent spouses are the legitimate parents of Julie Ann Gotiong who, at the
time of the deplorable incident which took place and from which she died on January 14, 1979, was an 18-year old first year commerce student
of the University of San Carlos, Cebu City; while petitioners are the parents of Wendell Libi, then a minor between 18 and 19 years of age living
with his aforesaid parents, and who also died in the same event on the same date.
For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi were sweethearts until December, 1978 when Julie Ann
broke up her relationship with Wendell after she supposedly found him to be sadistic and irresponsible. During the first and second weeks of
January, 1979, Wendell kept pestering Julie Ann with demands for reconciliation but the latter persisted in her refusal, prompting the former to
resort to threats against her. In order to avoid him, Julie Ann stayed in the house of her best friend, Malou Alfonso, at the corner of Maria
Cristina and Juana Osmea Streets, Cebu City, from January 7 to 13, 1978.
On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound inflicted with the same firearm, a Smith and Wesson
revolver licensed in the name of petitioner Cresencio Libi, which was recovered from the scene of the crime inside the residence of private
respondents at the corner of General Maxilom and D. Jakosalem streets of the same city.
Due to the absence of an eyewitness account of the circumstances surrounding the death of both minors, their parents, who are the contending
parties herein, posited their respective theories drawn from their interpretation of circumstantial evidence, available reports, documents and
evidence of physical facts.
Private respondents, bereaved over the death of their daughter, submitted that Wendell caused her death by shooting her with the aforesaid
firearm and, thereafter, turning the gun on himself to commit suicide. On the other hand, Petitioners, puzzled and likewise distressed over the
death of their son, rejected the imputation and contended that an unknown third party, whom Wendell may have displeased or antagonized by
reason of his work as a narcotics informer of the Constabulary Anti-Narcotics Unit (CANU), must have caused Wendells death and then shot
Julie Ann to eliminate any witness and thereby avoid identification.chanrobles.com:cralaw:red
As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the then Court of First Instance of Cebu against the parents of
Wendell to recover damages arising from the latters vicarious liability under Article 2180 of the Civil Code. After trial, the court below rendered
judgment on October 20, 1980 as follows:jgc:chanrobles.com.ph
"WHEREFORE, premises duly considered, judgment is hereby rendered dismissing plaintiffs complaint for insufficiency of the evidence.
Defendants counterclaim is likewise denied for lack of sufficient merit." 2
On appeal to respondent court, said judgment of the lower court dismissing the complaint of therein plaintiffs-appellants was set aside and
another judgment was rendered against defendants-appellees who, as petitioners in the present appeal by certiorari, now submit for resolution
the following issues in this case:chanrob1es virtual 1aw library
1. Whether or not respondent court correctly reversed the trial court in accordance with established decisional laws; and
2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent court to make petitioners liable for vicarious liability. 3
In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer of Cebu, submitted his findings and opinions on some
postulates for determining whether or not the gunshot wound was inflicted on Wendell Libi by his own suicidal act. However, undue emphasis
was placed by the lower court on the absence of gunpowder or tattooing around the wound at the point of entry of the bullet. It should be
emphasized, however, that this is not the only circumstance to be taken into account in the determination of whether it was suicide or not.
It is true that said witness declared that he found no evidence of contact or close-contact of an explosive discharge in the entrance wound.
However, as pointed out by private respondents, the body of deceased Wendell Libi must have been washed at the funeral parlor, considering the
hasty interment thereof a little after eight (8) hours from the occurrence wherein he died. Dr. Cerna himself could not categorically state that the
body of Wendell Libi was left untouched at the funeral parlor before he was able to conduct his autopsy. It will also be noted that Dr. Cerna was
negligent in not conducting a paraffin test on Wendell Libi, hence possible evidence of gunpowder residue on Wendells hands was forever lost
when Wendell was hastily buried.cralawnad
More specifically, Dr. Cerna testified that he conducted an autopsy on the body of Wendell Libi about eight (8) hours after the incident or, to be
exact, eight (8) hours and twenty (20) minutes based on the record of death; that when he arrived at the Cosmopolitan Funeral Homes, the body
of the deceased was already on the autopsy table and in the stage of rigor mortis; and that said body was not washed, but it was dried. 4
However, on redirect examination, he admitted that during the 8-hour interval, he never saw the body nor did he see whether said body was
wiped or washed in the area of the wound on the head which he examined because the deceased was inside the morgue. 5 In fact, on crossexamination, he had earlier admitted that as far as the entrance of the wound, the trajectory of the bullet and the exit of the wound are concerned,
it is possible that Wendell Libi shot himself. 6

He further testified that the muzzle of the gun was not pressed on the head of the victim and that he found no burning or singeing of the hair or
extensive laceration on the gunshot wound of entrance which are general characteristics of contact or near-contact fire. On direct examination,
Dr. Cerna nonetheless made these clarification:jgc:chanrobles.com.ph
"Q Is it not a fact that there are certain guns which are so made that there would be no black residue or tattooing that could result from these guns
because they are what we call clean?
A Yes, sir. I know that there are what we call smokeless powder.
ATTY. ORTIZ:chanrob1es virtual 1aw library
Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those indications that you said may not rule out the possibility that the
gun was closer than 24 inches, is that correct?
A If the . . . assuming that the gun used was .. the bullet used was a smokeless powder.
Q At any rate, doctor, from . . . disregarding those other matters that you have noticed, the singeing, etc., from the trajectory, based on the
trajectory of the bullet as shown in your own sketch, is it not a fact that the gun could have been fired by the person himself, the victim himself,
Wendell Libi, because it shows a point of entry a little above the right ear and point of exit a little above that, to be very fair and on your oath?
A As far as the point of entrance is concerned and as far as the trajectory of the bullet is concerned and as far as the angle or the manner of fire is
concerned, it could have been fired by the victim." 7
As shown by the evidence, there were only two used bullets 8 found at the scene of the crime, each of which were the bullets that hit Julie Ann
Gotiong and Wendell Libi, respectively. Also, the sketch prepared by the Medico-Legal Division of the National Bureau of Investigation, 9
shows that there is only one gunshot wound of entrance located at the right temple of Wendell Libi. The necropsy report prepared by Dr. Cerna
states:chanrob1es virtual 1aw library
x

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

"Evidence of contact or close-contact fire, such as burning around the gunshot wound of entrance, gunpowder tatooing (sic), smudging, singeing
of hair, extensive laceration or bursting of the gunshot wound of entrance, or separation of the skin from the underlying tissue, are absent." 10
On cross-examination, Dr. Cerna demonstrated his theory which was made of record, thus:jgc:chanrobles.com.ph
"Q Now, will you please use yourself as Wendell Libi, and following the entrance of the wound, the trajectory of the bullet and the exit of the
wound, and measuring yourself 24 inches, will you please indicate to the Honorable Court how would it have been possible for Wendell Libi to
kill himself? Will you please indicate the 24 inches?
WITNESS:chanrob1es virtual 1aw library
A Actually, sir, the 24 inches is approximately one arms length.
ATTY. SENINING:chanrob1es virtual 1aw library
I would like to make of record that the witness has demonstrated by extending his right arm almost straight towards his head." 11
Private respondents assail the fact that the trial court gave credence to the testimonies of defendants witnesses Lydia Ang and James Enrique
Tan, the first being a resident of an apartment across the street from the Gotiongs and the second, a resident of the house adjacent to the Gotiong
residence, who declared having seen a "shadow" of a person at the gate of the Gotiong house after hearing shots therefrom.
On cross-examination, Lydia Ang testified that the apartment where she was staying faces the gas station; that it is the second apartment; that
from her window she can see directly the gate of the Gotiongs and, that there is a firewall between her apartment and the gas station. 12 After
seeing a man jump from the gate of the Gotiongs to the rooftop of the Tans, she called the police station but the telephone lines were busy. Later
on, she talked with James Enrique Tan and told him that she saw a man leap from the gate towards his rooftop. 13
However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the Gotiongs, but denied having talked with anyone regarding
what he saw. He explained that he lives in a duplex house with a garden in front of it; that his house is next to Felipe Gotiongs house; and he
further gave the following answers to these questions:chanrobles.com : virtual law library
"ATTY. ORTIZ: (TO WITNESS).

Q What is the height of the wall of the Gotiongs in relation to your house?
WITNESS:chanrob1es virtual 1aw library
A It is about 8 feet.
ATTY. ORTIZ: (TO WITNESS)
Q And where were you looking from?
WITNESS:chanrob1es virtual 1aw library
A From upstairs in my living room.
ATTY. ORTIZ (TO WITNESS)
Q From Your living room window, is that correct?
WITNESS:chanrob1es virtual 1aw library
A Yes, but not very clear because the wall is high." 14
Analyzing the foregoing testimonies, we agree with respondent court that the same do not inspire credence as to the reliability and accuracy of
the witnesses observations, since the visual perceptions of both were obstructed by high walls in their respective houses in relation to the house
of herein private respondents. On the other hand, witness Manolo Alfonso, testifying on rebuttal, attested without contradiction that he and his
sister, Malou Alfonso, were waiting for Julie Ann Gotiong when they heard her scream; that when Manolo climbed the fence to see what was
going on inside the Gotiong house, he heard the first shot; and, not more than five (5) seconds later, he heard another shot. Consequently, he
went down from the fence and drove to the police station to report the incident. 15 Manolos direct and candid testimony establishes and
explains the fact that it was he whom Lydia Ang and James Enrique Tan saw as the "shadow" of a man at the gate of the Gotiong house.
We have perforce to reject petitioners effete and unsubstantiated pretension that it was another man who shot Wendell and Julie Ann. It is
significant that the Libi family did not even point to or present any suspect in the crime nor did they file any case against any alleged "John
Doe." Nor can we sustain the trial courts dubious theory that Wendell Libi did not die by his own hand because of the overwhelming evidence
testimonial, documentary and pictorial the confluence of which point to Wendell as the assailant of Julie Ann, his motive being revenge for
her rejection of his persistent pleas for a reconciliation.chanrobles.com:cralaw:red
Petitioners defense that they had exercised the due diligence of a good father of a family, hence they should not be civilly liable for the crime
committed by their minor son, is not borne out by the evidence on record either.
Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio Libi, owns a gun which he kept in a safety deposit box
inside a drawer in their bedroom. Each of these petitioners holds a key to the safety deposit box and Amelitas key is always in her bag, all of
which facts were known to Wendell. They have never seen their son Wendell taking or using the gun. She admitted, however, that on that fateful
night the gun was no longer in the safety deposit box. 16 We, accordingly, cannot but entertain serious doubts that petitioner spouses had really
been exercising the diligence of a good father of a family by safely locking the fatal gun away. Wendell could not have gotten hold thereof unless
one of the keys to the safety deposit box was negligently left lying around or he had free access to the bag of his mother where the other key
was.
The diligence of a good father of a family required by law in a parent and child relationship consists, to a large extent, of the instruction and
supervision of the child. Petitioners were gravely remiss in their duties as parents in not diligently supervising the activities of their son, despite
his minority and immaturity, so much so that it was only at the time of Wendells death that they allegedly discovered that he was a CANU agent
and that Cresencios gun was missing from the safety deposit box. Both parents were sadly wanting in their duty and responsibility in monitoring
and knowing the activities of their children who, for all they know, may be engaged in dangerous work such as being drug informers, 17 or even
drug users. Neither was a plausible explanation given for the photograph of Wendell, with a handwritten dedication to Julie Ann at the back
thereof, 18 holding upright what clearly appears as a revolver and on how or why he was in possession of that firearm.
In setting aside the judgment of the court a quo and holding petitioners civilly liable, as explained at the start of this opinion, respondent court
waved aside the protestations of diligence on the part of petitioners and had this to say:jgc:chanrobles.com.ph
". . . It is still the duty of parents to know the activity of their children who may be engaged in this dangerous activity involving the menace of
drugs. Had the defendants-appellees been diligent in supervising the activities of their son, Wendell, and in keeping said gun from his reach, they
could have prevented Wendell from killing Julie Ann Gotiong. Therefore, appellants are liable under Article 2180 of the Civil Code which
provides:chanrob1es virtual 1aw library
The father, and in case of his death or incapacity, the mother, are responsible for the damages caused by their minor children who live in their
company.
"Having been grossly negligent in preventing Wendell Libi from having access to said gun which was allegedly kept in a safety deposit box,
defendants-appellees are subsidiarily liable for the natural consequence of the criminal act of said minor who was living in their company. This
vicarious liability of herein defendants-appellees has been reiterated by the Supreme Court in many cases, prominent of which is the case of
Fuellas v. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held that:chanrob1es virtual 1aw library
The subsidiary liability of parents for damages caused by their minor children imposed by Article 2180 of the New Civil Code covers
obligations arising from both quasi-delicts and criminal offenses.

