1.

Picart v Smith

G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.

G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of
P31,000, as damages alleged to have been caused by an automobile driven by the defendant. From a
judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability
the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the
Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff
was riding on his pony over said bridge. Before he had gotten half way across, the defendant approached
from the opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As
the defendant neared the bridge he saw a horseman on it and blew his horn to give warning of his
approach. He continued his course and after he had taken the bridge he gave two more successive
blasts, as it appeared to him that the man on horseback before him was not observing the rule of the
road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being
perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up
against the railing on the right side of the bridge instead of going to the left. He says that the reason he
did this was that he thought he did not have sufficient time to get over to the other side. The bridge is
shown to have a length of about 75 meters and a width of 4.80 meters. As the automobile approached,
the defendant guided it toward his left, that being the proper side of the road for the machine. In so doing
the defendant assumed that the horseman would move to the other side. The pony had not as yet
exhibited fright, and the rider had made no sign for the automobile to stop. Seeing that the pony was
apparently quiet, the defendant, instead of veering to the right while yet some distance away or slowing
down, continued to approach directly toward the horse without diminution of speed. When he had gotten
quite near, there being then no possibility of the horse getting across to the other side, the defendant
quickly turned his car sufficiently to the right to escape hitting the horse alongside of the railing where it as
then standing; but in so doing the automobile passed in such close proximity to the animal that it became
frightened and turned its body across the bridge with its head toward the railing. In so doing, it as struck
on the hock of the left hind leg by the flange of the car and the limb was broken. The horse fell and its
rider was thrown off with some violence. From the evidence adduced in the case we believe that when
the accident occurred the free space where the pony stood between the automobile and the railing of the
bridge was probably less than one and one half meters. As a result of its injuries the horse died. The
plaintiff received contusions which caused temporary unconsciousness and required medical attention for
several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the manner
above described was guilty of negligence such as gives rise to a civil obligation to repair the damage
done; and we are of the opinion that he is so liable. As the defendant started across the bridge, he had
the right to assume that the horse and the rider would pass over to the proper side; but as he moved
toward the center of the bridge it was demonstrated to his eyes that this would not be done; and he must
in a moment have perceived that it was too late for the horse to cross with safety in front of the moving
vehicle. In the nature of things this change of situation occurred while the automobile was yet some
distance away; and from this moment it was not longer within the power of the plaintiff to escape being
run down by going to a place of greater safety. The control of the situation had then passed entirely to the
defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there were no
other persons on the bridge, to take the other side and pass sufficiently far away from the horse to avoid
the danger of collision. Instead of doing this, the defendant ran straight on until he was almost upon the
horse. He was, we think, deceived into doing this by the fact that the horse had not yet exhibited fright.
But in view of the known nature of horses, there was an appreciable risk that, if the animal in question
was unacquainted with automobiles, he might get exited and jump under the conditions which here
confronted him. When the defendant exposed the horse and rider to this danger he was, in our opinion,
negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular case may be stated as follows:
Did the defendant in doing the alleged negligent act use that person would have used in the same
situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to
be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of
negligence in a given case is not determined by reference to the personal judgment of the actor in the
situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of course
be always determined in the light of human experience and in view of the facts involved in the particular
case. Abstract speculations cannot here be of much value but this much can be profitably said:
Reasonable men govern their conduct by the circumstances which are before them or known to them.
They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take
care only when there is something before them to suggest or warn of danger. Could a prudent man, in the
case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty
of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by
ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to
exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given
case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would
have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conduct
or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is clearly
established. A prudent man, placed in the position of the defendant, would in our opinion, have
recognized that the course which he was pursuing was fraught with risk, and would therefore have
foreseen harm to the horse and the rider as reasonable consequence of that course. Under these
circumstances the law imposed on the defendant the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the road. But as we have already stated, the
defendant was also negligent; and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances the law is that the person who has the last fair chance to
avoid the impending harm and fails to do so is chargeable with the consequences, without reference to
the prior negligence of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held that while contributory negligence on the part of the
person injured did not constitute a bar to recovery, it could be received in evidence to reduce the
damages which would otherwise have been assessed wholly against the other party. The defendant
company had there employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge in
Manila harbor to the company's yards located not far away. The rails were conveyed upon cars which
were hauled along a narrow track. At certain spot near the water's edge the track gave way by reason of
the combined effect of the weight of the car and the insecurity of the road bed. The car was in
consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in
evidence that the accident was due to the effects of the typhoon which had dislodged one of the supports
of the track. The court found that the defendant company was negligent in having failed to repair the bed
of the track and also that the plaintiff was, at the moment of the accident, guilty of contributory negligence
in walking at the side of the car instead of being in front or behind. It was held that while the defendant
was liable to the plaintiff by reason of its negligence in having failed to keep the track in proper repair
nevertheless the amount of the damages should be reduced on account of the contributory negligence in
the plaintiff. As will be seen the defendant's negligence in that case consisted in an omission only. The
liability of the company arose from its responsibility for the dangerous condition of its track. In a case like
the one now before us, where the defendant was actually present and operating the automobile which
caused the damage, we do not feel constrained to attempt to weigh the negligence of the respective
parties in order to apportion the damage according to the degree of their relative fault. It is enough to say
that the negligence of the defendant was in this case the immediate and determining cause of the
accident and that the antecedent negligence of the plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's
answer, to the effect that the subject matter of the action had been previously adjudicated in the court of a
justice of the peace. In this connection it appears that soon after the accident in question occurred, the
plaintiff caused criminal proceedings to be instituted before a justice of the peace charging the defendant
with the infliction of serious injuries (lesiones graves). At the preliminary investigation the defendant was
discharged by the magistrate and the proceedings were dismissed. Conceding that the acquittal of the
defendant at the trial upon the merits in a criminal prosecution for the offense mentioned would be res
adjudicata upon the question of his civil liability arising from negligence -- a point upon which it is
unnecessary to express an opinion -- the action of the justice of the peace in dismissing the criminal
proceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31
Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed, and judgment
is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with
costs of other instances. The sum here awarded is estimated to include the value of the horse, medical
expenses of the plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest on
the whole to the date of this recovery. The other damages claimed by the plaintiff are remote or otherwise
of such character as not to be recoverable. So ordered.

Arellano, C.J., Torres, Carson, Araullo, Avancea, and Fisher, JJ., concur.
Johnson, J., reserves his vote.

2. Umali v. Bacani

G.R. No. L-40570 January 30, 1976

TEODORO C. UMALI, petitioner,

vs.
HON. ANGEL BACANI, in his capacity as Presiding Judge of Branch IX of the Court of First
Instance of Pangasinan and FIDEL H. SAYNES, respondents.

Julia M. Armas for petitioner.

Antonio de los Reyes for private respondent.

ESGUERRA, J.:

Petition for certiorari to review the decision of the Court of First Instance of Pangasinan Branch IX, in Civil
Case No. U2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C. Umali, defendant-
appellant", which found the death by electrocution of Manuel Saynes, a boy of 3 years and 8 months, as
"due to the fault or negligence of the defendant (Umali) as owner and manager of the Alcala Electric
Plant", although the liability of defendant is mitigated by the contributory negligence of the parents of the
boy "in not providing for the proper and delegate supervision and control over their son The dispositive
part of the decision reads as follows:

Wherefore, the Court hereby renders judgment in favor of the plaintiff by ordering the
defendant to pay to the plaintiff the sum of Five Thousand Pesos (P5,000.00) for the
death of his son, Manuel Saynes; the sum of One Thousand Two Hundred Pesos
(P1,200.00) for actual expenses for and in connection with the burial of said deceased
child, and the further sum of Three Thousand Pesos (P3,000.00) for moral damages and
Five Hundred (P500.00) Pesos as reasonable attorney's fee, or a total of Nine Thousand
Seven Hundred (P9,700.00) Pesos, and to pay the costs of this suit. It Is So Ordered.

Undisputed facts appearing of record are:

On May 14, 1972, a storm with strong rain hit the Municipality of Alcala Pangasinan,
which started from 2:00 o'clock in the afternoon and lasted up to about midnight of the
same day. During the storm, the banana plants standing on an elevated ground along the
barrio road in San Pedro Ili of said municipality and near the transmission line of the
Alcala Electric Plant were blown down and fell on the electric wire. As a result, the live
electric wire was cut, one end of which was left hanging on the electric post and the other
fell to the ground under the fallen banana plants.

On the following morning, at about 9:00 o'clock barrio captain Luciano Bueno of San
Pedro Iii who was passing by saw the broken electric wire and so he warned the people
in the place not to go near the wire for they might get hurt. He also saw Cipriano
Baldomero, a laborer of the Alcala Electric Plant near the place and notified him right
then and there of the broken line and asked him to fix it, but the latter told the barrio
captain that he could not do it but that he was going to look for the lineman to fix it.

Sometime after the barrio captain and Cipriano Baldomero had left the place, a small boy
of 3 years and 8 months old by the name of Manuel P. Saynes, whose house is just on
the opposite side of the road, went to the place where the broken line wire was and got in
contact with it. The boy was electrocuted and he subsequently died. It was only after the
electrocution of Manuel Saynes that the broken wire was fixed at about 10:00 o'clock on
the same morning by the lineman of the electric plant.

Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner and
manager of the Alcala Electric Plant because the proximate cause of the boy's death electrocution could
not be due to any negligence on his part, but rather to a fortuitous event-the storm that caused the
banana plants to fall and cut the electric line-pointing out the absence of negligence on the part of his
employee Cipriano Baldomero who tried to have the line repaired and the presence of negligence of the
parents of the child in allowing him to leave his house during that time.

A careful examination of the record convinces Us that a series of negligence on the part of defendants'
employees in the Alcala Electric Plant resulted in the death of the victim by electrocution. First, by the
very evidence of the defendant, there were big and tall banana plants at the place of the incident standing
on an elevated ground which were about 30 feet high and which were higher than the electric post
supporting the electric line, and yet the employees of the defendant who, with ordinary foresight, could
have easily seen that even in case of moderate winds the electric line would be endangered by banana
plants being blown down, did not even take the necessary precaution to eliminate that source of danger
to the electric line. Second, even after the employees of the Alcala Electric Plant were already aware of
the possible damage the storm of May 14, 1972, could have caused their electric lines, thus becoming a
possible threat to life and property, they did not cut off from the plant the flow of electricity along the lines,
an act they could have easily done pending inspection of the wires to see if they had been cut. Third,
employee Cipriano Baldomero was negligent on the morning of the incident because even if he was
already made aware of the live cut wire, he did not have the foresight to realize that the same posed a
danger to life and property, and that he should have taken the necessary precaution to prevent anybody
from approaching the live wire; instead Baldomero left the premises because what was foremost in his
mind was the repair of the line, obviously forgetting that if left unattended to it could endanger life and
property.

On defendants' argument that the proximate cause of the victim's death could be attributed to the parents'
negligence in allowing a child of tender age to go out of the house alone, We could readily see that
because of the aforementioned series of negligence on the part of defendants' employees resulting in a
live wire lying on the premises without any visible warning of its lethal character, anybody, even a
responsible grown up or not necessarily an innocent child, could have met the same fate that befell the
victim. It may be true, as the lower Court found out, that the contributory negligence of the victim's parents
in not properly taking care of the child, which enabled him to leave the house alone on the morning of the
incident and go to a nearby place cut wire was very near the house (where victim was living) where the
fatal fallen wire electrocuted him, might mitigate respondent's liability, but we cannot agree with
petitioner's theory that the parents' negligence constituted the proximate cause of the victim's death
because the real proximate cause was the fallen live wire which posed a threat to life and property on that
morning due to the series of negligence adverted to above committed by defendants' employees and
which could have killed any other person who might by accident get into contact with it. Stated otherwise,
even if the child was allowed to leave the house unattended due to the parents' negligence, he would not
have died that morning where it not for the cut live wire he accidentally touched.

Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in this case)
was only contributory, the immediate and proximate cause of the injury being the defendants' lack of due
care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. This
law may be availed of by the petitioner but does not exempt him from liability. Petitioner's liability for injury
caused by his employees negligence is well defined in par. 4, of Article 2180 of the Civil Code, which
states:

The owner and manager 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 tile occasion of their functions.

The negligence of the employee is presumed to be the negligence of the employer because the employer
is supposed to exercise supervision over the work of the employees. This liability of the employer is
primary and direct (Standard Vacuum Oil Co. vs. Tan and Court of Appeals, 107 Phil. 109). In fact the
proper defense for the employer to raise so that he may escape liability is to prove that he exercised, the
diligence of the good father of the family to prevent damage not only in the selection of his employees but
also in adequately supervising them over their work. This defense was not adequately proven as found by
the trial Court, and We do not find any sufficient reason to deviate from its finding.

Notwithstanding diligent efforts, we fail to fired any reversible error committed by the trial Court in this
case, either in its appreciation of the evidence on questions of facts or on the interpretation and
application of laws government quasi-delicts and liabilities emanating therefrom. The inevitable
conclusion is that no error amounting to grave abuse of discretion was committed and the decision must
be left untouched.

WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.

Costs against petitioner.

SO ORDERED.

3. Lilius v. Manila Railroad Company, 59 Phil. 758

G.R. No. L-39587 March 24, 1934

ALEKO E. LILIUS, ET AL., plaintiffs-appellants,

vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.

Harvey and O'Brien for plaintiffs-appellants.

Jose C. Abreu for defendant-appellant.

VILLA-REAL, J.:

This case involves two appeals, one by the defendant the Manila Railroad Company, and the other by the
plaintiffs Aleko E. Lilius et al., from the judgment rendered by the Court of First Instance of Manila, the
dispositive part of which reads as follows:

Wherefore, judgment is rendered ordering the defendant company to pay to the plaintiffs, for the
purposes above stated, the total amount of P30,865, with the costs of the suit. And although the
suit brought by the plaintiffs has the nature of a joint action, it must be understood that of the
amount adjudicated to the said plaintiffs in this judgment, the sum of P10,000 personally belongs
to the plaintiff Sonja Maria Lilius; the sum of P5,000, to the plaintiff Brita Marianne Lilius; the sum
of P250, to Dr. Marfori of the Calauan Hospital, Province of Laguna, and the balance to the
plaintiff Aleko E. Lilius.

In support of its appeal, the appellant the Manila Railroad Company assigns nine alleged errors
committed by the trial court in its said judgment, which will be discussed in the course of this decision.

As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign two alleged errors as
committed by the same court a quo in its judgment in question, which will be discussed later.

This case originated from a complaint filed by Aleko E. Lilius et al., praying, under the facts therein
alleged, that the Manila Railroad Company be ordered to pay to said plaintiffs, by way of indemnity for
material and moral damages suffered by them through the fault and negligence of the said defendant
entity's employees, the sum of P50,000 plus legal interest thereon from the date of the filing of the
complaint, with costs.

The defendant the Manila Railroad Company, answering the complaint, denies each and every allegation
thereof and, by way of special defense, alleges that the plaintiff Aleko E. Lilius, with the cooperation of his
wife and coplaintiff, negligently and recklessly drove his car, and prays that it be absolved from the
complaint.

The following facts have been proven at the trial, some without question and the others by a
preponderance of evidence, to wit:

The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed journalist, author and
photographer. At the time of the collision in question, he was a staff correspondent in the Far East of the
magazines The American Weekly of New York and The Sphere of London.

Some of his works have been translated into various languages. He had others in preparation when the
accident occurred. According to him, his writings netted him a monthly income of P1,500. He utilized the
linguistic ability of his wife Sonja Maria Lilius, who translated his articles and books into English, German,
and Swedish. Furthermore, she acted as his secretary.

At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja Maria Lilius, and his 4-year
old daughter Brita Marianne Lilius, left Manila in their Studebaker car driven by the said plaintiff Aleko
E. Lilius for the municipality of Pagsanjan, Province of Laguna, on a sight-seeing trip. It was the first
time that he made said trip although he had already been to many places, driving his own car, in and
outside the Philippines. Where the road was clear and unobstructed, the plaintiff drove at the rate of from
19 to 25 miles an hour. Prior thereto, he had made the trip as far as Calauan, but never from Calauan to
Pagsanjan, via Dayap. He was entirely unacquainted with the conditions of the road at said points and
had no knowledge of the existence of a railroad crossing at Dayap. Before reaching the crossing in
question, there was nothing to indicate its existence and inasmuch as there were many houses, shrubs
and trees along the road, it was impossible to see an approaching train. At about seven or eight meters
from the crossing, coming from Calauan, the plaintiff saw an autotruck parked on the left side of the road.
Several people, who seemed to have alighted from the said truck, were walking on the opposite side. He
slowed down to about 12 miles an hour and sounded his horn for the people to get out of the way. With
his attention thus occupied, he did not see the crossing but he heard two short whistles. Immediately
afterwards, he saw a huge black mass fling itself upon him, which turned out to be locomotive No. 713 of
the defendant company's train coming eastward from Bay to Dayap station. The locomotive struck the
plaintiff's car right in the center. After dragging the said car a distance of about ten meters, the locomotive
threw it upon a siding. The force of the impact was so great that the plaintiff's wife and daughter were
thrown from the car and were picked up from the ground unconscious and seriously hurt. In spite of the
efforts of engineer Andres Basilio, he was unable to stop the locomotive until after it had gone about
seventy meters from the crossing.

On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the City of Manila where
they were treated by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a fractured nose, a
contusion above the left eye and a lacerated wound on the right leg, in addition to multiple contusions and
scratches on various parts of the body. As a result of the accident, the said plaintiff was highly nervous
and very easily irritated, and for several months he had great difficulty in concentrating his attention on
any matter and could not write articles nor short stories for the newspapers and magazines to which he
was a contributor, thus losing for some time his only means of livelihood.

The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia and fibula of the right
leg, below the knee, and received a large lacerated wound on the forehead. She underwent two surgical
operations on the left leg for the purpose of joining the fractured bones but said operations
notwithstanding, the leg in question still continues deformed. In the opinion of Dr. Waterous, the deformity
is permanent in character and as a result the plaintiff will have some difficulty in walking. The lacerated
wound, which she received on her forehead, has left a disfiguring scar.

The child Brita Marianne Lilius received two lacerated wounds, one on the forehead and the other on the
left side of the face, in addition to fractures of both legs, above and below the knees. Her condition was
serious and, for several days, she was hovering between life and death. Due to a timely and successful
surgical operation, she survived her wounds. The lacerations received by the child have left deep scars
which will permanently disfigure her face, and because of the fractures of both legs, although now
completely cured, she will be forced to walk with some difficulty and continuous extreme care in order to
keep her balance.

Prior to the accident, there had been no notice nor sign of the existence of the crossing, nor was there
anybody to warn the public of approaching trains. The flagman or switchman arrived after the collision,
coming from the station with a red flag in one hand and a green one in the other, both of which were
wound on their respective sticks. The said flagman and switchman had many times absented himself from
his post at the crossing upon the arrival of a train. The train left Bay station a little late and therefore
traveled at great speed.

Upon examination of the oral as well as of the documentary evidence which the parties presented at the
trial in support of their respective contentions, and after taking into consideration all the circumstances of
the case, this court is of the opinion that the accident was due to negligence on the part of the defendant-
appellant company, for not having had on that occasion any semaphore at the crossing at Dayap, to
serve as a warning to passers-by of its existence in order that they might take the necessary precautions
before crossing the railroad; and, on the part of its employees the flagman and switchman, for not
having remained at his post at the crossing in question to warn passers-by of the approaching train; the
stationmaster, for failure to send the said flagman and switchman to his post on time; and the engineer,
for not having taken the necessary precautions to avoid an accident, in view of the absence of said
flagman and switchman, by slackening his speed and continuously ringing the bell and blowing the
whistle before arriving at the crossing. Although it is probable that the defendant-appellant entity
employed the diligence of a good father of a family in selecting its aforesaid employees, however, it did
not employ such diligence in supervising their work and the discharge of their duties because, otherwise,
it would have had a semaphore or sign at the crossing and, on previous occasions as well as on the night
in question, the flagman and switchman would have always been at his post at the crossing upon the
arrival of a train. The diligence of a good father of a family, which the law requires in order to avoid
damage, is not confined to the careful and prudent selection of subordinates or employees but includes
inspection of their work and supervision of the discharge of their duties.

However, in order that a victim of an accident may recover indemnity for damages from the person liable
therefor, it is not enough that the latter has been guilty of negligence, but it is also necessary that the said
victim has not, through his own negligence, contributed to the accident, inasmuch as nobody is a
guarantor of his neighbor's personal safety and property, but everybody should look after them,
employing the care and diligence that a good father of a family should apply to his own person, to the
members of his family and to his property, in order to avoid any damage. It appears that the herein
plaintiff-appellant Aleko E. Lilius took all precautions which his skill and the presence of his wife and child
suggested to him in order that his pleasure trip might be enjoyable and have a happy ending, driving his
car at a speed which prudence demanded according to the circumstances and conditions of the road,
slackening his speed in the face of an obstacle and blowing his horn upon seeing persons on the road, in
order to warn them of his approach and request them to get out of the way, as he did when he came upon
the truck parked on the left hand side of the road seven or eight meters from the place where the accident
occurred, and upon the persons who appeared to have alighted from the said truck. If he failed to stop,
look and listen before going over the crossing, in spite of the fact that he was driving at 12 miles per hour
after having been free from obstacles, it was because, his attention having been occupied in attempting to
go ahead, he did not see the crossing in question, nor anything, nor anybody indicating its existence, as
he knew nothing about it beforehand. The first and only warning, which he received of the impending
danger, was two short blows from the whistle of the locomotive immediately preceding the collision and
when the accident had already become inevitable.

