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G.R. No. 118889 March 23, 1998
FGU INSURANCE CORPORATION, petitioner,
vs.
COURT OF APPEALS, FILCAR TRANSPORT, INC., and FORTUNE INSURANCE
CORPORATION, respondents.

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 DahlJensen 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 Caldo5 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 . . . . "
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 DahlJensen 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 task done properly pertains, in which case what is provided in article
2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall be
liable for damages caused by their pupils and students or apprentices, so
long as they remain in their custody.
The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good
father of a family to prevent damage.
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
juris between 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 . . .
. 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 quasidelict; 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 was not 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.

G.R. No. 122445 November 18, 1997

DR. NINEVETCH CRUZ, petitioner,
vs.
COURT OF APPEALS and LYDIA UMALI, respondents.

FRANCISCO, J.:
Doctors are protected by a special rule of law. They are not guarantors of care. They do not even warrant a good result. They are not
insurers against mishaps or unusual consequences. Furthermore they are not liable for honest mistakes of judgment . . .

1

The present case against petitioner is in the nature of a medical malpractice suit, which in simplest terms
is the type of claim which a victim has available to him or her to redress a wrong committed by a medical
professional which has caused bodily harm. 2 In this jurisdiction, however, such claims are most often
brought as a civil action for damages under Article 2176 of the Civil Code, 3 and in some instances, as a
criminal case under Article 365 of the Revised Penal Code 4 with which the civil action for damages is
impliedly instituted. It is via the latter type of action that the heirs of the deceased sought redress for the
petitioner's alleged imprudence and negligence in treating the deceased thereby causing her death. The
petitioner and one Dr. Lina Ercillo who was the attending anaesthesiologist during the operation of the
deceased were charged with "reckless imprudence and negligence resulting to (sic) homicide" in an
information which reads:
That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the accused above named, being then
the attending anaesthesiologist and surgeon, respectively, did then and there, in a
negligence (sic), careless, imprudent, and incompetent manner, and failing to supply or
store sufficient provisions and facilities necessary to meet any and all exigencies apt to
arise before, during and/or after a surgical operation causing by such negligence,
carelessness, imprudence, and incompetence, and causing by such failure, including the
lack of preparation and foresight needed to avert a tragedy, the untimely death of said
Lydia Umali on the day following said surgical operation. 5
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the above-mentioned
charge. On March 4, 1994, the Municipal Trial Court in Cities (MTCC) of San Pablo City rendered a
decision, the dispositive portion of which is hereunder quoted as follows:
WHEREFORE, the court finds the accused Dra. Lina Ercillo not guilty of the offense
charged for insufficiency of evidence while her co-accused Dra. Ninevetch Cruz is hereby
held responsible for the death of Lydia Umali on March 24, 1991, and therefore guilty
under Art. 365 of the Revised Penal Code, and she is hereby sentenced to suffer the
penalty of 2 months and 1 day imprisonment of arresto mayor with costs. 6
The petitioner appealed her conviction to the Regional Trial Court (RTC) which affirmed in toto the
decision of the MTCC 7 prompting the petitioner to file a petition for review with the Court of
Appeals but to no avail. Hence this petition for review on certiorari assailing the decision
promulgated by the Court of Appeals on October 24, 1995 affirming petitioner's conviction with
modification that she is further directed to pay the heirs of Lydia Umali P50,000.00 as indemnity
for her death. 8

In substance, the petition brought before this Court raises the issue of whether or not petitioner's
conviction of the crime of reckless imprudence resulting in homicide, arising from an alleged
medical malpractice, is supported by the evidence on record.
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her mother to the
Perpetual Help Clinic and General Hospital situated in Balagtas Street, San Pablo City, Laguna. They
arrived at the said hospital at around 4:30 in the afternoon of the same day. 9 Prior to
March 22, 1991, Lydia was examined by the petitioner who found a "myoma" 10 in her uterus, and
scheduled her for a hysterectomy operation on March 23,
1991. 11 Rowena and her mother slept in the clinic on the evening of March 22, 1991 as the latter was to
be operated on the next day at 1:00 o'clock in the afternoon. 12 According to Rowena, she noticed that the
clinic was untidy and the window and the floor were very dusty prompting her to ask the attendant for a
rag to wipe the window and the floor with. 13 Because of the untidy state of the clinic, Rowena tried to
persuade her mother not to proceed with the operation. 14 The following day, before her mother was
wheeled into the operating room, Rowena asked the petitioner if the operation could be postponed. The
petitioner called Lydia into her office and the two had a conversation. Lydia then informed Rowena that
the petitioner told her that she must be operated on as scheduled. 15
Rowena and her other relatives, namely her husband, her sister and two aunts waited outside the
operating room while Lydia underwent operation. While they were waiting, Dr. Ercillo went out of the
operating room and instructed them to buy tagamet ampules which Rowena's sister immediately bought.
About one hour had passed when Dr. Ercillo came out again this time to ask them to buy blood for Lydia.
They bought type "A" blood from the St. Gerald Blood Bank and the same was brought by the attendant
into the operating room. After the lapse of a few hours, the petitioner informed them that the operation
was finished. The operating staff then went inside the petitioner's clinic to take their snacks. Some thirty
minutes after, Lydia was brought out of the operating room in a stretcher and the petitioner asked Rowena
and the other relatives to buy additional blood for Lydia. Unfortunately, they were not able to comply with
petitioner's order as there was no more type "A" blood available in the blood bank. Thereafter, a person
arrived to donate blood which was later transfused to Lydia. Rowena then noticed her mother, who was
attached to an oxygen tank, gasping for breath. Apparently the oxygen supply had run out and Rowena's
husband together with the driver of the accused had to go to the San Pablo District Hospital to get
oxygen. Lydia was given the fresh supply of oxygen as soon as it arrived. 16 But at around 10:00 o'clock
P.M. she went into shock and her blood pressure dropped to 60/50. Lydia's unstable condition
necessitated her transfer to the San Pablo District Hospital so she could be connected to a respirator and
further examined. 17 The transfer to the San Pablo District Hospital was without the prior consent of
Rowena nor of the other relatives present who found out about the intended transfer only when an
ambulance arrived to take Lydia to the San Pablo District Hospital. Rowena and her other relatives then
boarded a tricycle and followed the ambulance. 18
Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the operating room and the
petitioner and Dr. Ercillo re-operated on her because there was blood oozing from the abdominal incision.
19
The attending physicians summoned Dr. Bartolome Angeles, head of the Obstetrics and Gynecology
Department of the San Pablo District Hospital. However, when Dr. Angeles arrived, Lydia was already in
shock and possibly dead as her blood pressure was already 0/0. Dr. Angeles then informed petitioner and
Dr. Ercillo that there was nothing he could do to help save the patient. 20 While the petitioner was closing
the abdominal wall, the patient died. 21 Thus, on March 24, 1991, at 3:00 o'clock in the morning, Lydia