The subsidiary liability of parents arising from the criminal acts of their minor children who acted with discernment is determined under the
provisions of Article 2180, N.C.C. and under Article 101 of the Revised Penal Code, because to hold that the former only covers obligations
which arise from quasi-delicts and not obligations which arise from criminal offenses, would result in the absurdity that while for an act where
mere negligence intervenes the father or mother may stand subsidiarily liable for the damages caused by his or her son, no liability would attach
if the damage is caused with criminal intent. (3 SCRA 361-362).
". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi somehow got hold of the key to the drawer where said gun was
kept under lock without defendant-spouses ever knowing that said gun had been missing from that safety box since 1978 when Wendell Libi
had) a picture taken wherein he proudly displayed said gun and dedicated this picture to his sweetheart, Julie Ann Gotiong; also since then,
Wendell Libi was said to have kept said gun in his car, in keeping up with his supposed role of a CANU agent . . ." chanrobles lawlibrary :
rednad
x

"Based on the foregoing discussions of the assigned errors, this Court holds that the lower court was not correct in dismissing herein plaintiffsappellants complaint because as preponderantly shown by evidence, defendants-appellees utterly failed to exercise all the diligence of a good
father of the family in preventing their minor son from committing this crime by means of the gun of defendants-appellees which was freely
accessible to Wendell Libi for they have not regularly checked whether said gun was still under lock, but learned that it was missing from the
safety deposit box only after the crime had been committed." (Emphases ours.) 19
We agree with the conclusion of respondent court that petitioners should be held liable for the civil liability based on what appears from all
indications was a crime committed by their minor son. We take this opportunity, however, to digress and discuss its ratiocination therefor on
jurisprudential dicta which we feel require clarification.
In imposing sanctions for the so-called vicarious liability of petitioners, respondent court cites Fuellas v. Cadano, Et. Al. 20 which supposedly
holds that" (t)he subsidiary liability of parents for damages caused by their minor children imposed by Article 2180 of the New Civil Code
covers obligations arising from both quasi-delicts and criminal offenses," followed by an extended quotation ostensibly from the same case
explaining why under Article 2180 of the Civil Code and Article 101 of the Revised Penal Code parents should assume subsidiary liability for
damages caused by their minor children. The quoted passages are set out two paragraphs back, with pertinent underscoring for purposes of the
discussion hereunder.chanrobles law library
Now, we do not have any objection to the doctrinal rule holding, the parents liable, but the categorization of their liability as being subsidiary,
and not primary, in nature requires a hard second look considering previous decisions of this court on the matter which warrant comparative
analyses. Our concern stems from our readings that if the liability of the parents for crimes or quasi-delicts of their minor children is subsidiary,
then the parents can neither invoke nor be absolved of civil liability on the defense that they acted with the diligence of a good father of a family
to prevent damages. On the other hand, if such liability imputed to the parents is considered direct and primary, that diligence would constitute a
valid and substantial defense.
We believe that the civil liability of parents for quasi-delicts of their minor children, as contemplated in Article 2180 of the Civil Code, is
primary and not subsidiary. In fact, if we apply Article 2194 of said code which provides for solidary liability of joint tortfeasors, the persons
responsible for the act or omission, in this case the minor and the father and, in case of his death of incapacity, the mother, are solidarily liable.
Accordingly, such parental liability is primary and not subsidiary, hence the last paragraph of Article 2180 provides that" (t)he responsibility
treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to
prevent damages."cralaw virtua1aw library
We are also persuaded that the liability of the parents for felonies committed by their minor children is likewise primary, not subsidiary. Article
101 of the Revised Penal Code provides:jgc:chanrobles.com.ph
"ARTICLE 101. Rules regarding civil liability in certain cases.
x

First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts committed by . . . a person under nine years of age, or by one
over nine but under fifteen years of age, who has acted without discernment, shall devolve upon those having such person under their legal
authority or control, unless it appears that there was no fault or negligence on their part." (Emphasis supplied.) 21
Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing provision the civil liability of the parents for crimes
committed by their minor children is likewise direct and primary, and also subject to the defense of lack of fault or negligence on their part, that
is, the exercise of the diligence of a good father of a family.
That in both quasi-delicts and crimes the parents primarily respond for such damages is buttressed by the corresponding provisions in both codes
that the minor transgressor shall be answerable or shall respond with his own property only in the absence or in case of insolvency of the former.
Thus, for civil liability ex quasi delicto of minors, Article 2182 of the Civil Code states that" (i)f the minor causing damage has no parents or
guardian, the minor . . . shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed." For
civil liability ex delicto of minors, an equivalent provision is found in the third paragraph of Article 101 of the Revised Penal Code, to
wit:jgc:chanrobles.com.ph
"Should there be no person having such . . . minor under his authority, legal guardianship or control, or if such person be insolvent, said . . .
minor shall respond with (his) own property, excepting property exempt from execution, in accordance with civil law."cralaw virtua1aw library

The civil liability of parents for felonies committed by their minor children contemplated in the aforesaid rule in Article 101 of the Revised Penal
Code in relation to Article 2180 of the Civil Code has, aside from the aforecited case of Fuellas, been the subject of a number of cases
adjudicated by this Court, viz.: Exconde v. Capuno, Et Al., 22 Araneta v. Arreglado, 23 Salen, Et. Al. v. Balce, 24 Paleyan, etc., Et. Al. v.
Bangkili, Et Al., 25 and Elcano, et al, v. Hill, Et. Al. 26 Parenthetically, the aforesaid cases were basically on the issue of the civil liability of
parents for crimes committed by their minor children over 9 but under 15 years of age, who acted with discernment, and also of minors 15 years
of aye or over, since these situations are not covered by Article 101, Revised Penal Code. In both instances, this Court held that the issue of
parental civil liability should be resolved in accordance with the provisions of Article 2180 of the Civil Code for the reasons well expressed in
Salen and adopted in the cases hereinbefore enumerated that to hold that the civil liability under Article 2180 would apply only to quasi-delicts
and not to criminal offenses would result in the absurdity that in an act involving mere negligence the parents would be liable but not where the
damage is caused with criminal intent. In said cases, however, there are unfortunate variances resulting in a regrettable inconsistency in the
Courts determination of whether the liability of the parents, in cases involving either crimes or quasi-delicts of their minor children, is primary
or subsidiary.
In Exconde, where the 15-year old minor was convicted of double homicide through reckless imprudence, in a separate civil action arising from
the crime the minor and his father were held jointly and severally liable for failure of the latter to prove the diligence of a good father of a family.
The same liability in solidum and, therefore, primary liability was imposed in a separate civil action in Araneta on the parents and their 14-year
old son who was found guilty of frustrated homicide, but on the authority of Article 2194 of the Civil Code providing for solidary responsibility
of two or more persons who are liable for a quasi-delict.
However, in Salen, the father was declared subsidiarily liable for damages arising from the conviction of his son, who was over 15 but less than
18 years of age, by applying Article 2180 but, this time, disregarding Article 2194 of the Civil Code. In the present case, as already explained,
the petitioners herein were also held liable but supposedly in line with Fuellas which purportedly declared the parents subsidiarily liable for the
civil liability for serious physical injuries committed by their 13-year old son. On the other hand, in Paleyan, the mother and her 19-year old son
were adjudged solidarily liable for damages arising from his conviction for homicide by the application of Article 2180 of the Civil Code since
this is likewise not covered by Article 101 of the Revised Penal Code. Finally, in Elcano, although the son was acquitted in a homicide charge
due to "lack of intent, coupled with mistake," it was ruled that while under Article 2180 of the Civil Code there should be solidary liability for
damages, since the son, "although married, was living with his father and getting subsistence from him at the time of the occurrence," but "is
now of age, as a matter of equity" the father was only held subsidiarily liable.
It bears stressing, however, that the Revised Penal Code provides for subsidiary liability only for persons causing damages under the compulsion
of irresistible force or under the impulse of an uncontrollable fear; 27 innkeepers, tavernkeepers and proprietors of establishments; 28 employers,
teachers, persons and corporations engaged in industry; 29 and principals, accomplices and accessories for the unpaid civil liability of their coaccused in the other classes. 30
Also, coming back to respondent courts reliance on Fuellas in its decision in the present case, it is not exactly accurate to say that Fuellas
provided for subsidiary liability of the parents therein. A careful scrutiny shows that what respondent court quoted verbatim in its decision now
on appeal in the present case, and which it attributed to Fuellas, was the syllabus on the law report of said case which spoke of "subsidiary"
liability. However, such categorization does not specifically appear in the text of the decision in Fuellas. In fact, after reviewing therein the cases
of Exconde, Araneta and Salen and the discussions in said cases of Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil
Code, this Court concluded its decision in this wise:jgc:chanrobles.com.ph
"Moreover, the case at bar was decided by the Court of Appeals on the basis of evidence submitted therein by both parties, independent of the
criminal case. And responsibility for fault or negligence under Article 2176 upon which the present action was instituted, is entirely separate and
distinct from the civil liability arising from fault or negligence under the Penal Code (Art. 2177), and having in mind the reasons behind the law
as heretofore stated, any discussion as to the minors criminal responsibility is of no moment."cralaw virtua1aw library
Under the foregoing considerations, therefore, we hereby rule that the parents are and should be held primarily liable for the civil liability arising
from criminal offenses committed by their minor children under their legal authority or control, or who live in their company, unless it is proven
that the former acted with the diligence of a good father of a family to prevent such damages. That primary liability is premised on the provisions
of Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their children 9 years of age or under, or over 9 but under
15 years of age who acted without discernment; and, with regard to their children over 9 but under 15 years of age who acted with discernment,
or 15 years or over but under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code. 31
Under said Article 2180, the enforcement of such liability shall be effected against the father and, in case of his death or incapacity, the mother.
This was amplified by the Child and Youth Welfare Code which provides that the same shall devolve upon the father and, in case of his death or
incapacity, upon the mother or, in case of her death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a
relative or family friend of the youthful offender. 32 However, under the Family Code, this civil liability is now, without such alternative
qualification, the responsibility of the parents and those who exercise parental authority over the minor offender. 33 For civil liability arising
from quasi-delicts committed by minors, the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.
In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a felony or a quasi-delict committed by Wendell Libi,
respondent court did not err in holding petitioners liable for damages arising therefrom. Subject to the preceding modifications of the premises
relied upon by it therefor and on the bases of the legal imperatives herein explained, we conjoin in its findings that said petitioners failed to duly
exercise the requisite diligentissimi patris familias to prevent such damages.
ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of respondent Court of Appeals is hereby AFFIRMED, with costs
against petitioners.
SO ORDERED.