In view of the foregoing considerations, this court is of the opinion that the defendant the Manila Railroad
Company alone is liable for the accident by reason of its own negligence and that of its employees, for
not having employed the diligence of a good father of a family in the supervision of the said employees in
the discharge of their duties.

The next question to be decided refers to the sums of money fixed by the court a quo as indemnities for
damages which the defendant company should pay to the plaintiffs-appellants.

With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes his claim of a net income
of P1,500 a month to be somewhat exaggerated, however, the sum of P5,000, adjudicated to him by the
trial court as indemnity for damages, is reasonable.

As to the sum of P10,635 which the court awards to the plaintiffs by way of indemnity for damages, the
different items thereof representing doctor's fees, hospital and nursing services, loss of personal effects
and torn clothing, have duly been proven at the trial and the sum in question is not excessive, taking into
consideration the circumstances in which the said expenses have been incurred.

Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff Aleko E. Lilius is
in the language of the court, which saw her at the trial "young and beautiful and the big scar, which
she has on her forehead caused by the lacerated wound received by her from the accident, disfigures her
face and that the fracture of her left leg has caused a permanent deformity which renders it very difficult
for her to walk", and taking into further consideration her social standing, neither is the sum of P10,000,
adjudicated to her by the said trial court by way of indemnity for patrimonial and moral damages,
excessive. In the case of Gutierrez vs. Gutierrez (56 Phil., 177), the right leg of the plaintiff Narciso
Gutierrez was fractured as a result of a collision between the autobus in which he was riding and the
defendant's car, which fractured required medical attendance for a considerable period of time. On the
day of the trial the fracture had not yet completely healed but it might cause him permanent lameness.
The trial court sentenced the defendants to indemnify him in the sum of P10,000 which this court reduced
to P5,000, in spite of the fact that the said plaintiff therein was neither young nor good-looking, nor had he
suffered any facial deformity, nor did he have the social standing that the herein plaintiff-appellant Sonja
Maria Lilius enjoys.1vvphi1.ne+

As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter of Aleko E. Lilius and
Sonja Maria Lilius, neither is the same excessive, taking into consideration the fact that the lacerations
received by her have left deep scars that permanently disfigure her face and that the fractures of both her
legs permanently render it difficult for her to walk freely, continuous extreme care being necessary in
order to keep her balance in addition to the fact that all of this unfavorably and to a great extent affect her
matrimonial future.

With respect to the plaintiffs' appeal, the first question to be decided is that raised by the plaintiff Aleko E.
Lilius relative to the insufficiency of the sum of P5,000 which the trial court adjudicated to him by way of
indemnity for damages consisting in the loss of his income as journalist and author as a result of his
illness. This question has impliedly been decided in the negative when the defendant-appellant entity's
petition for the reduction of said indemnity was denied, declaring it to be reasonable.

As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages for the loss of his wife's
services in his business as journalist and author, which services consisted in going over his writings,
translating them into English, German and Swedish, and acting as his secretary, in addition to the fact
that such services formed part of the work whereby he realized a net monthly income of P1,500, there is
no sufficient evidence of the true value of said services nor to the effect that he needed them during her
illness and had to employ a translator to act in her stead.
The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of what is called Anglo-
Saxon common law "consortium" of his wife, that is, "her services, society and conjugal companionship",
as a result of personal injuries which she had received from the accident now under consideration.

In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256), this court, interpreting the provisions of
the Civil Marriage Law of 1870, in force in these Islands with reference to the mutual rights and
obligations of the spouses, contained in articles 44-48 thereof, said as follows:

The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and
obligations of the spouses. The spouses must be faithful to, assist, and support each other. The
husband must live with and protect his wife. The wife must obey and live with her husband and
follow him when he changes his domicile or residence, except when he removes to a foreign
country. . . .

Therefore, under the law and the doctrine of this court, one of the husband's rights is to count on his
wife's assistance. This assistance comprises the management of the home and the performance of
household duties, including the care and education of the children and attention to the husband upon
whom primarily devolves the duty of supporting the family of which he is the head. When the wife's
mission was circumscribed to the home, it was not difficult to assume, by virtue of the marriage alone, that
she performed all the said tasks and her physical incapacity always redounded to the husband's prejudice
inasmuch as it deprived him of her assistance. However, nowadays when women, in their desire to be
more useful to society and to the nation, are demanding greater civil rights and are aspiring to become
man's equal in all the activities of life, commercial and industrial, professional and political, many of them
spending their time outside the home, engaged in their businesses, industry, profession and within a short
time, in politics, and entrusting the care of their home to a housekeeper, and their children, if not to a
nursemaid, to public or private institutions which take charge of young children while their mothers are at
work, marriage has ceased to create the presumption that a woman complies with the duties to her
husband and children, which the law imposes upon her, and he who seeks to collect indemnity for
damages resulting from deprivation of her domestic services must prove such services. In the case under
consideration, apart from the services of his wife Sonja Maria Lilius as translator and secretary, the value
of which has not been proven, the plaintiff Aleko E. Lilius has not presented any evidence showing the
existence of domestic services and their nature, rendered by her prior to the accident, in order that it may
serve as a basis in estimating their value.

Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship are purely personal
and voluntary acts which neither of the spouses may be compelled to render (Arroyo vs. Vazquez de
Arroyo, 42 Phil., 54), it is necessary for the party claiming indemnity for the loss of such services to prove
that the person obliged to render them had done so before he was injured and that he would be willing to
continue rendering them had he not been prevented from so doing.

In view of the foregoing considerations this court is of the opinion and so holds: (1) That a railroad
company which has not installed a semaphore at a crossing an does not see to it that its flagman and
switchman faithfully complies with his duty of remaining at the crossing when a train arrives, is guilty of
negligence and is civilly liable for damages suffered by a motorist and his family who cross its line without
negligence on their part; (2) that an indemnity of P10,000 for a permanent deformity on the face and on
the left leg, suffered by a young and beautiful society woman, is not excessive; (3) that an indemnity of
P5,000 for a permanent deformity on the face and legs of a four-year old girl belonging to a well-to-do
family, is not excessive; and (4) that in order that a husband may recover damages for deprivation of his
wife's assistance during her illness from an accident, it is necessary for him to prove the existence of such
assistance and his wife's willingness to continue rendering it had she not been prevented from so doing
by her illness.

The plaintiffs-appellants are entitled to interest of 6 percent per annum on the amount of the indemnities
adjudicated to them, from the date of the appealed judgment until this judgment becomes final, in
accordance with the provisions of section 510 of Act No. 190.
Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the sole
modification that interest of 6 per cent per annum from the date of the appealed judgment until this
judgment becomes final will be added to the indemnities granted, with the costs of both instances against
the appellant. So ordered.

Malcolm, Hull, Imperial, and Goddard, JJ., concur.

4. Fish & Elective Co. vs. Phil. Motors, 55 Phil. 129

G.R. No. L-32611 November 3, 1930

CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,

vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.

Gibbs and McDonough for appellant.

Benj. S. Ohnick for appellee.

STREET, J.:

This action was instituted in the Court of First Instance of Manila by the Culion Ice, Fish & Electric Co.,
Inc., for the purpose of recovering from the Philippine Motors Corporation the sum of P11,350, with
interest and costs. Upon hearing the cause the trial court gave judgment in favor of the plaintiff to recover
of the defendant the sum of P9,850, with interest at 6 per centum per annum from March 24,1927, the
date of the filing of the complaint, until satisfaction of the judgment, with costs. From this judgment the
defendant appealed.

The plaintiff and defendant are domestic corporations; and at the time of the incident with which we are
here concerned, H.D. Cranston was the representative of the plaintiff in the City of Manila. At the same
time the plaintiff was the registered owner of the motor schooner Gwendoline, which was used in the
fishing trade in the Philippine Islands. In January, 1925, Cranston decided, if practicable, to have the
engine on the Gwendoline changed from a gasoline consumer to a crude oil burner, expecting thereby to
effect economy in the cost of running the boat. He therefore made known his desire to McLeod & Co., a
firm dealing in tractors, and was told by Mc Kellar, of said company, that he might make inquiries of the
Philippine Motors Corporations, which had its office on Ongpin Street, in the City of Manila. Cranston
accordingly repaired to the office of the Philippine Motors Corporation and had a conference with C.E.
Quest, its manager, who agreed to do the job, with the understanding that payment should be made upon
completion of the work.

The Philippine Motors Corporation was at this time engaged in business as an automobile agency, but,
under its charter, it had authority to deal in all sorts of machinery engines and motors, as well as to build,
operate, buy and sell the same and the equipment therof. Quest, as general manager, had full charge of
the corporations in all its branches.

As a result of the aforesaid interview, Quest, in company with Cranston, visited the Gwendoline while it
lay at anchor in the Pasig River, and the work of effecting the change in the engine was begun and
conducted under the supervision of Quest, chiefly by a mechanic whom Quest took with him to the boat.
In this work Quest had the assistance of the members of the crew of the Gwendoline, who had been
directed by Cranston to place themselves under Quest's directions.
Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing
necessary to accomplish the end in view was to install a new carburetor, and a Zenith carburetor was
chosen as the one most adapted to the purpose. After this appliance had been installed, the engine was
tried with gasoline as a fuel, supplied from the tank already in use. The result of this experiment was
satisfactory. The next problem was to introduce into the carburetor the baser fuel, consisting of a low
grade of oil mixed with distillate. For this purpose a temporary tank to contain the mixture was placed on
deck above and at a short distance from the compartment covering the engine. This tank was connected
with the carburetor by a piece of tubing, which was apparently not well fitted at the point where it was
connected with the tank. Owing to this fact the fuel mixture leaked from the tank and dripped sown into
the engine compartment. The new fuel line and that already in use between the gasoline tank and
carburetor were so fixed that it was possible to change from the gasoline fuel to the mixed fuel. The
purpose of this arrangement was to enable the operator to start the engine on gasoline and then, after the
engine had been operating for a few moments, to switch to the new fuel supply. lawphil.net

In the course of the preliminary work upon the carburetor and its connections, it was observed that the
carburetor was flooding, and that the gasoline, or other fuel, was trickling freely from the lower part to the
carburetor to the floor. This fact was called to Quest's attention, but he appeared to think lightly of the
matter and said that, when the engine had gotten to running well, the flooding would disappear.

After preliminary experiments and adjustments had been made the boat was taken out into the bay for a
trial run at about 5 p.m. or a little later, on the evening of January 30,1925. The first part of the course
was covered without any untoward development, other than he fact that the engine stopped a few times,
owing no doubt to the use of an improper mixture of fuel. In the course of the trial Quest remained outside
of the engine compartment and occupied himself with making distillate, with a view to ascertaining what
proportion of the two elements would give best results in the engine.

As the boat was coming in from this run, at about 7:30 p.m. and when passing near Cavite, the engine
stopped, and connection again had to be made with the gasoline line to get a new start. After this had
been done the mechanic, or engineer, switched to the tube connecting with the new mixture. A moment
later a back fire occurred in the cylinder chamber. This caused a flame to shoot back into the carburetor,
and instantly the carburetor and adjacent parts were covered with a mass of flames, which the members
of the crew were unable to subdue. They were therefore compelled, as the fire spread, to take to a boat,
and their escape was safely effected, but the Gwendoline was reduced to a mere hulk. The salvage from,
the wreck, when sold, brought only the sum of P150. The value of the boat, before the accident occured,
as the court found, was P10,000.

A study of the testimony lead us to the conclusion that the loss of this boat was chargeable to the
negligence and lack of skill of Quest. The temporary tank in which the mixture was prepared was
apparently at too great an elevation from the carburetor, with the result that when the fuel line was
opened, the hydrostatic pressure in the carburetor was greater than the delicate parts of the carburetor
could sustain. This was no doubt the cause of the flooding of the carburetor; and the result was that;
when the back fire occurred, the external parts of the carburetor, already saturated with gasoline, burst
into flames, whence the fire was quickly communicated to the highly inflammable material near-by.
Ordinarily a back fire from an engine would not be followed by any disaster, but in this case the leak along
the pipe line and the flooding of the carburetor had created a dangerous situation, which a prudent
mechanic, versed in repairs of this nature, would have taken precautions to avoid. The back fire may
have been due either to the fact that the spark was too advanced or the fuel improperly mixed.

In this connection it must be remembered that when a person holds himself out as being competent to do
things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and
skill of one ordinarily skilled in the particular work which he attempts to do. The proof shows that Quest
had had ample experience in fixing the engines of automobiles and tractors, but it does not appear that
he was experienced in the doing of similar work on boats. For this reason, possibly the dripping of the
mixture form the tank on deck and the flooding of the carburetor did not convey to his mind an adequate
impression of the danger of fire. But a person skilled in that particular sort of work would, we think have
been sufficiently warned from those circumstances to cause him to take greater and adequate
precautions against the danger. In other words Quest did not use the skill that would have been exhibited
by one ordinarily expert in repairing gasoline engines on boats. There was here, in our opinion, on the
part of Quest, a blameworthy antecedent inadvertence to possible harm, and this constitutes negligence.
The burning of the Gwendoline may be said to have resulted from accident, but this accident was in no
sense an unavoidable accident. It would not have occured but for Quest's carelessness or lack of skill.
The test of liability is not whether the injury was accidental in a sense, but whether Quest was free from
blame.

We therefore see no escape from the conclusion that this accident is chargeable to lack of skill or
negligence in effecting the changes which Quest undertook to accomplish; and even supposing that our
theory as to the exact manner in which the accident occurred might appear to be in some respects
incorrect, yet the origin of the fire in not so inscrutable as to enable us to say that it was casus fortuitus.

The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of
the Gwendoline during the experimental run, the defendant corporation was in the position of a bailee and
that, as a consequence, the burden of proof was on the defendant to exculpate itself from responsibility
by proving that the accident was not due to the fault of Quest. We are unable to accede to this point of
view. Certainly, Quest was not in charge of the navigation of the boat on this trial run. His employment
contemplated the installation of new parts in the engine only, and it seems rather strained to hold that the
defendant corporation had thereby become bailee of the boat. As a rule workmen who make repairs on a
ship in its owner's yard, or a mechanic who repairs a coach without taking it to his shop, are not bailees,
and their rights and liabilities are determined by the general rules of law, under their contract. The true
bailee acquires possession and what is usually spoken of as special property in the chattel bailed. As a
consequence of such possession and special property, the bailee is given a lien for his compensation.
These ideas seem to be incompatible with the situation now under consideration. But though defendant
cannot be held liable in the supposition that the burden of proof had not been sustained by it in disproving
the negligence of its manager, we are nevertheless of the opinion that the proof shows by a clear
preponderance that the accident to the Gwendoline and the damages resulting therefrom are chargeable
to the negligence or lack of skill of Quest.

This action was instituted about two years after the accident in question had occured, and after Quest had
ceased to be manager of the defendant corporation and had gone back to the United States. Upon these
facts, the defendant bases the contention that the action should be considered stale. It is sufficient reply
to say that the action was brought within the period limited by the statute of limitations and the situation is
not one where the defense of laches can be properly invoked.

It results that the judgment appealed from, awarding damages to the plaintiff in the amount of P9,850,
with interest, must be affirmed; and it is so ordered, with costs against the appellant.

Avancea, C.J., Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

5. Vergara vs. Court of Appeals, 154 SCRA 564

G.R. No. 77679 September 30, 1987

VICENTE VERGARA, petitioner,

vs.
THE COURT OF APPEALS and AMADEO AZARCON, respondents.

RESOLUTION
PADILLA, J.:

An action for damages based on quasi-delict (Art. 2176 of the Civil Code) was filed by private respondent
against petitioner. The action arose from a vehicular accident that occurred on 5 August 1979 in Gapan,
Nueva Ecija, when Martin Belmonte, while driving a cargo truck belonging to petitioner, rammed "head-
on" the store-residence of the private respondent, causing damages thereto which were inventoried and
assessed at P53,024.22.

In his answer to the complaint, the petitioner alleged principally: "that his driver Martin Belmonte operated
said cargo truck in a very diligent (and) careful manner; that the steering wheel refused to respond to his
effort and as a result of a blown-out tire and despite application of his brakes, the said cargo truck hit the
store-residence of plaintiff (private respondent) and that the said accident was an act of God for which he
cannot be held liable." 1

Petitioner also filed a third party complaint against Travellers Insurance and Surety Corporation, alleging
that said cargo truck involved in the vehicular accident, belonging to the petitioner, was insured by the
third party defendant insurance company. Petitioner asked that the latter be ordered to pay him whatever
amount he may be ordered by the court to pay to the private respondent.

The trial court rendered judgment in favor of private respondent. Upon appeal to the Court of Appeals, the
latter court affirmed in toto the decision of the trial court, which ordered Petitioner to pay, jointly and
severally with Travellers Insurance and Surety Corporation, to the private, respondent the following: (a)
P53,024.22 as actual damages; (b) P10,000.00 as moral damages; (c) P10,000.00 as exemplary
damages; and (d) the sum of P5,000.00 for attorney's fees and the costs. On the third party complaint,
the insurance company was sentenced to pay to the petitioner the following: (a) P50,000.00 for third party
liability under its comprehensive accident insurance policy; and (b) P3,000.00 for and as attorney's fees.

Hence, this petition for review on certiorari.

Petitioner's contention that the respondent court erred in finding him guilty of fault or negligence is not
tenable. It was established by competent evidence that the requisites of a quasi-delict are present in the
case at bar. These requisites are: (1) damages to the plaintiff; (2) negligence, by act or omission, of which
defendant, or some person for whose acts he must respond, was guilty; and (3) the connection of cause
and effect between such negligence and the damages.

It is undisputed that private respondent suffered damages as a result of an act or omission of petitioner.
The issue of whether or not this act or omission can be considered as a "negligent" act or omission was
passed upon by the trial court. The findings of said court, affirmed by the respondent court, which we are
not prepared to now disturb, show that the fact of occurrence of the "vehicular accident" was sufficiently
established by the policy report and the testimony of Patrolman Masiclat. And the fact of negligence may
be deduced from the surrounding circumstances thereof. According to the police report, "the cargo truck
was travelling on the right side of the road going to Manila and then it crossed to the center line and went
to the left side of the highway; it then bumped a tricycle; and then another bicycle; and then said cargo
truck rammed the store warehouse of the plaintiff." 2

According to the driver of the cargo truck, he applied the brakes but the latter did not work due to
mechanical defect. Contrary to the claim of the petitioner, a mishap caused by defective brakes can not
be consideration as fortuitous in character. Certainly, the defects were curable and the accident
preventable.

Furthermore, the petitioner failed to adduce any evidence to overcome the disputable presumption of
negligence on his part in the selection and supervision of his driver.
Based on the foregoing finding by the respondent Court that there was negligence on the part of the
petitioner, the petitioner's contention that the respondent court erred in awarding private respondent
actual, moral and exemplary damages as well as attorney's fees and costs, is untenable.

ACCORDINGLY, the petition is DENIED.

SO ORDERED.

6. FGU Insurance Corporation v. Court of Appeals, 287 SCRA 718

[G.R. No. 118889. March 23, 1998]

FGU INSURANCE CORPORATION, petitioner, vs., COURT OF APPEALS, FILCAR TRANSPORT,

INC., and FORTUNE INSURANCE CORPORATION, respondents.