Umali was pronounced dead. Her death certificate states "shock" as the immediate cause of death and
"Disseminated Intravascular Coagulation (DIC)" as the antecedent cause. 22
In convicting the petitioner, the MTCC found the following circumstances as sufficient basis to conclude
that she was indeed negligent in the performance of the operation:
. . . , the clinic was untidy, there was lack of provision like blood and oxygen to prepare for
any contingency that might happen during the operation. The manner and the fact that
the patient was brought to the San Pablo District Hospital for reoperation indicates that
there was something wrong in the manner in which Dra. Cruz conducted the operation.
There was no showing that before the operation, accused Dra. Cruz had conducted a
cardio pulmonary clearance or any typing of the blood of the patient. It was (sic) said in
medical parlance that the "the abdomen of the person is a temple of surprises" because
you do not know the whole thing the moment it was open (sic) and surgeon must be
prepared for any eventuality thereof. The patient (sic) chart which is a public document
was not presented because it is only there that we could determine the condition of the
patient before the surgery. The court also noticed in Exh. "F-1" that the sister of the
deceased wished to postpone the operation but the patient was prevailed upon by Dra.
Cruz to proceed with the surgery. The court finds that Lydia Umali died because of the
negligence and carelessness of the surgeon Dra. Ninevetch Cruz because of loss of
blood during the operation of the deceased for evident unpreparedness and for lack of
skill, the reason why the patient was brought for operation at the San Pablo City District
Hospital. As such, the surgeon should answer for such negligence. With respect to Dra.
Lina Ercillo, the anaesthesiologist, there is no evidence to indicate that she should be
held jointly liable with Dra. Cruz who actually did the operation. 23
The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's declaration of
"incompetency, negligence and lack of foresight and skill of appellant (herein petitioner) in handling the
subject patient before and after the operation." 24 And likewise affirming the petitioner's conviction, the
Court of Appeals echoed similar observations, thus:
. . . While we may grant that the untidiness and filthiness of the clinic may not by itself
indicate negligence, it nevertheless shows the absence of due care and supervision over
her subordinate employees. Did this unsanitary condition permeate the operating room?
Were the surgical instruments properly sterilized? Could the conditions in the OR have
contributed to the infection of the patient? Only the petitioner could answer these, but she
opted not to testify. This could only give rise to the presumption that she has nothing
good to testify on her defense. Anyway, the alleged "unverified statement of the
prosecution witness" remains unchallenged and unrebutted.
Likewise undisputed is the prosecution's version indicating the following facts: that the
accused asked the patient's relatives to buy Tagamet capsules while the operation was
already in progress; that after an hour, they were also asked to buy type "A" blood for the
patient; that after the surgery, they were again asked to procure more type "A" blood, but
such was not anymore available from the source; that the oxygen given to the patient
was empty; and that the son-in-law of the patient, together with a driver of the petitioner,
had to rush to the San Pablo City District Hospital to get the much-needed oxygen. All
these conclusively show that the petitioner had not prepared for any unforeseen

circumstances before going into the first surgery, which was not emergency in nature, but
was elective or pre-scheduled; she had no ready antibiotics, no prepared blood, properly
typed and cross-matched, and no sufficient oxygen supply.
Moreover, there are a lot of questions that keep nagging Us. Was the patient given any
cardio-pulmonary clearance, or at least a clearance by an internist, which are standard
requirements before a patient is subjected to surgery. Did the petitioner determine as part
of the pre-operative evaluation, the bleeding parameters of the patient, such as bleeding
time and clotting time? There is no showing that these were done. The petitioner just
appears to have been in a hurry to perform the operation, even as the family wanted a
postponement to April 6, 1991. Obviously, she did not prepare the patient; neither did she
get the family's consent to the operation. Moreover, she did not prepare a medical chart
with instructions for the patient's care. If she did all these, proof thereof should have been
offered. But there is none. Indeed, these are overwhelming evidence of recklessness and
imprudence. 25
This Court, however, holds differently and finds the foregoing circumstances insufficient to sustain a
judgment of conviction against the petitioner for the crime of reckless imprudence resulting in homicide.
The elements of reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the
doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage
results from the reckless imprudence; and (5) that there is inexcusable lack of precaution on the part of
the offender, taking into consideration his employment or occupation, degree of intelligence, physical
condition, and other circumstances regarding persons, time and place.
Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his
patient is to be determined according to the standard of care observed by other members of the
profession in good standing under similar circumstances bearing in mind the advanced state of the
profession at the time of treatment or the present state of medical science. 26 In the recent case of Leonila
Garcia-Rueda v. Wilfred L. Pascasio, et al., 27 this Court stated that in accepting a case, a doctor in effect
represents that, having the needed training and skill possessed by physicians and surgeons practicing in
the same field, he will employ such training, care and skill in the treatment of his patients. He therefore
has a duty to use at least the same level of care that any other reasonably competent doctor would use to
treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert
testimony is essential to establish not only the standard of care of the profession but also that the
physician's conduct in the treatment and care falls below such standard. 28 Further, inasmuch as the
causes of the injuries involved in malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion
as to causation. 29
Immediately apparent from a review of the records of this case is the absence of any expert testimony on
the matter of the standard of care employed by other physicians of good standing in the conduct of similar
operations. The prosecution's expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto
Salvador, Jr. of the National Bureau of Investigation (NBI) only testified as to the possible cause of death
but did not venture to illuminate the court on the matter of the standard of care that petitioner should have
exercised.
All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of
provisions such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardio-