G.R. No. 82465

February 25, 1991

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

PARAS, J.:
This is a petition for review of the decision * of the Court of Appeals, the dispositive portion of which reads:
WHEREFORE, the decision under appeal is hereby affirmed, with the following modifications: (1) Exemplary damages in the amount
of P20,000.00 are hereby awarded to plaintiffs, in addition to the actual damages of P30,000.00, moral damages of P20,000.00 and
attorney's fees in the amount of P15,000.00 awarded to plaintiffs in the decision under appeal; (2) St. Francis High School, represented
by the Spouses Fernando Nantes and Rosario Lacandula, and Benjamin Illumin, are hereby held jointly and severally liable with
defendants Connie Arquio, Tirso de Chaves, Luisito Vinas and Patria Cadis for the payment to plaintiffs of the abovementioned actual
damages, moral damages, exemplary damages and attorney's fees, and for costs; and (3) Defendants Yoly Jaro and Nida Aragones are
hereby absolved from liability, and the case against them, together with their respective counterclaims, is hereby ordered dismissed.
SO ORDERED. (p. 60, Rollo)
The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1-C at the St. Francis High School, wanted to join a school
picnic undertaken by Class I-B and Class I-C at Talaan Beach, Sariaya, Quezon. Ferdinand's parents, respondents spouses Dr. Romulo Castillo
and Lilia Cadiz Castillo, because of short notice, did not allow their son to join but merely allowed him to bring food to the teachers for the
picnic, with the directive that he should go back home after doing so. However, because of persuasion of the teachers, Ferdinand went on with
them to the beach.
During the picnic and while the students, including Ferdinand, were in the water, one of the female teachers was apparently drowning. Some of
the students, including Ferdinand, came to her rescue, but in the process, it was Ferdinand himself who drowned. His body was recovered but
efforts to resuscitate him ashore failed. He was brought to a certain Dr. Luna in Sariaya, Quezon and later to the Mt. Cannel General Hospital
where he was pronounced dead on arrival.
Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834, in the Regional Trial Court, Branch LVIII of Lucena City,
against the St. Francis High School, represented by the spouses Fernando Nantes and Rosario Lacandula, Benjamin Illumin (its principal), and
the teachers: Tirso de Chaves, Luisito Vinas, Connie Arquio, Nida Aragones, Yoly Jaro, and Patria Cadiz, for Damages which respondents
allegedly incurred from the death of their 13-year old son, Ferdinand Castillo. Contending that the death of their son was due to the failure of the
petitioners to exercise the proper diligence of a good father of the family in preventing their son's drowning, respondents prayed of actual, moral
and exemplary damages, attorney's fees and expenses for litigation.
The trial court found in favor of the respondents and against petitioners-teachers Arquio, de Chaves, Vinas, Aragones, Jaro and Cadiz, ordering
all of them jointly and severally to pay respondents the sum of P30,000.00 as actual damages, P20,000.00 as moral damages, P15,000.00 as
attorney's fees, and to pay the costs. The court a quo reasoned:
Taking into consideration the evidence presented, this Court believes that the defendant teachers namely: Connie Arquio, Luisito
Vinas, Tirso de Chaves, Yoly Jaro, Nida Aragones and Patria Cadiz had failed to exercise the diligence required of them by law under
the circumstances to guard against the harm they had foreseen. (pp. 2930, Rollo)
xxx

xxx

xxx

While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the drowning incident had already
occurred, such fact does not and cannot excuse them from their liability. In fact, it could be said that by coming late, they were remiss
in their duty to safeguard the students. (p. 30,Rollo)
The students, young as they were then (12 to 13 years old), were easily attracted to the sea without aforethought of the dangers it
offers. Yet, the precautions and reminders allegedly performed by the defendants-teachers definitely fell short of the standard required
by law under the circumstances. While the defendants-teachers admitted that some parts of the sea where the picnic was held are deep,

the supposed lifeguards of the children did not even actually go to the water to test the depth of the particular area where the children
would swim. And indeed the fears of the plaintiffs that the picnic area was dangerous was confirmed by the fact that three persons
during the picnic got drowned at the same time. Had the defendant teachers made an actual and physical observation of the water
before they allowed the students to swim, they could have found out that the area where the children were swimming was indeed
dangerous. And not only that, the male teachers who according to the female teachers were there to supervise the children to ensure
their safety were not even at the area where the children were swimming. They were somewhere and as testified to by plaintiffs'
witness they were having a drinking spree. (pp. 55-56, Rollo)
On the other hand, the trial court dismissed the case against the St. Francis High School, Benjamin Illumin and Aurora Cadorna. Said the court a
quo:
As shown and adverted to above, this Court cannot find sufficient evidence showing that the picnic was a school sanctioned one.
Similarly no evidence has been shown to hold defendants Benjamin Illumin and Aurora Cadorna responsible for the death of
Ferdinand Castillo together with the other defendant teachers. It has been sufficiently shown that Benjamin Illumin had himself not
consented to the picnic and in fact he did not join it. On the other hand, defendant Aurora Cadorna had then her own class to supervise
and in fact she was not amongst those allegedly invited by defendant Connie Arquio to supervise class I-C to which Ferdinand Castillo
belongs. (p. 30, Rollo)
Both petitioners and respondents appealed to the Court of Appeals. Respondents-spouses assigned the following errors committed by the trial
court:
1. The lower court erred in not declaring the defendant St. Francis High School and its administrator/principal Benjamin Illumin as
equally liable not only for its approved co-curricular activities but also for those which they unreasonably failed to exercise control and
supervision like the holding of picnic in the dangerous water of Talaan Beach, Sariaya, Quezon.
2. The lower court erred in not declaring the St. Francis High School and principal Benjamin Illumin as jointly and solidarily liable
with their co-defendants-teachers Rosario Lacandula, et als., for the tragic death of Ferdinand Castillo in a picnic at Talaan Beach,
Sariaya, Quezon, last March 20, 1982.
3. The lower court erred in not declaring higher amount for actual and moral damages for the untimely and tragic death of Ferdinand
Castillo in favor of plaintiffs-appellants against all the defendants. (pp. 56-57,Rollo)
The Court of Appeals ruled:
We find plaintiffs-appellants' submission well-taken.
Even were We to find that the picnic in question was not a school-sponsored activity, nonetheless it cannot be gainsaid that the same
was held under the supervision of the teachers employed by the said school, particularly the teacher in charge of Class I-C to whom the
victim belonged, and those whom she invited to help her in supervising the class during the picnic. Considering that the court a
quo found negligence on the part of the six defendants-teachers who, as such, were charged with the supervision of the children during
the picnic, the St. Francis High School and the school principal, Benjamin Illumin, are liable under Article 2176 taken together with
the 1st, 4th and 5th paragraphs of Article 2180 of the Civil Code. They cannot escape liability on the mere excuse that the picnic was
not an "extra-curricular activity of the St. Francis High School." We find from the evidence that, as claimed by plaintiffs-appellants,
the school principal had knowledge of the picnic even from its planning stage and had even been invited to attend the affair; and yet he
did not express any prohibition against undertaking the picnic, nor did he prescribe any precautionary measures to be adopted during
the picnic. At the least, We must find that the school and the responsible school officials, particularly the principal, Benjamin Illumin,
had acquiesced to the holding of the picnic.
Under Article 2180, supra, the defendant school and defendant school principal must be found jointly and severally liable with the
defendants-teachers for the damages incurred by the plaintiffs as a result of the death of their son. It is the rule that in cases where the
above-cited provisions find application, the negligence of the employees in causing the injury or damage gives rise to a presumption of
negligence on the part of the owner and/or manager of the establishment (in the present case, St. Francis High School and its
principal); and while this presumption is not conclusive, it may be overthrown only by clear and convincing proof that the owner
and/or manager exercised the care and diligence of a good father of a family in the selection and/or supervision of the employee or
employees causing the injury or damage (in this case, the defendants-teachers). The record does not disclose such evidence as would
serve to overcome the aforesaid presumption and absolve the St. Francis High School and its principal from liability under the abovecited provisions.
As to the third assigned error interposed by plaintiffs-appellants, while We cannot but commiserate with the plaintiffs for the tragedy
that befell them in the untimely death of their son Ferdinand Castillo and understand their suffering as parents, especially the victim's
mother who, according to appellants, suffered a nervous breakdown as a result of the tragedy, We find that the amounts fixed by the
court a quo as actual damages and moral damages (P30,000.00 and P20,000.00, respectively) are reasonable and are those which are
sustained by the evidence and the law.
However, We believe that exemplary or corrective damages in the amount of P20,000.00 may and should be, as it is hereby, imposed in
the present case by way of example of correction for the public good, pursuant to Article 2229 of the Civil Code. (pp. 57-59, Rollo)
On the other hand, petitioners-teachers assigned the following errors committed by the trial court:

1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas, Nida Aragones, Yoly Jaro and Patria Cadiz guilty of
negligence and jointly and severally liable for damages such finding not being supported by facts and evidence.
2. ". . . in dismissing the counterclaim interposed by the defendants. (p. 59, Rollo)
On this score, respondent Court ruled:
The main thrust of defendants-appellants appeal is that plaintiffs, the parents of the victim Ferdinand Castillo, were not able to prove
by their evidence that they did not give their son consent to join the picnic in question. However, We agree with the trial court in its
finding that whether or not the victim's parents had given such permission to their son was immaterial to the determination of the
existence of liability on the part of the defendants for the damage incurred by the plaintiffs-appellants as a result of the death of their
son. What is material to such a determination is whether or not there was negligence on the part of defendants vis-a-vis the supervision
of the victim's group during the picnic; and, as correctly found by the trial court, an affirmative reply to this question has been
satisfactorily established by the evidence, as already pointed out.
However, We sustain defendants-appellants insofar as two of the defendants-teachers, Yoly Jaro and Nida Aragones, are concerned. As
to them, the trial court found:
While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the drowning incident had
already occurred, such fact does not and cannot excuse them from their liability. In fact, it could be said that by coming late,
they were remiss in their duty to safeguard the students.
The evidence shows that these two defendants had satisfactorily explained why they were late in going to the picnic site, namely, that
they had to attend to the entrance examination being conducted by the school which is part of their duty as teachers thereof. Since they
were not at the picnic site during the occurrence in question, it cannot be said that they had any participation in the negligence
attributable to the other defendants-teachers who failed to exercise diligence in the supervision of the children during the picnic and
which failure resulted in the drowning of plaintiffs' son. Thus, We may not attribute any act or omission to the two teachers, Yoly Jaro
and Nida Aragones, as to make them liable for the injury caused to the plaintiffs because of the death of their son resulting from his
drowning at the picnic. Accordingly, they must be absolved from any liability.
As to the second assigned error raised by defendants-appellants, We agree with the court a quo that the counterclaim must be
dismissed for lack of merit. (pp. 59-60, Rollo)
Hence, this petition.
The issues presented by petitioners are:
A) Whether or not there was negligence attributable to the defendants which will warrant the award of damages to the plaintiffs;
B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the case at bar;
C) Whether or not the award of exemplary and moral damages is proper under the circumstances surrounding the case at bar. (pp. 8182, Rollo)
In the resolution of January 16, 1989, We gave due course to the petition and required the parties to submit their respective memoranda.
The petition is impressed with merit.
If at all petitioners are liable for negligence, this is because of their own negligence or the negligence of people under them. In the instant case
however, as will be shown hereunder, petitioners are neither guilty of their own negligence or guilty of the negligence of those under them.
Hence, it cannot be said that they are guilty at all of any negligence. Consequently they cannot be held liable for damages of any kind.
At the outset, it should be noted that respondent spouses, parents of the victim Ferdinand, allowed their son to join the excursion.
Testimony of Dr. Castillo on cross exam. by Atty. Flores
Q Now, when your son asked you for money to buy food, did you not ask him where he will bring this?
A I asked him where he was going, he answered, I am going to the picnic, and when I asked him where, he did not answer,
sir.
Q And after giving the money, you did not tell him anything more?
A No more, sir.