DECISION
BELLOSILLO, J.:

For damages suffered by a third party, may an action based on quasi-delict prosper against a rent-a-
car company and, consequently, its insurer for fault or negligence of the car lessee in driving the rented
vehicle?
This was a two-car collision at dawn. At around 3 o'clock of 21 April 1987, two (2) vehicles, both
Mitsubishi Colt Lancers, cruising northward along Epifanio de los Santos Avenue, Mandaluyong City,
figured in a traffic accident. The car bearing Plate No. PDG 435 owned by Lydia F. Soriano was being
driven at the outer lane of the highway by Benjamin Jacildone, while the other
car, with Plate No. PCT 792, owned by respondent FILCAR Transport, Inc. (FILCAR), and driven by Peter
Dahl-Jensen as lessee, was at the center lane, left of the other vehicle. Upon approaching the corner
of Pioneer Street, the car owned by FILCAR swerved to the right hitting the left side of the car of
Soriano. At that time Dahl-Jensen, a Danish tourist, did not possess a Philippine driver's license.[1]
As a consequence, petitioner FGU Insurance Corporation, in view of its insurance contract with
Soriano, paid the latter P25,382.20. By way of subrogation,[2] it sued Dahl-Jensen and respondent
FILCAR as well as respondent Fortune Insurance Corporation (FORTUNE) as insurer of FILCAR
for quasi-delict before the Regional Trial Court of Makati City.
Unfortunately, summons was not served on Dahl-Jensen since he was no longer staying at his given
address; in fact, upon motion of petitioner, he was dropped from the complaint.
On 30 July 1991 the trial court dismissed the case for failure of petitioner to substantiate its claim of
subrogation.[3]
On 31 January 1995 respondent Court of Appeals affirmed the ruling of the trial court although based
on another ground, i.e., only the fault or negligence of Dahl-Jensen was sufficiently proved but not that of
respondent FILCAR.[4] In other words, petitioner failed to establish its cause of action for sum of
money based on quasi-delict.
In this appeal, petitioner insists that respondents are liable on the strength of the ruling in MYC-Agro-
Industrial Corporation v. Vda. de Caldo[5] that the registered owner of a vehicle is liable for damages
suffered by third persons although the vehicle is leased to another.
 We find no reversible error committed by respondent court in upholding the dismissal of petitioner's
complaint. The pertinent provision is Art. 2176 of the Civil Code which states: "Whoever by act or
omission causes damage to another, there being fault or negligence, is obliged to pay for the damage
done.Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called
a quasi-delict x x x x"
To sustain a claim based thereon, the following requisites must concur: (a) damage suffered by the
plaintiff; (b) fault or negligence of the defendant; and, (c) connection of cause and effect between the fault
or negligence of the defendant and the damage incurred by the plaintiff. [6]
We agree with respondent court that petitioner failed to prove the existence of the second requisite,
i.e., fault or negligence of defendant FILCAR, because only the fault or negligence of Dahl-Jensen was
sufficiently established, not that of FILCAR. It should be noted that the damage caused on the vehicle of
Soriano was brought about by the circumstance that Dahl-Jensen swerved to the right while the vehicle
that he was driving was at the center lane.It is plain that the negligence was solely attributable to Dahl-
Jensen thus making the damage suffered by the other vehicle his personal liability. Respondent FILCAR
did not have any participation therein.
Article 2180 of the same Code which deals also with quasi-delict provides:

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also
for those of persons for whom one is responsible.

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 taskdone 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.

The liability imposed by Art. 2180 arises by virtue of a presumption juris tantum of negligence on the
part of the persons made responsible thereunder,derived from their failure to exercise due care and
vigilance over the acts of subordinates to prevent them from causing damage.[7] Yet, as correctly
observed by respondent court, Art. 2180 is hardly applicable because none of the
circumstances mentioned therein obtains in the case under consideration.Respondent FILCAR being
engaged in a rent-a-car business was only the owner of the car leased to Dahl-Jensen. As such, there
was no vinculum jurisbetween them as employer and employee. Respondent FILCAR cannot in any way
be responsible for the negligent act of Dahl-Jensen, the former not being an employer of the latter.
 We now correlate par. 5 of Art. 2180 with Art. 2184 of the same Code which provides: "In motor
vehicle mishap, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could
have by the use of due diligence, prevented the misfortune x x x x If the owner was not in the motor
vehicle, the provisions of article 2180 are applicable." Obviously, this provision of Art. 2184 is neither
applicable because of the absence of master-driver relationship between respondent FILCAR and Dahl-
Jensen. Clearly, petitioner has no cause of action against respondent FILCAR on the basis of quasi-
delict; logically, its claim against respondent FORTUNE can neither prosper.
Petitioner's insistence on MYC-Agro-Industrial Corporation is rooted in a misapprehension of our
ruling therein. In that case, the negligent and reckless operation of the truck owned by petitioner
corporation caused injuries to several persons and damage to property. Intending to exculpate itself from
liability, the corporation raised the defense that at the time of the collision it had no more control over the
vehicle as it was leased to another; and, that the driver wasnot its employee but of the lessee. The trial
court was not persuaded as it found that the true nature of the alleged lease contract was nothing more
than a disguise effected by the corporation to relieve itself of the burdens and responsibilities of an
employer. We upheld this finding and affirmed the declaration of joint and several liability of the
corporation with its driver.
WHEREFORE, the petition is DENIED. The decision of respondent Court of Appeals dated 31
January 1995 sustaining the dismissal of petitioner's complaint by the trial court is AFFIRMED. Costs
against petitioner.
SO ORDERED.
Davide, Jr.,(Chairman), Vitug, Panganiban and Quisumbing, JJ., concur.

7. Singson v. Bank of the Philippine Islands, 132 Phil. 597, 600 (1968)

G.R. No. L-24837 June 27, 1968

JULIAN C. SINGSON and RAMONA DEL CASTILLO, plaintiffs,

vs.
BANK OF THE PHILIPPINE ISLANDS and SANTIAGO FREIXAS, in his capacity as President of the
said Bank, defendants.

Gil B. Galang for plaintiffs.

Aviado and Aranda for defendants.

CONCEPCION, C.J.:

Appeal by plaintiffs, Julian Singson and his wife, Ramona del Castillo, from a decision of the Court of First
Instance of Manila dismissing their complaint against defendants herein, the Bank of the Philippine
Islands and Santiago Freixas.

It appears that Singson, was one of the defendants in civil case No. 23906 of the Court of First Instance,
Manila, in which judgment had been rendered sentencing him and his co-defendants therein, namely,
Celso Lobregat and Villa-Abrille & Co., to pay the sum of P105,539.56 to the plaintiff therein, Philippine
Milling Co. Singson and Lobregat had seasonably appealed from said judgment, but not Villa-Abrille &
Co., as against which said judgment, accordingly, became final and executory. In due course, a writ of
garnishment was subsequently served upon the Bank of the Philippine Islands in which the Singsons
had a current account insofar as Villa-Abrille's credits against the Bank were concerned. What
happened thereafter is set forth in the decision appealed from, from which we quote:
 Upon receipt of the said Writ of Garnishment, a clerk of the bank in charge of all matters of
execution and garnishment, upon reading the name of the plaintiff herein in the title of the Writ of
Garnishment as a party defendants, without further reading the body of the said garnishment and
informing himself that said garnishment was merely intended for the deposits of defendant Villa-
Abrille & Co., Valentin Teus, Fernando F. de Villa-Abrille and Joaquin Bona, prepared a letter for
the signature of the President of the Bank informing the plaintiff Julian C. Singson of the
garnishment of his deposits by the plaintiff in that case. Another letter was also prepared and
signed by the said President of the Bank for the Special Sheriff dated April 17, 1963.

Subsequently, two checks issued by the plaintiff Julian C. Singson, one for the amount of P383 in
favor of B. M. Glass Service dated April 16, 1963 and bearing No. C-424852, and check No. C-
394996 for the amount of P100 in favor of the Lega Corporation, and drawn against the said
Bank, were deposited by the said drawers with the said bank. Believing that the plaintiff Singson,
the drawer of the check, had no more control over the balance of his deposits in the said bank,
the checks were dishonored and were refused payment by the said bank. After the first check
was returned by the bank to the B. M. Glass Service, the latter wrote plaintiff Julian C. Singson a
letter, dated April 19, 1963, advising him that his check for P383.00 bearing No. C-424852 was
not honored by the bank for the reason that his account therein had already been garnished. The
said B. M. Glass Service further stated in the said letter that they were constrained to close his
credit account with them. In view thereof, plaintiff Julian C. Singson wrote the defendant bank a
letter on April 19, 1963, claiming that his name was not included in the Writ of Execution and
Notice of Garnishment, which was served upon the bank. The defendant President Santiago
Freixas of the said bank took steps to verify this information and after having confirmed the same,
apologized to the plaintiff Julian C. Singson and wrote him a letter dated April 22, 1963,
requesting him to disregard their letter of April 17, 1963, and that the action of garnishment from
his account had already been removed. A similar letter was written by the said official of the bank
on April 22, 1963 to the Special Sheriff informing him that his letter dated April 17, 1963 to the
said Special Sheriff was considered cancelled and that they had already removed the Notice of
Garnishment from plaintiff Singson's account. Thus, the defendants lost no time to rectify the
mistake that had been inadvertently committed, resulting in the temporary freezing of the account
of the plaintiff with the said bank for a short time.

xxx xxx xxx

On May 8, 1963, the Singsong commenced the present action against the Bank and its president,
Santiago Freixas, for damages1 in consequence of said illegal freezing of plaintiffs' account.1wph1.t

After appropriate proceedings, the Court of First Instance of Manila rendered judgment dismissing the
complaint upon the ground that plaintiffs cannot recover from the defendants upon the basis of a quasi-
delict, because the relation between the parties is contractual in nature; because this case does not fall
under Article 2219 of our Civil Code, upon which plaintiffs rely; and because plaintiffs have not
established the amount of damages allegedly sustained by them.

The lower court held that plaintiffs' claim for damages cannot be based upon a tort or quasi-delict, their
relation with the defendants being contractual in nature. We have repeatedly held, however, that the
existence of a contract between the parties does not bar the commission of a tort by the one against the
order and the consequent recovery of damages therefor.2 Indeed, this view has been, in effect, reiterated
in a comparatively recent case. Thus, in Air France vs. Carrascoso,3 involving an airplane passenger
who, despite his first-class ticket, had been illegally ousted from his first-class accommodation and
compelled to take a seat in the tourist compartment, was held entitled to recover damages from the air-
carrier, upon the ground of tort on the latter's part, for, although the relation between a passenger and a
carrier is "contractual both in origin and nature ... the act that breaks the contract may also be a tort".

In view, however, of the facts obtaining in the case at bar, and considering, particularly, the circumstance,
that the wrong done to the plaintiff was remedied as soon as the President of the bank realized the
mistake he and his subordinate employee had committed, the Court finds that an award of nominal
damages the amount of which need not be proven4 in the sum of P1,000, in addition to attorney's
fees in the sum of P500, would suffice to vindicate plaintiff's rights. 5

WHEREFORE, the judgment appealed from is hereby reversed, and another one shall be entered
sentencing the defendant Bank of the Philippine Islands to pay to the plaintiffs said sums of P1,000, as
nominal damages, and P500, as attorney's fees, apart from the costs. It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Angeles, JJ., concur.
Fernando, J., took no part.

8. City of manila v meralco

9. Hedy Gan y Yu vs CA No. L-44264. 19 Sept 1988

G.R. No. L-44264 September 19, 1988

HEDY GAN y YU, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

Pacis, Baluyot, Reyes & De Leon for petitioner.

The Solicitor General for respondents.

FERNAN, C.J.:

Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless Imprudence in Criminal Case
No. 10201 of the then Court of First Instance of Manila, Branch XXII presided by Judge Federico C.
Alikpala. She was sentenced to an indeterminate penalty of four (4) months and one (1) day of arresto
mayor as minimum and two (2) years, four (4) months and one (1) day of prision correccional as
maximum and was made to indemnify the heirs of the victim the sum of P12,000.00 without any
subsidiary imprisonment in case of insolvency and to pay the costs. On appeal, the trial court's decision
was modified and petitioner was convicted only of Homicide thru Simple Imprudence. Still unsatisfied with
the decision of the Court of Appeals, 1 petitioner has come to this Court for a complete reversal of the
judgment below.

The facts of the case as found by the appellate court are as follows:

In the morning of July 4, 1972 at about 8:00 o'clock, the accused Hedy Gan was driving a
Toyota car along North Bay Boulevard, Tondo, Manila. While in front of house no. 694 of
North Bay Boulevard, there were two vehicles, a truck and a jeepney parked on one side
of the road, one following the other about two to three meters from each other. As the car
 driven by the accused approached the place where the two vehicles were parked, there
was a vehicle coming from the opposite direction, followed by another which tried to
overtake and bypass the one in front of it and thereby encroached the lane of the car
driven by the accused. To avoid a head-on collision with the oncoming vehicle, the
defendant swerved to the right and as a consequence, the front bumper of the Toyota
Crown Sedan hit an old man who was about to cross the boulevard from south to north,
pinning him against the rear of the parked jeepney. The force of the impact caused the
parked jeepney to move forward hitting the rear of the parts truck ahead of it. The
pedestrian was injured, the Toyota Sedan was damaged on its front, the jeep suffered
damages on its rear and front paints, and the truck sustained scratches at the wooden
portion of its rear. The body of the old man who was later Identified as Isidoro Casino
was immediately brought to the Jose Reyes Memorial Hospital but was (pronounced)
dead on arrival. 2

An information for Homicide thru Reckless Imprudence was filed against petitioner in view of the above
incident. She entered a plea of not guilty upon arraignment and the case was set for trial.

Meanwhile, petitioner sought and was granted a re-investigation by the City Fiscal, as a result of which
the trial fiscal moved for the dismissal of the case against petitioner during the resumption of hearing on
September 7, 1972. The grounds cited therefor were lack of interest on the part of the complaining
witness to prosecute the case as evidenced by an affidavit of desistance submitted to the trial court and
lack of eyewitness to sustain the charge.

The motion to dismiss filed by the fiscal was never resolved. The Court instead ordered the prosecution to
present its evidence. After the prosecution rested its case, the petitioner filed a motion to dismiss the case
on the ground of insufficiency of evidence.

On December 22, 1972, the trial court rendered judgment finding petitioner guilty beyond reasonable
doubt of the of- offense charged.

Petitioner appealed to the Court of Appeals in CA-G.R. No. 14472-CR. On May 3, 1976, the Court of
Appeals rendered a decision, the dispositive portion of which reads as follows:

Wherefore, as modified, the accused Hedy Gan is guilty beyond reasonable doubt of the
crime of homicide thru simple imprudence and, pursuant to paragraph 2, Article 365 of
the Revised Penal Code, she is hereby sentenced to the indeterminate penalty of three
(3) months and eleven (11) days of arresto mayor and to indemnify the heirs of Isidoro
Casino in the sum of Twelve Thousand Pesos (Pl2,000.00) without, however, any
subsidiary imprisonment in case of insolvency, and to pay the costs. 3

Petitioner now appeals to this Court on the following assignments of errors:

The Court of Appeals erred in holding that when the petitioner saw a car travelling directly
towards her, she should have stepped on the brakes immediately or in swerving her
vehicle to the right should have also stepped on the brakes or lessened her speed, to
avoid the death of a pedestrian.

II

The Court of Appeals erred in convicting the petitioner of the crime of Homicide thru
Simple Imprudence.
 III

The Court of Appeals erred in adjudging the petitioner liable to indemnify the deceased in
the sum of P12,000.00. 4

We reverse.

The test for determining whether or not a person is negligent in doing an act whereby injury or damage
results to the person or property of another is this: Would a prudent man in the position of the person to
whom negligence is attributed foresee harm to the person injured as a reasonable consequence of the
course about to be pursued? If so, the law imposes the duty oil the doer to take precaution against its
mischievous results and the failure to do so constitutes negligence. 5

A corollary rule is what is known in the law as the emergency rule. "Under that rule, one who suddenly
finds himself in a place of danger, and is required to act without time to consider the best means that may
be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what
subsequently and upon reflection may appear to have been a better method, unless the emergency in
which he finds himself is brought about by his own negligence." 6

Applying the above test to the case at bar, we find the petitioner not guilty of the crime of Simple
Imprudence resulting in Homicide.

The appellate court in finding the petitioner guilty said:

The accused should have stepped on the brakes when she saw the car going in the
opposite direction followed by another which overtook the first by passing towards its left.
She should not only have swerved the car she was driving to the right but should have
also tried to stop or lessen her speed so that she would not bump into the pedestrian who
was crossing at the time but also the jeepney which was then parked along the street. 7

The course of action suggested by the appellate court would seem reasonable were it not for the fact that
such suggestion did not take into account the amount of time afforded petitioner to react to the situation
she was in. For it is undeniable that the suggested course of action presupposes sufficient time for
appellant to analyze the situation confronting her and to ponder on which of the different courses of action
would result in the least possible harm to herself and to others.

Due to the lack of eyewitnesses, no evidence was presented by the prosecution with respect to the
relative distances of petitioner to the parked jeepney and the oncoming overtaking vehicle that would tend
to prove that petitioner did have sufficient time to reflect on the consequences of her instant decision to
swerve her car to the light without stepping on her brakes. In fact, the evidence presented by the
prosecution on this point is the petitioner's statement to the police 8 stating::

And masasabi ko lang ho umiwas ho ako sa isang sasakyan na biglang nagovertake sa

sasakyan na aking kasalubong kung kaya ay aking kinabig sa kanan ang akin kotse
subalit siya naman biglang pagtawid ng tao o victim at hindi ko na ho naiwasan at ako ay
wala ng magawa . Iyan ho ang buong pangyayari nang nasabing aksidente. 9 (Emphasis
supplied)

The prosecution having presented this exhibit as its own evidence, we cannot but deem its veracity to
have been admitted by it. Thus, under the circumstances narrated by petitioner, we find that the appellate
court is asking too much from a mere mortal like the petitioner who in the blink of an eye had to exercise
her best judgment to extricate herself from a difficult and dangerous situation caused by the driver of the
overtaking vehicle. Petitioner certainly could not be expected to act with all the coolness of a person
under normal conditions. 10 The danger confronting petitioner was real and imminent, threatening her very
existence. She had no opportunity for rational thinking but only enough time to heed the very powerfull
instinct of self-preservation.

Also, the respondent court itself pronounced that the petitioner was driving her car within the legal limits.
We therefore rule that the "emergency rule" enunciated above applies with full force to the case at bar
and consequently absolve petitioner from any criminal negligence in connection with the incident under
consideration.

We further set aside the award of damages to the heirs of the victim, who by executing a release of the
claim due them, had effectively and clearly waived their right thereto.

WHEREFORE, judgment is hereby rendered acquitting petitioner HEDY GAN y YU of the crime of
Homicide thru Simple Imprudence. She is no longer liable for the P12,000.00 civil indemnity awarded by
the appellate court to the heirs of the victim.

SO ORDERED.

10. Jarco mktg v CA

11. Ramos v ca 321 scra 584

G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the
minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA.
PERFECTA GUTIERREZ, respondents.

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of
their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake,
through gross negligence or incompetence or plain human error, may spell the difference between life
and death. In this sense, the doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose condition of a patient scheduled for
cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which
overturned the decision 4 of the Regional Trial Court, dated 30 January 1992, finding private respondents
liable for damages arising from negligence in the performance of their professional duties towards
petitioner Erlinda Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A")
robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of
discomfort due to pains allegedly caused by the presence of a stone in her gall bladder
(TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman. Married to
Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company, she
has three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought
professional advice. She was advised to undergo an operation for the removal of a stone
in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of
examinations which included blood and urine tests (Exhs. "A" and "C") which indicated
she was fit for surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7),
she and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be
Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in this case, on June
10, 1985. They agreed that their date at the operating table at the DLSMC (another
defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should
undergo a "cholecystectomy" operation after examining the documents (findings from the
Capitol Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos,
however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn,
assured Rogelio that he will get a good anesthesiologist. Dr. Hosaka charged a fee of
P16,000.00, which was to include the anesthesiologist's fee and which was to be paid
after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27,
1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the rooms of
the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p.
11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for
the operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean
of the College of Nursing at the Capitol Medical Center, was also there for moral support.
She reiterated her previous request for Herminda to be with her even during the
operation. After praying, she was given injections. Her hands were held by Herminda as
they went down from her room to the operating room (TSN, January 13, 1988, pp. 9-11).
Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the operating
room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other
defendant, who was to administer anesthesia. Although not a member of the hospital
staff, Herminda introduced herself as Dean of the College of Nursing at the Capitol
Medical Center who was to provide moral support to the patient, to them. Herminda was
allowed to stay inside the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who
was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed
Herminda Cruz about the prospect of a delay in the arrival of Dr. Hosaka. Herminda then
went back to the patient who asked, "Mindy, wala pa ba ang Doctor"? The former replied,
"Huwag kang mag-alaala, darating na iyon" (Ibid.).