pulmonary test prior to the operation; the omission of any form of blood typing before transfusion; and
even the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by
the petitioner. But while it may be true that the circumstances pointed out by the courts below seemed
beyond cavil to constitute reckless imprudence on the part of the surgeon, this conclusion is still best
arrived at not through the educated surmises nor conjectures of laymen, including judges, but by the
unquestionable knowledge of expert witnesses. For whether a physician or surgeon has exercised the
requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of
expert opinion. 30 The deference of courts to the expert opinion of qualified physicians stems from its
realization that the latter possess unusual technical skills which laymen in most instances are incapable of
intelligently evaluating. 31 Expert testimony should have been offered to prove that the circumstances cited
by the courts below are constitutive of conduct falling below the standard of care employed by other
physicians in good standing when performing the same operation. It must be remembered that when the
qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in
proper cases he takes the necessary precaution and employs the best of his knowledge and skill in
attending to his clients, unless the contrary is sufficiently established. 32 This presumption is rebuttable by
expert opinion which is so sadly lacking in the case at bench.
Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the lack of
provisions; the failure to conduct pre-operation tests on the patient; and the subsequent transfer of Lydia
to the San Pablo Hospital and the reoperation performed on her by the petitioner do indicate, even
without expert testimony, that petitioner was recklessly imprudent in the exercise of her duties as a
surgeon, no cogent proof exists that any of these circumstances caused petitioner's death. Thus, the
absence of the fourth element of reckless imprudence: that the injury to the person or property was a
consequence of the reckless imprudence.
In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's
negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on the
part of the surgeon as well as a causal connection of such breach and the resulting death of his patient. 33
In Chan Lugay v. St. Luke's Hospital, Inc., 34 where the attending physician was absolved of liability for the
death of the complainant's wife and newborn baby, this Court held that:
In order that there may be a recovery for an injury, however, it must be shown that the
"injury for which recovery is sought must be the legitimate consequence of the wrong
done; the connection between the negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient causes." In other words, the
negligence must be the proximate cause of the injury. For, "negligence, no matter in what
it consists, cannot create a right of action unless it is the proximate cause of the injury
complained of ." And "the proximate cause of an injury is that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred." 35 (Emphasis supplied.)
Dr. Arizala who conducted an autopsy on the body of the deceased summarized his findings as follows:
Atty. Cachero:
Q. You mentioned about your Autopsy Report which has been marked as
Exh. "A-1-b". There appears here a signature above the typewritten
name Floresto Arizala, Jr., whose signature is that?

A. That is my signature, sir.
Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?
A. Only as to the autopsy report no. 91-09, the time and place and
everything after the post mortem findings, sir.
Q. You mentioned on your "Post Mortem Findings" about surgical
incision, 14:0 cm., infraumbilical area, anterior abdominal area, midline,
will you please explain that in your own language?
A. There was incision wound (sic) the area just below the navel, sir.
Q. And the last paragraph of the postmortem findings which I read:
Uterus, pear-shaped and pale measuring 7.5 x 5.5 x 5.0 cm. with some
surface nodulation of the fundic area posteriorly. Cut-section shows
diffusely pale myometrium with areas of streak induration. The ovaries
and adnexal structures are missing with the raw surfaces patched with
clotted blood. Surgical sutures were noted on the operative site.
Intestines and mesenteries are pale with blood clots noted between the
mesentric folds.
Hemoperitoneum: 300 s.s.,
right paracolic gutter,
50 c.c., left paracolic gutter
200 c.c., mesentric area,
100 c.c., right pelvic gutter
stomach empty.
Other visceral organs, pale.,
will you please explain that on (sic) your own language or in ordinary. . . . . . . . . . . .
A. There was a uterus which was not attached to the adnexal structures
namely ovaries which were not present and also sign of previous surgical
operation and there were (sic) clotted blood, sir.
Q. How about the ovaries and adnexal structures?
A. They are missing, sir.
Q. You mean to say there are no ovaries?
A. During that time there are no ovaries, sir.
Q. And there were likewise sign of surgical sutures?

A. Yes, sir.
Q. How about the intestines and mesenteries are place (sic) with blood
clots noted between the mesenteric folds, will you please explain on (sic)
this?
A. In the peritoneal cavity, they are mostly perritonial blood . . . . . . . .
Q. And what could have caused this blood?
A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic)
outside as a result of the injuries which destroyed the integrity of the
vessel allowing blood to sip (sic) out, sir.
Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can
you tell the court the cause of death?
A. Yes, sir. The cause of death is: Gross findings are compatible with
hemorrhagic shock.
Q. Can you tell the us what could have caused this hemorrhagic shock?
A. Well hemorrhagic shock is the result of blood loss.
Q. What could have the effect of that loss of blood?
A. Unattended hemorrhage, sir. 36 (Emphasis supplied.)
The foregoing was corroborated by Dr. Nieto Salvador:
Q. And were you able to determine the cause of death by virtue of the
examination of the specimen submitted by Dr. Arizala?
A. Without knowledge of the autopsy findings it would be difficult for me
to determine the cause of death, sir.
Q. Have you also examined the post mortem of Dr. Arizala?
A. Yes, sir, and by virtue of the autopsy report in connection with your
pathology report.
Q. What could have caused the death of the victim?
A. This pathologic examination are (sic) compatible with the person who
died, sir.
Q. Will you explain to us the meaning of hemorrhagic compatible?

A. It means that a person died of blood loss. Meaning a person died of
non-replacement of blood and so the victim before she died there was
shock of diminish of blood of the circulation. She died most probably
before the actual complete blood loss, sir.
Court: Is it possible doctor that the loss of the blood was due on (sic)
operation?
A. Based on my pathologist finding, sir.
Q. What could have caused this loss of blood?
A. Many, sir. A patient who have undergone surgery. Another may be a
blood vessel may be cut while on operation and this cause (sic)
bleeding, or may be set in the course of operation, or may be (sic) he
died after the operation. Of course there are other cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was no blood replacement?
A. Yes, sir. 37 (Emphasis supplied.)
The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause of death.
However, as likewise testified to by the expert witnesses in open court, hemorrhage or hemorrhagic shock
during surgery may be caused by several different factors. Thus, Dr. Salvador's elaboration on the matter:
Atty. Pascual:
Q. Doctor, among the causes of hemorrhage that you mentioned you
said that it could be at the moment of operation when one losses (sic)
control of the presence, is that correct? During the operation there is lost
(sic) of control of the cut vessel?
A. Yes, sir.
Q. Or there is a failure to ligate a vessel of considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the knot may have slipped later on?
A. Yes, sir.
Q. And you also mentioned that it may be possible also to some clotting
defect, is that correct?
A. May be (sic). 38 (Emphasis supplied).

