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CECILIA YAMBAO, petitioner, vs. MELCHORITA C. ZUIGA,


LEOVIGILDO C. ZUIGA, REGINALDO C. ZUIGA, AND THE
MINORS, HERMINIGILDO C. ZUIGA, JR., AND LOVELY EMILY C.
ZUIGA both represented by their legal guardian, the
aforenamed MELCHORITA C. ZUIGA, respondents.
DECISION
QUISUMBING, J.:
This petition for review on certiorari seeks to reverse and set
aside the decision[1] of the Court of Appeals, dated
September 8, 2000, in CA-G.R. CV No. 52275. The appellate
court affirmed the judgment[2] of the Regional Trial Court
(RTC) of Malolos City, Bulacan, Branch 8, in Civil Case No.
581-M-92, finding herein petitioner, among others, liable for
the untimely death of Herminigildo Zuiga in a vehicular
accident and ordering her to indemnify his legal heirs, the
respondents herein. Also challenged in this petition is the
resolution[3] of the Court of Appeals, dated November 27,
2000, denying the petitioners Motion for Reconsideration.

Petitioner Cecilia Yambao is the registered owner of Lady


Cecil and Rome Trans passenger bus with Plate No. CVK 606,
with a public transport franchise to ply the Novaliches-via
Quirino-Alabang route.

The respondents are the legal heirs of the late Herminigildo


Zuiga. Melchorita Zuiga is the surviving spouse, while
Leovigildo, Reginaldo, Herminigildo, Jr., and Lovely Emily are
their children.

The facts, as established by the trial court and affirmed by


the appellate court, are as follows:

At around 3:30 p.m. of May 6, 1992, the bus owned by the


petitioner was being driven by her driver, one Ceferino G.
Venturina along the northbound lane of Epifanio delos
Santos Avenue (EDSA), within the vicinity of Bagong Barrio,
Kalookan City. With Venturina was the bus conductor,
Fernando Dumaliang. Suddenly, the bus bumped
Herminigildo Zuiga, a pedestrian. Such was the force of the
impact that the left side of the front windshield of the bus
was cracked. Zuiga was rushed to the Quezon City General
Hospital where he was given medical attention, but due to
the massive injuries sustained, he succumbed shortly
thereafter.

Private respondents, as heirs of the victim, filed a


Complaint[4] against petitioner and her driver, Venturina,
for damages, docketed as Civil Case No. 581-M-92 at the
RTC of Malolos City. The complaint essentially alleged that
Venturina drove the bus in a reckless, careless and
imprudent manner, in violation of traffic rules and
regulations, without due regard to public safety, thus
resulting in the victims premature death.
In her Answer, the petitioner vehemently denied the
material allegations of the complaint. She tried to shift the
blame for the accident upon the victim, theorizing that
Herminigildo bumped into her bus, while avoiding an
unidentified woman who was chasing him. She further

alleged that she was not liable for any damages because as
an employer, she exercised the proper diligence of a good
father of a family, both in the selection and supervision of
her bus driver.

SO ORDERED.[5]

On September 8, 1995, the trial court rendered judgment,


the dispositive portion of which reads:

[T]he allegations and evidence presented by the defendants


that it was the victim Herminigildo Zuiga who bumped the
bus owned by defendant Cecilia Yambao and her husband is
incredible if not preposterous. No sane person would bump
his head or body against a running bus along a big highway
like EDSA at Bagong Barrio, Caloocan City and neither did
any of the defendants presented (sic) any evidence or proof
to show that the victim was mentally deranged at the time
of the accident and the presumption therefore is that he was
in his normal senses.[6]

In view of the foregoing consideration, judgment is hereby


rendered in favor of the plaintiffs and against the
defendants ordering the herein defendants jointly and
severally, with Plaridel Surety & Insurance Co., and Times
Surety & Insurance Co. Inc. to the extent of their respective
liabilities under their respective insurance policies to pay the
herein plaintiffs the following sums of money:
1. P50,000.00 as indemnity for the death of Herminigildo
Zuiga;
2. P92,000.00 as funeral expenses;
3. P200,000.00 as moral damages;
4. P30,000.00 as exemplary damages;
5. P30,000.00 as attorneys fees;
6. P5,000.00 as litigation expenses; and
7. To pay the cost of the suit
to be paid by all the herein defendants and third party
defendants within thirty (30) days from receipt of this
Decision.
The counterclaim of the defendant Cecilia Yambao is hereby
dismissed for lack of merit.

In finding for the respondents herein, the trial court


observed:

In holding the petitioner liable for Herminigildos death, the


trial court applied Article 1756[7] of the Civil Code,
observing that petitioner had failed to prove that she
observed the diligence required by Articles 1733[8] and
1755[9] of the said Code.
Dissatisfied, Yambao filed an appeal with the Court of
Appeals, docketed as CA-G.R. CV No. 52275, faulting the
trial court for failing to appreciate that: (a) it was the victim
who ran into her bus, and (b) she had exercised the proper
diligence of a bonus pater familias in the selection and
supervision of her employee, the driver of said bus.
On September 8, 2000, the Court of Appeals decided CAG.R. CV No. 52275 as follows:
WHEREFORE, on the foregoing modificatory premises, and
considering that the same result has been reached by the

trial court, its Decision dated September 8, 1995 is hereby


AFFIRMED.
Costs against defendant-appellant.

WHICH UNDOUBTEDLY AND CONCLUSIVELY PROVED THAT IT


WAS THE PLAINTIFFS OWN NEGLIGENCE THAT WAS THE
IMMEDIATE AND PROXIMATE CAUSE OF HIS DEATH.

SO ORDERED.[10]
While sustaining the trial courts findings that Venturina had
been reckless and negligent in driving the petitioners bus,
thus hitting the victim with fatal results, the appellate court,
however, found the trial courts reliance on Articles 1755 and
1756 of the Civil Code misplaced. It held that this was a
case of quasi-delict, there being no pre-existing contractual
relationship between the parties. Hence, the law on common
carriers was inapplicable. The court a quo then found the
petitioner directly and primarily liable as Venturinas
employer pursuant to Article 2180 of the Civil Code as she
failed to present evidence to prove that she has observed
the diligence of a good father of a family in the selection
and supervision of her employees.
Yambao then duly moved for reconsideration, but her
motion was denied for want of merit.[11]
Hence, this petition for review, anchored on the following
formulation of issues:

I
WHETHER OR NOT THE ALLEGATIONS AND EVIDENCE
PRESENTED BY THE PETITIONER, THE VICTIM HERMINIGILDO
ZUIGA WAS THE ONE WHO BUMPED THE BUS OWNED BY
HEREIN PETITIONER CECILIA YAMBAO AND HER HUSBAND
AND WHO DISREGARDED THE TRAFFIC RULES AND
REGULATIONS AT THE PLACE AND TIME OF THE INCIDENT

II
WHETHER OR NOT, PETITIONER CECILIA YAMBAO IS NOT
LIABLE FOR ANY DAMAGES AND THAT SHE EXERCISED THE
PROPER DILIGENCE OF A GOOD FATHER OF THE FAMILY,
BOTH IN THE SELECTION AND SUPERVISION OF HER DRIVER
AND/OR EMPLOYEE.[12]
At the outset, we must state that the first issue raised by
the petitioner is a factual one. Whether a person is negligent
or not is a question of fact,[13] which this Court cannot pass
upon in a petition for review on certiorari, as our jurisdiction
is limited to reviewing errors of law.[14] The resolution of
factual issues is the function of the trial court and its
findings on these matters are, as a general rule, binding on
this Court,[15] more so where these have been affirmed by
the Court of Appeals.[16] We have carefully examined and
weighed the petitioners arguments on the first issue
submitted, as well as the evidence on record, and find no
cogent reason to disregard the cited general rule, much less
to reverse the factual findings of the trial court as upheld by
the court a quo. Hence, we sustain the trial courts finding,
as affirmed by the Court of Appeals, that it was Venturinas
reckless and imprudent driving of petitioners bus, which is
the proximate cause of the victims death.
To our mind, therefore, the only issue before the Court
properly is whether petitioner exercised the diligence of a
good father of a family in the selection and supervision of
her employees, thus absolving her from any liability.

Petitioner contends that as an employer, she observed the


proper diligence of a good father of a family, both in the
selection and supervision of her driver and therefore, is
relieved from any liability for the latters misdeed. To support
her claim, she points out that when Venturina applied with
her as a driver in January 1992, she required him to produce
not just his drivers license, but also clearances from the
National Bureau of Investigation (NBI), the Philippine
National Police, and the barangay where he resides. She
also required him to present his Social Security System
(SSS) Number prior to accepting him for employment. She
likewise stresses that she inquired from Venturinas previous
employer about his employment record, and only hired him
after it was shown to her satisfaction that he had no blot
upon his record.
The petitioners arguments ring hollow and fail to sway this
Court.
The law governing petitioners liability, as the employer of
bus driver Venturina, is Article 2180 of the Civil Code, the
full text of which reads:
Art. 2180. The obligation imposed by Article 2176[17] is
demandable not only for ones own acts or omissions, but
also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the
mother, are responsible for the damages caused by the
minor children who live in their company.
Guardians are liable for damages caused by the minors or
incapacitated persons who are under their authority and live
in their company.

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.
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 Article 2176 shall be
applicable.
Lastly, teachers or heads of establishments of arts and
trades shall be liable for damages caused by their pupils and
students or apprentices, so long as they remain in their
custody.
The 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
damage. (Italics ours)
The diligence of a good father referred to in the last
paragraph of the aforecited statute means diligence in the
selection and supervision of employees.[18] Thus, when an
employee, while performing his duties, causes damage to
persons or property due to his own negligence, there arises
the juris tantum presumption that the employer is negligent,
either in the selection of the employee or in the supervision
over him after the selection.[19] For the employer to avoid
the solidary liability for a tort committed by his employee,
an employer must rebut the presumption by presenting

adequate and convincing proof that in the selection and


supervision of his employee, he or she exercises the care
and diligence of a good father of a family.[20] In the instant
case, we find that petitioner has failed to rebut the
presumption of negligence on her part.
Petitioners claim that she exercised due diligence in the
selection and supervision of her driver, Venturina, deserves
but scant consideration. Her allegation that before she hired
Venturina she required him to submit his drivers license and
clearances is worthless, in view of her failure to offer in
evidence certified true copies of said license and clearances.
Bare allegations, unsubstantiated by evidence, are not
equivalent to proof under the rules of evidence.[21]
Moreover, as the court a quo aptly observed, petitioner
contradicts herself. She declared that Venturina applied with
her sometime in January 1992 and she then required him to
submit his license and clearances. However, the record
likewise shows that she did admit that Venturina submitted
the said requirements only on May 6, 1992, or on the very
day of the fatal accident itself (italics for emphasis). In other
words, petitioners own admissions clearly and categorically
show that she did not exercise due diligence in the selection
of her bus driver.
In any case, assuming arguendo that Venturina did submit
his license and clearances when he applied with petitioner in
January 1992, the latter still fails the test of due diligence in
the selection of her bus driver. Case law teaches that for an
employer to have exercised the diligence of a good father of
a family, he should not be satisfied with the applicants mere
possession of a professional drivers license; he must also
carefully examine the applicant for employment as to his
qualifications, his experience and record of service.[22]
Petitioner failed to present convincing proof that she went to

this extent of verifying Venturinas qualifications, safety


record, and driving history. The presumption juris tantum
that there was negligence in the selection of her bus driver,
thus, remains unrebutted.
Nor did petitioner show that she exercised due supervision
over Venturina after his selection. For as pointed out by the
Court of Appeals, petitioner did not present any proof that
she drafted and implemented training programs and
guidelines on road safety for her employees. In fact, the
record is bare of any showing that petitioner required
Venturina to attend periodic seminars on road safety and
traffic efficiency. Hence, petitioner cannot claim exemption
from any liability arising from the recklessness or negligence
of Venturina.
In sum, petitioners liability to private respondents for the
negligent and imprudent acts of her driver, Venturina, under
Article 2180 of the Civil Code is both manifest and clear.
Petitioner, having failed to rebut the legal presumption of
negligence in the selection and supervision of her driver, is
responsible for damages, the basis of the liability being the
relationship of pater familias or on the employers own
negligence.[23] Thus, this Court has no option but to uphold
the ruling of the appellate court.
WHEREFORE, the instant petition is DENIED. The assailed
decision of the Court of Appeals, dated September 8, 2000,
in CA-G.R. CV No. 52275, as well as its resolution dated
November 27, 2000, denying petitioner Cecilia Yambaos
motion for reconsideration are hereby AFFIRMED. Costs
against the petitioner.
SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga,


JJ., concur.