Thereafter, Herminda went out of the operating room and informed the patient's husband,
Rogelio, that the doctor was not yet around (id., p. 13). When she returned to the
operating room, the patient told her, "Mindy, inip na inip na ako, ikuha mo ako ng ibang
Doctor." So, she went out again and told Rogelio about what the patient said (id., p. 15).
Thereafter, she returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival
of the doctor" even as he did his best to find somebody who will allow him to pull out his
wife from the operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the
feeling of his wife, who was inside the operating room waiting for the doctor to arrive
(ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was
also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at
around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those words, he went down
to the lobby and waited for the operation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient,
heard somebody say that "Dr. Hosaka is already here." She then saw people inside the
operating room "moving, doing this and that, [and] preparing the patient for the operation"
(TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos, she then saw
Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez say, "ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan" (id., p. 17).
Because of the remarks of Dra. Gutierrez, she focused her attention on what Dr.
Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left
hand of the hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr.
Hosaka issue an order for someone to call Dr. Calderon, another anesthesiologist (id., p.
19). After Dr. Calderon arrived at the operating room, she saw this anesthesiologist trying
to intubate the patient. The patient's nailbed became bluish and the patient was placed in
a trendelenburg position a position where the head of the patient is placed in a
position lower than her feet which is an indication that there is a decrease of blood supply
to the patient's brain (Id., pp. 19-20). Immediately thereafter, she went out of the
operating room, and she told Rogelio E. Ramos "that something wrong was . . .
happening" (Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July 25,
1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine
being rushed towards the door of the operating room. He also saw several doctors
rushing towards the operating room. When informed by Herminda Cruz that something
wrong was happening, he told her (Herminda) to be back with the patient inside the
operating room (TSN, October 19, 1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in
trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful
day, she saw the patient taken to the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter
informed the former that something went wrong during the intubation. Reacting to what
was told to him, Rogelio reminded the doctor that the condition of his wife would not have
happened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN, October 19,
1989, p. 31).
 Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened
to the patient. The doctors explained that the patient had bronchospasm (TSN,
November 15, 1990, pp. 26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on
November 15, 1985, the patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting to
P93,542.25 which is the subject of a promissory note and affidavit of undertaking
executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of June
17, 1985, she has been in a comatose condition. She cannot do anything. She cannot
move any part of her body. She cannot see or hear. She is living on mechanical means.
She suffered brain damage as a result of the absence of oxygen in her brain for four to
five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the
hospital, she has been staying in their residence, still needing constant medical attention,
with her husband Rogelio incurring a monthly expense ranging from P8,000.00 to
P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be suffering
from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21,
1989,
p. 6). 5

Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of
Quezon City against herein private respondents alleging negligence in the management and care of
Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff
presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the sustained by
Erlinda was due to lack of oxygen in her brain caused by the faulty management of her airway by private
respondents during the anesthesia phase. On the other hand, private respondents primarily relied on the
expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage
was Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of
petitioners, to wit:

After evaluating the evidence as shown in the finding of facts set forth earlier, and
applying the aforecited provisions of law and jurisprudence to the case at bar, this Court
finds and so holds that defendants are liable to plaintiffs for damages. The defendants
were guilty of, at the very least, negligence in the performance of their duty to plaintiff-
patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise
reasonable care in not only intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the
fact that the patient was inside the operating room for almost three (3) hours. For after
she committed a mistake in intubating [the] patient, the patient's nailbed became bluish
and the patient, thereafter, was placed in trendelenburg position, because of the
decrease of blood supply to the patient's brain. The evidence further shows that the
hapless patient suffered brain damage because of the absence of oxygen in her
(patient's) brain for approximately four to five minutes which, in turn, caused the patient to
become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr.
Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as part
 of his obligation to provide the patient a good anesthesiologist', and for arriving for the
scheduled operation almost three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of
negligence of the doctors in their "practice of medicine" in the operating room. Moreover,
the hospital is liable for failing through its responsible officials, to cancel the scheduled
operation after Dr. Hosaka inexcusably failed to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have
acted with due care and prudence in rendering medical services to plaintiff-patient. For if
the patient was properly intubated as claimed by them, the patient would not have
become comatose. And, the fact that another anesthesiologist was called to try to
intubate the patient after her (the patient's) nailbed turned bluish, belie their claim.
Furthermore, the defendants should have rescheduled the operation to a later date. This,
they should have done, if defendants acted with due care and prudence as the patient's
case was an elective, not an emergency case.

xxx xxx xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs
and against the defendants. Accordingly, the latter are ordered to pay, jointly and
severally, the former the following sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff

Erlinda Ramos reckoned from November 15, 1985 or in the total sum of
P632,000.00 as of April 15, 1992, subject to its being updated;

2) the sum of P100,000.00 as reasonable attorney's fees;

3) the sum of P800,000.00 by way of moral damages and the further

sum of P200,000,00 by way of exemplary damages; and,

4) the costs of the suit.

SO ORDERED. 7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court
rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion of
the decision of the appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED,
and the complaint below against the appellants is hereby ordered DISMISSED. The
counterclaim of appellant De Los Santos Medical Center is GRANTED but only insofar as
appellees are hereby ordered to pay the unpaid hospital bills amounting to P93,542.25,
plus legal interest for justice must be tempered with mercy.

SO ORDERED. 8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received
by the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the
appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration
of the reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with
the appellate court a motion for extension of time to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for
extension of time in its Resolution dated 25 July 1995. 9Meanwhile, petitioners engaged the services of
another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file the appropriate pleading on the
assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals
had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court
still denied the motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29
March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for reconsideration
had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration
cannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is,
on the other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of
the decision as early as June 9, 1995. Computation wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion for Reconsideration, in turn, was
received by the Court of Appeals already on July 4, necessarily, the 15-day period
already passed. For that alone, the latter should be denied.

Even assuming admissibility of the Motion for the Reconsideration, but after considering
the Comment/Opposition, the former, for lack of merit, is hereby DENIED.

SO ORDERED. 10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12
April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition
for certiorari under Rule 45. The Court granted the motion for extension of time and gave petitioners
additional thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of the
resolution of the Court of Appeals within which to submit the petition. The due date fell on 27 May 1996.
The petition was filed on 9 May 1996, well within the extended period given by the Court.

Petitioners assail the decision of the Court of Appeals on the following grounds:

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA.

GUTIERREZ, DRA. CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE

THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness
of the petition in relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In
their
Comment, 12 private respondents contend that the petition should not be given due course since the
motion for reconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed
by the appellate court for having been filed beyond the reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to then
counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate
court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was
mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner
Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of
the decision of the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive
period for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the party's
lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel on
record is no notice at all. In the present case, since a copy of the decision of the appellate court was not
sent to the counsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the delay
in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since the Court
of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the earlier
resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we believed
that the receipt of the former should be considered in determining the timeliness of the filing of the
present petition. Based on this, the petition before us was submitted on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more
logical presentation of the discussion we shall first consider the issue on the applicability of the doctrine
of res ipsa loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in relation
to the res ipsa loquitur doctrine.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself."
The phrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiff's prima facie case, and present a question of fact for defendant to meet with an
explanation. 13 Where the thing which caused the injury complained of is shown to be under the
management of the defendant or his servants and the accident is such as in ordinary course of things
does not happen if those who have its management or control use proper care, it affords reasonable
evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by
the defendant's want of care. 14

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences may justify an inference of
negligence on the part of the person who controls the instrumentality causing the injury in the absence of
some explanation by the defendant who is charged with negligence. 15 It is grounded in the superior logic
of ordinary human experience and on the basis of such experience or common knowledge, negligence
may be deduced from the mere occurrence of the accident itself. 16 Hence, res ipsa loquitur is applied in
conjunction with the doctrine of common knowledge.

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not
create or constitute an independent or separate ground of liability. 17 Instead, it is considered as merely
evidentiary or in the nature of a procedural rule. 18 It is regarded as a mode of proof, or a mere procedural
of convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing
specific proof of negligence. 19 In other words, mere invocation and application of the doctrine does not
dispense with the requirement of proof of negligence. It is simply a step in the process of such proof,
permitting the plaintiff to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby
place on the defendant the burden of going forward with the proof. 20 Still, before resort to the doctrine
may be allowed, the following requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the

absence of someone's negligence;
 2. It is caused by an instrumentality within the exclusive control of the
defendant or defendants; and

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

responsible is eliminated. 21

In the above requisites, the fundamental element is the "control of instrumentality" which caused the
damage. 22Such element of control must be shown to be within the dominion of the defendant. In order to
have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation
where it is applicable, and must establish that the essential elements of the doctrine were present in a
particular incident. 23

Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has
been applied when the circumstances attendant upon the harm are themselves of such a character as to
justify an inference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in
medical negligence cases presents a question of law since it is a judicial function to determine whether a
certain set of circumstances does, as a matter of law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician
has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine
of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with
because the injury itself provides the proof of negligence. 27 The reason is that the general rule on the
necessity of expert testimony applies only to such matters clearly within the domain of medical science,
and not to matters that are within the common knowledge of mankind which may be testified to by anyone
familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and experience are competent
to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and
care. However, testimony as to the statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by any one may be given by non-expert
witnesses. 29 Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where
the court from its fund of common knowledge can determine the proper standard of care. 30 Where
common knowledge and experience teach that a resulting injury would not have occurred to the patient if
due care had been exercised, an inference of negligence may be drawn giving rise to an application of
the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only
what occurred but how and why it occurred. 31 When the doctrine is appropriate, all that the patient must
do is prove a nexus between the particular act or omission complained of and the injury sustained while
under the custody and management of the defendant without need to produce expert medical testimony
to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation, 32 injuries sustained on a healthy part of the body
which was not under, or in the area, of treatment, 33 removal of the wrong part of the body when another
part was intended, 34 knocking out a tooth while a patient's jaw was under anesthetic for the removal of
his tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or
following an operation for appendicitis, 36 among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does
not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to
the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or
ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the
circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is
able to say, as a matter of common knowledge and observation, that the consequences of professional
care were not as such as would ordinarily have followed if due care had been
exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of
something more unusual and not ordinarily found if the service or treatment rendered followed the usual
procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment. 38 The physician or surgeon is not required at his peril to explain
why any particular diagnosis was not correct, or why any particular scientific treatment did not produce
the desired result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that
the desired result of an operation or treatment was not accomplished. 40 The real question, therefore, is
whether or not in the process of the operation any extraordinary incident or unusual event outside of the
routine performance occurred which is beyond the regular scope of customary professional activity in
such operations, which, if unexplained would themselves reasonably speak to the average man as the
negligent cause or causes of the untoward consequence. 41 If there was such extraneous interventions,
the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by
evidence of exculpation, if he could. 42

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained,
the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case
for the application of res ipsa loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court in
applying the res ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his person
over to the care, custody and control of his physician who had complete and exclusive
control over him, but the operation was never performed. At the time of submission he
was neurologically sound and physically fit in mind and body, but he suffered irreparable
damage and injury rendering him decerebrate and totally incapacitated. The injury was
one which does not ordinarily occur in the process of a mastoid operation or in the
absence of negligence in the administration of an anesthetic, and in the use and
employment of an endoctracheal tube. Ordinarily a person being put under anesthesia is
not rendered decerebrate as a consequence of administering such anesthesia in the
absence of negligence. Upon these facts and under these circumstances a layman would
be able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily have
followed if due care had been exercised.

Here the plaintiff could not have been guilty of contributory negligence because he was
under the influence of anesthetics and unconscious, and the circumstances are such that
the true explanation of event is more accessible to the defendants than to the plaintiff for
they had the exclusive control of the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause
of action is stated under the doctrine of res ipsa loquitur. 44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present
case, Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be
performed on her gall bladder. On that fateful day she delivered her person over to the care, custody and
control of private respondents who exercised complete and exclusive control over her. At the time of
submission, Erlinda was neurologically sound and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing
surgery, she went out of the operating room already decerebrate and totally incapacitated. Obviously,
brain damage, which Erlinda sustained, is an injury which does not normally occur in the process of a gall
bladder operation. In fact, this kind of situation does not in the absence of negligence of someone in the
administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper
procedure was followed. Furthermore, the instruments used in the administration of anesthesia, including
the endotracheal tube, were all under the exclusive control of private respondents, who are the
physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of contributory negligence
because she was under the influence of anesthetics which rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the
patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a
practical administration of justice dictates the application of res ipsa loquitur. Upon these facts and under
these circumstances the Court would be able to say, as a matter of common knowledge and observation,
if negligence attended the management and care of the patient. Moreover, the liability of the physicians
and the hospital in this case is not predicated upon an alleged failure to secure the desired results of an
operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment
was ever performed on Erlinda. Thus, upon all these initial determination a case is made out for the
application of the doctrine of res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the
doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to
any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be
within the res ipsa loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence
allowed therein, the Court now comes to the issue of whether the Court of Appeals erred in finding that
private respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation
and, if in the affirmative, whether the alleged negligence was the proximate cause of Erlinda's comatose
condition. Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the
testimonies of the witnesses for the private respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to admit that she experienced some difficulty in the
endotracheal intubation 45 of the patient and thus, cannot be said to be covering her negligence with
falsehood. The appellate court likewise opined that private respondents were able to show that the brain
damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic
reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified
on by their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of
Dean Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to the
wrongful insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in the
process of intubation. In so holding, the appellate court returned a verdict in favor of respondents
physicians and hospital and absolved them of any liability towards Erlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to
disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the
proximate cause of her piteous condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based. As
will be shown hereinafter, private respondents' own testimonies which are reflected in the transcript of
stenographic notes are replete of signposts indicative of their negligence in the care and management of
Erlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As
borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was
attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's
sister-in-law, who was in the operating room right beside the patient when the tragic event occurred.
Witness Cruz testified to this effect:

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the

patient?

A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process administered

by Dra. Gutierrez?

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

A: As have said, I was with the patient, I was beside the stretcher holding
the left hand of the patient and all of a sudden heard some remarks
coming from Dra. Perfecta Gutierrez herself. She was saying "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.

xxx xxx xxx

ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

xxx xxx xxx

Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on
the person of the patient?

A: I notice (sic) some bluish discoloration on the nailbeds of the left hand
where I was at.

Q: Where was Dr. Orlino Ho[s]aka then at that particular time?

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

A: He made an order to call on the anesthesiologist in the person of Dr.

Calderon.
 Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.

Q: What did [s]he do, if any?

A: [S]he tried to intubate the patient.

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while the
patient's nailbed became bluish and I saw the patient was placed in
trendelenburg position.

xxx xxx xxx

Q: Do you know the reason why the patient was placed in that
trendelenburg position?

A: As far as I know, when a patient is in that position, there is a decrease

of blood supply to the brain. 46

xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not
taught as part of nursing procedures and techniques. Indeed, we take judicial notice of
the fact that nurses do not, and cannot, intubate. Even on the assumption that she is fully
capable of determining whether or not a patient is properly intubated, witness Herminda
Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13).
More importantly, there is no evidence that she ever auscultated the patient or that she
conducted any type of examination to check if the endotracheal tube was in its proper
place, and to determine the condition of the heart, lungs, and other organs. Thus, witness
Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the appellee
Erlinda Ramos and that it was Dra. Calderon who succeeded in doing so clearly suffer
from lack of sufficient factual bases. 47

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a
layman in the process of intubation, witness Cruz is not competent to testify on whether or not the
intubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the
statements and acts of the physician and surgeon, external appearances, and manifest conditions which
are observable by any one. 48 This is precisely allowed under the doctrine of res ipsa loquitur where the
testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not
necessary for the proof of negligence in non-technical matters or those of which an ordinary person may
be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render
expert testimony unnecessary. 49 We take judicial notice of the fact that anesthesia procedures have
become so common, that even an ordinary person can tell if it was administered properly. As such, it
would not be too difficult to tell if the tube was properly inserted. This kind of observation, we believe,
does not require a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing, was fully
capable of determining whether or not the intubation was a success. She had extensive clinical
experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching
hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the
Capitol Medical Center School of Nursing. 50Reviewing witness Cruz' statements, we find that the same
were delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity
which would have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied
that she was able to demonstrate through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlinda's trachea, to wit:

ATTY. LIGSAY:

Q: In this particular case, Doctora, while you were intubating at your first
attempt (sic), you did not immediately see the trachea?

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

Q: When you said "mahirap yata ito," what were you referring to?

A: "Mahirap yata itong i-intubate," that was the patient.

Q: So, you found some difficulty in inserting the tube?

51
A: Yes, because of (sic) my first attempt, I did not see right away.

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in the trachea of Erlinda because it was positioned more
anteriorly (slightly deviated from the normal anatomy of a person) 52 making it harder to locate and, since
Erlinda is obese and has a short neck and protruding teeth, it made intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no
evidence demonstrating that they proceeded to make a thorough assessment of Erlinda's airway, prior to
the induction of anesthesia, even if this would mean postponing the procedure. From their testimonies, it
appears that the observation was made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed
to lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia
begins when the anesthesiologist reviews the patient's medical records and visits with the patient,
traditionally, the day before elective surgery. 53 It includes taking the patient's medical history, review of
current drug therapy, physical examination and interpretation of laboratory data. 54 The physical
examination performed by the anesthesiologist is directed primarily toward the central nervous system,
cardiovascular system, lungs and upper airway. 55 A thorough analysis of the patient's airway normally
involves investigating the following: cervical spine mobility, temporomandibular mobility, prominent central
incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental distance. 56 Thus,
physical characteristics of the patient's upper airway that could make tracheal intubation difficult should
be studied. 57 Where the need arises, as when initial assessment indicates possible problems (such as
the alleged short neck and protruding teeth of Erlinda) a thorough examination of the patient's airway
would go a long way towards decreasing patient morbidity and mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of
the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative
evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was
unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of
the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent
Dra. Gutierrez' act of seeing her patient for the first time only an hour before the scheduled operative
procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician's
centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of
her negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial
court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez
tried to muddle the difference between an elective surgery and an emergency surgery just so her failure
to perform the required pre-operative evaluation would escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to see the
patient a day before so you can introduce yourself to establish good
doctor-patient relationship and gain the trust and confidence of the
patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the operative

procedure of the anesthesiologist and in my case, with elective cases
and normal cardio-pulmonary clearance like that, I usually don't do it
except on emergency and on cases that have an abnormalities (sic). 58

However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for
the fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient
only a few minutes before surgery, if at all. Elective procedures, on the other hand, are operative
procedures that can wait for days, weeks or even months. Hence, in these cases, the anesthesiologist
possesses the luxury of time to be at the patient's beside to do a proper interview and clinical evaluation.
There is ample time to explain the method of anesthesia, the drugs to be used, and their possible hazards
for purposes of informed consent. Usually, the pre-operative assessment is conducted at least one day
before the intended surgery, when the patient is relaxed and cooperative.

Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time
to make a thorough evaluation of Erlinda's case prior to the operation and prepare her for anesthesia.
However, she never saw the patient at the bedside. She herself admitted that she had seen petitioner
only in the operating room, and only on the actual date of the cholecystectomy. She negligently failed to
take advantage of this important opportunity. As such, her attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the
patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly
the proximate cause of Erlinda's comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma
was due to bronchospasm 59 mediated by her allergic response to the drug, Thiopental Sodium,
introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine
College of Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine, who
advanced private respondents' theory that the oxygen deprivation which led to anoxic
encephalopathy, 60 was due to an unpredictable drug reaction to the short-acting barbiturate. We find the
theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he
is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of
properly enlightening the court about anesthesia practice and procedure and their complications. Dr.
Jamora is likewise not an allergologist and could not therefore properly advance expert opinion on
allergic-mediated processes. Moreover, he is not a pharmacologist and, as such, could not have been
capable, as an expert would, of explaining to the court the pharmacologic and toxic effects of the
supposed culprit, Thiopental Sodium (Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is further supported by his own admission that he
formulated his opinions on the drug not from the practical experience gained by a specialist or expert in
the administration and use of Sodium Pentothal on patients, but only from reading certain references, to
wit:

ATTY. LIGSAY:

Q: In your line of expertise on pulmonology, did you have any occasion

to use pentothal as a method of management?

DR. JAMORA:

A: We do it in conjunction with the anesthesiologist when they have to

intubate our patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only on what

you have read from books and not by your own personal application of
the medicine pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

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

appendectomy.
 Q: And because they have used it on you and on account of your own
personal experience you feel that you can testify on pentothal here with
medical authority?

A: No. That is why I used references to support my claims. 61

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases
are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic
mediated bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript, in which the pulmonologist himself admitted that
he could not testify about the drug with medical authority, it is clear that the appellate court erred in giving
weight to Dr. Jamora's testimony as an expert in the administration of Thiopental Sodium.

The provision in the rules of evidence 62 regarding expert witnesses states:

Sec. 49. Opinion of expert witness. The opinion of a witness on a matter requiring
special knowledge, skill, experience or training which he is shown to possess, may be
received in evidence.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject
matter about which he or she is to testify, either by the study of recognized authorities on the subject or
by practical experience. 63 Clearly, Dr. Jamora does not qualify as an expert witness based on the above
standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly,
apart from submitting testimony from a specialist in the wrong field, private respondents' intentionally
avoided providing testimony by competent and independent experts in the proper areas.

Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by
triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin
reactions, or wheezing some of the more common accompanying signs of an allergic reaction
appears on record. No laboratory data were ever presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis without
supporting medical proof, and against the weight of available evidence, then every anesthetic accident
would be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by private
respondents was a mere afterthought. Such an explanation was advanced in order to advanced in order
to absolve them of any and all responsibility for the patient's condition.