Defense witness, Dr. Bu C. Castro also gave the following expert opinion:
Q. Doctor even a patient after an operations (sic) would suffer
hemorrage what would be the possible causes of such hemorrage (sic)?
A. Among those would be what we call Intravascular Coagulation and
this is the reason for the bleeding, sir, which cannot be prevented by
anyone, it will happen to anyone, anytime and to any persons (sic), sir.
COURT:
What do you think of the cause of the bleeding, the cutting or the
operations done in the body?
A. Not related to this one, the bleeding here is not related to any cutting
or operation that I (sic) have done.
Q. Aside from the DIC what could another causes (sic) that could be the
cause for the hemorrhage or bleeding in a patient by an operations (sic)?
A. In general sir, if there was an operations (sic) and it is possible that the
ligature in the suture was (sic) become (sic) loose, it is (sic) becomes
loose if proven..
xxx xxx xxx
Q. If the person who performed an autopsy does not find any untight (sic)
clot (sic) blood vessel or any suture that become (sic) loose the cause of
the bleeding could not be attributed to the fault of the subject?
A. Definitely, sir. 39 (Emphasis supplied.)
According to both doctors, the possible causes of hemorrhage during an operation are: (1) the failure of
the surgeon to tie or suture a cut blood vessel; (2) allowing a cut blood vessel to get out of control; (3) the
subsequent loosening of the tie or suture applied to a cut blood vessel; and (4) and a clotting defect
known as DIC. It is significant to state at this juncture that the autopsy conducted by Dr. Arizala on the
body of Lydia did not reveal any untied or unsutured cut blood vessel nor was there any indication that the
tie or suture of a cut blood vessel had become loose thereby causing the hemorrhage. 40 Hence the
following pertinent portion of Dr. Arizala's testimony:
Q: Doctor, in examining these structures did you know whether these
were sutured ligature or plain ligature
A: Ligature, sir.
Q: We will explain that later on. Did you recall if the cut structures were
tied by first suturing it and then tying a knot or the tie was merely placed
around the cut structure and tied?

A: I cannot recall, sir.
Q: As a matter of fact, you cannot recall because you did not even
bothered (sic) to examine, is that correct?
A: Well, I bothered enough to know that they were sutured, sir.
Q: So, therefore, Doctor, you would not know whether any of the cut
structures were not sutured or tied neither were you able to determine
whether any loose suture was found in the peritoneal cavity?
A: I could not recall any loose sutured (sic), sir. 41
On the other hand, the findings of all three doctors do not preclude the probability that DIC caused the
hemorrhage and consequently, Lydia's death. DIC which is a clotting defect creates a serious bleeding
tendency and when massive DIC occurs as a complication of surgery leaving raw surface, major
hemorrhage occurs. 42 And as testified to by defense witness, Dr. Bu C. Castro, hemorrhage due to DIC
"cannot be prevented, it will happen to anyone,
anytime." 43 He testified further:
Q. Now, under that circumstance one of the possibility as you mentioned
in (sic) DIC?
A. Yes, sir.
Q. And you mentioned that this cannot be prevented?
A. Yes, sir.
Q. Can you even predict if it really happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of autopsy that will tell you whether this
patient suffered among such things as DIC?
A. Well, I did reserve because of the condition of the patient.
Q. Now, Doctor you said that you went through the record of the
deceased Lydia Umali looking for the chart, the operated (sic) records,
the post mortem findings on the histophanic (sic) examination based on
your examination of record, doctor, can you more or less says (sic) what
part are (sic) concerned could have been the caused (sic) of death of this
Lydia Umali?
A. As far as the medical record is concern (sic) the caused (sic) of death
is dessimulated (sic) Intra Vascular Coagulation or the DIC which
resulted to hemorrhage or bleedings, sir.

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

Umali the amount of FIFTY THOUSAND PESOS (P50,000.00) as civil liability, ONE HUNDRED
THOUSAND PESOS (P100,000.00) as moral damages, and FIFTY THOUSAND PESOS (P50,000.00) as
exemplary damages.
Let a copy of this decision be furnished to the Professional Regulation Commission (PRC) for appropriate
action.
SO ORDERED.

G.R. No. 179337

April 30, 2008

JOSEPH SALUDAGA, petitioner,
vs.
FAR EASTERN UNIVERSITY and EDILBERTO C. DE JESUS in his capacity as
President of FEU, respondents.
DECISION
YNARES-SANTIAGO, J.:
This Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assails the June 29,
2007 Decision2 of the Court of Appeals in CA-G.R. CV No. 87050, nullifying and setting aside
the November 10, 2004 Decision3 of the Regional Trial Court of Manila, Branch 2, in Civil Case
No. 98-89483 and dismissing the complaint filed by petitioner; as well as its August 23, 2007
Resolution4 denying the Motion for Reconsideration.5
The antecedent facts are as follows:
Petitioner Joseph Saludaga was a sophomore law student of respondent Far Eastern University
(FEU) when he was shot by Alejandro Rosete (Rosete), one of the security guards on duty at the
school premises on August 18, 1996. Petitioner was rushed to FEU-Dr. Nicanor Reyes Medical
Foundation (FEU-NRMF) due to the wound he sustained.6 Meanwhile, Rosete was brought to
the police station where he explained that the shooting was accidental. He was eventually
released considering that no formal complaint was filed against him.
Petitioner thereafter filed a complaint for damages against respondents on the ground that they
breached their obligation to provide students with a safe and secure environment and an
atmosphere conducive to learning. Respondents, in turn, filed a Third-Party Complaint7 against
Galaxy Development and Management Corporation (Galaxy), the agency contracted by
respondent FEU to provide security services within its premises and Mariano D. Imperial
(Imperial), Galaxy's President, to indemnify them for whatever would be adjudged in favor of
petitioner, if any; and to pay attorney's fees and cost of the suit. On the other hand, Galaxy and
Imperial filed a Fourth-Party Complaint against AFP General Insurance.8
On November 10, 2004, the trial court rendered a decision in favor of petitioner, the dispositive
portion of which reads:
WHEREFORE, from the foregoing, judgment is hereby rendered ordering:
1. FEU and Edilberto de Jesus, in his capacity as president of FEU to pay jointly
and severally Joseph Saludaga the amount of P35,298.25 for actual damages with
12% interest per annum from the filing of the complaint until fully paid; moral