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G.R. Nos. 103442-45 May 21, 1993
NATIONAL POWER CORPORATION, ET AL., petitioners, vs.
THE COURT OF APPEALS, GAUDENCIO C. RAYO, ET AL.,
respondents.
The Solicitor General for plaintiff-appellee.
Ponciano G. Hernandez for private respondents.
DAVIDE, JR., J.:
This is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court urging this Court to set aside the 19
August 1991 consolidated Decision of the Court of Appeals
in CA.-G.R. CV Nos. 27290-93 1 which reversed the Decision
of Branch 5 of the then Court of First Instance (now Regional
Trial Court) of Bulacan, and held petitioners National Power
Corporation (NPC) and Benjamin Chavez jointly and
severally liable to the private respondents for actual and
moral damages, litigation expenses and attorney's fees.
This present controversy traces its beginnings to four (4)
separate complaints 2 for damages filed against the NPC
and Benjamin Chavez before the trial court. The plaintiffs
therein, now private respondents, sought to recover actual
and other damages for the loss of lives and the destruction

to property caused by the inundation of the town of


Norzagaray, Bulacan on 26-27 October 1978. The flooding
was purportedly caused by the negligent release by the
defendants of water through the spillways of the Angat Dam
(Hydroelectric Plant). In said complaints, the plaintiffs
alleged, inter alia, that: 1) defendant NPC operated and
maintained a multi-purpose hydroelectric plant in the Angat
River at Hilltop, Norzagaray, Bulacan; 2) defendant
Benjamin Chavez was the plant supervisor at the time of the
incident in question; 3) despite the defendants' knowledge,
as early as 24 October 1978, of the impending entry of
typhoon "Kading," they failed to exercise due diligence in
monitoring the water level at the dam; 4) when the said
water level went beyond the maximum allowable limit at the
height of the typhoon, the defendants suddenly, negligently
and recklessly opened three (3) of the dam's spillways,
thereby releasing a large amount of water which inundated
the banks of the Angat River; and 5) as a consequence,
members of the household of the plaintiffs, together with
their animals, drowned, and their properties were washed
away in the evening of 26 October and the early hours of 27
October 1978. 3
In their Answers, the defendants, now petitioners, alleged
that: 1) the NPC exercised due care, diligence and prudence
in the operation and maintenance of the hydroelectric plant;
2) the NPC exercised the diligence of a good father in the
selection of its employees; 3) written notices were sent to
the different municipalities of Bulacan warning the residents
therein about the impending release of a large volume of
water with the onset of typhoon "Kading" and advise them
to take the necessary precautions; 4) the water released
during the typhoon was needed to prevent the collapse of
the dam and avoid greater damage to people and property;
5) in spite of the precautions undertaken and the diligence

exercised, they could still not contain or control the flood


that resulted and; 6) the damages incurred by the private
respondents were caused by a fortuitous event or force
majeure and are in the nature and character of damnum
absque injuria. By way of special affirmative defense, the
defendants averred that the NPC cannot be sued because it
performs a purely governmental function. 4
Upon motion of the defendants, a preliminary hearing on the
special defense was conducted. As a result thereof, the trial
court dismissed the complaints as against the NPC on the
ground that the provision of its charter allowing it to sue and
be sued does not contemplate actions based on tort. The
parties do not, however, dispute the fact that this Court
overruled the trial court and ordered the reinstatement of
the complaints as against the NPC. 5
Being closely interrelated, the cases were consolidated and
trial thereafter ensued.
The lower court rendered its decision on 30 April 1990
dismissing the complaints "for lack of sufficient and credible
evidence." 6 Consequently, the private respondents
seasonably appealed therefrom to the respondent Court
which then docketed the cases as CA-G.R. CV Nos. 2729093.
In its joint decision promulgated on 19 August 1991, the
Court of Appeals reversed the appealed decision and
awarded damages in favor of the private respondents. The
dispositive portion of the decision reads:
CONFORMABLY TO THE FOREGOING, the joint decision
appealed from is hereby REVERSED and SET ASIDE, and a
new one is hereby rendered:

1.
In Civil Case No. SM-950, ordering defendantsappellees to pay, jointly and severally, plaintiffs-appellants,
with legal interest from the date when this decision shall
become final and executory, the following:
A.

Actual damages, to wit:

1)
Gaudencio C. Rayo, Two Hundred Thirty One
Thousand Two Hundred Sixty Pesos (P231,260.00);
2)
Bienvenido P. Pascual, Two Hundred Four Thousand
Five Hundred Pesos (P204.500.00);
3)
Tomas Manuel, One Hundred Fifty Five Thousand
Pesos (P155,000.00);
4)
Pedro C. Bartolome, One Hundred Forty Seven
Thousand Pesos (P147,000.00);.
5)
Bernardino Cruz, One Hundred Forty Three Thousand
Five Hundred Fifty Two Pesos and Fifty Centavos
(P143,552.50);
6)
Jose Palad, Fifty Seven Thousand Five Hundred Pesos
(P57,500.00);
7)

Mariano S. Cruz, Forty Thousand Pesos (P40,000.00);

8)
Lucio Fajardo, Twenty nine Thousand Eighty Pesos
(P29,080.00); and
B.
Litigation expenses of Ten Thousand Pesos
(P10,000.00);
2.
In Civil case No. SM-951, ordering defendantsappellees to pay jointly and severally, plaintiff-appellant,

with legal interest from the date when this decision shall
have become final and executory, the following :

2)
Moral damages of One Hundred Thousand Pesos
(P100,000.00); and

A.
Actual damages of Five Hundred Twenty Thousand
Pesos (P520,000.00);.

D.
Plaintifsf-appellants litigation expenses of Ten
Thousand Pesos (P10,000.00);

B.
Moral damages of five hundred Thousand Pesos
(P500,000.00); and.

4.
In Civil case No. SM-1247, ordering defendantsappellees to pay, jointly and severally, with legal interest
from the date when this decision shall have become final
and executory :

C.
Litigation expenses of Ten Thousand Pesos
(P10,000.00);.
3.
In Civil Case No. SM-953, ordering defendantsappellees to pay, jointly and severally, with legal interest
from the date when this decision shall have become final
and executory;
A.

Plaintiff-appellant Angel C. Torres:

1)
Actual damages of One Hundred Ninety Nine
Thousand One Hundred Twenty Pesos (P199,120.00);
2)
Moral Damages of One Hundred Fifty Thousand Pesos
(P150,000.00);
B.

Plaintiff-appellant Norberto Torres:

1)
Actual damages of Fifty Thousand Pesos
(P50,000.00);
2)

Moral damages of Fifty Thousand Pesos (P50,000.00);

C.

Plaintiff-appellant Rodelio Joaquin:

1)
Actual damages of One Hundred Thousand Pesos
(P100,000.00);

A.
Plaintiffs-appellants Presentacion Lorenzo and
Clodualdo Lorenzo:
1)
Actual damages of Two Hundred Fifty Six Thousand
Six Hundred Pesos (P256,600.00);
2)

Moral damages of Fifty Thousand Pesos (P50,000.00);

B.

Plaintiff-appellant Consolacion Guzman :

1)
Actual damages of One Hundred forty Thousand
Pesos (P140,000.00);
2)

Moral damages of Fifty Thousand Pesos (P50,000.00);

C.

Plaintiff-appellant Virginia Guzman :

1)
Actual damages of Two Hundred Five Hundred Twenty
Pesos (205,520.00); and
D.
Plaintiffs-appellants litigation expenses of Ten
Thousand Pesos (10,000.00).
In addition, in all the four (4) instant cases, ordering
defendants-appellees to pay, jointly and severally, plaintiffsappellants attorney fees in an amount equivalent to 15% of
the total amount awarded.

No pronouncement as to costs. 7
The foregoing judgment is based on the public respondent's
conclusion that the petitioners were guilty of:
. . . a patent gross and evident lack of foresight, imprudence
and negligence . . . in the management and operation of
Angat Dam. The unholiness of the hour, the extent of the
opening of the spillways, And the magnitude of the water
released, are all but products of defendants-appellees'
headlessness, slovenliness, and carelessness. The resulting
flash flood and inundation of even areas (sic) one (1)
kilometer away from the Angat River bank would have been
avoided had defendants-appellees prepared the Angat Dam
by maintaining in the first place, a water elevation which
would allow room for the expected torrential rains. 8
This conclusion, in turn, is anchored on its findings of fact, to
wit:
As early as October 21, 1978, defendants-appellees knew of
the impending onslaught of and imminent danger posed by
typhoon "Kading". For as alleged by defendants-appellees
themselves, the coming of said super typhoon was bannered
by Bulletin Today, a newspaper of national circulation, on
October 25, 1978, as "Super Howler to hit R.P." The next
day, October 26, 1978, said typhoon once again merited a
headline in said newspaper as "Kading's Big Blow expected
this afternoon" (Appellee's Brief, p. 6). Apart from the
newspapers, defendants-appellees learned of typhoon
"Kading' through radio announcements (Civil Case No. SM950, TSN, Benjamin Chavez, December 4, 1984, pp. 7-9).
Defendants-appellees doubly knew that the Angat Dam can
safely hold a normal maximum headwater elevation of 217
meters (Appellee's brief, p. 12; Civil Case No. SM-951,