In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty
intubation which was the proximate cause of Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without which the result would not have occurred. 64 An
injury or damage is proximately caused by an act or a failure to act, whenever it appears from the
evidence in the case, that the act or omission played a substantial part in bringing about or actually
causing the injury or damage; and that the injury or damage was either a direct result or a reasonably
probable consequence of the act or omission. 65 It is the dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the
proximate cause which triggered the chain of events leading to Erlinda's brain damage and, ultimately,
her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact
was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed
abdominal distention on the body of Erlinda. The development of abdominal distention, together with
respiratory embarrassment indicates that the endotracheal tube entered the esophagus instead of the
respiratory tree. In other words, instead of the intended endotracheal intubation what actually took place
was an esophageal intubation. During intubation, such distention indicates that air has entered the
gastrointestinal tract through the esophagus instead of the lungs through the trachea. Entry into the
esophagus would certainly cause some delay in oxygen delivery into the lungs as the tube which carries
oxygen is in the wrong place. That abdominal distention had been observed during the first intubation
suggests that the length of time utilized in inserting the endotracheal tube (up to the time the tube was
withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of oxygen in her
lungs Erlinda showed signs of cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack of oxygen
became apparent only after he noticed that the nailbeds of Erlinda were already blue. 67 However, private
respondents contend that a second intubation was executed on Erlinda and this one was successfully
done. We do not think so. No evidence exists on record, beyond private respondents' bare claims, which
supports the contention that the second intubation was successful. Assuming that the endotracheal tube
finally found its way into the proper orifice of the trachea, the same gave no guarantee of oxygen delivery,
the hallmark of a successful intubation. In fact, cyanosis was again observed immediately after the
second intubation. Proceeding from this event (cyanosis), it could not be claimed, as private respondents
insist, that the second intubation was accomplished. Even granting that the tube was successfully
inserted during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda
already suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five
minutes. 68

The above conclusion is not without basis. Scientific studies point out that intubation problems are
responsible for one-third (1/3) of deaths and serious injuries associated with anesthesia. 69 Nevertheless,
ninety-eight percent (98%) or the vast majority of difficult intubations may be anticipated by performing a
thorough evaluation of the patient's airway prior to the operation. 70 As stated beforehand, respondent
Dra. Gutierrez failed to observe the proper pre-operative protocol which could have prevented this
unfortunate incident. Had appropriate diligence and reasonable care been used in the pre-operative
evaluation, respondent physician could have been much more prepared to meet the contingency brought
about by the perceived anatomic variations in the patient's neck and oral area, defects which would have
been easily overcome by a prior knowledge of those variations together with a change in technique. 71 In
other words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative evaluation,
would have had little difficulty going around the short neck and protruding teeth. 72 Having failed to
observe common medical standards in pre-operative management and intubation, respondent Dra.
Gutierrez' negligence resulted in cerebral anoxia and eventual coma of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team.
As the so-called "captain of the ship," 73 it is the surgeon's responsibility to see to it that those under him
perform their task in the proper manner. Respondent Dr. Hosaka's negligence can be found in his failure
to exercise the proper authority (as the "captain" of the operative team) in not determining if his
anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it
does not escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital
at the same time as Erlinda's cholecystectomy, and was in fact over three hours late for the latter's
operation. Because of this, he had little or no time to confer with his anesthesiologist regarding the
anesthesia delivery. This indicates that he was remiss in his professional duties towards his patient. Thus,
he shares equal responsibility for the events which resulted in Erlinda's condition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among
private hospitals) of filling up specialist staff with attending and visiting "consultants," 74 who are allegedly
not hospital employees, presents problems in apportioning responsibility for negligence in medical
malpractice cases. However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the
conduct of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or
attending, are required to submit proof of completion of residency, their educational qualifications;
generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully scrutinized by members of the hospital
administration or by a review committee set up by the hospital who either accept or reject the
application. 75 This is particularly true with respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate
grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being
able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In
addition to these, the physician's performance as a specialist is generally evaluated by a peer review
committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns
and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum
standards acceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
"consultant" staff. While "consultants" are not, technically employees, a point which respondent hospital
asserts in denying all responsibility for the patient's condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with
the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control
test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an employer-employee relationship in effect exists between
hospitals and their attending and visiting physicians. This being the case, the question now arises as to
whether or not respondent hospital is solidarily liable with respondent doctors for petitioner's condition. 76

The basis for holding an employer solidarily responsible for the negligence of its employee is found in
Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for
those of others based on the former's responsibility under a relationship of patria potestas. 77 Such
responsibility ceases when the persons or entity concerned prove that they have observed the diligence
of a good father of the family to prevent damage. 78 In other words, while the burden of proving
negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent,
guardian, teacher or employer) who should prove that they observed the diligence of a good father of a
family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family
in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar
nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article
2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its
physicians for Erlinda's condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents. Indeed, as shown by the above discussions,
private respondents were unable to rebut the presumption of negligence. Upon these disquisitions we
hold that private respondents are solidarily liable for damages under Article 2176 79 of the Civil Code.

We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00
pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated"
covering the period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the care
of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the time of its decision would
be grossly inadequate to cover the actual costs of home-based care for a comatose individual. The
calculated amount was not even arrived at by looking at the actual cost of proper hospice care for the
patient. What it reflected were the actual expenses incurred and proved by the petitioners after they were
forced to bring home the patient to avoid mounting hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing
in the care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimum
standards of care. In the instant case for instance, Erlinda has to be constantly turned from side to side to
prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation
should be normally made by a dietitian to provide her with the correct daily caloric requirements and
vitamin supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to avoid
muscle atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which can lead to
respiratory complications.

Given these considerations, the amount of actual damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of proper care, not the cost of the care the family is
usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code
on actual or compensatory damages present us with some difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by
him as he has duly proved. The Civil Code provides:

Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate

compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.

Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury
suffered as a consequence of an act of negligence has been completed and that the cost can be
liquidated. However, these provisions neglect to take into account those situations, as in this case, where
the resulting injury might be continuing and possible future complications directly arising from the injury,
while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly
respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved,
up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could
not, from the nature of the case, be made with certainty. 80 In other words, temperate damages can and
should be awarded on top of actual or compensatory damages in instances where the injury is chronic
and continuing. And because of the unique nature of such cases, no incompatibility arises when both
actual and temperate damages are provided for. The reason is that these damages cover two distinct
phases.

As it would not be equitable and certainly not in the best interests of the administration of justice for
the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments
to the compensatory damages previously awarded temperate damages are appropriate. The amount
given as temperate damages, though to a certain extent speculative, should take into account the cost of
proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient
who has remained in that condition for over a decade. Having premised our award for compensatory
damages on the amount provided by petitioners at the onset of litigation, it would be now much more in
step with the interests of justice if the value awarded for temperate damages would allow petitioners to
provide optimal care for their loved one in a facility which generally specializes in such care. They should
not be compelled by dire circumstances to provide substandard care at home without the aid of
professionals, for anything less would be grossly inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be reasonable. 81

In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered
by the plaintiff would have led to expenses which were difficult to estimate because while they would have
been a direct result of the injury (amputation), and were certain to be incurred by the plaintiff, they were
likely to arise only in the future. We awarded P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of

her left lower extremity at the distal left thigh just above the knee. Because of this,
Valenzuela will forever be deprived of the full ambulatory functions of her left extremity,
even with the use of state of the art prosthetic technology. Well beyond the period of
hospitalization (which was paid for by Li), she will be required to undergo adjustments in
her prosthetic devise due to the shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During the lifetime, the prosthetic devise will have
to be replaced and readjusted to changes in the size of her lower limb effected by the
biological changes of middle-age, menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be adjusted to respond to the
changes in bone resulting from a precipitate decrease in calcium levels observed in the
bones of all post-menopausal women. In other words, the damage done to her would not
only be permanent and lasting, it would also be permanently changing and adjusting to
the physiologic changes which her body would normally undergo through the years. The
replacements, changes, and adjustments will require corresponding adjustive physical
and occupational therapy. All of these adjustments, it has been documented, are painful.

xxx xxx xxx

A prosthetic devise, however technologically advanced, will only allow a reasonable

amount of functional restoration of the motor functions of the lower limb. The sensory
functions are forever lost. The resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable. 83

The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much
more serious than the amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose
state for over fourteen years now. The burden of care has so far been heroically shouldered by her
husband and children, who, in the intervening years have been deprived of the love of a wife and a
mother.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioner's
condition remains unchanged for the next ten years.

We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the
surface of the resulting moral damage because it would be highly speculative to estimate the amount of
emotional and moral pain, psychological damage and injury suffered by the victim or those actually
affected by the victim's condition. 84The husband and the children, all petitioners in this case, will have to
live with the day to day uncertainty of the patient's illness, knowing any hope of recovery is close to nil.
They have fashioned their daily lives around the nursing care of petitioner, altering their long term goals to
take into account their life with a comatose patient. They, not the respondents, are charged with the moral
responsibility of the care of the victim. The family's moral injury and suffering in this case is clearly a real
one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit we are of the opinion that attorney's fees valued at
P100,000.00 are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not
insurers of life and, they rarely set out to intentionally cause injury or death to their patients. However,
intent is immaterial in negligence cases because where negligence exists and is proven, the same
automatically gives the injured a right to reparation for the damage caused.

Established medical procedures and practices, though in constant flux are devised for the purpose of
preventing complications. A physician's experience with his patients would sometimes tempt him to
deviate from established community practices, and he may end a distinguished career using unorthodox
methods without incident. However, when failure to follow established procedure results in the evil
precisely sought to be averted by observance of the procedure and a nexus is made between the
deviation and the injury or damage, the physician would necessarily be called to account for it. In the case
at bar, the failure to observe pre-operative assessment protocol which would have influenced the
intubation in a salutary way was fatal to private respondents' case.

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so
as to award in favor of petitioners, and solidarily against private respondents the following: 1)
P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a
monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00
each as exemplary damages and attorney's fees; and, 5) the costs of the suit.

SO ORDERED.

12. BLTB v ca

G.R. Nos. 74387-90 November 14, 1988

BATANGAS LAGUNA TAYABAS BUS COMPANY & ARMANDO PON, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, THE HEIRS OF PAZ VDA. DE PAMFILO, THE HEIRS OF
NORMA NERI, and BAYLON SALES and NENA VDA. DE ROSALES, respondents.

Sibal, Custodia, Santos & Nofuente for petitioners.

Restituto L. Opis for respondents Pamfilos and Rosaleses.

Citizens Legal Assistance Office for N. Neri and Baylon Sales.

PARAS, J.:
Before Us is a Petition to Review by Certiorari, the decision 1 of the respondent appellate court which
affirmed with modification the joint decision of the trial court in four (4) cases involving similar facts and
issues, finding favorably for the plaintiffs (private respondents herein), the dispositive portion of said
appellate judgment reading as follows:

WHEREFORE, with the modification that the death indemnity is raised to P30,000.00 to
each set of the victims' heirs, the rest of the judgment appealed from is hereby affirmed in
toto. Costs against the defendants-appellants.

SO ORDERED. (p. 20, Rollo)

From the records of the case We have gathered the following antecedent facts:

The collision between Bus No. 1046 of the Batangas Laguna Tayabas Bus Company (BLTB, for brevity)
driven by Armando Pon and Bus No. 404 of Superlines Transportation Company (Superlines, for brevity)
driven by Ruben Dasco took place at the highway traversing Barangay Isabong, Tayabas, Quezon in the
afternoon of August 11, 1978, which collision resulted in the death of Aniceto Rosales, Francisco Pamfilo
and Romeo Neri and in several injuries to Nena Rosales (wife of Anecito) and Baylon Sales, all
passengers of the BLTB Bus No. 1046. The evidence shows that as BLTB Bus No. 1046 was negotiating
the bend of the highway, it tried to overtake a Ford Fiera car just as Bus No. 404 of Superlines was
coming from the opposite direction. Seeing thus, Armando Pon (driver of the BLTB Bus) made a belated
attempt to slacken the speed of his bus and tried to return to his proper lane. It was an unsuccessful try
as the two (2) buses collided with each other.

Nena Vda. de Rosales and Baylon Sales and the surviving heirs of the deceased Francisco Pamfilo,
Aniceto Rosales and Romeo Neri instituted separate cases in the Court of First Instance of Marinduque
against BLTB and Superlines together with their respective drivers praying for damages, attorney's fees
and litigation expenses plus costs. Criminal cases against the drivers of the two buses were filed in the
Court of First Instance of Quezon.

Defendants BLTB and Superlines, together with their drivers Pon and Dasco, denied liability by claiming
that they exercised due care and diligence and shifted the fault, against each other. They all interposed
counterclaims against the plaintiffs and crossclaims against each other.

After trial on the merits, the lower court exonerated defendants Superlines and its driver Dasco from
liability and attributed sole responsibility to defendants BLTB and its driver Pon, and ordered them jointly
and severally to pay damages to the plaintiffs. Defendants BLTB and Armando Pon appealed from the
decision of the lower court to respondent appellate court which affirmed with modification the judgment of
the lower court as earlier stated.

Hence, this petition to review by certiorari of defendant BLTB assigning a lone error, to wit:

THE INTERMEDIATE APPELLATE COURT ERRED IN ADJUDGING THAT THE

ACTIONS OF PRIVATE RESPONDENTS ARE BASED ON CULPA CONTRACTUAL. (p.
12, Rollo)

It is argued by petitioners that if the intention of private respondents were to file an action based on culpa
contractual or breach of contract of carriage, they could have done so by merely impleading BLTB and its
driver Pon. As it was in the trial court, private respondents filed an action against all the defendants
basing their action on culpa aquiliana or tort.

Petitioners' contentions deserve no merit. A reading of the respondent court's decision shows that it
anchored petitioners' liability both on culpa contractual and culpa aquiliana, to wit:
The proximate cause of the collision resulting in the death of three and injuries to two of
the passengers of BLTB was the negligence of the driver of the BLTB bus, who
recklessly operated and drove said bus by overtaking a Ford Fiera car as he was
negotiating the ascending bend of the highway (tsn, October 4, 1979, pp. 9-10, 35, 36,
61; Exhibit 6 Superlines, p. 47) which was divided into two lanes by a continuous yellow
strip (tsn, October 4, 1979, p. 36). The driver of the BLTB bus admitted in his cross-
examination that the continuous yellow line on the ascending bend of the highway
signifies a no-overtaking zone (tsn, October 4, 1979, p. 36). It is no surprise then that the
driver of the Superlines bus was exonerated by the lower court. He had a valid reason to
presuppose that no one would overtake in such a dangerous situation. These facts show
that patient imprudence of the BLTB driver.

It is well settled that a driver abandoning his proper lane for the purpose of overtaking
another vehicle in ordinary situation has the duty to see that the road is clear and not to
proceed if he can not do so in safety (People v. Enriquez, 40 O.G. No. 5, 984).

... Before attempting to pass the vehicle ahead, the rear driver must see that the road is
clear and if there is no sufficient room for a safe passage, or the driver ahead does not
turn out so as to afford opportunity to pass, or if, after attempting to pass, the driver of the
overtaking vehicle finds that he cannot make the passage in safety, the latter must
slacken his speed so as to avoid the danger of a collision, even bringing his car to a stop
if necessary. (3-4 Huddy Encyclopedia of Automobile Law, Sec. 212, p. 195).

The above rule becomes more particularly applicable in this case when the overtaking
took place on an ascending curved highway divided into two lanes by a continuous yellow
line. Appellant Pon should have remembered that:

When a motor vehicle is approaching or rounding a curve there is special necessity for
keeping to the right side of the road and the driver has not the right to drive on the left
hand side relying upon having time to turn to the right if a car is approaching from the
opposite direction comes into view. (42 C.J. 42 906).

Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle
has been negligent if at the time of the mishap, he was violating any traffic regulation.
(Art. 2165, Civil Code).

In failing to observe these simple precautions, BLTB's driver undoubtedly failed to act
with the diligence demanded by the circumstances.

We now come to the subject of liability of the appellants.

For his own negligence in recklessly driving the truck owned by his employer, appellant
Armando Pon is primarily liable (Article 2176, Civil Code).<re||an1w>

On the other hand the liability of Pon's employer, appellant BLTB, is also primary, direct
and immediate in view of the fact that the death of or injuries to its passengers was
through the negligence of its employee (Marahan v. Mendoza, 24 SCRA 888, 894), and
such liability does not cease even upon proof that BLTB had exercised all the diligence of
a good father of a family in the selection and supervision of its employees (Article 1759,
Civil Code).

The common carrier's liability for the death of or injuries to its passengers is based on its
contractual obligation to carry its passengers safely to their destination. That obligation is
so serious that the Civil Code requires "utmost diligence of very cautious person (Article
 1755, Civil Code). They are presumed to have been at fault or to have acted negligently
unless they prove that they have observed extraordinary diligence" (Article 1756, Civil
Code). In the present case, the appellants have failed to prove extraordinary diligence.
Indeed, this legal presumption was confirmed by the fact that the bus driver of BLTB was
negligent. It must follow that both the driver and the owner must answer for injuries or
death to its passengers.

The liability of BLTB is also solidarily with its driver (Viluan v. Court of Appeals, 16 SCRA
742, 747) even though the liability of the driver springs from quasi delict while that of the
bus company from contract. (pp. 17-19, Rollo)

Conclusively therefore in consideration of the foregoing findings of the respondent appellate court it is
settled that the proximate cause of the collision resulting in the death of three and injuries to two of the
passengers of BLTB was the sole negligence of the driver of the BLTB Bus, who recklessly operated and
drove said bus in a lane where overtaking is not allowed by Traffic Rules and Regulations. Such
negligence and recklessness is binding against petitioner BLTB, more so when We consider the fact that
in an action based on a contract of carriage, the court need not make an express finding of fault or
negligence on the part of the carrier in order to hold it responsible for the payment of the damages sought
by the passenger. By the contract of carriage, the carrier BLTB assumed the express obligation to
transport the passengers to their destination safely and to observe extraordinary diligence with a due
regard for all the circumstances, and any injury that might be suffered by its passengers is right away
attributable to the fault or negligence of the carrier (Art. 1756, New Civil Code).

Petitioners also contend that "a common carrier is not an absolute insurer against all risks of travel and
are not liable for acts or accidents which cannot be foreseen or inevitable and that responsibility of a
common carrier for the safety of its passenger prescribed in Articles 1733 and 1755 of the New Civil Code
is not susceptible of a precise and definite formulation." (p. 13, Rollo) Petitioners' contention holds no
water because they had totally failed to point out any factual basis for their defense of force majeure in
the light of the undisputed fact that the cause of the collision was the sole negligence and recklessness of
petitioner Armando Pon. For the defense of force majeure or act of God to prosper the accident must be
due to natural causes and exclusively without human intervention.

WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED.

SO ORDERED.

13. Urbano v IAC

G.R. No. 72964 January 7, 1988

FILOMENO URBANO, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the
decision of the then Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty
beyond reasonable doubt of the crime of homicide.

The records disclose the following facts of the case.

At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his ricefield
at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the tobacco seedbed
of Marcelo Javier. He found the place where he stored his palay flooded with water coming from the
irrigation canal nearby which had overflowed. Urbano went to the elevated portion of the canal to see
what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass. He asked them who was
responsible for the opening of the irrigation canal and Javier admitted that he was the one. Urbano then
got angry and demanded that Javier pay for his soaked palay. A quarrel between them ensued. Urbano
unsheathed his bolo (about 2 feet long, including the handle, by 2 inches wide) and hacked Javier hitting
him on the right palm of his hand, which was used in parrying the bolo hack. Javier who was then
unarmed ran away from Urbano but was overtaken by Urbano who hacked him again hitting Javier on the
left leg with the back portion of said bolo, causing a swelling on said leg. When Urbano tried to hack and
inflict further injury, his daughter embraced and prevented him from hacking Javier.

Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50
meters away from where the incident happened. Emilio then went to the house of Barangay Captain
Menardo Soliven but not finding him there, Emilio looked for barrio councilman Felipe Solis instead. Upon
the advice of Solis, the Erfes together with Javier went to the police station of San Fabian to report the
incident. As suggested by Corporal Torio, Javier was brought to a physician. The group went to Dr.
Guillermo Padilla, rural health physician of San Fabian, who did not attend to Javier but instead
suggested that they go to Dr. Mario Meneses because Padilla had no available medicine.

After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla who
conducted a medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" dated
September 28, 1981) which reads:

TO WHOM IT MAY CONCERN:

This is to certify that I have examined the wound of Marcelo Javier, 20 years of age,
married, residing at Barangay Anonang, San Fabian, Pangasinan on October 23, 1980
and found the following:

1 -Incised wound 2 inches in length at the upper portion of the lesser palmar prominence,
right.

As to my observation the incapacitation is from (7-9) days period. This wound was
presented to me only for medico-legal examination, as it was already treated by the other
doctor. (p. 88, Original Records)

Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano
promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980, the two
accompanied by Solis appeared before the San Fabian Police to formalize their amicable settlement.
Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit:

xxx xxx xxx

Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared
before this Station accompanied by brgy. councilman Felipe Solis and settled their case
 amicably, for they are neighbors and close relatives to each other. Marcelo Javier
accepted and granted forgiveness to Filomeno Urbano who shoulder (sic) all the
expenses in his medical treatment, and promising to him and to this Office that this will
never be repeated anymore and not to harbour any grudge against each other. (p. 87,
Original Records.)

Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00
was given to Javier at Urbano's house in the presence of barangay captain Soliven.

At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very
serious condition. When admitted to the hospital, Javier had lockjaw and was having convulsions. Dr.
Edmundo Exconde who personally attended to Javier found that the latter's serious condition was caused
by tetanus toxin. He noticed the presence of a healing wound in Javier's palm which could have been
infected by tetanus.

On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr.
Exconde are as follows:

Date Diagnosis

11-14-80 ADMITTED due to trismus

adm. at DX TETANUS

1:30 AM Still having frequent muscle spasm. With diffi-

#35, 421 culty opening his mouth. Restless at times. Febrile

11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-

tion of respiration and HR after muscular

spasm.

02 inhalation administered. Ambo bag

resuscita-

tion and cardiac massage done but to

no avail.

Pronounced dead by Dra. Cabugao at

4:18 P.M.

PMC done and cadaver brought home

by rela-

tives. (p. 100, Original Records)

In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before
the then Circuit Criminal Court of Dagupan City, Third Judicial District.

Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as charged.
He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS of prision mayor,
as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as
maximum, together with the accessories of the law, to indemnify the heirs of the victim, Marcelo Javier, in
the amount of P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs.
He was ordered confined at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision, in
view of the nature of his penalty.

The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the award
of indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant.

The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on
an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states:

That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and
up to the present having been re-elected to such position in the last barangay elections
on May 17, 1982;

That sometime in the first week of November, 1980, there was a typhoon that swept
Pangasinan and other places of Central Luzon including San Fabian, a town of said
province;

That during the typhoon, the sluice or control gates of the Bued irrigation dam which
irrigates the ricefields of San Fabian were closed and/or controlled so much so that water
and its flow to the canals and ditches were regulated and reduced;

That due to the locking of the sluice or control gates of the dam leading to the canals and
ditches which will bring water to the ricefields, the water in said canals and ditches
became shallow which was suitable for catching mudfishes;

That after the storm, I conducted a personal survey in the area affected, with my
secretary Perfecto Jaravata;

That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier
catching fish in the shallow irrigation canals with some companions;

That few days there after,or on November l5, l980, I came to know that said Marcelo
Javier died of tetanus. (p. 33, Rollo)

The motion was denied. Hence, this petition.

In a resolution dated July 16, 1986, we gave due course to the petition.

The case involves the application of Article 4 of the Revised Penal Code which provides that "Criminal
liability shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done be
different from that which he intended ..." Pursuant to this provision "an accused is criminally responsible
for acts committed by him in violation of law and for all the natural and logical consequences resulting
therefrom." (People v. Cardenas, 56 SCRA 631).

The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which
Javier suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which was the 22nd
day after the incident, Javier was rushed to the hospital in a very serious condition and that on the
following day, November 15, 1981, he died from tetanus.
Under these circumstances, the lower courts ruled that Javier's death was the natural and logical
consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus, the
appellate court said:

The claim of appellant that there was an efficient cause which supervened from the time
the deceased was wounded to the time of his death, which covers a period of 23 days
does not deserve serious consideration. True, that the deceased did not die right away
from his wound, but the cause of his death was due to said wound which was inflicted by
the appellant. Said wound which was in the process of healing got infected with tetanus
which ultimately caused his death.

Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered
lockjaw because of the infection of the wound with tetanus. And there is no other way by
which he could be infected with tetanus except through the wound in his palm (tsn., p. 78,
Oct. 5, 1981). Consequently, the proximate cause of the victim's death was the wound
which got infected with tetanus. And the settled rule in this jurisdiction is that an accused
is liable for all the consequences of his unlawful act. (Article 4, par. 1, R.P.C. People v.
Red, CA 43 O.G. 5072; People v. Cornel 78 Phil. 418).

Appellant's allegation that the proximate cause of the victim's death was due to his own
negligence in going back to work without his wound being properly healed, and lately,
that he went to catch fish in dirty irrigation canals in the first week of November, 1980, is
an afterthought, and a desperate attempt by appellant to wiggle out of the predicament
he found himself in. If the wound had not yet healed, it is impossible to conceive that the
deceased would be reckless enough to work with a disabled hand. (pp. 20-21, Rollo)

The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to
his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected
with tetanus when after two weeks he returned to his farm and tended his tobacco plants with his bare
hands exposing the wound to harmful elements like tetanus germs.

The evidence on record does not clearly show that the wound inflicted by Urbano was infected with
tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound, which
was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow got infected
with tetanus However, as to when the wound was infected is not clear from the record.

In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of proximate
cause:

xxx xxx xxx

... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of
American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:

... "that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred."And more comprehensively, "the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which first acted, under
such circumstances that the person responsible for the first event should, as an ordinarily
prudent and intelligent person, have reasonable ground to expect at the moment of his
 act or default that an injury to some person might probably result therefrom." (at pp. 185-
186)

The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time
Javier was wounded until his death which would exculpate Urbano from any liability for Javier's death.

We look into the nature of tetanus-

The incubation period of tetanus, i.e., the time between injury and the appearance of
unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of patients
become symptomatic within 14 days. A short incubation period indicates severe disease,
and when symptoms occur within 2 or 3 days of injury the mortality rate approaches 100
percent.

Non-specific premonitory symptoms such as restlessness, irritability, and headache are

encountered occasionally, but the commonest presenting complaints are pain and
stiffness in the jaw, abdomen, or back and difficulty swallowing. As the progresses,
stiffness gives way to rigidity, and patients often complain of difficulty opening their
mouths. In fact, trismus in the commonest manifestation of tetanus and is responsible for
the familiar descriptive name of lockjaw. As more muscles are involved, rigidity becomes
generalized, and sustained contractions called risus sardonicus. The intensity and
sequence of muscle involvement is quite variable. In a small proportion of patients, only
local signs and symptoms develop in the region of the injury. In the vast majority,
however, most muscles are involved to some degree, and the signs and symptoms
encountered depend upon the major muscle groups affected.

Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval
referred to as the onset time. As in the case of the incubation period, a short onset time is
associated with a poor prognosis. Spasms are caused by sudden intensification of
afferent stimuli arising in the periphery, which increases rigidity and causes simultaneous
and excessive contraction of muscles and their antagonists. Spasms may be both painful
and dangerous. As the disease progresses, minimal or inapparent stimuli produce more
intense and longer lasting spasms with increasing frequency. Respiration may be
impaired by laryngospasm or tonic contraction of respiratory muscles which prevent
adequate ventilation. Hypoxia may then lead to irreversible central nervous system
damage and death.

Mild tetanus is characterized by an incubation period of at least 14 days and an onset

time of more than 6 days. Trismus is usually present, but dysphagia is absent and
generalized spasms are brief and mild. Moderately severe tetanus has a somewhat
shorter incubation period and onset time; trismus is marked, dysphagia and generalized
rigidity are present, but ventilation remains adequate even during spasms. The criteria for
severe tetanus include a short incubation time, and an onset time of 72 hrs., or less,
severe trismus, dysphagia and rigidity and frequent prolonged, generalized convulsive
spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005;
Emphasis supplied)

Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the
incubation period of the disease.

In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo
which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or on
November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The following
day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the
time, it is more medically probable that Javier should have been infected with only a mild cause of tetanus
because the symptoms of tetanus appeared on the 22nd day after the hacking incident or more than 14
days after the infliction of the wound. Therefore, the onset time should have been more than six days.
Javier, however, died on the second day from the onset time. The more credible conclusion is that at the
time Javier's wound was inflicted by the appellant, the severe form of tetanus that killed him was not yet
present. Consequently, Javier's wound could have been infected with tetanus after the hacking incident.
Considering the circumstance surrounding Javier's death, his wound could have been infected by tetanus
2 or 3 or a few but not 20 to 22 days before he died.

The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds
inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing with a criminal
conviction, the proof that the accused caused the victim's death must convince a rational mind beyond
reasonable doubt. The medical findings, however, lead us to a distinct possibility that the infection of the
wound by tetanus was an efficient intervening cause later or between the time Javier was wounded to the
time of his death. The infection was, therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil.
1038).

Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent
infection, for failure to take necessary precautions, with tetanus may have been the proximate cause of
Javier's death with which the petitioner had nothing to do. As we ruled in Manila Electric Co. v.
Remoquillo, et al. (99 Phil. 118).

"A prior and remote cause cannot be made the be of an action if such remote cause did
nothing more than furnish the condition or give rise to the occasion by which the injury
was made possible, if there intervened between such prior or remote cause and the injury
a distinct, successive, unrelated, and efficient cause of the injury, even though such injury
would not have happened but for such condition or occasion. If no danger existed in the
condition except because of the independent cause, such condition was not the
proximate cause. And if an independent negligent act or defective condition sets into
operation the instances which result in injury because of the prior defective condition,
such subsequent act or condition is the proximate cause." (45 C.J. pp. 931-932). (at p.
125)

It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least,
the records show he is guilty of inflicting slight physical injuries. However, the petitioner's criminal liability
in this respect was wiped out by the victim's own act. After the hacking incident, Urbano and Javier used
the facilities of barangay mediators to effect a compromise agreement where Javier forgave Urbano while
Urbano defrayed the medical expenses of Javier. This settlement of minor offenses is allowed under the
express provisions of Presidential Decree G.R. No. 1508, Section 2(3). (See also People v. Caruncho,
127 SCRA 16).

We must stress, however, that our discussion of proximate cause and remote cause is limited to the
criminal aspects of this rather unusual case. It does not necessarily follow that the petitioner is also free of
civil liability. The well-settled doctrine is that a person, while not criminally liable, may still be civilly liable.
Thus, in the recent case of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we said:

xxx xxx xxx

... While the guilt of the accused in a criminal prosecution must be established beyond
reasonable doubt, only a preponderance of evidence is required in a civil action for
damages. (Article 29, Civil Code). The judgment of acquittal extinguishes the civil liability
of the accused only when it includes a declaration that the facts from which the civil
liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559).
 The reason for the provisions of article 29 of the Civil Code, which provides that the
acquittal of the accused on the ground that his guilt has not been proved beyond
reasonable doubt does not necessarily exempt him from civil liability for the same act or
omission, has been explained by the Code Commission as follows:

The old rule that the acquittal of the accused in a criminal case also
releases him from civil liability is one of the most serious flaws in the
Philippine legal system. It has given use to numberless instances of
miscarriage of justice, where the acquittal was due to a reasonable doubt
in the mind of the court as to the guilt of the accused. The reasoning
followed is that inasmuch as the civil responsibility is derived from the
criminal offense, when the latter is not proved, civil liability cannot be
demanded.

This is one of those causes where confused thinking leads to unfortunate

and deplorable consequences. Such reasoning fails to draw a clear line
of demarcation between criminal liability and civil responsibility, and to
determine the logical result of the distinction. The two liabilities are
separate and distinct from each other. One affects the social order and
the other, private rights. One is for the punishment or correction of the
offender while the other is for reparation of damages suffered by the
aggrieved party. The two responsibilities are so different from each other
that article 1813 of the present (Spanish) Civil Code reads thus: "There
may be a compromise upon the civil action arising from a crime; but the
public action for the imposition of the legal penalty shall not thereby be
extinguished." It is just and proper that, for the purposes of the
imprisonment of or fine upon the accused, the offense should be proved
beyond reasonable doubt. But for the purpose of indemnity the
complaining party, why should the offense also be proved beyond
reasonable doubt? Is not the invasion or violation of every private right to
be proved only by a preponderance of evidence? Is the right of the
aggrieved person any less private because the wrongful act is also
punishable by the criminal law?

"For these reasons, the Commission recommends the adoption of the

reform under discussion. It will correct a serious defect in our law. It will
close up an inexhaustible source of injustice-a cause for disillusionment
on the part of the innumerable persons injured or wronged."

The respondent court increased the P12,000.00 indemnification imposed by the trial court to P30,000.00.
However, since the indemnification was based solely on the finding of guilt beyond reasonable doubt in
the homicide case, the civil liability of the petitioner was not thoroughly examined. This aspect of the case
calls for fuller development if the heirs of the victim are so minded.

WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then
Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner is
ACQUITTED of the crime of homicide. Costs de oficio.

SO ORDERED.

14. Manuel v ca
G.R. No. 96781 October 1, 1993

EMILIANO MANUEL and SUPERLINES TRANSPORTATION CO., INC., petitioners,

vs.
HONORABLE COURT OF APPEALS, ERNESTO A. RAMOS substituted by Goyena Z. Ramos,
Grace, David, Jobet, Portia and Banjo, all surnamed RAMOS; and GOYENA ZANAROSA-RAMOS,
for herself and as Guardian Ad Litem for the minors JOBET, BANJO, DAVID and GRACE, all
surnamed RAMOS; FERNANDO ABCEDE, SR., for himself and as Guardian Ad Litem for minor
FERNANDO G. ABCEDE, JR.; MIGUEL JERNZ MAGO, as Guardian Ad Litem for minor ARLEEN R.
MAGO, and ANACLETA J. ZANAROSA, respondents.

Benito P. Fabie for petitioners.

Constante Banayos for private respondents.

QUIASON, J.:

This is an appeal by certiorari under Rule 45 of the Revised Rules of Court from the decision of the Court
of Appeals in CA-G.R. CV No. 11780, and its Resolution dated January 8, 1991, denying petitioner's
motion for reconsideration. The decision subject of the appeal was an affirmation of the judgement of the
Court of First Instance of Camarines Norte, in Civil Case No. 3020 and whose dispositive portion states:

PREMISES CONSIDERED, judgment is hereby rendered : (1) finding the defendant

Emiliano Manuel negligent, reckless and imprudent in the operation of Superlines Bus
No. 406, which was the proximate cause of the injuries suffered by the plaintiffs and
damage of the Scout Car in which they were riding; (2) ordering the said defendant,
jointly and solidarily, with the defendant Superlines Bus Co., Inc. to pay plaintiffs the
amounts of P49,954,86, as itemized elsewhere in this decision and the costs.

It appearing that the defendants Superlines Transportation Co., Inc. is insured with the
defendant Perla Compania de Seguros, which has admitted such insurance, the latter is
hereby ordered to pay the former the amounts so stated up to the extent of its insurance
coverage" (Rollo, pp. 70-71).

The operative facts culled from the decision of the Court of Appeals are as follows:

Private respondents were passengers of an International Harvester Scout Car (Scout Car) owned by
respondent Ramos, which left Manila for Camarines Norte in the morning of December 27, 1977 with
respondent Fernando Abcede, Sr. as the driver of the vehicle.

There was a drizzle at about 4:10 P.M. when the Scout car, which was then negotiating the zigzag road of
Bo. Paraiso, Sta. Elena, Camarines Norte, was hit on its left side by a bus. The bus was owned by
petitioner Emiliano Manuel. Due to the impact, the Scout car was thrown backwards against a protective
railing. Were it not for the railing, the Scout car would have fallen into a deep ravine. All its ten occupants,
which included four children were injured, seven of the victims sustained serious physical injuries (Rollo,
p. 28).

Emiliano Manuel, the driver of the bus, was prosecuted for multiple physical injuries through reckless
imprudence in the Municipal Court of Sta. Elena, Camarines Norte. As he could not be found after he
ceased reporting for work a few days following the incident, the private respondents filed the instant
action for damages based on quasi-delict.
After trial, the court a quo rendered judgment against petitioners and Perla Compania de Seguros, that
covered the insurance of the bus. The court ordered them to pay, jointly and severally, the amount of
P49,954.86 in damages to respondents.

On appeal, the Court of Appeals, affirmed the decision of the trial court.

In their appeal before us, petitioners contend that it was Fernando Abcede, Jr., driver of the Scout car,
who was at fault. Besides, petitioners claim the Fernando Abcede, Jr., who was only 19-years old at the
time of the incident, did not have a driver's license (Rollo, p. 10).

Proof of this, according to petitioners, was that:

Immediately after the incident, the bus conductor Cesar Pica and passengers, including
Maximino Jaro, alighted from the bus. A woman passenger of the IH Scout car, Mrs.
Ramos, was heard saying: "Iyan na nga ba ang sinasabi ko, napakalakas ng loob,"
referring to young man, Fernando Abcede, Jr. who was the driver of the IH Scout car
(tsn., p. 43, November 19, 1979; tsn, p. 23-A. February 7, 1980) . . . (Rollo, p. 75).

Likewise, petitioner questioned the accuracy of the pictures and sketches submitted by private
respondents as evidence that the Superlines bus encroached on the lane of the Scout car. According to
them, the sketch made by the police investigator showing the skid marks of the bus, is inadmissible as
evidence because it was prepared the day after the incident and the alleged "tell-tale" skid marks and
other details had already been obliterated by the heavy downpour which lasted for at least an hour after
the accident (Rollo, p. 87). Likewise, they claim that the policeman who prepared the sketch was not the
police officer assigned to conduct the investigation (Rollo, pp. 88-89).

While it may be accepted that some of the skid marks may have been erased by the "heavy downpour"
on or about the time of the accident, it remains a possibility that not all skid marks were washed away.
The strong presumption of regularity in the performance of official duty (Rule 131, Sec. 3(m), 1989 Rules
on Evidence) erases, in the absence of evidence to the contrary, any suspicions that the police
investigator just invented the skid marks indicated in his report.

Granting, however, that the skid marks in the questioned sketch were inaccurate, nonetheless, the finding
of the Court of Appeals that the collision took place within the lane of the Scout car was supported by
other conclusive evidence. "Indeed, a trail of broken glass which was scattered along the car's side of the
road, whereas the bus lane was entirely clear of debris (Exhibit "L-1," p. 34, Records, pp. 56-65; TSN,
Session of March 14, 1979)" (Rollo, p. 31).

Furthermore, the fact that the Scout car was found after the impact at rest against the guard railing shows
that it must have been hit and thrown backwards by the bus (Rollo, p. 103). The physical evidence do not
show that the Superlines Bus while traveling at high speed, usurped a portion of the lane occupied by the
Scout car before hitting it on its left side. On collision, the impact due to the force exerted by a heavier
and bigger passenger bus on the smaller and lighter Scout car, heavily damaged the latter and threw it
against the guard railing.

Petitioner's contention that the Scout car must have been moved backwards is not only a speculation but
is contrary to human experience. There was no reason to move it backwards against the guard railing. If
the purpose was to clear the road, all that was done was to leave it where it was at the time of the
collision, which was well inside its assigned lane. Besides, even petitioners accept the fact that when the
police arrived at the scene of the accident, they found no one thereat (Rollo, p. 13). This further weakens
the possibility that some persons moved the Scout car to rest on the guard railing.
The evidence with respect to the issue that Fernando Abcede, Jr. who was not duly licensed, was the one
driving the Scout car at the time of the accident, could not simply exempt petitioner's liability because they
were parties at fault for encroaching on the Scout car's lane (Rollo, pp. 29-30).

Nevertheless, the witnesses presented by petitioners who allegedly saw "the younger Abcede pined
behind the driver's wheels," testified on matters that transpired after the accident. Discrediting this
allegation, the Court of Appeals noted that none of the aforesaid witnesses actually saw the younger
Abcede driving the car and that the younger Abcede could have simply been thrown off his seat toward
the steering wheel (Rollo, p. 29).

Be that as it may, this Court has followed a well-entrenched principle that the factual findings of the Court
of Appeals are normally given great weight, more so when the findings tally with the findings of the trial
court and are supported by the evidence (Francisco v. Magbitang, 173 SCRA 382 [1989]; New
Owners/Management of TML Garments, Inc. v. Zaragosa, 170 SCRA 563-564 [1989]).

The reason for this entrenched principle is given in Chemplex (Phils.), Inc., et al. v. Ramon C. Pamatian,
et al., 57 SCRA 408 [1974], thus:

This Court is not a trier of facts, and it is beyond its function to make its own findings of
certain vital facts different from those of the trial court, especially on the basis of the
conflicting claims of the parties and without the evidence being properly before it. For this
Court to make such factual conclusions is entirely unjustified first, because if material
facts are controverted, as in this case, and they are issues being litigated before the
lower court, the petition for certiorari would not be in aid of the appellate jurisdiction of
this Court; and, secondly, because it preempts the primary function of the lower court,
namely, to try the case on the merits, receive all the evidence to presented by the parties,
and only then come to a definite decision, including either the maintenance or the
discharge of the preliminary injunction it has issued.