damages of P300,000.00, exemplary damages of P500,000.00, attorney's fees of
P100,000.00 and cost of the suit;
2. Galaxy Management and Development Corp. and its president, Col. Mariano
Imperial to indemnify jointly and severally 3rd party plaintiffs (FEU and
Edilberto de Jesus in his capacity as President of FEU) for the above-mentioned
amounts;
3. And the 4th party complaint is dismissed for lack of cause of action. No
pronouncement as to costs.
SO ORDERED.9
Respondents appealed to the Court of Appeals which rendered the assailed Decision, the decretal
portion of which provides, viz:
WHEREFORE, the appeal is hereby GRANTED. The Decision dated November 10,
2004 is hereby REVERSED and SET ASIDE. The complaint filed by Joseph Saludaga
against appellant Far Eastern University and its President in Civil Case No. 98-89483 is
DISMISSED.
SO ORDERED.10
Petitioner filed a Motion for Reconsideration which was denied; hence, the instant petition based
on the following grounds:
THE COURT OF APPEALS SERIOUSLY ERRED IN MANNER CONTRARY TO
LAW AND JURISPRUDENCE IN RULING THAT:
5.1. THE SHOOTING INCIDENT IS A FORTUITOUS EVENT;
5.2. RESPONDENTS ARE NOT LIABLE FOR DAMAGES FOR THE INJURY
RESULTING FROM A GUNSHOT WOUND SUFFERED BY THE PETITIONER
FROM THE HANDS OF NO LESS THAN THEIR OWN SECURITY GUARD IN
VIOLATION OF THEIR BUILT-IN CONTRACTUAL OBLIGATION TO
PETITIONER, BEING THEIR LAW STUDENT AT THAT TIME, TO PROVIDE HIM
WITH A SAFE AND SECURE EDUCATIONAL ENVIRONMENT;
5.3. SECURITY GAURD, ALEJANDRO ROSETE, WHO SHOT PETITIONER WHILE
HE WAS WALKING ON HIS WAY TO THE LAW LIBRARY OF RESPONDENT FEU
IS NOT THEIR EMPLOYEE BY VIRTUE OF THE CONTRACT FOR SECURITY
SERVICES BETWEEN GALAXY AND FEU NOTWITHSTANDING THE FACT

THAT PETITIONER, NOT BEING A PARTY TO IT, IS NOT BOUND BY THE SAME
UNDER THE PRINCIPLE OF RELATIVITY OF CONTRACTS; and
5.4. RESPONDENT EXERCISED DUE DILIGENCE IN SELECTING GALAXY AS
THE AGENCY WHICH WOULD PROVIDE SECURITY SERVICES WITHIN THE
PREMISES OF RESPONDENT FEU.11
Petitioner is suing respondents for damages based on the alleged breach of student-school
contract for a safe learning environment. The pertinent portions of petitioner's Complaint read:
6.0. At the time of plaintiff's confinement, the defendants or any of their representative
did not bother to visit and inquire about his condition. This abject indifference on the part
of the defendants continued even after plaintiff was discharged from the hospital when
not even a word of consolation was heard from them. Plaintiff waited for more than one
(1) year for the defendants to perform their moral obligation but the wait was fruitless.
This indifference and total lack of concern of defendants served to exacerbate plaintiff's
miserable condition.
xxxx
11.0. Defendants are responsible for ensuring the safety of its students while the latter are
within the University premises. And that should anything untoward happens to any of its
students while they are within the University's premises shall be the responsibility of the
defendants. In this case, defendants, despite being legally and morally bound, miserably
failed to protect plaintiff from injury and thereafter, to mitigate and compensate plaintiff
for said injury;
12.0. When plaintiff enrolled with defendant FEU, a contract was entered into between
them. Under this contract, defendants are supposed to ensure that adequate steps are
taken to provide an atmosphere conducive to study and ensure the safety of the plaintiff
while inside defendant FEU's premises. In the instant case, the latter breached this
contract when defendant allowed harm to befall upon the plaintiff when he was shot at
by, of all people, their security guard who was tasked to maintain peace inside the
campus.12
In Philippine School of Business Administration v. Court of Appeals,13 we held that:
When an academic institution accepts students for enrollment, there is established a
contract between them, resulting in bilateral obligations which both parties are bound to
comply with. For its part, the school undertakes to provide the student with an education
that would presumably suffice to equip him with the necessary tools and skills to pursue

higher education or a profession. On the other hand, the student covenants to abide by the
school's academic requirements and observe its rules and regulations.
Institutions of learning must also meet the implicit or "built-in" obligation of providing
their students with an atmosphere that promotes or assists in attaining its primary
undertaking of imparting knowledge. Certainly, no student can absorb the intricacies of
physics or higher mathematics or explore the realm of the arts and other sciences when
bullets are flying or grenades exploding in the air or where there looms around the school
premises a constant threat to life and limb. Necessarily, the school must ensure that
adequate steps are taken to maintain peace and order within the campus premises and to
prevent the breakdown thereof.14
It is undisputed that petitioner was enrolled as a sophomore law student in respondent FEU. As
such, there was created a contractual obligation between the two parties. On petitioner's part, he
was obliged to comply with the rules and regulations of the school. On the other hand,
respondent FEU, as a learning institution is mandated to impart knowledge and equip its students
with the necessary skills to pursue higher education or a profession. At the same time, it is
obliged to ensure and take adequate steps to maintain peace and order within the campus.
It is settled that in culpa contractual, the mere proof of the existence of the contract and the
failure of its compliance justify, prima facie, a corresponding right of relief.15 In the instant case,
we find that, when petitioner was shot inside the campus by no less the security guard who was
hired to maintain peace and secure the premises, there is a prima facie showing that respondents
failed to comply with its obligation to provide a safe and secure environment to its students.
In order to avoid liability, however, respondents aver that the shooting incident was a fortuitous
event because they could not have reasonably foreseen nor avoided the accident caused by
Rosete as he was not their employee;16 and that they complied with their obligation to ensure a
safe learning environment for their students by having exercised due diligence in selecting the
security services of Galaxy.
After a thorough review of the records, we find that respondents failed to discharge the burden of
proving that they exercised due diligence in providing a safe learning environment for their
students. They failed to prove that they ensured that the guards assigned in the campus met the
requirements stipulated in the Security Service Agreement. Indeed, certain documents about
Galaxy were presented during trial; however, no evidence as to the qualifications of Rosete as a
security guard for the university was offered.
Respondents also failed to show that they undertook steps to ascertain and confirm that the
security guards assigned to them actually possess the qualifications required in the Security
Service Agreement. It was not proven that they examined the clearances, psychiatric test results,