Exhibit "I-6"; Civil Case No. SM-953, Exhibit "J-6"; Civil Case
No. SM-1247, Exhibit "G-6").
Yet, despite such knowledge, defendants-appellees
maintained a reservoir water elevation even beyond its
maximum and safe level, thereby giving no sufficient
allowance for the reservoir to contain the rain water that will
inevitably be brought by the coming typhoon.
On October 24, 1978, before typhoon "Kading" entered the
Philippine area of responsibility, water elevation ranged from
217.61 to 217.53, with very little opening of the spillways,
ranging from 1/2 to 1 meter. On October 25, 1978, when
typhoon "Kading" entered the Philippine area of
responsibility, and public storm signal number one was
hoisted over Bulacan at 10:45 a.m., later raised to number
two at 4:45 p.m., and then to number three at 10:45 p.m.,
water elevation ranged from 217.47 to 217.57, with very
little opening of the spillways, ranging from 1/2 to 1 meter.
On October 26, 1978, when public storm signal number
three remained hoisted over Bulacan, the water elevation
still remained at its maximum level of 217.00 to 218.00 with
very little opening of the spillways ranging from 1/2 to 2
meters, until at or about midnight, the spillways were
suddenly opened at 5 meters, then increasing swiftly to 8,
10, 12, 12.5, 13, 13.5, 14, 14.5 in the early morning hours of
October 27, 1978, releasing water at the rate of 4,500 cubic
meters per second, more or less. On October 27, 1978,
water elevation remained at a range of 218.30 to 217.05
(Civil Case No. SM-950, Exhibits "D" and series, "L", "M", "N",
and "O" and Exhibits "3" and "4"; Civil Case No. SM-951,
Exhibits "H" and "H-1"; Civil Case No. SM-953, Exhibits "I"
and "I-1"; Civil Case No. SM 1247, Exhibits "F" and "F-1").
xxx

xxx

xxx

From the mass of evidence extant in the record, We are


convinced, and so hold that the flash flood on October 27,
1978, was caused not by rain waters (sic), but by stored
waters (sic) suddenly and simultaneously released from the
Angat Dam by defendants-appellees, particularly from
midnight of October 26, 1978 up to the morning hours of
October 27,
1978. 9
The appellate court rejected the petitioners' defense that
they had sent "early warning written notices" to the towns
of Norzagaray, Angat, Bustos, Plaridel, Baliwag and Calumpit
dated 24 October 1978 which read:
TO ALL CONCERN (sic):
Please be informed that at present our reservoir (dam) is full
and that we have been releasing water intermittently for the
past several days.
With the coming of typhoon "Rita" (Kading) we expect to
release greater (sic) volume of water, if it pass (sic) over our
place.
In view of this kindly advise people residing along Angat
River to keep alert and stay in safe places.
BENJAMIN L. CHAVEZ
Power Plant Superintendent 10
because:
Said notice was delivered to the "towns of Bulacan" on
October 26, 1978 by defendants-appellees driver, Leonardo
Nepomuceno (Civil Case No. SM-950, TSN, Benjamin Chavez,

December 4, 1984, pp. 7-11 and TSN, Leonardo


Nepomuceno, March 7, 1985, pp. 10-12).

Said notice is ineffectual, insufficient and inadequate for


purposes of the opening of the spillway gates at midnight of
October 26, 1978 and on October 27, 1978. It did not
prepare or warn the persons so served, for the volume of
water to be released, which turned out to be of such
magnitude, that residents near or along the Angat River,
even those one (1) kilometer away, should have been
advised to evacuate. Said notice, addressed "TO ALL
CONCERN (sic)," was delivered to a policeman (Civil Case
No. SM-950, pp. 10-12 and Exhibit "2-A") for the municipality
of Norzagaray. Said notice was not thus addressed and
delivered to the proper and responsible officials who could
have disseminated the warning to the residents directly
affected. As for the municipality of Sta. Maria, where
plaintiffs-appellants in Civil Case No. SM-1246 reside, said
notice does not appear to have been served. 11
Relying on Juan F. Nakpil & Sons vs. Court of Appeals, 12
public respondent rejected the petitioners' plea that the
incident in question was caused by force majeure and that
they are, therefore, not liable to the private respondents for
any kind of damage such damage being in the nature of
damnum absque injuria.
The motion for reconsideration filed by the petitioners, as
well as the motion to modify judgment filed by the public
respondents, 13 were denied by the public respondent in its
Resolution of 27 December 1991. 14
Petitioners thus filed the instant petition on 21 February
1992.

After the Comment to the petition was filed by the private


respondents and the Reply thereto was filed by the
petitioners, We gave due course to the petition on 17 June
1992 and directed the parties to submit their respective
Memoranda, 15 which they subsequently complied with.
The petitioners raised the following errors allegedly
committed by the respondent Court :
I.
THE COURT OF APPEALS ERRED IN APPLYING THE
RULING OF NAKPIL & SONS V. COURT OF APPEALS AND
HOLDING THAT PETITIONERS WERE GUILTY OF NEGLIGENCE.
II.
THE COURT OF APPEALS ERRED IN HOLDING THAT
THE WRITTEN NOTICES OF WARNING ISSUED BY
PETITIONERS WERE INSUFFICIENT.
III.
THE COURT OF APPEALS ERRED IN HOLDING THAT
THE DAMAGE SUFFERED BY PRIVATE RESPONDENTS WAS
NOT DAMNUM ABSQUE INJURIA.
IV.
THE COURT OF APPEALS ERRED IN NOT AWARDING
THE COUNTERCLAIM OF PETITIONERS FOR ATTORNEY'S FEES
AND EXPENSES OF LITIGATION. 16
These same errors were raised by herein petitioners in G.R.
No. 96410, entitled National Power Corporation, et al., vs.
Court of Appeals, et al., 17 which this Court decided on 3
July 1992. The said case involved the very same incident
subject of the instant petition. In no uncertain terms, We
declared therein that the proximate cause of the loss and
damage sustained by the plaintiffs therein who were
similarly situated as the private respondents herein was
the negligence of the petitioners, and that the 24 October
1978 "early warning notice" supposedly sent to the affected
municipalities, the same notice involved in the case at bar,

was insufficient. We thus cannot now rule otherwise not only


because such a decision binds this Court with respect to the
cause of the inundation of the town of Norzagaray, Bulacan
on 26-27 October 1978 which resulted in the loss of lives
and the destruction to property in both cases, but also
because of the fact that on the basis of its meticulous
analysis and evaluation of the evidence adduced by the
parties in the cases subject of CA-G.R. CV Nos. 27290-93,
public respondent found as conclusively established that
indeed, the petitioners were guilty of "patent gross and
evident lack of foresight, imprudence and negligence in the
management and operation of Angat Dam," and that "the
extent of the opening of the spillways, and the magnitude of
the water released, are all but products of defendantsappellees' headlessness, slovenliness, and carelessness." 18
Its findings and conclusions are biding upon Us, there being
no showing of the existence of any of the exceptions to the
general rule that findings of fact of the Court of Appeals are
conclusive upon this Court. 19 Elsewise stated, the
challenged decision can stand on its own merits
independently of Our decision in G.R. No. 96410. In any
event, We reiterate here in Our pronouncement in the latter
case that Juan F. Nakpil & Sons vs. Court of Appeals 20 is
still good law as far as the concurrent liability of an obligor
in the case of force majeure is concerned. In the Nakpil
case, We held:
To exempt the obligor from liability under Article 1174 of the
Civil Code, for a breach of an obligation due to an "act of
God," the following must concur: (a) the cause of the breach
of the obligation must be independent of the will of the
debtor; (b) the event must be either unforseeable or
unavoidable; (c) the event must be such as to render it
impossible for the debtor to fulfill his obligation in a moral
manner; and (d) the debtor must be free from any

participation in, or aggravation of the injury to the creditor.


(Vasquez v. Court of Appeals, 138 SCRA 553; Estrada v.
Consolacion, 71 SCRA 423; Austria v. Court of Appeals, 39
SCRA 527; Republic of the Phil. v. Luzon Stevedoring Corp.,
21 SCRA 279; Lasam v. Smith, 45 Phil. 657).
Thus, if upon the happening of a fortuitous event or an act
of God, there concurs a corresponding fraud, negligence,
delay or violation or contravention in any manner of the
tenor of the obligation as provided for in Article 1170 of the
Civil Code, which results in loss or damage, the obligor
cannot escape liability.
The principle embodied in the act of God doctrine strictly
requires that the act must be one occasioned exclusively by
the violence of nature and all human agencies are to be
excluded from creating or entering into the cause of the
mischief. When the effect, the cause of which is to be
considered, is found to be in part the result of the
participation of man, whether it be from active intervention
or neglect, or failure to act, the whole occurrence is thereby
humanized, as it were, and removed from the rules
applicable to the acts of God. (1 Corpus Juris, pp. 11741175).
Thus it has been held that when the negligence of a person
concurs with an act of God in producing a loss, such person
is not exempt from liability by showing that the immediate
cause of the damage was the act of God. To be exempt from
liability for loss because of an act of God, he must be free
from any previous negligence or misconduct by which that
loss or damage may have been occasioned. (Fish & Elective
Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G.
4379; Limpangco & Sons v. Yangco Steamship Co., 34 Phil.
594, 604; Lasam v. Smith, 45 Phil. 657). 21

Accordingly, petitioners cannot be heard to invoke the act of


God or force majeure to escape liability for the loss or
damage sustained by private respondents since they, the
petitioners, were guilty of negligence. The event then was
not occasioned exclusively by an act of God or force
majeure; a human factor negligence or imprudence
had intervened. The effect then of the force majeure in
question may be deemed to have, even if only partly,
resulted from the participation of man. Thus, the whole
occurrence was thereby humanized, as it were, and
removed from the laws applicable to acts of God.
WHEREFORE, for want of merit, the instant petition is hereby
DISMISSED and the Consolidated Decision of the Court of
Appeals in CA-G.R. CV Nos. 27290-93 is AFFIRMED, with
costs against the petitioners.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.

#6
G.R. No. 145804

February 6, 2003

LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN,


petitioners, vs.
MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD &
PRUDENT SECURITY AGENCY, respondents.
DECISION
VITUG, J.:

The case before the Court is an appeal from the decision


and resolution of the Court of Appeals, promulgated on 27
April 2000 and 10 October 2000, respectively, in CA-G.R. CV
No. 60720, entitled "Marjorie Navidad and Heirs of the Late
Nicanor Navidad vs. Rodolfo Roman, et. al.," which has
modified the decision of 11 August 1998 of the Regional Trial
Court, Branch 266, Pasig City, exonerating Prudent Security
Agency (Prudent) from liability and finding Light Rail Transit
Authority (LRTA) and Rodolfo Roman liable for damages on
account of the death of Nicanor Navidad.
On 14 October 1993, about half an hour past seven oclock
in the evening, Nicanor Navidad, then drunk, entered the
EDSA LRT station after purchasing a "token" (representing
payment of the fare). While Navidad was standing on the
platform near the LRT tracks, Junelito Escartin, the security
guard assigned to the area approached Navidad. A
misunderstanding or an altercation between the two
apparently ensued that led to a fist fight. No evidence,
however, was adduced to indicate how the fight started or
who, between the two, delivered the first blow or how
Navidad later fell on the LRT tracks. At the exact moment
that Navidad fell, an LRT train, operated by petitioner
Rodolfo Roman, was coming in. Navidad was struck by the
moving train, and he was killed instantaneously.
On 08 December 1994, the widow of Nicanor, herein
respondent Marjorie Navidad, along with her children, filed a
complaint for damages against Junelito Escartin, Rodolfo
Roman, the LRTA, the Metro Transit Organization, Inc. (Metro
Transit), and Prudent for the death of her husband. LRTA and
Roman filed a counterclaim against Navidad and a crossclaim against Escartin and Prudent. Prudent, in its answer,
denied liability and averred that it had exercised due

diligence in the selection and supervision of its security


guards.
The LRTA and Roman presented their evidence while
Prudent and Escartin, instead of presenting evidence, filed a
demurrer contending that Navidad had failed to prove that
Escartin was negligent in his assigned task. On 11 August
1998, the trial court rendered its decision; it adjudged:
"WHEREFORE, judgment is hereby rendered in favor of the
plaintiffs and against the defendants Prudent Security and
Junelito Escartin ordering the latter to pay jointly and
severally the plaintiffs the following:
"a) 1) Actual damages of P44,830.00;
2) Compensatory damages of P443,520.00;
3) Indemnity for the death of Nicanor Navidad in the sum of
P50,000.00;
"b) Moral damages of P50,000.00;
"c) Attorneys fees of P20,000;
"d) Costs of suit.
"The complaint against defendants LRTA and Rodolfo Roman
are dismissed for lack of merit.
"The compulsory counterclaim of LRTA and Roman are
likewise dismissed."1
Prudent appealed to the Court of Appeals. On 27 August
2000, the appellate court promulgated its now assailed
decision exonerating Prudent from any liability for the death

of Nicanor Navidad and, instead, holding the LRTA and


Roman jointly and severally liable thusly:

application of emergency brakes could not have stopped the


train.