Q And after that you just learned that your son join the picnic?
A Yes, sir.
Q And you came to know of it after the news that your son was drowned in the picnic came to you, is that correct?
A Yes, sir.
Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20, 1982, you did not know that your son join the
picnic?
A No, sir, I did not know.
Q Did you not look for your son during that time?
A I am too busy with my profession, that is why I was not able, sir.
Q You did not ask your wife?
A I did not, sir.
Q And neither did your wife tell you that your son join the picnic?
A Later on after 12:00, sir.
Q And during that time you were too busy that you did not inquire whether your son have joined that picnic?
A Yes, sir.
(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo)
The fact that he gave money to his son to buy food for the picnic even without knowing where it will be held, is a sign of consent for his son to
join the same. Furthermore.
Testimony of Dr. Lazaro on cross examination:
Q How did you conduct this mental and physical examination?
A I have interviewed several persons and the patient herself She even felt guilty about the death of her son because she
cooked adobo for him so he could join the excursion where her son died of drowning.
Q Why were you able to say she was feeling guilty because she was the one who personally cooked the adobo for her son?
A It was during the interview that I had gathered it from the patient herself. She was very sorry had she not allowed her son
to join the excursion her son would have not drowned. I don't know if she actually permitted her son although she said she
cooked adobo so he could join. (Emphasis Supplied) (TSN, p. 19, hearing of April 30, 1984, Dr. Lazaro witness).
Respondent Court of Appeals committed an error in applying Article 2180 of the Civil Code in rendering petitioner school liable for the death of
respondent's son.
Article 2180, par. 4 states that:
The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom
one is responsible.
xxx

xxx

xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned
tasks, even though the former are not engaged in any business or industry.
Under this paragraph, it is clear that before an employer may be held liable for the negligence of his employee, the act or omission which caused
damage or prejudice must have occurred while an employee was in the performance of his assigned tasks.

In the case at bar, the teachers/petitioners were not in the actual performance of their assigned tasks. The incident happened not within the school
premises, not on a school day and most importantly while the teachers and students were holding a purely private affair, a picnic. It is clear from
the beginning that the incident happened while some members of the I-C class of St. Francis High School were having a picnic at Talaan Beach.
This picnic had no permit from the school head or its principal, Benjamin Illumin because this picnic is not a school sanctioned activity neither is
it considered as an extra-curricular activity.
As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of the planning of the picnic by the students and their
teachers does not in any way or in any manner show acquiescence or consent to the holding of the same. The application therefore of Article
2180 has no basis in law and neither is it supported by any jurisprudence. If we were to affirm the findings of respondent Court on this score,
employers wig forever be exposed to the risk and danger of being hailed to Court to answer for the misdeeds or omissions of the employees even
if such act or omission he committed while they are not in the performance of their duties.
Finally, no negligence could be attributable to the petitioners-teachers to warrant the award of damages to the respondents-spouses.
Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand belonged, did her best and exercised diligence of a good father of
a family to prevent any untoward incident or damages to all the students who joined the picnic.
In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both P.E. instructors and scout masters who have knowledge in
First Aid application and swimming. Moreover, even respondents' witness, Segundo Vinas, testified that "the defendants (petitioners herein) had
life savers especially brought by the defendants in case of emergency." (p. 85, Rollo) The records also show that both petitioners Chavez and
Vinas did all what is humanly possible to save the child.
Testimony of Luisito Vinas on cross examination,
Q And when you saw the boy, Ferdinand Castillo, you approached the boy and claim also having applied first aid on him?
A Yes, sir.
Q And while you were applying the so called first aid, the children were covering you up or were surrounding you?
A Yes, sir.
Q You were rattled at that time, is it not?
A No, sir.
Q You mean you were in calm and peaceful condition?
A Yes, sir.
Q Despite the fact that the boy was no longer responding to your application of first aid?
A Yes, sir.
Q You have never been disturbed, "nababahala" in the process of your application of the first aid on the body of Ferdinand
Castillo?
A No, sir, because we were attending to the application of first aid that we were doing, sir.
Q After you have applied back to back pressure and which you claimed the boy did not respond, were you not disturb
anyway?
A I was disturbed during that time, sir.
Q For how many minutes have you applied the back to back pressure?
A From 9 to 11 times, sir.
Q You mean 9 to 11 times of having applied the pressure of your body on the body of Ferdinand Castillo?
A Yes, sir.
Q Will you please describe how you applied a single act of back to back pressure?

A This has been done by placing the boy lay first downwards, then the face was a little bit facing right and doing it by
massaging the back of the child, sir." (TSN, pp. 32-35, hearing of July 30, 1984)
Testimony of Tirso de Chavez on direct examination
ATTY. FLORES:
Q Who actually applied the first aid or artificial respiration to the child?
A Myself, sir.
Q How did you apply the first aid to the guy?
A The first step that I took, with the help of Mr. Luisito Vinas, was I applied back to back pressure and took notice of the
condition of the child. We placed the feet in a higher position, that of the head of the child, sir.
Q After you have placed the boy in that particular position, where the feet were on a higher level than that of the head, what
did you do next?
A The first thing that we did, particularly myself, was that after putting the child in that position, I applied the back to back
pressure and started to massage from the waistline up, but I noticed that the boy was not responding, sir.
Q For how long did you apply this back to back pressure on the boy?
A About 10 seconds, sir.
Q What about Mr. Vinas?
A Almost the same a little longer, for 15 seconds, sir.
Q After you noticed that the boy was not responding, what did you do?
A When we noticed that the boy was not responding, we changed the position of the boy by placing the child facing upwards
laying on the sand then we applied the mouth to mouth resuscitation, sir. (pp. 92-93, Rollo)
With these facts in mind, no moral nor exemplary damages may be awarded in favor of respondents-spouses. The case at bar does not fall under
any of the grounds to grant moral damages.
Art. 2217. Moral Damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be
recovered if they are the proximate result of the defendant's wrongful act or omission.
Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or negligence, hence, no moral damages can be assessed
against them.
While it is true that respondents-spouses did give their consent to their son to join the picnic, this does not mean that the petitioners were already
relieved of their duty to observe the required diligence of a good father of a family in ensuring the safety of the children. But in the case at bar,
petitioners were able to prove that they had exercised the required diligence. Hence, the claim for moral or exemplary damages becomes
baseless.
PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding petitioners herein guilty of negligence and liable for the
death of Ferdinand Castillo and awarding the respondents damages, is hereby SET ASIDE insofar as the petitioners herein are concerned, but the
portion of the said decision dismissing their counterclaim, there being no merit, is hereby AFFIRMED.
SO ORDERED.
Sarmiento and Regalado, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Separate Opinions

PADILLA, J., dissenting:

I regret that I can not concur with the majority. I believe that the reversal of respondent appellate court's decision gives rise to a situation which
was neither contemplated nor intended by the applicable laws. I refer more particularly to the fact that the ponencia has left private respondentsspouses with no one to hold liable for the untimely demise of their son. On the other hand, they have, to my mind, been wronged. and they
should at least be recompensed for their sufferings. For this and other reasons stated hereunder. I dissent.
The issues, as adopted by the ponencia from the record, are as follows:
A) Whether or not there was negligence attributable to the defendants which will warrant the award of damages to the plaintiffs;
B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the case at bar;
C) Whether or not the award of exemplary and moral damages is proper under the circumstances surrounding the case at bar. 1
In my opinion, the record clearly shows negligence on the part of the petitioners-teachers, with the exception of Aragones and Jaro. As to these
two, respondent court absolved them from liability for their having satisfactorily demonstrated lack of participation in the negligence of their
colleagues. I am in agreement with said conclusion. But I also agree with the respondent court in its finding that Tirso de Chavez, Luisito Vias,
Connie Arguio and Patria Cadiz failed to exercise DILIGENT SUPERVISION over the children during the ill-fated excursion.
I may concede, albeit with reservation, that the afore-mentioned petitioners may not have been negligent in finding ways and means to revive the
young Castillo AFTER the drowning incident. Their application of first-aid measures may have failed to revive him but the petitioners had fully
exhausted their efforts to save the deceased. This concession, however, is given with hesitation, for there is indication in the record that petitioner
petitioners may have tarried too long in securing immediate medical attention for the deceased. I refer to the trial court's finding that "it still took
the jeep which brought Ferdinand Castillo to the poblacion six (6) minutes before it finally moved to await the other teachers." 2
All this aside, I am really disturbed about, and would like to emphasize the demonstrated lack of diligence on the part of the petitioners-teachers
BEFORE the unfortunate incident took place. Despite awareness that the waters in the area were deep, petitioners- teachers did not take concrete
steps to make sure their wards did not stray too far and too deeply. Even if they were not actually informed of the possible dangers which the
area posed, petitioners-teachers should have first "tested the waters", so to speak, to ensure which parts thereof were safe for swimming
purposes. However, this was not the case for as testified to by petitioner de Chavez, "they admitted that they did not even go to the water to
check its depth although they were aware that some parts of it were deep." 3
At best, it appears that only oral safety instructions were imparted to the young excursionists.
But, what I find most disturbing is the fact that at the time the trouble arose, Vias and de Chavez, the male teachers who were supposed to
ensure the children's safety, being physical education instructors, were nowhere within the immediate vicinity but were, in fact, as admitted by
the latter, "at his house getting some foods (sic) and thinks." The Court a quo even went as far as to say that "they were somewhere and as
testified to by plaintiffs' witness they were having a drinking spree!" 4
It thus appears that the petitioners-teachers failed to exercise the proper diligence or what I may refer to as DILIGENCE BEFORE THE FACT.
As earlier mentioned, the steps taken to revive the deceased may be considered adequate, despite my reservations, but the over-all lack of
diligence on the part of petitioners-teachers suffices to put them within the standards set by this Court in determining the existence of negligence.
As held inHedy Gan y Yu vs. Court of Appeals, et al., the test in determining whether or not a person is negligent in doing an act whereby injury
or damage results to the person or property of another is this: Would a prudent man in the position of the person to whom negligence is attributed
foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes the duty on the doer TO
TAKE PRECAUTION against its mischievous results and the failure to do so constitutes negligence. 5
The next issue to be addressed pertains to the liability of the petitioner St. Francis High School as represented by petitioners-spouses Fernando
Nantes and Rosario Lacandula. The majority would like to emphasize the fact that the unfortunate incident having occurred during a purely
private affair, the teachers involved therein were not in the actual performance of their assigned tasks. Consequently, any act or omission caused
by them cannot bind their employer, petitioner St. Francis High School.
I take exception to this proposition. Although the excursion may not have been attended by the appropriate school authorities, the presence or
stamp of authority of the school nevertheless pervaded by reason of the participationnot of one but of several teachers, the petitioners. As found
by the court a quo, the excursion was an activity "organized by the teachers themselves, for the students and to which the student, NATURALLY,
acceded." 6
Moreover, the record indicates that petitioner Benjamin Illumin, school principal, knew of the excursion and had, in fact, been invited to attend.
As the majority see it, such knowledge does not in any manner show acquiescence or consent to the holding of the excursion, a view which I do
not accept. It seems to me that having known of the forthcoming activity, petitioner Illumin, as school principal, should have taken appropriate
measures to ensure the safety of his students. Having preferred to remain silent, and even indifferent, he now seeks excuse from such omission
by invoking his alleged lack of consent to the excursion. But it is precisely his silence and negligence in performing his role as principal head of
the school that must be construed as an implied consent to such activity.
As administrative head (principal) of St. Francis High School, petitioner Illumin acted as the agent of his principal (the school) or its
representatives, the petitioners-spouses Nantes and Lacandula. Consequently, and as found by the respondent court.1wphi1 Article 2176 in
conjunction with Article 2180, paragraphs (1) and (5) are applicable to the situation. In the application of these provisions, the negligence of the