201 files, and other vital documents enumerated in its contract with Galaxy. Total reliance on the
security agency about these matters or failure to check the papers stating the qualifications of the
guards is negligence on the part of respondents. A learning institution should not be allowed to
completely relinquish or abdicate security matters in its premises to the security agency it hired.
To do so would result to contracting away its inherent obligation to ensure a safe learning
environment for its students.
Consequently, respondents' defense of force majeure must fail. In order for force majeure to be
considered, respondents must show that no negligence or misconduct was committed that may
have occasioned the loss. An act of God cannot be invoked to protect a person who has failed to
take steps to forestall the possible adverse consequences of such a loss. One's negligence may
have concurred with an act of God in producing damage and injury to another; nonetheless,
showing that the immediate or proximate cause of the damage or injury was a fortuitous event
would not exempt one from liability. When the effect is found to be partly the result of a person's
participation - whether by active intervention, neglect or failure to act - the whole occurrence is
humanized and removed from the rules applicable to acts of God.17
Article 1170 of the Civil Code provides that those who are negligent in the performance of their
obligations are liable for damages. Accordingly, for breach of contract due to negligence in
providing a safe learning environment, respondent FEU is liable to petitioner for damages. It is
essential in the award of damages that the claimant must have satisfactorily proven during the
trial the existence of the factual basis of the damages and its causal connection to defendant's
acts.18
In the instant case, it was established that petitioner spent P35,298.25 for his hospitalization and
other medical expenses.19 While the trial court correctly imposed interest on said amount,
however, the case at bar involves an obligation arising from a contract and not a loan or
forbearance of money. As such, the proper rate of legal interest is six percent (6%) per annum of
the amount demanded. Such interest shall continue to run from the filing of the complaint until
the finality of this Decision.20 After this Decision becomes final and executory, the applicable
rate shall be twelve percent (12%) per annum until its satisfaction.
The other expenses being claimed by petitioner, such as transportation expenses and those
incurred in hiring a personal assistant while recuperating were however not duly supported by
receipts.21 In the absence thereof, no actual damages may be awarded. Nonetheless, temperate
damages under Art. 2224 of the Civil Code may be recovered where it has been shown that the
claimant suffered some pecuniary loss but the amount thereof cannot be proved with certainty.
Hence, the amount of P20,000.00 as temperate damages is awarded to petitioner.
As regards the award of moral damages, there is no hard and fast rule in the determination of
what would be a fair amount of moral damages since each case must be governed by its own

peculiar circumstances.22 The testimony of petitioner about his physical suffering, mental
anguish, fright, serious anxiety, and moral shock resulting from the shooting incident23 justify the
award of moral damages. However, moral damages are in the category of an award designed to
compensate the claimant for actual injury suffered and not to impose a penalty on the wrongdoer.
The award is not meant to enrich the complainant at the expense of the defendant, but to enable
the injured party to obtain means, diversion, or amusements that will serve to obviate the moral
suffering he has undergone. It is aimed at the restoration, within the limits of the possible, of the
spiritual status quo ante, and should be proportionate to the suffering inflicted. Trial courts must
then guard against the award of exorbitant damages; they should exercise balanced restrained
and measured objectivity to avoid suspicion that it was due to passion, prejudice, or corruption
on the part of the trial court.24 We deem it just and reasonable under the circumstances to award
petitioner moral damages in the amount of P100,000.00.
Likewise, attorney's fees and litigation expenses in the amount of P50,000.00 as part of damages
is reasonable in view of Article 2208 of the Civil Code.25 However, the award of exemplary
damages is deleted considering the absence of proof that respondents acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner.
We note that the trial court held respondent De Jesus solidarily liable with respondent FEU. In
Powton Conglomerate, Inc. v. Agcolicol,26 we held that:
[A] corporation is invested by law with a personality separate and distinct from those of
the persons composing it, such that, save for certain exceptions, corporate officers who
entered into contracts in behalf of the corporation cannot be held personally liable for the
liabilities of the latter. Personal liability of a corporate director, trustee or officer along
(although not necessarily) with the corporation may so validly attach, as a rule, only
when - (1) he assents to a patently unlawful act of the corporation, or when he is guilty of
bad faith or gross negligence in directing its affairs, or when there is a conflict of interest
resulting in damages to the corporation, its stockholders or other persons; (2) he consents
to the issuance of watered down stocks or who, having knowledge thereof, does not
forthwith file with the corporate secretary his written objection thereto; (3) he agrees to
hold himself personally and solidarily liable with the corporation; or (4) he is made by a
specific provision of law personally answerable for his corporate action.27
None of the foregoing exceptions was established in the instant case; hence, respondent De Jesus
should not be held solidarily liable with respondent FEU.
Incidentally, although the main cause of action in the instant case is the breach of the schoolstudent contract, petitioner, in the alternative, also holds respondents vicariously liable under
Article 2180 of the Civil Code, which provides:

Art. 2180. 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.
xxxx
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.
xxxx
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.
We agree with the findings of the Court of Appeals that respondents cannot be held liable for
damages under Art. 2180 of the Civil Code because respondents are not the employers of Rosete.
The latter was employed by Galaxy. The instructions issued by respondents' Security Consultant
to Galaxy and its security guards are ordinarily no more than requests commonly envisaged in
the contract for services entered into by a principal and a security agency. They cannot be
construed as the element of control as to treat respondents as the employers of Rosete.28
As held in Mercury Drug Corporation v. Libunao:29
In Soliman, Jr. v. Tuazon,30 we held that where the security agency recruits, hires and
assigns the works of its watchmen or security guards to a client, the employer of such
guards or watchmen is such agency, and not the client, since the latter has no hand in
selecting the security guards. Thus, the duty to observe the diligence of a good father of a
family cannot be demanded from the said client:
… [I]t is settled in our jurisdiction that where the security agency, as here,
recruits, hires and assigns the work of its watchmen or security guards, the agency
is the employer of such guards or watchmen. Liability for illegal or harmful acts
committed by the security guards attaches to the employer agency, and not to the
clients or customers of such agency. As a general rule, a client or customer of a
security agency has no hand in selecting who among the pool of security guards
or watchmen employed by the agency shall be assigned to it; the duty to observe
the diligence of a good father of a family in the selection of the guards cannot, in
the ordinary course of events, be demanded from the client whose premises or
property are protected by the security guards.
xxxx