"WHEREFORE, the assailed judgment is hereby MODIFIED,


by exonerating the appellants from any liability for the
death of Nicanor Navidad, Jr. Instead, appellees Rodolfo
Roman and the Light Rail Transit Authority (LRTA) are held
liable for his death and are hereby directed to pay jointly
and severally to the plaintiffs-appellees, the following
amounts:

The appellate court denied petitioners motion for


reconsideration in its resolution of 10 October 2000.
In their present recourse, petitioners recite alleged errors on
the part of the appellate court; viz:
"I.

b) P50,000.00 as nominal damages;

THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY


DISREGARDING THE FINDINGS OF FACTS BY THE TRIAL
COURT

c) P50,000.00 as moral damages;

"II.

d) P50,000.00 as indemnity for the death of the deceased;


and

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN


FINDING THAT PETITIONERS ARE LIABLE FOR THE DEATH OF
NICANOR NAVIDAD, JR.

a) P44,830.00 as actual damages;

e) P20,000.00 as and for attorneys fees."2


The appellate court ratiocinated that while the deceased
might not have then as yet boarded the train, a contract of
carriage theretofore had already existed when the victim
entered the place where passengers were supposed to be
after paying the fare and getting the corresponding token
therefor. In exempting Prudent from liability, the court
stressed that there was nothing to link the security agency
to the death of Navidad. It said that Navidad failed to show
that Escartin inflicted fist blows upon the victim and the
evidence merely established the fact of death of Navidad by
reason of his having been hit by the train owned and
managed by the LRTA and operated at the time by Roman.
The appellate court faulted petitioners for their failure to
present expert evidence to establish the fact that the

"III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
FINDING THAT RODOLFO ROMAN IS AN EMPLOYEE OF
LRTA."3
Petitioners would contend that the appellate court ignored
the evidence and the factual findings of the trial court by
holding them liable on the basis of a sweeping conclusion
that the presumption of negligence on the part of a common
carrier was not overcome. Petitioners would insist that
Escartins assault upon Navidad, which caused the latter to
fall on the tracks, was an act of a stranger that could not
have been foreseen or prevented. The LRTA would add that
the appellate courts conclusion on the existence of an
employer-employee relationship between Roman and LRTA

lacked basis because Roman himself had testified being an


employee of Metro Transit and not of the LRTA.
Respondents, supporting the decision of the appellate court,
contended that a contract of carriage was deemed created
from the moment Navidad paid the fare at the LRT station
and entered the premises of the latter, entitling Navidad to
all the rights and protection under a contractual relation,
and that the appellate court had correctly held LRTA and
Roman liable for the death of Navidad in failing to exercise
extraordinary diligence imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier, both
from the nature of its business and for reasons of public
policy, is burdened with the duty of exercising utmost
diligence in ensuring the safety of passengers.4 The Civil
Code, governing the liability of a common carrier for death
of or injury to its passengers, provides:
"Article 1755. A common carrier is bound to carry the
passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances.
"Article 1756. In case of death of or injuries to passengers,
common carriers are presumed to have been at fault or to
have acted negligently, unless they prove that they
observed extraordinary diligence as prescribed in articles
1733 and 1755."
"Article 1759. Common carriers are liable for the death of or
injuries to passengers through the negligence or willful acts
of the formers employees, although such employees may
have acted beyond the scope of their authority or in
violation of the orders of the common carriers.

"This liability of the common carriers does not cease upon


proof that they exercised all the diligence of a good father of
a family in the selection and supervision of their
employees."
"Article 1763. A common carrier is responsible for injuries
suffered by a passenger on account of the willful acts or
negligence of other passengers or of strangers, if the
common carriers employees through the exercise of the
diligence of a good father of a family could have prevented
or stopped the act or omission."
The law requires common carriers to carry passengers safely
using the utmost diligence of very cautious persons with
due regard for all circumstances.5 Such duty of a common
carrier to provide safety to its passengers so obligates it not
only during the course of the trip but for so long as the
passengers are within its premises and where they ought to
be in pursuance to the contract of carriage.6 The statutory
provisions render a common carrier liable for death of or
injury to passengers (a) through the negligence or wilful acts
of its employees or b) on account of wilful acts or negligence
of other passengers or of strangers if the common carriers
employees through the exercise of due diligence could have
prevented or stopped the act or omission.7 In case of such
death or injury, a carrier is presumed to have been at fault
or been negligent, and8 by simple proof of injury, the
passenger is relieved of the duty to still establish the fault or
negligence of the carrier or of its employees and the burden
shifts upon the carrier to prove that the injury is due to an
unforeseen event or to force majeure.9 In the absence of
satisfactory explanation by the carrier on how the accident
occurred, which petitioners, according to the appellate

court, have failed to show, the presumption would be that it


has been at fault,10 an exception from the general rule that
negligence must be proved.11
The foundation of LRTAs liability is the contract of carriage
and its obligation to indemnify the victim arises from the
breach of that contract by reason of its failure to exercise
the high diligence required of the common carrier. In the
discharge of its commitment to ensure the safety of
passengers, a carrier may choose to hire its own employees
or avail itself of the services of an outsider or an
independent firm to undertake the task. In either case, the
common carrier is not relieved of its responsibilities under
the contract of carriage.
Should Prudent be made likewise liable? If at all, that liability
could only be for tort under the provisions of Article 217612
and related provisions, in conjunction with Article 2180,13 of
the Civil Code. The premise, however, for the employers
liability is negligence or fault on the part of the employee.
Once such fault is established, the employer can then be
made liable on the basis of the presumption juris tantum
that the employer failed to exercise diligentissimi patris
families in the selection and supervision of its employees.
The liability is primary and can only be negated by showing
due diligence in the selection and supervision of the
employee, a factual matter that has not been shown. Absent
such a showing, one might ask further, how then must the
liability of the common carrier, on the one hand, and an
independent contractor, on the other hand, be described? It
would be solidary. A contractual obligation can be breached
by tort and when the same act or omission causes the
injury, one resulting in culpa contractual and the other in
culpa aquiliana, Article 219414 of the Civil Code can well
apply.15 In fine, a liability for tort may arise even under a

contract, where tort is that which breaches the contract.16


Stated differently, when an act which constitutes a breach of
contract would have itself constituted the source of a quasidelictual liability had no contract existed between the
parties, the contract can be said to have been breached by
tort, thereby allowing the rules on tort to apply.17
Regrettably for LRT, as well as perhaps the surviving spouse
and heirs of the late Nicanor Navidad, this Court is
concluded by the factual finding of the Court of Appeals that
"there is nothing to link (Prudent) to the death of Nicanor
(Navidad), for the reason that the negligence of its
employee, Escartin, has not been duly proven x x x." This
finding of the appellate court is not without substantial
justification in our own review of the records of the case.
There being, similarly, no showing that petitioner Rodolfo
Roman himself is guilty of any culpable act or omission, he
must also be absolved from liability. Needless to say, the
contractual tie between the LRT and Navidad is not itself a
juridical relation between the latter and Roman; thus,
Roman can be made liable only for his own fault or
negligence.
The award of nominal damages in addition to actual
damages is untenable. Nominal damages are adjudicated in
order that a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or recognized,
and not for the purpose of indemnifying the plaintiff for any
loss suffered by him.18 It is an established rule that nominal
damages cannot co-exist with compensatory damages.19
WHEREFORE, the assailed decision of the appellate court is
AFFIRMED with MODIFICATION but only in that (a) the award
of nominal damages is DELETED and (b) petitioner Rodolfo
Roman is absolved from liability. No costs.

SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and
Azcuna, JJ., concur.

#11
PHILIPPINE HAWKCORPORATION,
Petitioner,-versusVIVIAN TAN LEE,
Respondent.
G.R. No. 166869
Promulgated:
February 16, 2010
PERALTA, J.:
This is a Petition for Review on Certiorari[1] of the Decision
of the Court of Appeals in CA-G.R. CV No. 70860,
promulgated on August 17, 2004, affirming with
modification the Decision of the Regional Trial Court (RTC) of
Quezon City, Branch 102, dated March 16, 2001, in Civil
Case No. Q-91-9191, ordering petitioner Philippine Hawk
Corporation and Margarito Avila to jointly and severally pay
respondent Vivian Tan Lee damages as a result of a
vehicular accident.
The facts are as follows:

On March 15, 2005, respondent Vivian Tan Lee filed before


the RTC of Quezon City a Complaint[2] against petitioner
Philippine Hawk Corporation and defendant Margarito Avila
for damages based on quasi-delict, arising from a vehicular
accident that occurred on March 17, 1991 in Barangay
Buensoceso, Gumaca, Quezon. The accident resulted in the
death of respondents husband, Silvino Tan, and caused
respondent physical injuries.
On June 18, 1992, respondent filed an Amended Complaint,
[3] in her own behalf and in behalf of her children, in the
civil case for damages against petitioner. Respondent
sought the payment of indemnity for the death of Silvino
Tan, moral and exemplary damages, funeral and interment
expenses, medical and hospitalization expenses, the cost of
the motorcycles repair, attorneys fees, and other just and
equitable reliefs.
The accident involved a motorcycle, a passenger jeep, and a
bus with Body No. 119. The bus was owned by petitioner
Philippine Hawk Corporation, and was then being driven by
Margarito Avila.
In its Answer,[4] petitioner denied liability for the vehicular
accident, alleging that the immediate and proximate cause
of the accident was the recklessness or lack of caution of
Silvino Tan. Petitioner asserted that it exercised the diligence
of a good father of the family in the selection and
supervision of its employees, including Margarito Avila.
On March 25, 1993, the trial court issued a Pre-trial Order[5]
stating that the parties manifested that there was no
possibility of amicable settlement between them. However,
they agreed to stipulate on the following facts:

1.
On March 17, 1991, in Bgy. Buensoceso, Gumaca,
Quezon, plaintiff Vivian Lee Tan and her husband Silvino Tan,
while on board a motorcycle with [P]late No. DA-5480 driven
by the latter, and a Metro Bus with [P]late No. NXR-262
driven by Margarito Avila, were involved in an accident;
2.
As a result of the accident, Silvino Tan died on the spot
while plaintiff Vivian Lee Tan suffered physical injuries which
necessitated medical attention and hospitalization;
3.
The deceased Silvino Tan is survived by his wife,
plaintiff Vivian Lee Tan and four children, three of whom are
now residents of the United States; and
4.
Defendant Margarito Avila is an employee of
defendant Philippine Hawk.[6]

Barangay Buensoceso, Gumaca, Quezon on the way to


Lopez, Quezon. They came from the Pasumbal Machine
Shop, where they inquired about the repair of their tanker.
They were on a stop position at the side of the highway; and
when they were about to make a turn, she saw a bus
running at fast speed coming toward them, and then the
bus hit a jeep parked on the roadside, and their motorcycle
as well. She lost consciousness and was brought to the
hospital in Gumaca, Quezon, where she was confined for a
week. She was later transferred to St. Lukes Hospital in
Quezon City, Manila. She suffered a fracture on her left
chest, her left arm became swollen, she felt pain in her
bones, and had high blood pressure.[8]

The parties also agreed on the following issues:

Respondents husband died due to the vehicular accident.