employee in causing injury or damage gives rise to a presumption of negligence on the part of the owner and/or manager of the establishment.
While this presumption is not conclusive, it may be overcome only by clear and convincing evidence that the owner and/or manager exercised
the care and diligence of a good father of a family in the selection and/or supervision of the employees causing the injury or damage. I agree
with the respondent court that no proof was presented to absolve the owner and/or manager, herein petitioners-spouses Nantes and Lacandula,
and Illumin. Thus, as correctly held by the respondent court, they too must be accountable for the death of Ferdinand Castillo.
The majority view appears to be apprehensive that employers will be continuously held accountable for misdeeds of their employees committed
even when the same are done not in the actual exercise of their duties. I fail to appreciate such apprehensions, which need not arise on the part of
employers, so long as the latter have no knowledge of, or give consent to, such act or omission on the part of their employee.
Educational institutions have responsibilities which cannot be equated with those of the ordinary employer or business establishment. Such
institutions, particularly the primary and secondary schools, hold the tremendous responsibility of exercising supervision over young children.
Too often, such schools avoid liabilities, as in the instant cage, by invoking the absence of approval on their part for activities that may be held
outside school premises or held on a day not a school day. It is about time that such schools realize that theirs is not a mere moneymaking entity
or one impersonally established for the sole task of teaching the rudimentary skills of "reading, writing and 'rithmetic." They must consider that
their students are children of tender years who are in need of adequate care, continuing attention and guidance.
Anent the issue of damages, from the foregoing discussion the award thereof is clearly proper. I only wish to point out the basis for moral
damages which is found in Article 2219 of the Civil Code, to wit:
Moral damages may be recovered in the following and analogous cases:
1. . . . .
2. Quasi-delicts causing physical injuries;
xxx

xxx

xxx

It should be noted that the term "physical injuries" must not be construed in its penal sense alone but rather in its generic sense, in the spirit of
this Court's rulings in Carandang vs. Santiago (51 O.G. 2878) and Madeja vs. Caro, et al., (G.R. No. 51183, 21 December 1983, 126 SCRA
293). Thus, the death of private respondents' son as a result of petitioners' negligence gives rise to an action for quasi-delict which, as provided,
entitles the claimant to an award of moral damages.
In the light of the foregoing, I vote to AFFIRM the decision of the respondent court and thus hold the petitioners jointly and severally liable for
the death of Ferdinand Castillo.
Melencio-Herrera, J., concur.
G.R. No. L-55963 December 1, 1989
SPOUSES JOSE FONTANILLA AND VIRGINIA FONTANILLA, petitioners,
vs.
HONORABLE INOCENCIO D. MALIAMAN and NATIONAL IRRIGATION ADMINISTRATION, respondents.
G.R. No. L-61045 December 1, 1989
NATIONAL IRRIGATION ADMINISTRATION, appellant,
vs.
SPOUSES JOSE FONTANILLA and VIRGINIA FONTANILLA, appellees.
Cecilio V. Suarez, Jr. for Spouses Fontanilla.
Felicisimo C. Villaflor for NIA.

PARAS, J.:
In G.R. No. L-55963, the petition for review on certiorari seeks the affirmance of the decision dated March 20, 1980 of the then Court of First
Instance of Nueva Ecija, Branch VIII, at San Jose City and its modification with respect to the denial of petitioner's claim for moral and
exemplary damages and attorneys fees.
In G.R. No. 61045, respondent National Irrigation Administration seeks the reversal of the aforesaid decision of the lower court. The original
appeal of this case before the Court of Appeals was certified to this Court and in the resolution of July 7, 1982, it was docketed with the
aforecited number. And in the resolution of April 3, this case was consolidated with G.R. No. 55963.

It appears that on August 21, 1976 at about 6:30 P.M., a pickup owned and operated by respondent National Irrigation Administration, a
government agency bearing Plate No. IN-651, then driven officially by Hugo Garcia, an employee of said agency as its regular driver, bumped a
bicycle ridden by Francisco Fontanilla, son of herein petitioners, and Restituto Deligo, at Maasin, San Jose City along the Maharlika Highway.
As a result of the impact, Francisco Fontanilla and Restituto Deligo were injured and brought to the San Jose City Emergency Hospital for
treatment. Fontanilla was later transferred to the Cabanatuan Provincial Hospital where he died.
Garcia was then a regular driver of respondent National Irrigation Administration who, at the time of the accident, was a licensed professional
driver and who qualified for employment as such regular driver of respondent after having passed the written and oral examinations on traffic
rules and maintenance of vehicles given by National Irrigation Administration authorities.
The within petition is thus an off-shot of the action (Civil Case No. SJC-56) instituted by petitioners-spouses on April 17, 1978 against
respondent NIA before the then Court of First Instance of Nueva Ecija, Branch VIII at San Jose City, for damages in connection with the death
of their son resulting from the aforestated accident.
After trial, the trial court rendered judgment on March 20, 1980 which directed respondent National Irrigation Administration to pay damages
(death benefits) and actual expenses to petitioners. The dispositive portion of the decision reads thus:
. . . . . Judgment is here rendered ordering the defendant National Irrigation Administration to pay to the heirs of the deceased
P12,000.00 for the death of Francisco Fontanilla; P3,389.00 which the parents of the deceased had spent for the
hospitalization and burial of the deceased Francisco Fontanilla; and to pay the costs. (Brief for the petitioners spouses
Fontanilla, p. 4; Rollo, p. 132)
Respondent National Irrigation Administration filed on April 21, 1980, its motion for reconsideration of the aforesaid decision which respondent
trial court denied in its Order of June 13, 1980. Respondent National Irrigation Administration thus appealed said decision to the Court of
Appeals (C.A.-G.R. No. 67237- R) where it filed its brief for appellant in support of its position.
Instead of filing the required brief in the aforecited Court of Appeals case, petitioners filed the instant petition with this Court.
The sole issue for the resolution of the Court is: Whether or not the award of moral damages, exemplary damages and attorney's fees is legally
proper in a complaint for damages based on quasi-delict which resulted in the death of the son of herein petitioners.
Petitioners allege:
1. The award of moral damages is specifically allowable. under paragraph 3 of Article 2206 of the New Civil Code which
provides that the spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages
for mental anguish by reason of the death of the deceased. Should moral damages be granted, the award should be made to
each of petitioners-spouses individually and in varying amounts depending upon proof of mental and depth of intensity of
the same, which should not be less than P50,000.00 for each of them.
2. The decision of the trial court had made an impression that respondent National Irrigation Administration acted with gross
negligence because of the accident and the subsequent failure of the National Irrigation Administration personnel including
the driver to stop in order to give assistance to the, victims. Thus, by reason of the gross negligence of respondent,
petitioners become entitled to exemplary damages under Arts. 2231 and 2229 of the New Civil Code.
3. Petitioners are entitled to an award of attorney's fees, the amount of which (20%) had been sufficiently established in the
hearing of May 23, 1979.
4. This petition has been filed only for the purpose of reviewing the findings of the lower court upon which the disallowance
of moral damages, exemplary damages and attorney's fees was based and not for the purpose of disturbing the other findings
of fact and conclusions of law.
The Solicitor General, taking up the cudgels for public respondent National Irrigation Administration, contends thus:
1. The filing of the instant petition is rot proper in view of the appeal taken by respondent National Irrigation Administration
to the Court of Appeals against the judgment sought to be reviewed. The focal issue raised in respondent's appeal to the
Court of Appeals involves the question as to whether or not the driver of the vehicle that bumped the victims was negligent
in his operation of said vehicle. It thus becomes necessary that before petitioners' claim for moral and exemplary damages
could be resolved, there should first be a finding of negligence on the part of respondent's employee-driver. In this regard,
the Solicitor General alleges that the trial court decision does not categorically contain such finding.
2. The filing of the "Appearance and Urgent Motion For Leave to File Plaintiff-Appellee's Brief" dated December 28, 1981
by petitioners in the appeal (CA-G.R. No. 67237-R; and G. R. No.61045) of the respondent National Irrigation
Administration before the Court of Appeals, is an explicit admission of said petitioners that the herein petition, is not proper.
Inconsistent procedures are manifest because while petitioners question the findings of fact in the Court of Appeals, they
present only the questions of law before this Court which posture confirms their admission of the facts.

3. The fact that the parties failed to agree on whether or not negligence caused the vehicular accident involves a question of
fact which petitioners should have brought to the Court of Appeals within the reglementary period. Hence, the decision of
the trial court has become final as to the petitioners and for this reason alone, the petition should be dismissed.
4. Respondent Judge acted within his jurisdiction, sound discretion and in conformity with the law.
5. Respondents do not assail petitioners' claim to moral and exemplary damages by reason of the shock and subsequent
illness they suffered because of the death of their son. Respondent National Irrigation Administration, however, avers that it
cannot be held liable for the damages because it is an agency of the State performing governmental functions and driver
Hugo Garcia was a regular driver of the vehicle, not a special agent who was performing a job or act foreign to his usual
duties. Hence, the liability for the tortious act should. not be borne by respondent government agency but by driver Garcia
who should answer for the consequences of his act.
6. Even as the trial court touched on the failure or laxity of respondent National Irrigation Administration in exercising due
diligence in the selection and supervision of its employee, the matter of due diligence is not an issue in this case since driver
Garcia was not its special agent but a regular driver of the vehicle.
The sole legal question on whether or not petitioners may be entitled to an award of moral and exemplary damages and attorney's fees can very
well be answered with the application of Arts. 2176 and 2180 of theNew Civil Code.
Art. 2176 thus provides:
Whoever by act omission causes damage to another, there being fault or negligence, is obliged to pay for damage done. Such
fault or negligence, if there is no pre-existing cotractual relation between the parties, is called a quasi-delict and is governed
by the provisions of this Chapter
Paragraphs 5 and 6 of Art. 21 80 read as follows:
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their
assigned tasks, even the though the former are not engaged in any business or industry.
The State is responsible in like manner when it acts through a special agent.; but not when the damage has been caused by
the official to whom the task done properly pertains, in which case what is provided in Art. 2176 shall be applicable.
The liability of the State has two aspects. namely:
1. Its public or governmental aspects where it is liable for the tortious acts of special agents only.
2. Its private or business aspects (as when it engages in private enterprises) where it becomes liable as an ordinary employer.
(p. 961, Civil Code of the Philippines; Annotated, Paras; 1986 Ed. ).
In this jurisdiction, the State assumes a limited liability for the damage caused by the tortious acts or conduct of its special agent.
Under the aforequoted paragrah 6 of Art. 2180, the State has voluntarily assumed liability for acts done through special agents. The State's agent,
if a public official, must not only be specially commissioned to do a particular task but that such task must be foreign to said official's usual
governmental functions. If the State's agent is not a public official, and is commissioned to perform non-governmental functions, then the State
assumes the role of an ordinary employer and will be held liable as such for its agent's tort. Where the government commissions a private
individual for a special governmental task, it is acting through a special agent within the meaning of the provision. (Torts and Damages, Sangco,
p. 347, 1984 Ed.)
Certain functions and activities, which can be performed only by the government, are more or less generally agreed to be "governmental" in
character, and so the State is immune from tort liability. On the other hand, a service which might as well be provided by a private corporation,
and particularly when it collects revenues from it, the function is considered a "proprietary" one, as to which there may be liability for the torts
of agents within the scope of their employment.
The National Irrigation Administration is an agency of the government exercising proprietary functions, by express provision of Rep. Act No.
3601. Section 1 of said Act provides:
Section 1. Name and domicile.-A body corporate is hereby created which shall be known as the National Irrigation
Administration, hereinafter called the NIA for short, which shall be organized immediately after the approval of this Act. It
shall have its principal seat of business in the City of Manila and shall have representatives in all provinces for the proper
conduct of its business.
Section 2 of said law spells out some of the NIA's proprietary functions. ThusSec. 2. Powers and objectives.-The NIA shall have the following powers and objectives:

(a) x x x x x x x x x x x x x x x x x x
(b) x x x x x x x x x x x x x x x x x x
(c) To collect from the users of each irrigation system constructed by it such fees as may be necessary to finance the
continuous operation of the system and reimburse within a certain period not less than twenty-five years cost of construction
thereof; and
(d) To do all such other tthings and to transact all such business as are directly or indirectly necessary, incidental or
conducive to the attainment of the above objectives.
Indubitably, the NIA is a government corporation with juridical personality and not a mere agency of the government. Since it is a corporate
body performing non-governmental functions, it now becomes liable for the damage caused by the accident resulting from the tortious act of its
driver-employee. In this particular case, the NIA assumes the responsibility of an ordinary employer and as such, it becomes answerable for
damages.
This assumption of liability, however, is predicated upon the existence of negligence on the part of respondent NIA. The negligence referred to
here is the negligence of supervision.
At this juncture, the matter of due diligence on the part of respondent NIA becomes a crucial issue in determining its liability since it has been
established that respondent is a government agency performing proprietary functions and as such, it assumes the posture of an ordinary employer
which, under Par. 5 of Art. 2180, is responsible for the damages caused by its employees provided that it has failed to observe or exercise due
diligence in the selection and supervision of the driver.
It will be noted from the assailed decision of the trial court that "as a result of the impact, Francisco Fontanilla wasthrown to a distance 50
meters away from the point of impact while Restituto Deligo was thrown a little bit further away. The impact took place almost at the edge of the
cemented portion of the road." (Emphasis supplied,) [page 26, Rollo]
The lower court further declared that "a speeding vehicle coming in contact with a person causes force and impact upon the vehicle that anyone
in the vehicle cannot fail to notice. As a matter of fact, the impact was so strong as shown by the fact that the vehicle suffered dents on the right
side of the radiator guard, the hood, the fender and a crack on the radiator as shown by the investigation report (Exhibit "E"). (Emphasis
supplied) [page 29, Rollo]
It should be emphasized that the accident happened along the Maharlika National Road within the city limits of San Jose City, an urban area.
Considering the fact that the victim was thrown 50 meters away from the point of impact, there is a strong indication that driver Garcia was
driving at a high speed. This is confirmed by the fact that the pick-up suffered substantial and heavy damage as above-described and the fact that
the NIA group was then "in a hurry to reach the campsite as early as possible", as shown by their not stopping to find out what they bumped as
would have been their normal and initial reaction.
Evidently, there was negligence in the supervision of the driver for the reason that they were travelling at a high speed within the city limits and
yet the supervisor of the group, Ely Salonga, failed to caution and make the driver observe the proper and allowed speed limit within the city.
Under the situation, such negligence is further aggravated by their desire to reach their destination without even checking whether or not the
vehicle suffered damage from the object it bumped, thus showing imprudence and reckelessness on the part of both the driver and the supervisor
in the group.
Significantly, this Court has ruled that even if the employer can prove the diligence in the selection and supervision (the latter aspect has not
been established herein) of the employee, still if he ratifies the wrongful acts, or take no step to avert further damage, the employer would still be
liable. (Maxion vs. Manila Railroad Co., 44 Phil. 597).
Thus, too, in the case of Vda. de Bonifacio vs. B.L.T. Bus Co. (L-26810, August 31, 1970, 34 SCRA 618), this Court held that a driver should be
especially watchful in anticipation of others who may be using the highway, and his failure to keep a proper look out for reasons and objects in
the line to be traversed constitutes negligence.
Considering the foregoing, respondent NIA is hereby directed to pay herein petitioners-spouses the amounts of P12,000.00 for the death of
Francisco Fontanilla; P3,389.00 for hospitalization and burial expenses of the aforenamed deceased; P30,000.00 as moral damages; P8,000.00 as
exemplary damages and attorney's fees of 20% of the total award.
SO ORDERED.
Padilla, Sarmiento and Regalado, JJ., concur.
Melencio- Herrera (Chairperson,), J., is on leave.
G.R. No. 124354 December 29, 1999
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROMMEL RAMOS, ROY
RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,

vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.

KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their patients. If a doctor fails to live up
to this precept, he is made accountable for his acts. A mistake, through gross negligence or incompetence or plain human error, may spell the
difference between life and death. In this sense, the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be made liable for the unfortunate
comatose condition of a patient scheduled for cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which overturned the decision 4 of the Regional Trial
Court, dated 30 January 1992, finding private respondents liable for damages arising from negligence in the performance of their professional
duties towards petitioner Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A") robust woman (TSN, October 19,
1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly caused by the presence of a stone in her
gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman. Married to Rogelio E. Ramos, an
executive of Philippine Long Distance Telephone Company, she has three children whose names are Rommel Ramos, Roy
Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought professional advice. She was advised to
undergo an operation for the removal of a stone in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of
examinations which included blood and urine tests (Exhs. "A" and "C") which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her husband Rogelio met
for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in this case,
on June 10, 1985. They agreed that their date at the operating table at the DLSMC (another defendant), would be on June 17,
1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a "cholecystectomy" operation after examining the
documents (findings from the Capitol Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos,
however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the anesthesiologist's fee and which was to
be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN,
November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the rooms of the DLSMC, located along E.
Rodriguez Avenue, Quezon City (TSN, October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the operation by the hospital staff.
Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing at the Capitol Medical Center, was also there
for moral support. She reiterated her previous request for Herminda to be with her even during the operation. After praying,
she was given injections. Her hands were held by Herminda as they went down from her room to the operating room (TSN,
January 13, 1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the operating room,
Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to administer anesthesia.
Although not a member of the hospital staff, Herminda introduced herself as Dean of the College of Nursing at the Capitol
Medical Center who was to provide moral support to the patient, to them. Herminda was allowed to stay inside the operating
room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not yet in (TSN, January 13,
1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about the prospect of a delay in the arrival of Dr. Hosaka.
Herminda then went back to the patient who asked, "Mindy, wala pa ba ang Doctor"? The former replied, "Huwag kang
mag-alaala, darating na iyon" (Ibid.).
Thereafter, Herminda went out of the operating room and informed the patient's husband, Rogelio, that the doctor was not
yet around (id., p. 13). When she returned to the operating room, the patient told her, "Mindy, inip na inip na ako, ikuha mo
ako ng ibang Doctor." So, she went out again and told Rogelio about what the patient said (id., p. 15). Thereafter, she
returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival of the doctor" even as he did his
best to find somebody who will allow him to pull out his wife from the operating room (TSN, October 19, 1989, pp. 19-20).
He also thought of the feeling of his wife, who was inside the operating room waiting for the doctor to arrive (ibid.). At
almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive
(id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked,

"Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those words, he went down to the lobby and waited for the
operation to be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard somebody say that "Dr.
Hosaka is already here." She then saw people inside the operating room "moving, doing this and that, [and] preparing the
patient for the operation" (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez
intubating the hapless patient. She thereafter heard Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention on
what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left hand of the hapless
Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room, she saw this anesthesiologist trying to
intubate the patient. The patient's nailbed became bluish and the patient was placed in a trendelenburg position a position
where the head of the patient is placed in a position lower than her feet which is an indication that there is a decrease of
blood supply to the patient's brain (Id., pp. 19-20). Immediately thereafter, she went out of the operating room, and she told
Rogelio E. Ramos "that something wrong was . . . happening" (Ibid.). Dr. Calderon was then able to intubate the patient
(TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed towards the door of the
operating room. He also saw several doctors rushing towards the operating room. When informed by Herminda Cruz that
something wrong was happening, he told her (Herminda) to be back with the patient inside the operating room (TSN,
October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position (TSN, January 13,
1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed the former that something
went wrong during the intubation. Reacting to what was told to him, Rogelio reminded the doctor that the condition of his
wife would not have happened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient. The doctors
explained that the patient had bronchospasm (TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15, 1985, the patient was
released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25 which is the subject of a
promissory note and affidavit of undertaking executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon
of June 17, 1985, she has been in a comatose condition. She cannot do anything. She cannot move any part of her body. She
cannot see or hear. She is living on mechanical means. She suffered brain damage as a result of the absence of oxygen in her
brain for four to five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the hospital, she has been
staying in their residence, still needing constant medical attention, with her husband Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be suffering from
"diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21, 1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of Quezon City against herein private
respondents alleging negligence in the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff presented the testimonies of Dean Herminda
Cruz and Dr. Mariano Gavino to prove that the sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty management of
her airway by private respondents during the anesthesia phase. On the other hand, private respondents primarily relied on the expert testimony of
Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage was Erlinda's allergic reaction to the anesthetic agent,
Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the aforecited provisions of law
and jurisprudence to the case at bar, this Court finds and so holds that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the performance of their duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in not only intubating the
patient, but also in not repeating the administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the
fact that the patient was inside the operating room for almost three (3) hours. For after she committed a mistake in intubating
[the] patient, the patient's nailbed became bluish and the patient, thereafter, was placed in trendelenburg position, because of
the decrease of blood supply to the patient's brain. The evidence further shows that the hapless patient suffered brain damage
because of the absence of oxygen in her (patient's) brain for approximately four to five minutes which, in turn, caused the
patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta Gutierrez whom he had chosen
to administer anesthesia on the patient as part of his obligation to provide the patient a good anesthesiologist', and for
arriving for the scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the doctors in their
"practice of medicine" in the operating room. Moreover, the hospital is liable for failing through its responsible officials, to
cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have acted with due care and prudence in
rendering medical services to plaintiff-patient. For if the patient was properly intubated as claimed by them, the patient
would not have become comatose. And, the fact that another anesthesiologist was called to try to intubate the patient after
her (the patient's) nailbed turned bluish, belie their claim. Furthermore, the defendants should have rescheduled the operation
to a later date. This, they should have done, if defendants acted with due care and prudence as the patient's case was an
elective, not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and against the defendants.
Accordingly, the latter are ordered to pay, jointly and severally, the former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned from
November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000,00 by way of
exemplary damages; and,
4) the costs of the suit.
SO ORDERED. 7
Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a Decision, dated 29 May 1995,
reversing the findings of the trial court. The decretal portion of the decision of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the complaint below against
the appellants is hereby ordered DISMISSED. The counterclaim of appellant De Los Santos Medical Center is GRANTED
but only insofar as appellees are hereby ordered to pay the unpaid hospital bills amounting to P93,542.25, plus legal interest
for justice must be tempered with mercy.
SO ORDERED. 8
The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was mistakenly addressed as "Atty. Rogelio
Ramos." No copy of the decision, however, was sent nor received by the Coronel Law Office, then counsel on record of petitioners. Rogelio
referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of the
reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a motion for extension
of time to file a motion for reconsideration. The motion for reconsideration was submitted on 4 July 1995. However, the appellate court denied
the motion for extension of time in its Resolution dated 25 July 1995. 9Meanwhile, petitioners engaged the services of another counsel, Atty.
Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for reconsideration contending that the period
to file the appropriate pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals had
not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court still denied the motion to admit the motion
for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a
motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be extended; precisely, the
Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter Motion that plaintiffs/appellees
received a copy of the decision as early as June 9, 1995. Computation wise, the period to file a Motion for Reconsideration
expired on June 24. The Motion for Reconsideration, in turn, was received by the Court of Appeals already on July 4,
necessarily, the 15-day period already passed. For that alone, the latter should be denied.
Even assuming admissibility of the Motion for the Reconsideration, but after considering the Comment/Opposition, the
former, for lack of merit, is hereby DENIED.
SO ORDERED. 10
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April 1996, Atty. Sillano filed before this
Court a motion for extension of time to file the present petition for certiorari under Rule 45. The Court granted the motion for extension of time
and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of the resolution of the