The fact that a client company may give instructions or directions to the security guards
assigned to it, does not, by itself, render the client responsible as an employer of the
security guards concerned and liable for their wrongful acts or omissions.31
We now come to respondents' Third Party Claim against Galaxy. In Firestone Tire and Rubber
Company of the Philippines v. Tempengko,32 we held that:
The third-party complaint is, therefore, a procedural device whereby a 'third party' who is
neither a party nor privy to the act or deed complained of by the plaintiff, may be brought
into the case with leave of court, by the defendant, who acts as third-party plaintiff to
enforce against such third-party defendant a right for contribution, indemnity, subrogation
or any other relief, in respect of the plaintiff's claim. The third-party complaint is actually
independent of and separate and distinct from the plaintiff's complaint. Were it not for
this provision of the Rules of Court, it would have to be filed independently and
separately from the original complaint by the defendant against the third-party. But the
Rules permit defendant to bring in a third-party defendant or so to speak, to litigate his
separate cause of action in respect of plaintiff's claim against a third-party in the original
and principal case with the object of avoiding circuitry of action and unnecessary
proliferation of law suits and of disposing expeditiously in one litigation the entire
subject matter arising from one particular set of facts.33
Respondents and Galaxy were able to litigate their respective claims and defenses in the course
of the trial of petitioner's complaint. Evidence duly supports the findings of the trial court that
Galaxy is negligent not only in the selection of its employees but also in their supervision.
Indeed, no administrative sanction was imposed against Rosete despite the shooting incident;
moreover, he was even allowed to go on leave of absence which led eventually to his
disappearance.34 Galaxy also failed to monitor petitioner's condition or extend the necessary
assistance, other than the P5,000.00 initially given to petitioner. Galaxy and Imperial failed to
make good their pledge to reimburse petitioner's medical expenses.
For these acts of negligence and for having supplied respondent FEU with an unqualified
security guard, which resulted to the latter's breach of obligation to petitioner, it is proper to hold
Galaxy liable to respondent FEU for such damages equivalent to the above-mentioned amounts
awarded to petitioner.
Unlike respondent De Jesus, we deem Imperial to be solidarily liable with Galaxy for being
grossly negligent in directing the affairs of the security agency. It was Imperial who assured
petitioner that his medical expenses will be shouldered by Galaxy but said representations were
not fulfilled because they presumed that petitioner and his family were no longer interested in
filing a formal complaint against them.35

WHEREFORE, the petition is GRANTED. The June 29, 2007 Decision of the Court of
Appeals in CA-G.R. CV No. 87050 nullifying the Decision of the trial court and dismissing the
complaint as well as the August 23, 2007 Resolution denying the Motion for Reconsideration are
REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Manila, Branch 2,
in Civil Case No. 98-89483 finding respondent FEU liable for damages for breach of its
obligation to provide students with a safe and secure learning atmosphere, is AFFIRMED with
the following MODIFICATIONS:
a. respondent Far Eastern University (FEU) is ORDERED to pay petitioner actual damages in
the amount of P35,298.25, plus 6% interest per annum from the filing of the complaint until the
finality of this Decision. After this decision becomes final and executory, the applicable rate shall
be twelve percent (12%) per annum until its satisfaction;
b. respondent FEU is also ORDERED to pay petitioner temperate damages in the amount of
P20,000.00; moral damages in the amount of P100,000.00; and attorney's fees and litigation
expenses in the amount of P50,000.00;
c. the award of exemplary damages is DELETED.
The Complaint against respondent Edilberto C. De Jesus is DISMISSED. The counterclaims of
respondents are likewise DISMISSED.
Galaxy Development and Management Corporation (Galaxy) and its president, Mariano D.
Imperial are ORDERED to jointly and severally pay respondent FEU damages equivalent to the
above-mentioned amounts awarded to petitioner.
SO ORDERED.

PHILIPPINE NATIONAL RAILWAYS
and VIRGILIO J. BORJA,
Petitioners,

G.R. No.
157658

Present:
- versus YNARES-SANTIAGO, J.,
Chairperson,
COURT OF APPEALS (Second Division),
CORAZON C. AMORES, MA. EMILIE
A. MOJICA, CECILE C. SISON, DINO
C. AMORES, LARISA C. AMORES,
ARMAND JINO C. AMORES and JOHN
C. AMORES,

AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

Respondents.
Promulgated:

October 15, 2007

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

DECISION

NACHURA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, as amended, seeking to annul and set aside the
Decision1[1] of the Court of Appeals (CA) in CA-G.R. CV No. 54906 which
reversed the Decision2[2] of the Regional Trial Court (RTC) of Manila, Branch 28,
in Civil Case No. 92-61987.

The factual antecedents are as follows:

In the early afternoon of April 27, 1992, Jose Amores (Amores) was
traversing the railroad tracks in Kahilum II Street, Pandacan, Manila. Before
crossing the railroad track, he stopped for a while then proceeded accordingly.3[3]
Unfortunately, just as Amores was at the intersection, a Philippine National

1
2
3

Railways (PNR) train with locomotive number T-517 turned up and collided with
the car.4[4]

At the time of the mishap, there was neither a signal nor a crossing bar at the
intersection to warn motorists of an approaching train. Aside from the railroad
track, the only visible warning sign at that time was the defective standard
signboard STOP, LOOK and LISTEN wherein the sign Listen was lacking while
that of Look was bent.5[5] No whistle blow from the train was likewise heard
before it finally bumped the car of Amores.6[6] After impact, the car was dragged
about ten (10) meters beyond the center of the crossing. 7[7] Amores died as a
consequence thereof.