The immediate cause of his death was massive cerebral
hemorrhage.[9]

1.
Whether or not the proximate cause of the accident
causing physical injuries upon the plaintiff Vivian Lee Tan
and resulting in the death of the latters husband was the
recklessness and negligence of Margarito Avila or the
deceased Silvino Tan; and

Respondent further testified that her husband was


leasing[10] and operating a Caltex gasoline station in
Gumaca, Quezon that yielded one million pesos a year in
revenue. They also had a copra business, which gave them
an income of P3,000.00 a month or P36,000.00 a year.[11]

2.
Whether or not defendant Philippine Hawk Transport
Corporation exercised the diligence of a good father of the
family in the selection and supervision of its driver Margarito
Avila.[7]

Ernest Ovial, the driver of the passenger jeep involved in the


accident, testified that in the afternoon of March 17, 1991,
his jeep was parked on the left side of the highway near the
Pasumbal Machine Shop. He did not notice the motorcycle
before the accident. But he saw the bus dragging the
motorcycle along the highway, and then the bus bumped his
jeep and sped away.[12]

Respondent testified that on March 17, 1991, she was riding


on their motorcycle in tandem with her husband, who was
on the wheel, at a place after a Caltex gasoline station in

For the defense, Margarito Avila, the driver of petitioners


bus, testified that on March 17, 1999, at about 4:30 p.m., he

was driving his bus at 60 kilometers per hour on the


Maharlika Highway. When they were at Barangay
Buensoceso, Gumaca, Quezon, a motorcycle ran from his
left side of the highway, and as the bus came near, the
motorcycle crossed the path of the bus, and so he turned
the bus to the right. He heard a loud banging sound. From
his side mirror, he saw that the motorcycle turned turtle
(bumaliktad). He did not stop to help out of fear for his life,
but drove on and surrendered to the police. He denied that
he bumped the motorcycle.[13]
Avila further testified that he had previously been involved
in sideswiping incidents, but he forgot how many times.[14]
Rodolfo Ilagan, the bus conductor, testified that the
motorcycle bumped the left side of the bus that was running
at 40 kilometers per hour.[15]
Domingo S. Sisperes, operations officer of petitioner,
testified that, like their other drivers, Avila was subjected to
and passed the following requirements:
(1) Submission of NBI clearance;
(2) Certification from his previous employer that he had no
bad record;
(3) Physical examination to determine his fitness to drive;
(4) Test of his driving ability, particularly his defensive skill;
and
(5) Review of his driving skill every six months.[16]
Efren Delantar, a Barangay Kagawad in Buensoceso,
Gumaca, Quezon, testified that the bus was running on the
highway on a straight path when a motorcycle, with a

woman behind its driver, suddenly emerged from the left


side of the road from a machine shop. The motorcycle
crossed the highway in a zigzag manner and bumped the
side of the bus.[17]
In its Decision dated March 16, 2001, the trial court
rendered judgment against petitioner and defendant
Margarito Avila, the dispositive portion of which reads:
ACCORDINGLY, MARGARITO AVILA is adjudged guilty of
simple negligence, and judgment is hereby rendered in
favor of the plaintiff Vivian Lee Tan and h[er] husbands heirs
ordering the defendants Philippine Hawk Corporation and
Margarito Avila to pay them jointly and solidarily the sum of
P745,575.00 representing loss of earnings and actual
damages plus P50,000.00 as moral damages.[18]
The trial court found that before the collision, the
motorcycle was on the left side of the road, just as the
passenger jeep was. Prior to the accident, the motorcycle
was in a running position moving toward the right side of
the highway. The trial court agreed with the bus driver that
the motorcycle was moving ahead of the bus from the left
side of the road toward the right side of the road, but
disagreed that the motorcycle crossed the path of the bus
while the bus was running on the right side of the road.[19]
The trial court held that if the bus were on the right side of
the highway, and Margarito Avila turned his bus to the right
in an attempt to avoid hitting the motorcyle, then the bus
would not have hit the passenger jeep, which was then
parked on the left side of the road. The fact that the bus also
hit the passenger jeep showed that the bus must have been
running from the right lane to the left lane of the highway,
which caused the collision with the motorcycle and the
passenger jeep parked on the left side of the road. The trial

court stated that since Avila saw the motorcycle before the
collision, he should have stepped on the brakes and slowed
down, but he just maintained his speed and veered to the
left.[20] The trial court found Margarito Avila guilty of simple
negligence.
The trial court held petitioner bus company liable for failing
to exercise the diligence of a good father of the family in the
selection and supervision of Avila, having failed to
sufficiently inculcate in him discipline and correct behavior
on the road.[21]
On appeal, the Court of Appeals affirmed the decision of the
trial court with modification in the award of damages. The
dispositive portion of the decision reads:

private respondent executing a U-turn on the highway about


fifteen (15) meters away and thereafter held that the
Doctrine of Last Clear was applicable to the instant case.
This was a palpable error for the simple reason that the
aforesaid distance was the distance of the witness to the
bus and not the distance of the bus to the respondents
motorcycle, as clearly borne out by the records.
3) The Court of Appeals committed reversible error in
awarding damages in total disregard of the established
doctrine laid down in Danao v. Court of Appeals, 154 SCRA
447 and Viron Transportation Co., Inc. v. Delos Santos, G.R.
No. 138296, November 22, 2000.[23

WHEREFORE, foregoing premises considered, the appeal is


DENIED. The assailed decision dated March 16, 2001 is
hereby AFFIRMED with MODIFICATION. Appellants Philippine
Hawk and Avila are hereby ordered to pay jointly and
severally appellee the following amount: (a) P168,019.55 as
actual damages; (b) P10,000.00 as temperate damages; (c)
P100,000.00 as moral damages; (d) P590,000.00 as
unearned income; and (e) P50,000.00 as civil indemnity.[22]

In short, the issues raised by petitioner are: (1) whether or


not negligence may be attributed to petitioners driver, and
whether negligence on his part was the proximate cause of
the accident, resulting in the death of Silvino Tan and
causing physical injuries to respondent; (2) whether or not
petitioner is liable to respondent for damages; and (3)
whether or not the damages awarded by respondent Court
of Appeals are proper.

Petitioner filed this petition, raising the following issues:

Petitioner seeks a review of the factual findings of the trial


court, which were sustained by the Court of Appeals, that
petitioners driver was negligent in driving the bus, which
caused physical injuries to respondent and the death of
respondents husband.

1) The Court of Appeals committed grave abuse of


discretion amounting to lack of jurisdiction in passing upon
an issue, which had not been raised on appeal, and which
had, therefore, attained finality, in total disregard of the
doctrine laid down by this Court in Abubakar v. Abubakar,
G.R. No. 134622, October 22, 1999.
2) The Court of Appeals committed reversible error in its
finding that the petitioners bus driver saw the motorcycle of

The rule is settled that the findings of the trial court,


especially when affirmed by the Court of Appeals, are
conclusive on this Court when supported by the evidence on
record.[24] The Court has carefully reviewed the records of

this case, and found no cogent reason to disturb the findings


of the trial court, thus:
The Court agree[s] with the bus driver Margarito that the
motorcycle was moving ahead of the bus towards the right
side from the left side of the road, but disagrees with him
that it crossed the path of the bus while the bus was running
on the right side of the highway.
If the bus were on the right side of the highway and
Margarito turned his bus to the right in an attempt to avoid
hitting it, then the bus would not have hit the passenger
jeep vehicle which was then parked on the left side of the
road. The fact that the bus hit the jeep too, shows that the
bus must have been running to the left lane of the highway
from right to the left, that the collision between it and the
parked jeep and the moving rightways cycle became
inevitable. Besides, Margarito said he saw the motorcycle
before the collision ahead of the bus; that being so, an
extra-cautious public utility driver should have stepped on
his brakes and slowed down. Here, the bus never slowed
down, it simply maintained its highway speed and veered to
the left. This is negligence indeed.[25]
Petitioner contends that the Court of Appeals was mistaken
in stating that the bus driver saw respondents motorcycle
about 15 meters away before the collision, because the said
distance, as testified to by its witness Efren Delantar Ong,
was Ongs distance from the bus, and not the distance of the
bus from the motorcycle. Petitioner asserts that this
mistaken assumption of the Court of Appeals made it
conclude that the bus driver, Margarito Avila, had the last
clear chance to avoid the accident, which was the basis for
the conclusion that Avila was guilty of simple negligence.

A review of the records showed that it was petitioners


witness, Efren Delantar Ong, who was about 15 meters
away from the bus when he saw the vehicular accident.[26]
Nevertheless, this fact does not affect the finding of the trial
court that petitioners bus driver, Margarito Avila, was guilty
of simple negligence as affirmed by the appellate court.
Foreseeability is the fundamental test of negligence.[27] To
be negligent, a defendant must have acted or failed to act in
such a way that an ordinary reasonable man would have
realized that certain interests of certain persons were
unreasonably subjected to a general but definite class of
risks.[28
In this case, the bus driver, who was driving on the right
side of the road, already saw the motorcycle on the left side
of the road before the collision. However, he did not take the
necessary precaution to slow down, but drove on and
bumped the motorcycle, and also the passenger jeep parked
on the left side of the road, showing that the bus was
negligent in veering to the left lane, causing it to hit the
motorcycle and the passenger jeep.
Whenever an employees negligence causes damage or
injury to another, there instantly arises a presumption that
the employer failed to exercise the due diligence of a good
father of the family in the selection or supervision of its
employees.[29] To avoid liability for a quasi-delict
committed by his employee, an employer must overcome
the presumption by presenting convincing proof that he
exercised the care and diligence of a good father of a family
in the selection and supervision of his employee.[30]
The Court upholds the finding of the trial court and the Court
of Appeals that petitioner is liable to respondent, since it
failed to exercise the diligence of a good father of the family

in the selection and supervision of its bus driver, Margarito


Avila, for having failed to sufficiently inculcate in him
discipline and correct behavior on the road. Indeed,
petitioners tests were concentrated on the ability to drive
and physical fitness to do so. It also did not know that Avila
had been previously involved in sideswiping incidents.

rules on assignment of errors. The basic procedural rule is


that only errors claimed and assigned by a party will be
considered by the court, except errors affecting its
jurisdiction over the subject matter. To this exception has
now been added errors affecting the validity of the judgment
appealed from or the proceedings therein.

As regards the issue on the damages awarded, petitioner


contends that it was the only one that appealed the decision
of the trial court with respect to the award of actual and
moral damages; hence, the Court of Appeals erred in
awarding other kinds of damages in favor of respondent,
who did not appeal from the trial courts decision.

Also, even if the error complained of by a party is not


expressly stated in his assignment of errors but the same is
closely related to or dependent on an assigned error and
properly argued in his brief, such error may now be
considered by the court. These changes are of
jurisprudential origin.

Petitioners contention is unmeritorious.

2. The procedure in the Supreme Court being generally the


same as that in the Court of Appeals, unless otherwise
indicated (see Secs. 2 and 4, Rule 56), it has been held that
the latter is clothed with ample authority to review matters,
even if they are not assigned as errors on appeal, if it finds
that their consideration is necessary in arriving at a just
decision of the case. Also, an unassigned error closely
related to an error properly assigned (PCIB vs. CA, et al., L34931, Mar. 18, 1988), or upon which the determination of
the question raised by error properly assigned is dependent,
will be considered by the appellate court notwithstanding
the failure to assign it as error (Ortigas, Jr. vs. Lufthansa
German Airlines, L-28773, June 30, 1975; Soco vs. Militante,
et al., G.R. No. 58961, June 28, 1983).