Court of Appeals within which to submit the petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within the
extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA.
CALDERON AND DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11
Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the petition in relation to the motion
for reconsideration filed by petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition should not be given due course since the motion for reconsideration of the petitioners
on the decision of the Court of Appeals was validly dismissed by the appellate court for having been filed beyond the reglementary period. We
do not agree.
A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration is attributable to the fact that the
decision of the Court of Appeals was not sent to then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of
the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty.
Rogelio Ramos. Based on the other communications received by petitioner Rogelio Ramos, the appellate court apparently mistook him for the
counsel on record. Thus, no copy of the decision of the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period
for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyer at his given address. With a few
exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present case, since a copy of the decision of the
appellate court was not sent to the counsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of
the motion for reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals already issued a second Resolution,
dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we
believed that the receipt of the former should be considered in determining the timeliness of the filing of the present petition. Based on this, the
petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical presentation of the discussion
we shall first consider the issue on the applicability of the doctrine of res ipsa loquitur to the instant case. Thereafter, the first two assigned errors
shall be tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The phrase "res ipsa loquitur'' is a maxim
for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption
of negligence, or make out a plaintiff's prima faciecase, and present a question of fact for defendant to meet with an explanation. 13 Where the
thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in
ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the accident arose from or was caused by the defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature
of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the
injury in the absence of some explanation by the defendant who is charged with negligence. 15 It is grounded in the superior logic of ordinary
human experience and on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the
accident itself. 16 Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an independent or
separate ground of liability. 17 Instead, it is considered as merely evidentiary or in the nature of a procedural rule. 18 It is regarded as a mode of
proof, or a mere procedural of convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of
negligence. 19 In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. It is
simply a step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of
going forward with the proof. 20 Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of someone's negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.

21

In the above requisites, the fundamental element is the "control of instrumentality" which caused the damage. 22Such element of control must be
shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage,
must show a situation where it is applicable, and must establish that the essential elements of the doctrine were present in a particular incident. 23
Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances
attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause of that harm. 25 The application
of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given inference. 26
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has
deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the proof of negligence. 27 The reason is that the general rule on the necessity of
expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care.
However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses. 29 Hence, in cases where theres ipsa loquitur is applicable, the court is permitted to
find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of
common knowledge can determine the proper standard of care. 30 Where common knowledge and experience teach that a resulting injury would
not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it
occurred. 31 When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of
and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which
the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after
an operation, 32 injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, 33 removal of the wrong part of
the body when another part was intended, 34 knocking out a tooth while a patient's jaw was under anesthetic for the removal of his tonsils, 35 and
loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all cases of
medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res
ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of
each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been
exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily
found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the
doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a
scientific treatment. 38 The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any
particular scientific treatment did not produce the desired result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only
showing is that the desired result of an operation or treatment was not accomplished. 40 The real question, therefore, is whether or not in the
process of the operation any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular
scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man as the
negligent cause or causes of the untoward consequence. 41 If there was such extraneous interventions, the doctrine of res ipsa loquitur may be
utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage sustained by Erlinda in her
brain prior to a scheduled gall bladder operation presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court in applying theres ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care, custody and control
of his physician who had complete and exclusive control over him, but the operation was never performed. At the time of
submission he was neurologically sound and physically fit in mind and body, but he suffered irreparable damage and injury
rendering him decerebrate and totally incapacitated. The injury was one which does not ordinarily occur in the process of a
mastoid operation or in the absence of negligence in the administration of an anesthetic, and in the use and employment of
an endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia in the absence of negligence. Upon these facts and under these circumstances a layman would
be able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not
as such as would ordinarily have followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he was under the influence of anesthetics
and unconscious, and the circumstances are such that the true explanation of event is more accessible to the defendants than
to the plaintiff for they had the exclusive control of the instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is stated under the
doctrine of res ipsa loquitur. 44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case, Erlinda submitted herself for
cholecystectomy and expected a routine general surgery to be performed on her gall bladder. On that fateful day she delivered her person over to
the care, custody and control of private respondents who exercised complete and exclusive control over her. At the time of submission, Erlinda
was neurologically sound and, except for a few minor discomforts, was likewise physically fit in mind and body. However, during the
administration of anesthesia and prior to the performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without
undergoing surgery, she went out of the operating room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not in the
absence of negligence of someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper procedure was followed. Furthermore, the
instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents,
who are the physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of contributory negligence because she was under the
influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is unconscious and under the
immediate and exclusive control of the physicians, we hold that a practical administration of justice dictates the application of res ipsa loquitur.
Upon these facts and under these circumstances the Court would be able to say, as a matter of common knowledge and observation, if negligence
attended the management and care of the patient. Moreover, the liability of the physicians and the hospital in this case is not predicated upon an
alleged failure to secure the desired results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or
treatment was ever performed on Erlinda. Thus, upon all these initial determination a case is made out for the application of the doctrine of res
ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is applicable in any and all cases
where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light and
scrutinized in order to be within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed therein, the Court now comes to the
issue of whether the Court of Appeals erred in finding that private respondents were not negligent in the care of Erlinda during the anesthesia
phase of the operation and, if in the affirmative, whether the alleged negligence was the proximate cause of Erlinda's comatose condition.
Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora.
In giving weight to the testimony of Dra. Gutierrez, the Court of Appeals rationalized that she was candid enough to admit that she experienced
some difficulty in the endotracheal intubation 45 of the patient and thus, cannot be said to be covering her negligence with falsehood. The
appellate court likewise opined that private respondents were able to show that the brain damage sustained by Erlinda was not caused by the
alleged faulty intubation but was due to the allergic reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate,
as testified on by their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean Herminda Cruz offered
in favor of petitioners that the cause of the brain injury was traceable to the wrongful insertion of the tube since the latter, being a nurse, was
allegedly not knowledgeable in the process of intubation. In so holding, the appellate court returned a verdict in favor of respondents physicians
and hospital and absolved them of any liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to disprove the presumption of negligence
on their part in the care of Erlinda and their negligence was the proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the pathogenesis of the injury but also in
providing the Court the legal nexus upon which liability is based. As will be shown hereinafter, private respondents' own testimonies which are
reflected in the transcript of stenographic notes are replete of signposts indicative of their negligence in the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As borne by the records, respondent Dra.
Gutierrez failed to properly intubate the patient. This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of
Nursing and petitioner's sister-in-law, who was in the operating room right beside the patient when the tragic event occurred. Witness Cruz
testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.

A: As have said, I was with the patient, I was beside the stretcher holding the left hand of the patient and
all of a sudden heard some remarks coming from Dra. Perfecta Gutierrez herself. She was saying "Ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's nailbed became bluish
and I saw the patient was placed in trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why the patient was placed in that trendelenburg position?
A: As far as I know, when a patient is in that position, there is a decrease of blood supply to the brain.

46

xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country will show that intubation is not taught as part of nursing
procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not, and cannot, intubate. Even on the
assumption that she is fully capable of determining whether or not a patient is properly intubated, witness Herminda Cruz,
admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is no evidence
that she ever auscultated the patient or that she conducted any type of examination to check if the endotracheal tube was in
its proper place, and to determine the condition of the heart, lungs, and other organs. Thus, witness Cruz's categorical
statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who
succeeded in doing so clearly suffer from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in the process of intubation, witness
Cruz is not competent to testify on whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an anesthesiologist, she can very well testify upon
matters on which she is capable of observing such as, the statements and acts of the physician and surgeon, external appearances, and manifest
conditions which are observable by any one. 48 This is precisely allowed under the doctrine of res ipsa loquitur where the testimony of expert
witnesses is not required. It is the accepted rule that expert testimony is not necessary for the proof of negligence in non-technical matters or

those of which an ordinary person may be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render
expert testimony unnecessary. 49 We take judicial notice of the fact that anesthesia procedures have become so common, that even an ordinary
person can tell if it was administered properly. As such, it would not be too difficult to tell if the tube was properly inserted. This kind of
observation, we believe, does not require a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and scholarship led to her appointment as
Dean of the Capitol Medical Center School at Nursing, was fully capable of determining whether or not the intubation was a success. She had
extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the FEUNRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of Nursing. 50Reviewing
witness Cruz' statements, we find that the same were delivered in a straightforward manner, with the kind of detail, clarity, consistency and
spontaneity which would have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she experienced difficulty in inserting the
tube into Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not
immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata ito," what were you referring to?
A: "Mahirap yata itong i-intubate," that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered hardship in the insertion of the tube in
the trachea of Erlinda because it was positioned more anteriorly (slightly deviated from the normal anatomy of a person) 52 making it harder to
locate and, since Erlinda is obese and has a short neck and protruding teeth, it made intubation even more difficult.
The argument does not convince us. If this was indeed observed, private respondents adduced no evidence demonstrating that they proceeded to
make a thorough assessment of Erlinda's airway, prior to the induction of anesthesia, even if this would mean postponing the procedure. From
their testimonies, it appears that the observation was made only as an afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the possibility of anesthetic
accidents. Pre-operative evaluation and preparation for anesthesia begins when the anesthesiologist reviews the patient's medical records and
visits with the patient, traditionally, the day before elective surgery. 53 It includes taking the patient's medical history, review of current drug
therapy, physical examination and interpretation of laboratory data. 54 The physical examination performed by the anesthesiologist is directed
primarily toward the central nervous system, cardiovascular system, lungs and upper airway. 55 A thorough analysis of the patient's airway
normally involves investigating the following: cervical spine mobility, temporomandibular mobility, prominent central incisors, diseased or
artificial teeth, ability to visualize uvula and the thyromental distance. 56 Thus, physical characteristics of the patient's upper airway that could
make tracheal intubation difficult should be studied. 57 Where the need arises, as when initial assessment indicates possible problems (such as the
alleged short neck and protruding teeth of Erlinda) a thorough examination of the patient's airway would go a long way towards decreasing
patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation itself, on 17 June 1985.
Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by her. Until the day of the operation, respondent
Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of the possible
difficulties she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her patient for the first
time only an hour before the scheduled operative procedure was, therefore, an act of exceptional negligence and professional irresponsibility.
The measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician's centuries-old Hippocratic Oath.
Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial court's ignorance of clinical
procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried to muddle the difference between an elective surgery and an
emergency surgery just so her failure to perform the required pre-operative evaluation would escape unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the patient a day before so you can
introduce yourself to establish good doctor-patient relationship and gain the trust and confidence of the
patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative procedure of the anesthesiologist and
in my case, with elective cases and normal cardio-pulmonary clearance like that, I usually don't do it
except on emergency and on cases that have an abnormalities (sic). 58
However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the fastidious demands of preoperative procedure so that an anesthesiologist is able to see the patient only a few minutes before surgery, if at all. Elective procedures, on the
other hand, are operative procedures that can wait for days, weeks or even months. Hence, in these cases, the anesthesiologist possesses the
luxury of time to be at the patient's beside to do a proper interview and clinical evaluation. There is ample time to explain the method of
anesthesia, the drugs to be used, and their possible hazards for purposes of informed consent. Usually, the pre-operative assessment is conducted
at least one day before the intended surgery, when the patient is relaxed and cooperative.
Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to make a thorough evaluation of
Erlinda's case prior to the operation and prepare her for anesthesia. However, she never saw the patient at the bedside. She herself admitted that
she had seen petitioner only in the operating room, and only on the actual date of the cholecystectomy. She negligently failed to take advantage
of this important opportunity. As such, her attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient which, in turn, resulted to a wrongful
intubation, we now determine if the faulty intubation is truly the proximate cause of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma was due to bronchospasm 59 mediated by
her allergic response to the drug, Thiopental Sodium, introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of the
Philippine College of Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine, who advanced private respondents'
theory that the oxygen deprivation which led to anoxic encephalopathy, 60 was due to an unpredictable drug reaction to the short-acting
barbiturate. We find the theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not an anesthesiologist. Since Dr.
Jamora is a pulmonologist, he could not have been capable of properly enlightening the court about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist and could not therefore properly advance expert opinion on allergic-mediated
processes. Moreover, he is not a pharmacologist and, as such, could not have been capable, as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the anesthetic practice of Pentothal
administration is further supported by his own admission that he formulated his opinions on the drug not from the practical experience gained by
a specialist or expert in the administration and use of Sodium Pentothal on patients, but only from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a method of
management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what you have read from books and
not by your own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm during my appendectomy.