Appellants, likewise, contested the awarded damages as excessive and unsubstantiated. The trial court's
findings show otherwise, as can be gleaned from the following excerpt of this decision:

Plaintiffs were able to prove their injuries and submitted evidence to show expenses for
their treatment, hospitalization and incidental disbursement (Exhs. AA to HH and their
submarkings), having a total amount of P12,204.86 which had admittedly (sic)
shouldered by plaintiff Ernesto Ramos. Considering the nature of the injuries as shown
by the respective Medical Certificates (Exhs. A to J and their submarkings) said amount
is very reasonable. It was also shown that the Scout car is a total wreck, the value of
which was estimated to be P20,000.00 which may be the same amount to put (sic) into a
running condition. We consider, likewise said amount reasonable taking into account its
brand (International Harvester Scout car). The above mentioned damages are
considered actual or compensatory (Par. 1 Art. 2197 in relation to Art. 2199, New Civil
Code). Evidence was also adduced showing that as a result of the incident and the
resultant injuries there had been an impairment on the earning capacity of some of the
plaintiffs (Fernando Abcede, Sr., Anacleta Zanarosa, Ernesto Ramos and Goyena
Ramos) which are recoverable pursuant to Article 2205 of the New Civil Code.
Considering the nature of their injuries one month each loss of income seem reasonable.
Attorney's fees and expenses of litigation is also proper. Since the act complained of falls
under the aegis of quasi-delict (culpa aquilina), moral damages is likewise available to
plaintiffs pursuant to Article 2219 also of the New Civil Code (Rollo, pp. 113-114).

In addition, moral damages may be recovered if they are the proximate results of defendant's wrongful
acts or omission as in this case (Banson vs. CA, 175 SCRA 297 [1989]).
WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals is AFFIRMED, with costs
against petitioners.

SO ORDERED.

15. Mckee v iac

G.R. No. L-68102 July 16, 1992

GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.

G.R. No. L-68103 July 16, 1992

CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE,
ANTONIO KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.

DAVIDE, JR., J.:

Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-G.R. CV
Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision dated 29 November
1983 reversing the Decision of the trial court which dismissed petitioners' complaints in Civil Case No.
4477 and Civil Case No. 4478 of the then Court of First Instance (now Regional Trial Court) of Pampanga
entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli Koh McKee and Elizabeth Koh
Turla vs. Jaime Tayag and Rosalinda Manalo," and "George McKee and Araceli Koh McKee vs. Jaime
Tayag and Rosalinda Manalo," respectively, and granted the private respondents' counterclaim for moral
damages, attorney's fees and litigation expenses.

The said civil cases for damages based on quasi-delict were filed as a result of a vehicular accident which
led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused physical injuries to George
Koh McKee, Christopher Koh McKee and petitioner Araceli Koh McKee.

Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee and
the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner Carmen Dayrit
Koh and her co-petitioners in G.R. No. 68103, who are the wife and children, respectively, of the late Jose
Koh, were the plaintiffs in Civil Case No. 4477. Upon the other hand, private respondents are the owners
of the cargo truck which figured in the mishap; a certain Ruben Galang was the driver of the truck at the
time of the accident.

The antecedent facts are not disputed.

Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along MacArthur
Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took place between
an International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76 owned by private
respondents, and driven by Ruben Galang, and a Ford Escort car bearing Plate No. S2-850 Pampanga
'76 driven by Jose Koh. The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida
Bondoc, and physical injuries to George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all
passengers of the Ford Escort.

Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George, Christopher and
Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and a half year old Kim. At
the time of the collision, Kim was seated on the lap of Loida Bondoc who was at the front passenger's
seat of the car while Araceli and her two (2) sons were seated at the car's back seat.

Immediately before the collision, the cargo truck, which was loaded with two hundred (200) cavans of rice
weighing about 10,000 kilos, was traveling southward from Angeles City to San Fernando Pampanga,
and was bound for Manila. The Ford Escort, on the other hand, was on its way to Angeles City from San
Fernando. When the northbound car was about (10) meters away from the southern approach of the
bridge, two (2) boys suddenly darted from the right side of the road and into the lane of the car. The boys
were moving back and forth, unsure of whether to cross all the way to the other side or turn back. Jose
Koh blew the horn of the car, swerved to the left and entered the lane of the truck; he then switched on
the headlights of the car, applied the brakes and thereafter attempted to return to his lane. Before he
could do so, his car collided with the truck. The collision occurred in the lane of the truck, which was the
opposite lane, on the said bridge.

The incident was immediately reported to the police station in Angeles City; consequently, a team of
police officers was forthwith dispatched to conduct an on the spot investigation. In the sketch 1 prepared
by the investigating officers, the bridge is described to be sixty (60) "footsteps" long and fourteen (14)
"footsteps" wide seven (7) "footsteps" from the center line to the inner edge of the side walk on both
sides. 2 Pulong Pulo Bridge, which spans a dry brook, is made of concrete with soft shoulders and
concrete railings on both sides about three (3) feet high.

The sketch of the investigating officer discloses that the right rear portion of the cargo truck was two (2)
"footsteps" from the edge of the right sidewalk, while its left front portion was touching the center line of
the bridge, with the smashed front side of the car resting on its front bumper. The truck was about sixteen
(16) "footsteps" away from the northern end of the bridge while the car was about thirty-six (36)
"footsteps" from the opposite end. Skid marks produced by the right front tire of the truck measured nine
(9) "footsteps", while skid marks produced by the left front tire measured five (5) "footsteps." The two (2)
rear tires of the truck, however, produced no skid marks.

In his statement to the investigating police officers immediately after the accident, Galang admitted that
he was traveling at thirty (30) miles (48 kilometers) per hour.

As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed on 31
January 1977 before the then Court of First Instance of Pampanga and were raffled to Branch III and
Branch V of the said court, respectively. In the first, herein petitioners in G.R. No. 68103 prayed for the
award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 as moral damages,
P60,000.00 as exemplary damages, P10,000.00 for litigation expenses, P6,000.00 for burial expenses,
P3,650.00 for the burial lot and P9,500.00 for the tomb, plus attorney's fees. 3 In the second case,
petitioners in G.R. No. 68102 prayed for the following: (a) in connection with the death of Kim McKee, the
sum of P12,000.00 as death benefit, P3,150.00 for funeral services, P3,650.00 for the cemetery lot,
P3,000.00 for the tomb, P50,000.00 as moral damages, P10,000.00 as exemplary damages and
P2,000.00 as miscellaneous damages; (b) in the case of Araceli Koh McKee, in connection with the
serious physical injuries suffered, the sum of P100,000.00 as moral damages, P20,000.00 as exemplary
damages, P12,000.00 for loss of earnings, P5,000.00 for the hospitalization expenses up to the date of
the filing of the complaint; and (c) with respect to George McKee, Jr., in connection with the serious
physical injuries suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages
and the following medical expenses: P3,400 payable to the Medical Center, P3,500.00 payable to the St.
Francis Medical Center, P5,175.00 payable to the Clark Air Base Hospital, and miscellaneous expenses
amounting to P5,000.00. They also sought an award of attorney's fees amounting to 25% of the total
award plus traveling and hotel expenses, with costs. 4
On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence
Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with the trial
court. It was docketed as Criminal Case No. 3751 and was raffled to Branch V of the court, the same
Branch where Civil Case No. 4478 was assigned. 5

In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it was the
Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben Galang and, as
counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00 as actual and liquidated
damages, P100,000.00 as moral damages and P30,000.00 as business losses. 6 In Civil Case No. 4478,
private respondents first filed a motion to dismiss on grounds of pendency of another action (Civil Case
No. 4477) and failure to implead an indispensable party, Ruben Galang, the truck driver; they also filed a
motion to consolidate the case with Civil Case No. 4477 pending before Branch III of the same court,
which was opposed by the plaintiffs. 7 Both motions were denied by Branch V, then presided over by
Judge Ignacio Capulong. Thereupon, private respondents filed their Answer with Counter-claim 8 wherein
they alleged that Jose Koh was the person "at fault having approached the lane of the truck driven by
Ruben Galang, . . . which was on the right lane going towards Manila and at a moderate speed observing
all traffic rules and regulations applicable under the circumstances then prevailing;" in their counterclaim,
they prayed for an award of damages as may be determined by the court after due hearing, and the sums
of P10,000.00 as attorney's fees and P5,000.00 as expenses of litigation.

Petitioners filed their Answers to the Counterclaims in both cases.

To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a motion to
adopt the testimonies of witnesses taken during the hearing of Criminal Case No. 3751, which private
respondents opposed and which the court denied. 9 Petitioners subsequently moved to reconsider the
order denying the motion for consolidation, 10 which Judge Capulong granted in the Order of 5 September
1978; he then directed that Civil Case No. 4478 be consolidated with Civil Case No. 4477 in Branch III of
the court then presided over by Judge Mario Castaeda, Jr.

Left then with Branch V of the trial court was Criminal Case No. 3751.

In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuag, Col. Robert
Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and offered several
documentary exhibits. Upon the other hand, private respondents presented as witnesses Ruben Galang,
Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12

In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia, Pfc.
Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc.
Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and Eugenio Tanhueco,
and offered several documentary exhibits. 13 Upon the other hand, the defense presented the accused
Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and offered documentary
exhibits. 14

On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in the
aforesaid criminal case. The dispositive portion of the decision reads as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused
Ruben Galang guilty beyond reasonable doubt of the crime charged in the information
and after applying the provisions of Article 365 of the Revised Penal Code and
indeterminate sentence law, this Court, imposes upon said accused Ruben Galang the
penalty of six (6) months of arresto mayor as minimum to two (2) years, four (4) months
and one (1) day of prision correccional as maximum; the accused is further sentenced to
pay and indemnify the heirs of Loida Bondoc the amount of P12,000.00 as indemnity for
her death; to reimburse the heirs of Loida Bondoc the amount of P2,000.00 representing
 the funeral expenses; to pay the heirs of Loida Bondoc the amount of P20,000.00
representing her loss of income; to indemnify and pay the heirs of the deceased Jose
Koh the value of the car in the amount of P53,910.95, and to pay the costs. 15

The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel for
petitioners filed with Branch III of the court where the two (2) civil cases were pending a
manifestation to that effect and attached thereto a copy of the decision. 16

Upon the other hand, Judge Mario Castaeda, Jr. dismissed the two (2) civil cases on 12 November 1980
and awarded the private respondents moral damages, exemplary damages and attorney's fees. 17 The
dispositive portion of the said decision reads as follows:

WHEREFORE, finding the preponderance of evidence to be in favor of the defendants

and against the plaintiffs, these cases are hereby ordered DISMISSED with costs against
the plaintiffs. The defendants had proven their counter-claim, thru evidences (sic)
presented and unrebutted. Hence, they are hereby awarded moral and exemplary
damages in the amount of P100,000.00 plus attorney's fee of P15,000.00 and litigation
expenses for (sic) P2,000.00. The actual damages claimed for (sic) by the defendants is
(sic) hereby dismissing for lack of proof to that effect (sic). 18

A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and was
received on 2 December 1980. 19

Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal was
docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division. Plaintiffs in Civil
Cases Nos. 4477 and 4478 likewise separately appealed the 12 November 1980 decision to the appellate
court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-G.R. No. 69040-R, respectively,
and were assigned to the Fourth Civil Cases Division.

On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-CR
affirming the conviction of Galang. 21 The dispositive portion of the decision reads:

DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa

kanyang kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol.

A motion for reconsideration of the decision was denied by the respondent Court in
its Kapasiyahan promulgated on 25 November 1982. 22 A petition for its review 23 was filed with this Court;
said petition was subsequently denied. A motion for its reconsideration was denied with finality in the
Resolution of 20 April 1983. 24

On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court,
promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive portion of
which reads:

WHEREFORE, the decision appealed from it hereby reversed and set aside and another
one is rendered, ordering defendants-appellees to pay plaintiffs-appellants as follows:

For the death of Jose Koh:

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)
 P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)

For the death of Kim Koh McKee:

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)

For the physical injuries suffered by George Koh McKee:

P 25,000.00 as moral damages

P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and
D-2)
P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)

For the physical injuries suffered by Araceli Koh McKee:

P 25,000.00 as moral damages

P 1,055.00 paid to St. Francis Medical Center (Exhs. G and
G-1)
P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3)
P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muoz Clinic (Exh. MM)

For the physical injuries suffered by Christopher Koh McKee:

P 10,000.00 as moral damages

P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)

In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and
another P10,000.00; as counsel (sic) fees in Civil Case No. 4478.

No pronouncement as to costs.

SO ORDERED. 26

The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's
inattentiveness or reckless imprudence which caused the accident. The appellate court further said that
the law presumes negligence on the part of the defendants (private respondents), as employers of
Galang, in the selection and supervision of the latter; it was further asserted that these defendants did not
allege in their Answers the defense of having exercised the diligence of a good father of a family in
selecting and supervising the said employee. 27 This conclusion of reckless imprudence is based on the
following findings of fact:

In the face of these diametrically opposed judicial positions, the determinative issue in
this appeal is posited in the fourth assigned error as follows:

IV
 THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK
STOPPED HIS TRUCK BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND
COULD NOT SWERVE TO THE RIGHT.

Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross the
right lane on the right side of the highway going to San Fernando. My
father, who is (sic) the driver of the car tried to avoid the two (2) boys
who were crossing, he blew his horn and swerved to the left to avoid
hitting the two (2) boys. We noticed the truck, he switched on the
headlights to warn the truck driver, to slow down to give us the right of
way to come back to our right lane.

Q Did the truck slow down?

A No, sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right lane
since the truck is (sic) coming, my father stepped on the brakes and all
what (sic) I heard is the sound of impact (sic), sir. (tsn, pp. 5-6, July 22,
1977); or (Exhibit "O" in these Civil Cases).

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused,
Ruben Galang did not reduce its speed before the actual impact of
collision (sic) as you narrated in this Exhibit "1," how did you know (sic)?

A It just kept on coming, sir. If only he reduced his speed, we could have
got (sic) back to our right lane on side (sic) of the highway, sir. (tsn. pp.
33-34 July 22, 1977) or (Exhibit "O" in these Civil Cases) (pp. 30-31,
Appellants' Brief).

Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and
circumstances:

1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck
stopped only when it had already collided with the car:

xxx xxx xxx

Tanhueco repeated the same testimony during the hearing in the criminal case:

xxx xxx xxx

Tanhueco could (sic) not be tagged as an accommodation witness because he was one
of the first to arrive at the scene of the accident. As a matter of fact, he brought one of the
injured passengers to the hospital.

We are not prepared to accord faith and credit to defendants' witnesses, Zenaida
Soliman, a passenger of the truck, and Roman Dayrit, who supposedly lived across the
street.

Regarding Soliman, experience has shown that in the ordinary course of events people
usually take the side of the person with whom they are associated at the time of the
accident, because, as a general rule, they do not wish to be identified with the person
who was at fault. Thus an imaginary bond is unconsciously created among the several
persons within the same group (People vs. Vivencio, CA-G.R. No. 00310-CR, Jan. 31,
1962).

With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation
witness. He did not go to the succor of the injured persons. He said he wanted to call the
police authorities about the mishap, but his phone had no dial tone. Be this (sic) as it
may, the trial court in the criminal case acted correctly in refusing to believe Dayrit.

2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his
truck at a safe distance from the car, according to plaintiffs (p. 25, Appellants' Brief). This
contention of appellants was completely passed sub-silencio or was not refuted by
appellees in their brief. Exhibit 2 is one of the exhibits not included in the record.
According to the Table of Contents submitted by the court below, said Exhibit 2 was not
submitted by defendants-appellees. In this light, it is not far-fetched to surmise that
Galang's claim that he stopped was an eleventh-hour desperate attempt to exculpate
himself from imprisonment and damages.

3. Galang divulged that he stopped after seeing the car about 10 meters away:

ATTY. SOTTO:

Q Do I understand from your testimony that inspite of the fact that you
admitted that the road is straight and you may be able to (sic) see 500-
1000 meters away from you any vehicle, you first saw that car only about
ten (10) meters away from you for the first time?

xxx xxx xxx

A I noticed it, sir, that it was about ten (10) meters away.

ATTY. SOTTO:

Q So, for clarification, you clarify and state under your oath that you have
(sic) not noticed it before that ten (10) meters? (Tsn. 3 to 5, Sept. 18,
1979). (p. 16, Appellants' Brief)

Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only
because of the impact. At ten (10) meters away, with the truck running at 30 miles per
hour, as revealed in Galang's affidavit (Exh. 2; p. 25, Appellants' brief), it is well-nigh
impossible to avoid a collision on a bridge.
 5. Galang's truck stopped because of the collision, and not because he waited for Jose
Koh to return to his proper lane. The police investigator, Pfc. Fernando L. Nuag, stated
that he found skid marks under the truck but there were not (sic) skid marks behind the
truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of skid marks show (sic) that the
truck was speeding. Since the skid marks were found under the truck and none were
found at the rear of the truck, the reasonable conclusion is that the skid marks under the
truck were caused by the truck's front wheels when the trucks (sic) suddenly stopped
seconds before the mishap in an endeavor to avoid the same. But, as aforesaid, Galang
saw the car at barely 10 meters away, a very short distance to avoid a collision, and in
his futile endeavor to avoid the collision he abruptly stepped on his brakes but the
smashup happened just the same.

For the inattentiveness or reckless imprudence of Galang, the law presumes negligence
on the part of the defendants in the selection of their driver or in the supervision over him.
Appellees did not allege such defense of having exercised the duties of a good father of a
family in the selection and supervision of their employees in their answers. They did not
even adduce evidence that they did in fact have methods of selection and programs of
supervision. The inattentiveness or negligence of Galang was the proximate cause of the
mishap. If Galang's attention was on the highway, he would have sighted the car earlier
or at a very safe distance than (sic) 10 meters. He proceeded to cross the bridge, and
tried to stop when a collision was already inevitable, because at the time that he entered
the bridge his attention was not riveted to the road in front of him.

On the question of damages, the claims of appellants were amply proven, but the items
must be reduced. 28

A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by private
respondents on the basis of which the respondent Court, in its Resolution of 3 April 1984, 29 reconsidered
and set aside its 29 November 1983 decision and affirmed in toto the trial court's judgment of 12
November 1980. A motion to reconsider this Resolution was denied by the respondent Court on 4 July
1984. 30

Hence, this petition.

Petitioners allege that respondent Court:

. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY

REVERSED ITS DECISION BY MERELY BASING IT FROM (sic) A MERE
"PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE RESPONDENTS'
DRIVER'S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY COMMITTED
THE PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER, IT ALSO
DISREGARDED THE EVIDENCE ADDUCED AND FOUND IN THE RECORDS;
THEREFORE, RESPONDENT COURT'S RESOLUTIONS (ANNEXES A and B,
PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS,
CONJECTURES AND WITHOUT SURE FOUNDATION IN THE EVIDENCE.

II

. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT

DISREGARDED A DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY
STATING AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT THE FINDINGS
 OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF THE TRUCK INVOLVED
IN THE ACCIDENT WAS INDICTED.

III

. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A

MISLEADING PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT UPON
THE PLAINTIFFS-APPELLANTS (APPELLEES WRONGLY MENTIONED IN THE
RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT THE PROXIMATE CAUSE OF
THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER.

IV

. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE ABUSE

OF DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE
TO THESE CASES.

. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN

ADOPTING THE FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY
ERRONEOUS AND CONTRARY TO THE EVIDENCE FOUND IN THE RECORDS,
SPECIALLY THEY (sic) ARE CONTRARY TO THE ADMITTED FACTS AND JUDICIAL
ADMISSIONS MADE BY THE PRIVATE RESPONDENTS' DRIVER.

VI

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION

AND GRAVELY ERRED WHEN IT AWARDED DAMAGES TO THE PRIVATE
RESPONDENTS WHEN SAID AWARD IS NOT SUPPORTED BY EVIDENCE, IN THE
RECORDS, AND SAID AWARD IS NOT ALLOWED BY LAW AND THE CONSISTENT
DECISIONS OF THIS HONORABLE COURT.

VII

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION

AND GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION
AWARDING DAMAGES TO PETITIONERS WHICH IS CLEARLY IN ACCORDANCE
WITH THE EVIDENCE, THE LAW AND JURISPRUDENCE RELATIVE TO THE AWARD
OF DAMAGES. 31

In the Resolution of 12 September 1984, We required private respondents to Comment on the

petition. 32 After the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this Court then
gave due course to the instant petitions and required petitioners to file their Brief, 35 which they
accordingly complied with.

There is merit in the petition. Before We take on the main task of dissecting the arguments and counter-
arguments, some observations on the procedural vicissitudes of these cases are in order.

Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasi-
delict under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal Case
No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for joint trial in
Branch III of the trial court. The records do not indicate any attempt on the part of the parties, and it may
therefore be reasonably concluded that none was made, to consolidate Criminal Case No. 3751 with the
civil cases, or vice-versa. The parties may have then believed, and understandably so, since by then no
specific provision of law or ruling of this Court expressly allowed such a consolidation, that an
independent civil action, authorized under Article 33 in relation to Article 2177 of the Civil Code, such as
the civil cases in this case, cannot be consolidated with the criminal case. Indeed, such consolidation
could have been farthest from their minds as Article 33 itself expressly provides that the "civil action shall
proceed independently of the criminal prosecution, and shall require only a preponderance of evidence."
Be that as it may, there was then no legal impediment against such consolidation. Section 1, Rule 31 of
the Rules of Court, which seeks to avoid a multiplicity of suits, guard against oppression and abuse,
prevent delays, clear congested dockets to simplify the work of the trial court, or in short, attain justice
with the least expense to the parties litigants, 36 would have easily sustained a consolidation, thereby
preventing the unseeming, if no ludicrous, spectacle of two (2) judges appreciating, according to their
respective orientation, perception and perhaps even prejudice, the same facts differently, and thereafter
rendering conflicting decisions. Such was what happened in this case. It should not, hopefully, happen
anymore. In the recent case of Cojuangco vs. Court or Appeals, 37 this Court held that the present
provisions of Rule 111 of the Revised Rules of Court allow a consolidation of an independent civil action
for the recovery of civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the
criminal action subject, however, to the condition that no final judgment has been rendered in that criminal
case.

Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of reckless
imprudence, although already final by virtue of the denial by no less than this Court of his last attempt to
set aside the respondent Court's affirmance of the verdict of conviction, has no relevance or importance
to this case.

As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in a quasi-
delict is entirely separate and distinct from the civil liability arising from negligence under the Penal Code.
And, as more concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in the case of
independent civil actions under the new Civil Code, the result of the criminal case, whether acquittal or
conviction, would be entirely irrelevant to the civil action." 39 In Salta vs. De Veyra and PNB vs.
Purisima, 40 this Court stated:

. . . It seems perfectly reasonable to conclude that the civil actions mentioned in Article
33, permitted in the same manner to be filed separately from the criminal case, may
proceed similarly regardless of the result of the criminal case.

Indeed, when the law has allowed a civil case related to a criminal case, to be filed
separately and to proceed independently even during the pendency of the latter case, the
intention is patent to make the court's disposition of the criminal case of no effect
whatsoever on the separate civil case. This must be so because the offenses specified in
Article 33 are of such a nature, unlike other offenses not mentioned, that they may be
made the subject of a separate civil action because of the distinct separability of their
respective juridical cause or basis of action . . . .

What remains to be the most important consideration as to why the decision in the criminal case should
not be considered in this appeal is the fact that private respondents were not parties therein. It would
have been entirely different if the petitioners' cause of action was for damages arising from a delict, in
which case private respondents' liability could only be subsidiary pursuant to Article 103 of the Revised
Penal Code. In the absence of any collusion, the judgment of conviction in the criminal case against
Galang would have been conclusive in the civil cases for the subsidiary liability of the private
respondents. 41

And now to the merits of the petition.

It is readily apparent from the pleadings that the principal issue raised in this petition is whether or not
respondent Court's findings in its challenged resolution are supported by evidence or are based on mere
speculations, conjectures and presumptions.

The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal
by certiorari under Rule 45 of the Revised Rules of Court, only questions of law may be raised. The
resolution of factual issues is the function of the lower courts whose findings on these matters are
received with respect and are, as a rule, binding on this Court. 42

The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and the Court
of Appeals may be set aside when such findings are not supported by the evidence or when the trial court
failed to consider the material facts which would have led to a conclusion different from what was stated
in its judgment. 43The same is true where the appellate court's conclusions are grounded entirely on
conjectures, speculations and surmises 44 or where the conclusions of the lower courts are based on a
misapprehension of facts. 45

It is at once obvious to this Court that the instant case qualifies as one of the aforementioned exceptions
as the findings and conclusions of the trial court and the respondent Court in its challenged resolution are
not supported by the evidence, are based on an misapprehension of facts and the inferences made
therefrom are manifestly mistaken. The respondent Court's decision of 29 November 1983 makes the
correct findings of fact.

In the assailed resolution, the respondent Court held that the fact that the car improperly invaded the lane
of the truck and that the collision occurred in said lane gave rise to the presumption that the driver of the
car, Jose Koh, was negligent. On the basis of this presumed negligence, the appellate court immediately
concluded that it was Jose Koh's negligence that was the immediate and proximate cause of the collision.
This is an unwarranted deduction as the evidence for the petitioners convincingly shows that the car
swerved into the truck's lane because as it approached the southern end of the bridge, two (2) boys
darted across the road from the right sidewalk into the lane of the car. As testified to by petitioner Araceli
Koh McKee:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross the
right lane on the right side of the highway going to San Fernando. My
father, who is (sic) the driver of the car tried to avoid the two (2) boys
who were crossing, he blew his horn and swerved to the left to avoid
hitting the two (2) boys. We noticed the truck, he switched on the
headlights to warn the truck driver, to slow down to give us the right of
way to come back to our right lane.

Q Did the truck slow down?

A No sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right lane
since the truck is (sic) coming, my father stepped on the brakes and all
what (sic) I heard is the sound of impact (sic), sir. 46
Her credibility and testimony remained intact even during cross examination. Jose Koh's entry into the
lane of the truck was necessary in order to avoid what was, in his mind at that time, a greater peril
death or injury to the two (2) boys. Such act can hardly be classified as negligent.

Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate Court, 47 thus:

. . . Negligence is the omission to do something which a reasonable man, guided by

those considerations which ordinarily regulate the conduct of human affairs, would do, or
the doing of something which a prudent and reasonable man would not do (Black's Law
Dictionary, Fifth Edition, 930), or as Judge Cooley defines it, "(T)he failure to observe for
the protection of the interests of another person, that degree of care, precaution, and
vigilance which the circumstances justly demand, whereby such other person suffers
injury." (Cooley on Torts, Fourth Edition, vol. 3, 265)

In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a
sound rule, (W)e held:

The test by which to determine the existence of negligence in a particular

case may be stated as follows: Did the defendant in doing the alleged
negligent act use that (reasonable care and caution which an ordinarily
prudent person would have used in the same situation?) If not, then he is
guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman
law. . . .

In Corliss vs. Manila Railroad Company, 48 We held:

. . . Negligence is want of the care required by the circumstances. It is a relative or

comparative, not an absolute, term and its application depends upon the situation of the
parties and the degree of care and vigilance which the circumstances reasonably require.
Where the danger is great, a high degree of care is necessary, and the failure to observe
it is a want of ordinary care under the circumstances. (citing Ahern v. Oregon Telephone
Co., 35 Pac. 549 (1894).

On the basis of the foregoing definition, the test of negligence and the facts obtaining in this case, it is
manifest that no negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent man
would have tried to avoid running over the two boys by swerving the car away from where they were even
if this would mean entering the opposite lane. Avoiding such immediate peril would be the natural course
to take particularly where the vehicle in the opposite lane would be several meters away and could very
well slow down, move to the side of the road and give way to the oncoming car. Moreover, under what is
known as the emergency rule, "one who suddenly finds himself in a place of danger, and is required to
act without time to consider the best means that may be adopted to avoid the impending danger, is not
guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a
better method, unless the emergency in which he finds himself is brought about by his own
negligence." 49

Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh
adopted the best means possible in the given situation to avoid hitting them. Applying the above test,
therefore, it is clear that he was not guilty of negligence.

In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence was the
proximate cause of the collision. Proximate cause has been defined as:
 . . . that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred. And more comprehensively, the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which first acted, under
such circumstances that the person responsible for the first event should, as an ordinary
prudent and intelligent person, have reasonable ground to expect at the moment of his
act or default that an injury to some person might probably result therefrom. 50

Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent, was the
initial act in the chain of events, it cannot be said that the same caused the eventual injuries and deaths
because of the occurrence of a sufficient intervening event, the negligent act of the truck driver, which
was the actual cause of the tragedy. The entry of the car into the lane of the truck would not have resulted
in the collision had the latter heeded the emergency signals given by the former to slow down and give
the car an opportunity to go back into its proper lane. Instead of slowing down and swerving to the far
right of the road, which was the proper precautionary measure under the given circumstances, the truck
driver continued at full speed towards the car. The truck driver's negligence becomes more apparent in
view of the fact that the road is 7.50 meters wide while the car measures 1.598 meters and the truck,
2.286 meters, in width. This would mean that both car and truck could pass side by side with a clearance
of 3.661 meters to spare. 51 Furthermore, the bridge has a level sidewalk which could have partially
accommodated the truck. Any reasonable man finding himself in the given situation would have tried to
avoid the car instead of meeting it head-on.

The truck driver's negligence is apparent in the records. He himself said that his truck was running at 30
miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge 52 is
only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed
negligent if at the time of the mishap, he was violating any traffic regulation. We cannot give credence to
private respondents' claim that there was an error in the translation by the investigating officer of the truck
driver's response in Pampango as to whether the speed cited was in kilometers per hour or miles per
hour. The law presumes that official duty has been regularly performed; 53 unless there is proof to the
contrary, this presumption holds. In the instant case, private respondents' claim is based on mere
conjecture.

The truck driver's negligence was likewise duly established through the earlier quoted testimony of
petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio Tanhueco, an
impartial eyewitness to the mishap.

Araceli Koh McKee testified further, thus:

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused,
Ruben Galang did not reduce its speed before the actual impact of
collision as you narrated in this Exhibit "1," how did you know?

A It just kept on coming, sir. If only he reduced his speed, we could have
got (sic) back to our right lane on side (sic) of the highway, sir. (tsn, pp.
33-34, July 22, 1977) or (Exhibit; "O" in these Civil Cases) (pp. 30-31,
Appellants' Brief) 54

while Eugenio Tanhueco testified thus:

 Q When you saw the truck, how was it moving?

A It was moving 50 to 60 kilometers per hour, sir.

Q Immediately after you saw this truck, do you know what happened?

A I saw the truck and a car collided (sic), sir, and I went to the place to
help the victims. (tsn. 28, April 19, 1979)

xxx xxx xxx

Q From the time you saw the truck to the time of the impact, will you tell
us if the said truck ever stopped?

A I saw it stopped (sic) when it has (sic) already collided with the car and
it was already motionless. (tsn. 31, April 19, 1979; Emphasis Supplied).
(p. 27, Appellants' Brief). 55

Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper measures
and degree of care necessary to avoid the collision which was the proximate cause of the resulting
accident.

Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last clear
chance is a doctrine in the law of torts which states that the contributory negligence of the party injured
will not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable
care and prudence, have avoided the consequences of the negligence of the injured party. In such cases,
the person who had the last clear chance to avoid the mishap is considered in law solely responsible for
the consequences thereof. 56

In Bustamante vs. Court of Appeals, 57 We held:

The respondent court adopted the doctrine of "last clear chance." The doctrine, stated
broadly, is that the negligence of the plaintiff does not preclude a recovery for the
negligence of the defendant where it appears that the defendant, by exercising
reasonable care and prudence, might have avoided injurious consequences to the
plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last clear
chance means that even though a person's own acts may have placed him in a position
of peril, and an injury results, the injured person is entitled to recovery (sic). As the
doctrine is usually stated, a person who has the last clear chance or opportunity of
avoiding an accident, notwithstanding the negligent acts of his opponent or that of a third
person imputed to the opponent is considered in law solely responsible for the
consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).

The practical import of the doctrine is that a negligent defendant is held liable to a
negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing himself
in peril, if he, aware of the plaintiff's peril, or according to some authorities, should have
been aware of it in the reasonable exercise of due care, had in fact an opportunity later
than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799).

In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:

The doctrine of last clear chance was defined by this Court in the case of Ong v.
Metropolitan Water District, 104 Phil. 397 (1958), in this wise:
 The doctrine of the last clear chance simply, means that the negligence
of a claimant does not preclude a recovery for the negligence of
defendant where it appears that the latter, by exercising reasonable care
and prudence, might have avoided injurious consequences to claimant
notwithstanding his negligence.

The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent
negligence but the defendant, who had the last fair chance to avoid the impending harm
and failed to do so, is made liable for all the consequences of the accident
notwithstanding the prior negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918);
Glan People's Lumber and Hardware, et al. vs. Intermediate Appellate Court, Cecilia
Alferez Vda. de Calibo, et al., G.R. No. 70493, May, 18, 1989]. The subsequent
negligence of the defendant in failing to exercise ordinary care to avoid injury to plaintiff
becomes the immediate or proximate cause of the accident which intervenes between
the accident and the more remote negligence of the plaintiff, thus making the defendant
liable to the plaintiff [Picart v. Smith, supra].

Generally, the last clear chance doctrine is invoked for the purpose of making a
defendant liable to a plaintiff who was guilty of prior or antecedent negligence, although it
may also be raised as a defense to defeat claim (sic) for damages.

Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck driver's
negligence in failing to exert ordinary care to avoid the collision which was, in law, the proximate cause of
the collision. As employers of the truck driver, the private respondents are, under Article 2180 of the Civil
Code, directly and primarily liable for the resulting damages. The presumption that they are negligent
flows from the negligence of their employee. That presumption, however, is only juris tantum, not juris et
de jure. 59 Their only possible defense is that they exercised all the diligence of a good father of a family
to prevent the damage. Article 2180 reads as follows:

The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business or industry.

xxx xxx xxx

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.

The diligence of a good father referred to means the diligence in the selection and supervision of
employees. 60The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not
interpose this defense. Neither did they attempt to prove it.

The respondent Court was then correct in its Decision of 29 November 1983 in reversing the decision of
the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed Resolution of 3 April 1984
finds no sufficient legal and factual moorings.

61
In the light of recent decisions of this Court, the indemnity for death must, however, be increased from
P12,000.00 to P50,000.00.
WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court of 3
April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos. 69040-41 is
REINSTATED, subject to the modification that the indemnity for death is increased from P12,000.00 to
P50,000.00 each for the death of Jose Koh and Kim Koh McKee.

Costs against private respondents.

SO ORDERED.

16. Capuno v pepsi cola

G.R. No. L-19331 April 30, 1965

VICTORIA G. CAPUNO and JOSEPHINE G. CAPUNO, plaintiffs-appellants,

vs.
PEPSI-COLA BOTTLING COMPANY OF THE PHILIPPINES and JON ELORDI, defendants-appellees.

Federico Andres for plaintiffs-appellants.

Vicente J. Francisco for defendants-appellees.

MAKALINTAL, J.:

This appeal (in forma pauperis), certified here by the Court of Appeals, is from the order of the Court of
First Instance of Tarlac dismissing appellant's complaint in Civil Case No. 3315 for recovery of damages
for the death of Cipriano Capuno.

The case arose from a vehicular collision which occurred on January 3, 1953 in Apalit, Pampanga.
Involved were a Pepsi-Cola delivery truck driven by Jon Elordi and a private car driven by Capuno. The
collision proved fatal to the latter as well as to his passengers, the spouses Florencio Buan and Rizalina
Paras.

On January 5, 1953 Elordi was charged with triple homicide through reckless imprudence in the Court of
First Instance of Pampanga (criminal case No. 1591). The information was subsequently amended to
include claims for damages by the heirs of the three victims.

It is urged for the applicant that no opposition has been registered against his petition on the issues
above-discussed. Absence of opposition, however, does not preclude the scanning of the whole record
by the appellate court, with a view to preventing the conferment of citizenship to persons not fully qualified
therefor (Lee Ng Len vs. Republic, G.R. No. L-20151, March 31, 1965). The applicant's complaint of
unfairness could have some weight if the objections on appeal had been on points not previously passed
upon. But the deficiencies here in question are not new but well-known, having been ruled upon
repeatedly by this Court, and we see no excuse for failing to take them into account.1wph1.t

On October 1, 1953, while the criminal case was pending, the Intestate Estate of the Buan spouses and
their heirs filed a civil action, also for damages, in the Court of First Instance of Tarlac against the Pepsi-
Cola Bottling Company of the Philippines and Jon Elordi (civil case No. 838). Included in the complaint
was a claim for indemnity in the sum of P2,623.00 allegedly paid by the Estate to the heirs of Capuno
under the Workmen's Compensation Act.

In the criminal case both the heirs of Capuno and the Estate of Buan the former being appellants
herein were represented by their respective counsel as private prosecutors: Attorney Ricardo Y.
Navarro and Attorneys Jose W. Diokno and Augusto M. Ilagan. In view of the filing of the civil action the
accused Jon Elordi moved to strike out the appearances of these private prosecutors in the criminal case.
Grounds for the motion were (1) that as the Capuno heirs were concerned, they no longer had any
interest to protect in the criminal case since they had already claimed and received compensation for the
death of their decedent; and (2) that on the part of the Estate of Buan its right to intervene in said case
had been abated by the civil action.

The appearance and intervention of Attorneys Diokno and Ilagan was disallowed by the Court in an order
dated September 23, 1953, and that of Attorney Navarro was disallowed in an amending order dated
October 23, 1954. No appeal was taken from either of the two orders.

On June 11, 1958 the parties in Civil Case No. 838 entered into a "Compromise and Settlement." For
P290,000.00 the Buan Estate gave up its claims for damages, including the claim for reimbursement of
the sum of P2,623.00 previously paid to the heirs of Capuno "under the Workmen's Compensation Act."
The Court approved the compromise and accordingly dismissed the case on the following June 17.

At that time the criminal case was still pending; judgment was rendered only on April 15, 1959, wherein
the accused Elordi was acquitted of the charges against him. Prior thereto, or on September 26, 1958,
however, herein appellants commenced a civil action for damages against the Pepsi-Cola Bottling
Company of the Philippines and Jon Elordi. This is the action which, upon appellees' motion, was
dismissed by the Court a quo in its order of February 29, 1960, from which order the present appeal has
been taken.

The grounds upon which appellees based their motion for dismissal and which the Court found to be "well
taken" were; (1) that the action had already prescribed; and (2) that appellees had been released from
appellants' claim for damages by virtue of the payment to the latter of the sum of P2,623.00 by the Buan
Estate under the Workmen's Compensation Act, which sum, in turn, was sought to be recovered by the
said Estate from appellees in Civil Case No. 838 but finally settled by them in their compromise.

The ruling of the court below on both points is now assailed by appellants as erroneous. In our opinion
the question of prescription is decisive. There can be no doubt that the present action is one for recovery
of damages based on a quasi-delict, which action must be instituted within four (4) years (Article 1146,
Civil Code). Appellants originally sought to enforce their claim ex-delicto, that is, under the provisions of
the Penal Code, when they intervened in the criminal case against Jon Elordi. The information therein, it
may be recalled, was amended precisely to include an allegation concerning damages suffered by the
heirs of the victims of the accident for which Elordi was being prosecuted. But appellants' intervention was
subsequently disallowed and they did not appeal from the Court's order to the effect. And when they
commenced the civil action on September 26, 1958 the criminal case was still pending, showing that
appellants then chose to pursue the remedy afforded by the Civil Code, for otherwise that action would
have been premature and in any event would have been concluded by the subsequent judgment of
acquittal in the criminal case.

In filing the civil action as they did appellants correctly considered it as entirely independent of the
criminal action, pursuant to Articles 31 and 33 of the Civil Code, which read:

ART. 31. When the civil action is based on an obligation not arising from the act or omission
complained of as a felony, such civil action may proceed independently of the criminal
proceedings and regardless of the result of the latter.

ART. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely
separate and distinct from the criminal action, may be brought by the injured party. Such civil
action shall proceed independently of the criminal prosecution, and shall require only a
preponderance of evidence.
The term "physical injuries" in Article 33 includes bodily injuries causing death (Dyogi v. Yatco, G.R. No.
L-9623, Jan. 22, 1957, 22 L.J. 175). In other words, the civil action for damages could have been
commenced by appellants immediately upon the death of their decedent, Cipriano Capuno, on January 3,
1953 or thereabouts, and the same would not have been stayed by the filing of the criminal action for
homicide through reckless imprudence. But the complaint here was filed only on September 26, 1958, or
after the lapse of more than five years.

In the case of Diocosa Paulan, et al. vs. Zacarias Sarabia, et al., G.R. No. L-10542, promulgated July 31,
1958, this Court held that an action based on a quasi-delict is governed by Article 1150 of the Civil Code
as to the question of when the prescriptive period of four years shall begin to run, that is, "from the day
(the action) may be brought," which means from the day the quasi-delict occurred or was committed.

The foregoing considerations dispose of appellants' contention that the four-year period of prescription in
this case was interrupted by the filing of the criminal action against Jon Elordi inasmuch as they had
neither waived the civil action nor reserved the right to institute it separately. Such reservation was not
then necessary; without having made it they could file as in fact they did a separate civil action even
during the pendency of the criminal case (Pacheco v. Tumangday, L-14500, May 25, 1960; Azucena v.
Potenciano, L-14028, June 30, 1962); and consequently, as held in Paulan v. Sarabia, supra, "the
institution of a criminal action cannot have the effect of interrupting the institution of a civil action based on
a quasi-delict."

As to whether or not Rule 111, Section 2, of the Revised Rules of Court which requires the reservation of
the right to institute a separate and independent civil action in the cases provided for in Articles 31, 32,
33, 34, and 2177 of the Civil Code affects the question of prescription, we do not now decide. The said
rule does not apply in the present case.

Having found the action of appellants barred by the statute of limitations, we do not consider it necessary
to pass upon the other issues raised in their brief.

The order appealed from is affirmed, without costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Bengzon,
J.P., and Zaldivar, JJ., concur.