Section 8, Rule 51 of the 1997 Rules of Civil Procedure


provides:
SEC. 8. Questions that may be decided. -- No error which
does not affect the jurisdiction over the subject matter or
the validity of the judgment appealed from or the
proceedings therein will be considered unless stated in the
assignment of errors, or closely related to or dependent on
an assigned error and properly argued in the brief, save as
the court pass upon plain errors and clerical errors.
Philippine National Bank v. Rabat[31] cited the book[32] of
Justice Florenz D. Regalado to explain the section above,
thus:
In his book, Mr. Justice Florenz D. Regalado commented on
this section, thus:
1. Sec. 8, which is an amendment of the former Sec. 7 of
this Rule, now includes some substantial changes in the

It may also be observed that under Sec. 8 of this Rule, the


appellate court is authorized to consider a plain error,
although it was not specifically assigned by the appellant
(Dilag vs. Heirs of Resurreccion, 76 Phil. 649), otherwise it
would be sacrificing substance for technicalities.[33]

In this case for damages based on quasi-delict, the trial


court awarded respondent the sum of P745,575.00,
representing loss of earning capacity (P590,000.00) and
actual damages (P155,575.00 for funeral expenses), plus
P50,000.00 as moral damages. On appeal to the Court of
Appeals, petitioner assigned as error the award of damages
by the trial court on the ground that it was based merely on
suppositions and surmises, not the admissions made by
respondent during the trial.
In its Decision, the Court of Appeals sustained the award by
the trial court for loss of earning capacity of the deceased
Silvino Tan, moral damages for his death, and actual
damages, although the amount of the latter award was
modified.
The indemnity for loss of earning capacity of the deceased is
provided for by Article 2206 of the Civil Code.[34]
Compensation of this nature is awarded not for loss of
earnings, but for loss of capacity to earn money.[35]
As a rule, documentary evidence should be presented to
substantiate the claim for damages for loss of earning
capacity.[36] By way of exception, damages for loss of
earning capacity may be awarded despite the absence of
documentary evidence when: (1) the deceased is selfemployed and earning less than the minimum wage under
current labor laws, in which case, judicial notice may be
taken of the fact that in the deceased's line of work no
documentary evidence is available; or (2) the deceased is
employed as a daily wage worker earning less than the
minimum wage under current labor laws.[37]
In this case, the records show that respondents husband
was leasing and operating a Caltex gasoline station in
Gumaca, Quezon. Respondent testified that her husband

earned an annual income of one million pesos. Respondent


presented in evidence a Certificate of Creditable Income Tax
Withheld at Source for the Year 1990,[38] which showed that
respondents husband earned a gross income of P950,988.43
in 1990. It is reasonable to use the Certificate and
respondents testimony as bases for fixing the gross annual
income of the deceased at one million pesos before
respondents husband died on March 17, 1999. However, no
documentary evidence was presented regarding the income
derived from their copra business; hence, the testimony of
respondent as regards such income cannot be considered.
In the computation of loss of earning capacity, only net
earnings, not gross earnings, are to be considered; that is,
the total of the earnings less expenses necessary for the
creation of such earnings or income, less living and other
incidental expenses.[39] In the absence of documentary
evidence, it is reasonable to peg necessary expenses for the
lease and operation of the gasoline station at 80 percent of
the gross income, and peg living expenses at 50 percent of
the net income (gross income less necessary expenses).

In this case, the computation for loss of earning capacity is


as follows:
Net Earning = Life Expectancy x Gross Annual Income
Reasonable and
Capacity [2/3 (80-age at the (GAI) Necessary
time of death)] Expenses
(80% of GAI)
X = [2/3 (80-65)] x P1,000,000.00 - P800,000.00

X = 2/3 (15) x P200,000.00 - P100,000.00


(Living Expenses)
X = 30/3 x P100,000.00
X = 10 x P100,000.00
X = P1,000,000.00
The Court of Appeals also awarded actual damages for the
expenses incurred in connection with the death, wake, and
interment of respondents husband in the amount of
P154,575.30, and the medical expenses of respondent in the
amount of P168,019.55.
Actual damages must be substantiated by documentary
evidence, such as receipts, in order to prove expenses
incurred as a result of the death of the victim[40] or the
physical injuries sustained by the victim. A review of the
valid receipts submitted in evidence showed that the funeral
and related expenses amounted only to P114,948.60, while
the medical expenses of respondent amounted only to
P12,244.25, yielding a total of P127,192.85 in actual
damages.
Moreover, the Court of Appeals correctly sustained the
award of moral damages in the amount of P50,000.00 for
the death of respondents husband. Moral damages are not
intended to enrich a plaintiff at the expense of the
defendant.[41] They are awarded to allow the plaintiff to
obtain means, diversions or amusements that will serve to
alleviate the moral suffering he/she has undergone due to
the defendants culpable action and must, perforce, be
proportional to the suffering inflicted.[42]

In addition, the Court of Appeals correctly awarded


temperate damages in the amount of P10,000.00 for the
damage caused on respondents motorcycle. Under Art. 2224
of the Civil Code, temperate damages may be recovered
when the court finds that some pecuniary loss has been
suffered but its amount cannot, from the nature of the case,
be proved with certainty. The cost of the repair of the
motorcycle was prayed for by respondent in her Complaint.
However, the evidence presented was merely a job
estimate[43] of the cost of the motorcycles repair
amounting to P17, 829.00. The Court of Appeals aptly held
that there was no doubt that the damage caused on the
motorcycle was due to the negligence of petitioners driver.
In the absence of competent proof of the actual damage
caused on the motorcycle or the actual cost of its repair, the
award of temperate damages by the appellate court in the
amount of P10,000.00 was reasonable under the
circumstances.[44]
The Court of Appeals also correctly awarded respondent
moral damages for the physical injuries she sustained due
to the vehicular accident. Under Art. 2219 of the Civil Code,
[45] moral damages may be recovered in quasi-delicts
causing physical injuries. However, the award of P50,000.00
should be reduced to P30,000.00 in accordance with
prevailing jurisprudence.[46]
Further, the Court of Appeals correctly awarded respondent
civil indemnity for the death of her husband, which has been
fixed by current jurisprudence at P50,000.00.[47] The award
is proper under Art. 2206 of the Civil Code.[48]
In fine, the Court of Appeals correctly awarded civil
indemnity for the death of respondents husband, temperate
damages, and moral damages for the physical injuries

sustained by respondent in addition to the damages granted


by the trial court to respondent. The trial court overlooked
awarding the additional damages, which were prayed for by
respondent in her Amended Complaint. The appellate court
is clothed with ample authority to review matters, even if
they are not assigned as errors in the appeal, if it finds that
their consideration is necessary in arriving at a just decision
of the case.[49]
WHEREFORE, the petition is DENIED. The Decision of the
Court of Appeals dated August 17, 2004 in CA-G.R. CV No.
70860 is hereby AFFIRMED with MODIFICATION. Petitioner
Philippine Hawk Corporation and Margarito Avila are hereby
ordered to pay jointly and severally respondent Vivian Lee
Tan: (a) civil indemnity in the amount of Fifty Thousand
Pesos (P50,000.00); (b) actual damages in the amount of
One Hundred Twenty-Seven Thousand One Hundred NinetyTwo Pesos and Eighty-Five Centavos ( P127,192.85); (c)
moral damages in the amount of Eighty Thousand Pesos
(P80,000.00); (d) indemnity for loss of earning capacity in
the amount of One Million Pesos (P1,000,000.00); and (e)
temperate damages in the amount of Ten Thousand Pesos
(P10,000.00).
Costs against petitioner.
SO ORDERED.

#18
Pdf
#22
DR. MILAGROS L. CANTRE, Petitioner,

vs.SPS. JOHN DAVID Z. GO and NORA S. GO, Respondents.


DECISION
QUISUMBING, J.:
For review on certiorari are the Decision1 dated October 3,
2002 and Resolution2 dated November 19, 2003 of the
Court of Appeals in CA-G.R. CV No. 58184, which affirmed
with modification the Decision3 dated
March 3, 1997 of the Regional Trial Court of Quezon City,
Branch 98, in Civil Case No. Q-93-16562.
The facts, culled from the records, are as follows:
Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics
and Gynecology at the Dr. Jesus Delgado Memorial Hospital.
She was the attending physician of respondent Nora S. Go,
who was admitted at the said hospital on April 19, 1992.
At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth
child, a baby boy. However, at around 3:30 a.m., Nora
suffered profuse bleeding inside her womb due to some
parts of the placenta which were not completely expelled
from her womb after delivery. Consequently, Nora suffered
hypovolemic shock, resulting in a drop in her blood pressure
to "40" over "0." Petitioner and the assisting resident
physician performed various medical procedures to stop the
bleeding and to restore Noras blood pressure. Her blood
pressure was frequently monitored with the use of a
sphygmomanometer. While petitioner was massaging Noras
uterus for it to contract and stop bleeding, she ordered a
droplight to warm Nora and her baby.4 Nora remained
unconscious until she recovered.

While in the recovery room, her husband, respondent John


David Z. Go noticed a fresh gaping wound two and a half (2
) by three and a half (3 ) inches in the inner portion of
her left arm, close to the armpit.5 He asked the nurses what
caused the injury. He was informed it was a burn. Forthwith,
on April 22, 1992, John David filed a request for
investigation.6 In response, Dr. Rainerio S. Abad, the
medical director of the hospital, called petitioner and the
assisting resident physician to explain what happened.
Petitioner said the blood pressure cuff caused the injury.

Unfortunately, Noras arm would never be the


same.1a\^/phi1.net Aside from the unsightly mark, the pain
in her left arm remains. When sleeping, she has to cradle
her wounded arm. Her movements now are also restricted.
Her children cannot play with the left side of her body as
they might accidentally bump the injured arm, which aches
at the slightest touch.

On May 7, 1992, John David brought Nora to the National


Bureau of Investigation for a physical examination, which
was conducted by medico-legal officer Dr. Floresto Arizala,
Jr.7 The medico-legal officer later testified that Noras injury
appeared to be a burn and that a droplight when placed
near the skin for about 10 minutes could cause such burn.8
He dismissed the likelihood that the wound was caused by a
blood pressure cuff as the scar was not around the arm, but
just on one side of the arm.9

In view of the foregoing consideration, judgment is hereby


rendered in favor of the plaintiffs and against the
defendants, directing the latters, (sic) jointly and severally

On May 22, 1992, Noras injury was referred to a plastic


surgeon at the Dr. Jesus Delgado Memorial Hospital for skin
grafting.10 Her wound was covered with skin sourced from
her abdomen, which consequently bore a scar as well. About
a year after, on April 30, 1993, scar revision had to be
performed at the same hospital.11 The surgical operation
left a healed linear scar in Noras left arm about three inches
in length, the thickest portion rising about one-fourth (1/4)
of an inch from the surface of the skin. The costs of the skin
grafting and the scar revision were shouldered by the
hospital.12

Thus, on June 21, 1993, respondent spouses filed a


complaint13 for damages against petitioner, Dr. Abad, and
the hospital. Finding in favor of respondent spouses, the trial
court decreed:

(a) to pay the sum of Five Hundred Thousand Pesos


(P500,000.00) in moral damages;
(b) to pay the sum of One Hundred Fifty Thousand Pesos
(P150,000.00) exemplary damages;
(c) to pay the sum of Eighty Thousand Pesos (P80,000.00)
nominal damages;
(d) to pay Fifty Thousand Pesos (P50,000.00) for and as
attorneys fees; and
(e) to pay Six Thousand Pesos (P6,000.00) litigation
expenses.
SO ORDERED.14

Petitioner, Dr. Abad, and the hospital all appealed to the


Court of Appeals, which affirmed with modification the trial
court decision, thus:

WHEREFORE, in view of all the foregoing, and finding no


reversible error in the appealed Decision dated March 3,
1997 of Branch 98 of the Regional Trial Court of Quezon City
in Civil Case No. Q-93-16562, the same is hereby AFFIRMED,
with the following MODIFICATIONS:
1. Ordering defendant-appellant Dra. Milagros [L.] Cantre
only to pay plaintiffs-appellees John David Go and Nora S.
Go the sum of P200,000.00 as moral damages;
2. Deleting the award [of] exemplary damages, attorneys
fees and expenses of litigation;1awphi1.nt
3. Dismissing the complaint with respect to defendantsappellants Dr. Rainerio S. Abad and Delgado Clinic, Inc.;
4. Dismissing the counterclaims of defendants-appellants for
lack of merit; and
5. Ordering defendant-appellant Dra. Milagros [L.] Cantre
only to pay the costs.
SO ORDERED.15
Petitioners motion for reconsideration was denied by the
Court of Appeals. Hence, the instant petition assigning the
following as errors and issues:
I.

WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF


APPEALS COMMITTED GRAVE ABUSE OF THEIR DISCRETION
WHEN, NOTWITHSTANDING THAT BOTH PARTIES HAVE
RESTED THEIR RESPECTIVE CASES, THE LOWER COURT
ADMITTED THE ADDITIONAL EXHIBITS FURTHER OFFERED BY
RESPONDENTS NOT TESTIFIED TO BY ANY WITNESS AND
THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE
COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE
OF DISCRETION;

II.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE
ABUSE OF ITS DISCRETION WHEN, CONTRARY TO
PREPONDERANCE OF EVIDENCE PRESENTED BY THE
PETITIONER, IT RULED THAT THE PETITIONER HAS NOT
AMPLY SHOWED THAT THE DROPLIGHT DID NOT TOUCH THE
BODY OF MRS. NORA GO, AND THIS DECISION OF THE
LOWER COURT WAS UPHELD BY THE COURT OF APPEALS
LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;

III.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE
ABUSE OF ITS DISCRETION WHEN, CONTRARY TO
PREPONDERANCE OF EVIDENCE PRESENTED BY THE
PETITIONER, IT RULED THAT PETITIONER DRA. CANTRE WAS
NOT ABLE TO AMPLY EXPLAIN HOW THE INJURY (BLISTERS)
IN THE LEFT INNER ARM OF RESPONDENT MRS. GO CAME
ABOUT;
IV.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED


GRAVE ABUSE OF ITS DISCRETION WHEN IT MADE A RULING
ON THE RESPONDENTS INJURY QUOTING THE TESTIMONY
OF SOMEONE WHO WAS NOT PRESENT AND HAS NOT SEEN
THE ORIGINAL, FRESH INJURY OF RESPONDENT MRS. NORA
GO;

TESTIMONY, IT RULED THAT THEY ARE ENTITLED TO


DAMAGES AND WHICH WAS UPHELD, ALTHOUGH MODIFIED,
BY THE COURT OF APPEALS LIKEWISE ABUSING ITS
DISCRETION.16

V.

Petitioner contends that additional documentary exhibits not


testified to by any witness are inadmissible in evidence
because they deprived her of her constitutional right to
confront the witnesses against her. Petitioner insists the
droplight could not have touched Noras body. She maintains
the injury was due to the constant taking of Noras blood
pressure. Petitioner also insinuates the Court of Appeals was
misled by the testimony of the medico-legal officer who
never saw the original injury before plastic surgery was
performed. Finally, petitioner stresses that plastic surgery
was not intended to restore respondents injury to its
original state but rather to prevent further complication.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY


ABUSING ITS DISCRETION RULED THAT PETITIONER DRA.
CANTRE SHOULD HAVE INTENDED TO INFLICT THE INJURY
TO SAVE THE LIFE OF RESPONDENT MRS. GO;
VI.
WHETHER OR NOT THE LOWER COURT AND THE COURT [OF]
APPEALS COMMITTED GRAVE ABUSE OF DISCRETION WHEN,
CONTRARY TO THE DETAILED PROCEDURES DONE BY
PETITIONER, BOTH RULED THAT THE RESPONDENT WAS
LEFT TO THE CARE OF THE NURSING STAFF;
VII.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE
ABUSE OF DISCRETION WHEN, CONTRARY TO THE MEDICAL
PURPOSES OF COSMETIC SURGERY, IT RULED THAT THE
COSMETIC SURGERY MADE THE SCARS EVEN MORE UGLY
AND DECLARED THE COSMETIC SURGERY A FAILURE;

VIII.
WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF
(SIC) DISCRETION WHEN, CONTRARY TO RESPONDENTS
CONTRARY TESTIMONIES AND THE ABSENCE OF ANY

Respondents, however, counter that the genuineness and


due execution of the additional documentary exhibits were
duly admitted by petitioners counsel. Respondents point
out that petitioners blood pressure cuff theory is highly
improbable, being unprecedented in medical history and
that the injury was definitely caused by the droplight. At any
rate, they argue, even if the injury was brought about by the
blood pressure cuff, petitioner was still negligent in her
duties as Noras attending physician.
Simply put, the threshold issues for resolution are: (1) Are
the questioned additional exhibits admissible in evidence?
(2) Is petitioner liable for the injury suffered by respondent
Nora Go? Thereafter, the inquiry is whether the appellate
court committed grave abuse of discretion in its assailed
issuances.

As to the first issue, we agree with the Court of Appeals that


said exhibits are admissible in evidence. We note that the
questioned exhibits consist mostly of Noras medical
records, which were produced by the hospital during trial
pursuant to a subpoena duces tecum. Petitioners counsel
admitted the existence of the same when they were
formally offered for admission by the trial court. In any case,
given the particular circumstances of this case, a ruling on
the negligence of petitioner may be made based on the res
ipsa loquitur doctrine even in the absence of such additional
exhibits.
Petitioners contention that the medico-legal officer who
conducted Noras physical examination never saw her
original injury before plastic surgery was performed is
without basis and contradicted by the records. Records show
that the medico-legal officer conducted the physical
examination on May 7, 1992, while the skin grafting and the
scar revision were performed on Nora on May 22, 1992 and
April 30, 1993, respectively.
Coming now to the substantive matter, is petitioner liable
for the injury suffered by respondent Nora Go?
The Hippocratic Oath mandates physicians to give
primordial consideration to the well-being of their patients. If
a doctor fails to live up to this precept, he is accountable for
his acts. This notwithstanding, courts face a unique restraint
in adjudicating medical negligence cases because
physicians are not guarantors of care and, they never set
out to intentionally cause injury to their patients. However,
intent is immaterial in negligence cases because where
negligence exists and is proven, it automatically gives the
injured a right to reparation for the damage caused.17

In cases involving medical negligence, the doctrine of res


ipsa loquitur allows the mere existence of an injury to justify
a presumption of negligence on the part of the person who
controls the instrument causing the injury, provided that the
following requisites concur:
1. The accident is of a kind which ordinarily does not occur
in the absence of someones 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.18
As to the first requirement, the gaping wound on Noras arm
is certainly not an ordinary occurrence in the act of
delivering a baby, far removed as the arm is from the organs
involved in the process of giving birth. Such injury could not
have happened unless negligence had set in somewhere.
Second, whether the injury was caused by the droplight or
by the blood pressure cuff is of no moment. Both
instruments are deemed within the exclusive control of the
physician in charge under the "captain of the ship" doctrine.
This doctrine holds the surgeon in charge of an operation
liable for the negligence of his assistants during the time
when those assistants are under the surgeons control.19 In
this particular case, it can be logically inferred that
petitioner, the senior consultant in charge during the
delivery of Noras baby, exercised control over the
assistants assigned to both the use of the droplight and the
taking of Noras blood pressure. Hence, the use of the
droplight and the blood pressure cuff is also within
petitioners exclusive control.

Third, the gaping wound on Noras left arm, by its very


nature and considering her condition, could only be caused
by something external to her and outside her control as she
was unconscious while in hypovolemic shock. Hence, Nora
could not, by any stretch of the imagination, have
contributed to her own injury.

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 defendants wrongful act or omission.

Petitioners defense that Noras wound was caused not by


the droplight but by the constant taking of her blood
pressure, even if the latter was necessary given her
condition, does not absolve her from liability. As testified to
by the medico-legal officer, Dr. Arizala, Jr., the medical
practice is to deflate the blood pressure cuff immediately
after each use. Otherwise, the inflated band can cause
injury to the patient similar to what could have happened in
this case. Thus, if Noras wound was caused by the blood
pressure cuff, then the taking of Noras blood pressure must
have been done so negligently as to have inflicted a gaping
wound on her arm,20 for which petitioner cannot escape
liability under the "captain of the ship" doctrine.

Clearly, under the law, petitioner is obliged to pay Nora for


moral damages suffered by the latter as a proximate result
of petitioners negligence.

Further, petitioners argument that the failed plastic surgery


was not intended as a cosmetic procedure, but rather as a
measure to prevent complication does not help her case. It
does not negate negligence on her part.
Based on the foregoing, the presumption that petitioner was
negligent in the exercise of her profession stands
unrebutted. In this connection, the Civil Code provides:
ART. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay
for the damage done.

We note, however, that petitioner has served well as Noras


obstetrician for her past three successful deliveries. This is
the first time petitioner is being held liable for damages due
to negligence in the practice of her profession. The fact that
petitioner promptly took care of Noras wound before
infection and other complications set in is also indicative of
petitioners good intentions. We also take note of the fact
that Nora was suffering from a critical condition when the
injury happened, such that saving her life became
petitioners elemental concern. Nonetheless, it should be
stressed that all these could not justify negligence on the
part of petitioner.
Hence, considering the specific circumstances in the instant
case, we find no grave abuse of discretion in the assailed
decision and resolution of the Court of Appeals. Further, we
rule that the Court of Appeals award of Two Hundred
Thousand Pesos (P200,000) as moral damages in favor of
respondents and against petitioner is just and equitable.21
WHEREFORE, the petition is DENIED. The Decision dated
October 3, 2002 and Resolution dated November 19, 2003
of the Court of Appeals in CA-G.R. CV No. 58184 are
AFFIRMED.