Q: And because they have used it on you and on account of your own personal experience you feel that
you can testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims. 61
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of anesthesia, internal medicine-allergy, and
clinical pharmacology. The resulting anoxic encephalopathy belongs to the field of neurology. While admittedly, many bronchospastic-mediated
pulmonary diseases are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic mediated
bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and pharmacology. On the basis of the foregoing
transcript, in which the pulmonologist himself admitted that he could not testify about the drug with medical authority, it is clear that the
appellate court erred in giving weight to Dr. Jamora's testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence 62 regarding expert witnesses states:
Sec. 49. Opinion of expert witness. The opinion of a witness on a matter requiring special knowledge, skill, experience or
training which he is shown to possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she is to testify,
either by the study of recognized authorities on the subject or by practical experience. 63 Clearly, Dr. Jamora does not qualify as an expert witness
based on the above standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart from
submitting testimony from a specialist in the wrong field, private respondents' intentionally avoided providing testimony by competent and
independent experts in the proper areas.
Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by triggering an allergic mediated response,
has no support in evidence. No evidence of stridor, skin reactions, or wheezing some of the more common accompanying signs of an allergic
reaction appears on record. No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm happens only very rarely. If courts
were to accept private respondents' hypothesis without supporting medical proof, and against the weight of available evidence, then every
anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by private respondents was a mere
afterthought. Such an explanation was advanced in order to advanced in order to absolve them of any and all responsibility for the patient's
condition.
In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty intubation which was the proximate cause of
Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces
injury, and without which the result would not have occurred. 64 An injury or damage is proximately caused by an act or a failure to act,
whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the
injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. 65 It is the
dominant, moving or producing cause.
Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate cause which triggered the chain
of events leading to Erlinda's brain damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact was likewise observed by witness
Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan."
Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The development of abdominal distention, together with
respiratory embarrassment indicates that the endotracheal tube entered the esophagus instead of the respiratory tree. In other words, instead of
the intended endotracheal intubation what actually took place was an esophageal intubation. During intubation, such distention indicates that air
has entered the gastrointestinal tract through the esophagus instead of the lungs through the trachea. Entry into the esophagus would certainly
cause some delay in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place. That abdominal distention had been
observed during the first intubation suggests that the length of time utilized in inserting the endotracheal tube (up to the time the tube was
withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of oxygen in her lungs Erlinda showed signs of
cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda were
already blue. 67 However, private respondents contend that a second intubation was executed on Erlinda and this one was successfully done. We
do not think so. No evidence exists on record, beyond private respondents' bare claims, which supports the contention that the second intubation
was successful. Assuming that the endotracheal tube finally found its way into the proper orifice of the trachea, the same gave no guarantee of
oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was again observed immediately after the second intubation.
Proceeding from this event (cyanosis), it could not be claimed, as private respondents insist, that the second intubation was accomplished. Even
granting that the tube was successfully inserted during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda
already suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five minutes. 68
The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for one-third (1/3) of deaths and
serious injuries associated with anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the vast majority of difficult intubations may be
anticipated by performing a thorough evaluation of the patient's airway prior to the operation. 70 As stated beforehand, respondent Dra. Gutierrez
failed to observe the proper pre-operative protocol which could have prevented this unfortunate incident. Had appropriate diligence and

reasonable care been used in the pre-operative evaluation, respondent physician could have been much more prepared to meet the contingency
brought about by the perceived anatomic variations in the patient's neck and oral area, defects which would have been easily overcome by a prior
knowledge of those variations together with a change in technique. 71 In other words, an experienced anesthesiologist, adequately alerted by a
thorough pre-operative evaluation, would have had little difficulty going around the short neck and protruding teeth. 72 Having failed to observe
common medical standards in pre-operative management and intubation, respondent Dra. Gutierrez' negligence resulted in cerebral anoxia and
eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the so-called "captain of the ship," 73 it
is the surgeon's responsibility to see to it that those under him perform their task in the proper manner. Respondent Dr. Hosaka's negligence can
be found in his failure to exercise the proper authority (as the "captain" of the operative team) in not determining if his anesthesiologist observed
proper anesthesia protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified if respondent Dra. Gutierrez
properly intubated the patient. Furthermore, it does not escape us that respondent Dr. Hosaka had scheduled another procedure in a different
hospital at the same time as Erlinda's cholecystectomy, and was in fact over three hours late for the latter's operation. Because of this, he had
little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in his professional duties
towards his patient. Thus, he shares equal responsibility for the events which resulted in Erlinda's condition.
We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling up specialist
staff with attending and visiting "consultants," 74 who are allegedly not hospital employees, presents problems in apportioning responsibility for
negligence in medical malpractice cases. However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital
premises. Doctors who apply for "consultant" slots, visiting or attending, are required to submit proof of completion of residency, their
educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and
references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the
hospital who either accept or reject the application. 75 This is particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences,
conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities,
for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to
these, the physician's performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity
statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of
the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant" staff. While "consultants" are
not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patient's condition, the control
exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the
exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship
in effect exists between hospitals and their attending and visiting physicians. This being the case, the question now arises as to whether or not
respondent hospital is solidarily liable with respondent doctors for petitioner's condition. 76
The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which
considers a person accountable not only for his own acts but also for those of others based on the former's responsibility under a relationship
of patria potestas. 77 Such responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good
father of the family to prevent damage. 78 In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is
shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good
father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to adduce evidence
showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It failed to adduce evidence with
regard to the degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature,
respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital
is consequently solidarily responsible with its physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of the witnesses for the private
respondents. Indeed, as shown by the above discussions, private respondents were unable to rebut the presumption of negligence. Upon these
disquisitions we hold that private respondents are solidarily liable for damages under Article 2176 79 of the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00 pesos (should be P616,000.00) in
compensatory damages to the plaintiff, "subject to its being updated" covering the period from 15 November 1985 up to 15 April 1992, based on
monthly expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the time of its decision would be grossly inadequate to cover the
actual costs of home-based care for a comatose individual. The calculated amount was not even arrived at by looking at the actual cost of proper
hospice care for the patient. What it reflected were the actual expenses incurred and proved by the petitioners after they were forced to bring
home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing in the care of the chronically ill for the
purpose of providing a proper milieu adequate to meet minimum standards of care. In the instant case for instance, Erlinda has to be constantly
turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation should be

normally made by a dietitian to provide her with the correct daily caloric requirements and vitamin supplements. Furthermore, she has to be seen
on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which
can lead to respiratory complications.
Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at least reflect the correct
minimum cost of proper care, not the cost of the care the family is usually compelled to undertake at home to avoid bankruptcy. However, the
provisions of the Civil Code on actual or compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as he has duly proved. The Civil
Code provides:
Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence of an act of
negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into account those situations, as in
this case, where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to
occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury caused, should be
one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to be
suffered but which could not, from the nature of the case, be made with certainty. 80 In other words, temperate damages can and should be
awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of
such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover two
distinct phases.
As it would not be equitable and certainly not in the best interests of the administration of justice for the victim in such cases to constantly
come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awarded temperate damages are
appropriate. The amount given as temperate damages, though to a certain extent speculative, should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has remained in that condition for
over a decade. Having premised our award for compensatory damages on the amount provided by petitioners at the onset of litigation, it would
be now much more in step with the interests of justice if the value awarded for temperate damages would allow petitioners to provide optimal
care for their loved one in a facility which generally specializes in such care. They should not be compelled by dire circumstances to provide
substandard care at home without the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered by the plaintiff would have led to
expenses which were difficult to estimate because while they would have been a direct result of the injury (amputation), and were certain to be
incurred by the plaintiff, they were likely to arise only in the future. We awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower extremity at the
distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the full ambulatory functions of
her left extremity, even with the use of state of the art prosthetic technology. Well beyond the period of hospitalization
(which was paid for by Li), she will be required to undergo adjustments in her prosthetic devise due to the shrinkage of the
stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical and occupational rehabilitation and therapy.
During the lifetime, the prosthetic devise will have to be replaced and readjusted to changes in the size of her lower limb
effected by the biological changes of middle-age, menopause and aging. Assuming she reaches menopause, for example, the
prosthetic will have to be adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels
observed in the bones of all post-menopausal women. In other words, the damage done to her would not only be permanent
and lasting, it would also be permanently changing and adjusting to the physiologic changes which her body would normally
undergo through the years. The replacements, changes, and adjustments will require corresponding adjustive physical and
occupational therapy. All of these adjustments, it has been documented, are painful.
xxx xxx xxx
A prosthetic devise, however technologically advanced, will only allow a reasonable amount of functional restoration of the
motor functions of the lower limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness, psychological
injury, mental and physical pain are inestimable. 83
The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more serious than the amputation in the
Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose state for over fourteen years now. The
burden of care has so far been heroically shouldered by her husband and children, who, in the intervening years have been deprived of the love
of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually impossible to quantify. Even the
temperate damages herein awarded would be inadequate if petitioner's condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the surface of the resulting moral damage
because it would be highly speculative to estimate the amount of emotional and moral pain, psychological damage and injury suffered by the
victim or those actually affected by the victim's condition. 84The husband and the children, all petitioners in this case, will have to live with the
day to day uncertainty of the patient's illness, knowing any hope of recovery is close to nil. They have fashioned their daily lives around the
nursing care of petitioner, altering their long term goals to take into account their life with a comatose patient. They, not the respondents, are
charged with the moral responsibility of the care of the victim. The family's moral injury and suffering in this case is clearly a real one. For the
foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the length and nature of the
instant suit we are of the opinion that attorney's fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers of life and, they rarely set out to
intentionally cause injury or death to their patients. However, intent is immaterial in negligence cases because where negligence exists and is
proven, the same automatically gives the injured a right to reparation for the damage caused.
Established medical procedures and practices, though in constant flux are devised for the purpose of preventing complications. A physician's
experience with his patients would sometimes tempt him to deviate from established community practices, and he may end a distinguished
career using unorthodox methods without incident. However, when failure to follow established procedure results in the evil precisely sought to
be averted by observance of the procedure and a nexus is made between the deviation and the injury or damage, the physician would necessarily
be called to account for it. In the case at bar, the failure to observe pre-operative assessment protocol which would have influenced the intubation
in a salutary way was fatal to private respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in favor of petitioners, and
solidarily against private respondents the following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of this
decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00
as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as exemplary damages and attorney's fees; and, 5) the costs of
the suit.
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
Footnotes