No pronouncement as to costs.
SO ORDERED.
#25
G.R. No. L-37120

each taxicab to be provided with the necessary taximeter


and a radio transceiver for receiving and sending of
messages from mobile taxicab to fixed base stations within
the Naval Base at Subic Bay, Philippines;

April 20, 1983

VICTORINO D. MAGAT, petitioner,


vs.
HON. LEO D. MEDIALDEA and SANTIAGO A. GUERRERO,
respondents.
Sinesio S. Vergara for petitioner.
Eladio B. Samson for respondents

ESCOLIN, J.:
Put to test in this petition for review on certiorari is the
sufficiency of the averments contained in the complaint for
alleged breach of contract filed by petitioner Victorino D.
Magat against respondent Santiago A. Guerrero in Civil Case
No. 17827 of the Court of First Instance of Rizal, presided by
respondent Judge Leo D. Medialdea, now Deputy Judicial
Administrator, which complaint was dismissed for failure to
state a cause of action.
The pertinent allegations in the complaint, subject of
inquiry, are as follows: 1
3.
That sometime in September 1972, the defendant
entered into a contract with the U.S. Navy Exchange, Subic
Bay, Philippines, for the operation of a fleet of taxicabs,

4.
That Isidro Q. Aligada, acting as agent of the
defendant herein conducted the necessary project studies
on how best the defendant may meet the requirements of
his contract with the U.S. Navy Exchange, Subic Bay,
Philippines, and because of the experience of the plaintiff in
connection with his various, contracts with the U.S. Navy,
Subic Bay, Philippines, and his goodwill already established
with the Naval personnel of Subic Bay, Philippines,
especially in providing the U.S. Navy with needed materials
or goods on time as specified by the U.S. Navy, be they of
local origin or imported either from the United States or
from Japan, the said Isidro Q. Aligada approached the
plaintiff herein in behalf of the defendant and proposed to
import from Japan thru the plaintiff herein or thru plaintiff's
Japanese business associates, all taximeters and radio
transceivers needed by the defendant in connection with his
contract with the U.S. Navy Exchange, Subic Bay,
Philippines;
5.
That the defendant herein and his aforesaid agent
Isidro Q. Aligada were able to import from Japan with the
assistance of the plaintiff and his Japanese business
associates the necessary taximeters for defendant's
taxicabs in partial fulfillment of defendant's commitments
with the U.S. Navy Exchange, Subic Bay, Philippines, the
plaintiff's assistance in this matter having been given to the
defendant gratis et amore;

6.
That Isidro Q. Aligada, also acting as agent of the
defendant, made representations with the plaintiff herein to
the effect that defendant desired to procure from Japan thru
the plaintiff herein the needed radio transceivers and to this
end, Isidro Q. Aligada secured a firm offer in writing dated
September 25, 1972, a copy of which is hereto attached
marked as Annex 'A' and made an integral part of this
complaint, wherein the plaintiff quoted in his offer a total
price of $77,620.59 [U.S. dollars] FOB Yokohama, the goods
or articles therein offered for sale by the plaintiff to the
defendant to be delivered sixty to ninety [60-90] days after
receipt of advice from the defendant of the radio frequency
assigned to the defendant by the proper authorities;
7.
That the plaintiff received notice of the fact that the
defendant accepted plaintiff's offer to sell to the defendant
the items specified in Annex 'A', as well as the terms and
conditions of said offer, as shown by the signed conformity
of the defendant appearing on Annex 'A' which was duly
delivered by the defendant's agent to the plaintiff herein,
whereupon all that the plaintiff had to do in the meantime
was to await advice from the defendant as to the radio
frequency to be assigned by the proper authorities to the
defendant;
8.
That believing that the defendant would faithfully
fulfill his contract with the plaintiff herein, considering his
signed conformity appearing in Annex 'A' hereof as well as
the letter dated October 4, 1972, of his agent
aforementioned which is attached hereto and marked as
Annex 'B' and made an integral part of this complaint, and
in order that plaintiff's promised delivery would not be
delayed, the plaintiff herein took steps to advise the
Japanese entity entrusted with the manufacture of the items
listed in Annex 'A' to the effect that the contract between

the defendant herein and the plaintiff has been perfected


and that advice with regards to radio frequency would follow
as soon as same is received by the plaintiff from the
defendant;
9.
That in his letter dated October 6, 1972, a copy of
which is hereto attached marked as Annex 'C', the
defendant advised his aforementioned agent to the effect
that the U.S. Navy provided him with the radio frequency of
34.2 MHZ [Megahertz] and defendant requested his said
agent to proceed with his order placed with the plaintiff
herein, which fact was duly communicated to the plaintiff by
the defendant's aforementioned agent;

10.
That by his letter dated October 7, 1972, addressed
to the plaintiff by the defendant's agent, a copy of which is
hereto attached and marked as Annex 'D', defendant's
agent qualified defendant's instructions contained in his
letter of October 6, 1972 [Annex 'C'] in the sense that
plaintiff herein should proceed to fulfill defendant's order
only upon receipt by the plaintiff of the defendant's letter of
credit;
11.
That it being normal business practice in case of
foreign importation that the buyer opens a letter of credit in
favor of the foreign supplier before delivery of the goods
sold, the plaintiff herein awaited the opening of such a letter
of credit by the defendant;
12.
That the defendant and his agent have repeatedly
assured plaintiff herein of the defendant's financial
capabilities to pay for the goods ordered by him and in fact
he accomplished the necessary application for a letter of
credit with his banker, but he subsequently instructed his

banker not to give due course to his application for a letter


of credit and that for reasons only known to the defendant,
he fails and refuses to open the necessary letter of credit to
cover payment of the goods ordered by him;
13.
That it has come to the knowledge of the plaintiff
herein that the defendant has been operating his taxicabs
without the required radio transceivers and when the U.S.
Navy Authorities of Subic Bay, Philippines, were pressing
defendant for compliance with his commitments with
respect to the installations of radio transceivers on his
taxicabs, he impliedly laid the blame for the delay upon the
plaintiff herein, thus destroying the reputation of the plaintiff
herein with the said Naval Authorities of Subic Bay,
Philippines, with whom plaintiff herein transacts business;
14.
That on March 27, 1973, plaintiff wrote a letter thru
his counsel, copy attached marked as Annex 'E', to ascertain
from the defendant as to whether it is his intention to fulfill
his part of the agreement with the plaintiff herein or
whether he desired to have the contract between them
definitely cancelled, but defendant did not even have the
courtesy to answer plaintiff's demand;
15.
That the defendant herein entered into a contract
with the plaintiff herein as set forth in Annex 'A' without the
least intention of faithfully complying with his obligation is
thereunder, but he did so only in order to obtain the
concession from the U.S. Navy Exchange, Subic Bay,
Philippines, of operating a fleet of taxicabs inside the U.S.
Naval Base to his financial benefit and at the expense and
prejudice of third parties such as the plaintiff herein;
16.
That in view of the defendant's failure to fulfill his
contractual obligations with the plaintiff herein, the plaintiff
will suffer the following damages:

[a]
As the radio transceivers ordered by the defendant
are now in the hands of the plaintiff's Japanese
representative, the plaintiff will have to pay for them, thus
he will have to suffer as total loss to him the amount of
P523,938.98 (converting the amount of $77,620.59 to pesos
at the rate of P6.75 to the dollar) as said radio transceivers
were purposely made or manufactured solely for the use of
the defendant herein and cannot possibly be marketed by
the plaintiff herein to the general public;
[b]
The amount of P 52,393.89 or 10% of the purchase
price by way of loss of expected profits from the transaction
or contract between plaintiff and the defendant;
[c]
Loss of confidence in him and goodwill of the plaintiff
which will result in the impairment of his business dealings
with Japanese firms, thereby resulting also in loss of possible
profits in the future which plaintiff assess at no less than
P200,000.00;
[d]
That in view of the defendant's bad faith in inducing
plaintiff to enter into the contract with him as set forth
hereinabove, defendant should be assessed by his
Honorable Court in favor of the plaintiff the sum of
P200,000.00 as moral and exemplary damages;
[e]
That in view of the defendant's fault and to protect
his interests, plaintiff herein is constrained to retain the
services of counsel with whom he agreed to pay by way of
attorney's fees the sum of P50,000.00".
Respondent Guerrero filed a motion to dismiss said
complaint for lack of cause of action, which ground is
propounded by respondent's counsel thus: 2

... it is clear that plaintiff was merely anticipating his loss or


damage which might result from the alleged failure of
defendant to comply with the terms of the alleged contract.
Hence, plaintiff's right of recovery under his cause of action
is premised not on any loss or damage actually suffered by
him but on a non-existing loss or damage which he is
expecting to incur in the near future. Plaintiff's right
therefore under his cause of action is not yet fixed or
vested.
Inasmuch as there is no other allegation in the present
Complaint wherein the same could be maintained against
defendant, the present Complaint should be dismissed for
its failure to state a cause of action against defendant.
The respondent judge, over petitioner's opposition, issued a
minute order dismissing the complaint as follows: 3
Acting upon the 'Motion to Dismiss' filed by the defendant,
through counsel, dated June 7, 1973, as well as the
opposition thereto filed by the plaintiff, through counsel,
dated June 14, 1973, for the reasons therein alleged, this
Court hereby grants said motion and, as prayed for, the
complaint in the above-entitled case is dismissed.
SO ORDERED.
Both parties are in accord with the view that when a motion
to dismiss is based on the ground of lack of cause of action,
the sufficiency of the case of action can only be determined
on the basis of the facts alleged in the complaint 4 ; that the
facts alleged are deemed hypothetically admitted, including
those which are fairly deducible therefrom 5 ; and that,
admitting the facts as alleged, whether or not the Court can
render a valid judgment against the defendant upon said
facts in accordance with the prayer in the complaint 6.

After a thorough examination of the complaint at bar, We


find the test of legal sufficiency of the cause of action
adequately satisfied. In a methodical and logical sequence,
the complaints recites the circumstances that led to the
perfection of the contract entered into by the parties. It
further avers that while petitioner had fulfilled his part of the
bargain [paragraph 8 of the Complaint], private respondent
failed to comply with his correlative obligation by refusing to
open a letter of credit to cover payment of the goods
ordered by him [paragraphs 11 & 12 of the Complaint], and
that consequently, petitioner suffered not only loss of his
expected profits, but moral and exemplary damages as well.
From these allegations, the essential elements of a cause of
action are present, to wit: [1] the existence of a legal right
to the plaintiff; [2] a correlative duty of the defendant and
[3] an act or omission of the defendant in violation of the
plaintiff's right, with consequent injury or damage to the
latter for which he may maintain an action for recovery of
damages or other appropriate relief. 7
Indisputably, the parties, both businessmen, entered into
the aforesaid contract with the evident intention of deriving
some profits therefrom. Upon breach of the contract by
either of them, the other would necessarily suffer loss of his
expected profits. Since the loss comes into being at the very
moment of breach, such loss is real, "fixed and vested" and,
therefore, recoverable under the law.
Article 1170 of the Civil Code provides:
Those who in the performance of their obligation are guilty
of fraud, negligence, or delay, and those who in any manner
contravene the tenor thereof are liable for damages.
The phrase "in any manner contravene the tenor" of the
obligation includes any ilicit act or omission which impairs

the strict and faithful fulfillment of the obligation and every


kind of defective performance. 8
The damages which the obligor is liable for includes not only
the value of the loss suffered by the obligee [dao
emergente] but also the profits which the latter failed to
obtain [lucro cesante] 9. If the obligor acted in good faith, he
shall be liable for those damages that are the natural and
probable consequences of the breach of the obligation and
which the parties have foreseen or could have reasonably
foreseen at the time the obligation was constituted; and in
case of fraud, bad faith, malice or wanton attitude, he shall
be liable for all damages which may be reasonably
attributed to the non-performance of the obligation 10.

The same is true with respect to moral and exemplary


damages. The applicable legal provisions on the matter,
Articles 2220 and 2232 of the Civil Code, allow the award of
such damages in breaches of contract where the defendant
acted in bad faith. To Our mind, the complaint sufficiently
alleges bad faith on the part of the defendant.
In fine, We hold that on the basis of the facts alleged in the
complaint, the court could render a valid judgment in
accordance with the prayer thereof.
ACCORDINGLY, the questioned order of dismissal is hereby
set aside and the case ordered remanded to the court of
origin for further proceedings. No costs.
SO ORDERED.