On July 22, 1992, the heirs of Amores, consisting of his surviving wife and six
children, herein respondents, filed a Complaint for Damages8[8] against petitioners
PNR and Virgilio J. Borja (Borja), PNRs locomotive driver at the time of the
incident, before the RTC of Manila. The case was raffled to Branch 28 and was
docketed as Civil Case No. 92-61987. In their complaint, respondents averred that
the trains speedometer was defective, and that the petitioners negligence was the
4
5
6
7
8

proximate cause of the mishap for their failure to take precautions to prevent injury
to persons and property despite the dense population in the vicinity. They then
prayed for actual and moral damages, as well as attorneys fees.9[9]

In their Answer,10[10] the petitioners denied the allegations, stating that the train
was railroad-worthy and without any defect. According to them, the proximate
cause of the death of Amores was his own carelessness and negligence, and
Amores wantonly disregarded traffic rules and regulations in crossing the railroad
tracks and trying to beat the approaching train. They admitted that there was no
crossing bar at the site of the accident because it was merely a barangay road.11[11]
PNR stressed that it exercised the diligence of a good father of a family in the
selection and supervision of the locomotive driver and train engineer, Borja, and
that the latter likewise used extraordinary diligence and caution to avoid the
accident. Petitioners further asserted that respondents had the last clear chance to
avoid the accident but recklessly failed to do so.

After trial on the merits, on August 22, 1996, the RTC rendered judgment in
favor of the petitioners, the dispositive portion of which reads:

9
10
11

WHEREFORE, judgment is hereby rendered dismissing the complaint of the
plaintiffs and the defendants counterclaim.
The costs shall be halved and paid equally by the parties.
The counsel for the defendants is hereby ordered to inform this court who
is the legal representative of the deceased defendant, Virgilio Borja, within ten
(10) days from receipt of a copy of this decision.
SO ORDERED.12[12]

The RTC rationalized that the proximate cause of the collision was Amores fatal
misjudgment and the reckless course of action he took in crossing the railroad track
even after seeing or hearing the oncoming train.

On appeal, the CA reversed the RTC decision, as follows:

WHEREFORE, the assailed Decision of the Regional Trial Court of
Manila, Branch 28 is hereby REVERSED. The defendants PNR and the estate of
Virgilio J. Borja are jointly and severally liable to pay plaintiffs the following:
1)

The amount of P122,300.00 for the cost of damage to the car; and,

2)

The amount of P50,000 as moral damages.

For lack of official receipts for funeral expenses and specimen of the last
pay slip of the deceased, the claim for reimbursement of funeral expenses and
claim for payment of support is hereby DENIED for lack of basis. Costs against
Defendants.
SO ORDERED.13[13]

12

In reversing the trial courts decision, the appellate court found the petitioners
negligent. The court based the petitioners negligence on the failure of PNR to
install a semaphore or at the very least, to post a flagman, considering that the
crossing is located in a thickly populated area. Moreover, the signboard Stop, Look
and Listen was found insufficient because of its defective condition as described
above. Lastly, no negligence could be attributed to Amores as he exercised
reasonable diligence in crossing the railroad track.

Aggrieved by this reversal, the petitioners filed the present petition for
review on certiorari, raising the following grounds:

I
THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION
IN RENDERING ITS DECISION REVERSING THE DECISION OF THE
REGIONAL TRIAL COURT OF MANILA BRANCH 28, IN NOT TAKING
INTO CONSIDERATION THE PROVISION OF SECTION 42, R.A. 4136 OF
THE LAND TRANSPORTATION AND TRAFFIC CODE.
II
THE DECISION OF THE COURT OF APPEALS IS CONTRARY TO THE
EVIDENCE ON RECORD ADDUCED IN THE TRIAL ON THE MERIT IN
CIVIL CASE NO. 92-61987.14[14]

13
14

The petitioners insist that Amores must have heard the trains whistle and heeded
the warning but, noting that the train was still a distance away and moving slowly,
he must have calculated that he could beat it to the other side of the track before
the train would arrive at the intersection. The petitioners likewise add that the train
was railroad-worthy and that its defective speedometer did not affect the trains
operation. Lastly, they insist that evidence showed sufficient warning signs
strategically installed at the crossing to alert both motorists and pedestrians.

Respondents, on the other hand, argue that the cause of the accident was
petitioners carelessness, imprudence and laxity in failing to provide a crossing bar
and keeper at the Kahilum II railway intersection. Considering that Kahilum II
Street is in the middle of a thickly populated squatters area, and many pedestrians
cross the railroad track, notwithstanding the fact that it is a public street and a main
thoroughfare utilized in going to Herran Street, the presence of adequate warning
signals would have prevented the untimely death of Amores. Another crucial point
raised by the respondents is the manner in which Borja applied the brakes of the
train only when the locomotive was already very near Amores car, as admitted by
witness Querimit. Finally, respondents claim that Borjas failure to blow the
locomotives horn, pursuant to the usual practice of doing the same 100 meters
before reaching the Kahilum II crossing point is an earmark of recklessness on the
part of the petitioners.

The petition must fail.

The only issue to be resolved in the present case is whether the appellate
court was correct in ascribing negligence on the part of the petitioners. It was
ascertained beyond quandary that the proximate cause of the collision is the
negligence and imprudence of the petitioner PNR and its locomotive driver, Borja,
in operating the passenger train.

As the action is predicated on negligence, the relevant provision is Article
2176 of the New Civil Code, which states that:

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

We have thoroughly reviewed the records of the case and we find no cogent
reason to reverse the appellate courts decision. Negligence has been defined as the
failure to observe for the protection of the interests of another person that degree of
care, precaution, and vigilance which the circumstances justly demand, whereby
such other person suffers injury.15[15] Using the aforementioned philosophy, it may
be reliably concluded that there is no hard and fast rule whereby such degree of
care and vigilance is calibrated; it is dependent upon the circumstances in which a
person finds himself. All that the law requires is that it is perpetually compelling

15

upon a person to use that care and diligence expected of sensible men under
comparable circumstances.16[16]

We hold that the petitioners were negligent when the collision took place.
The transcript of stenographic notes reveals that the train was running at a fast
speed because notwithstanding the application of the ordinary and emergency
brakes, the train still dragged the car some distance away from the point of impact.
Evidence likewise unveils the inadequate precautions taken by petitioner PNR to
forewarn the public of the impending danger. Aside from not having any crossing
bar, no flagman or guard to man the intersection at all times was posted on the day
of the incident. A reliable signaling device in good condition, not just a dilapidated
Stop, Look and Listen signage because of many years of neglect, is needed to give
notice to the public. It is the responsibility of the railroad company to use
reasonable care to keep the signal devices in working order. Failure to do so would
be an indication of negligence.

As held in the case of Philippine National Railway v. Brunty,17[17] it may
broadly be stated that railroad companies owe to the public a duty of exercising a
reasonable degree of care to avoid injury to persons and property at railroad
crossings, which duties pertain both to the operation of trains and to the
maintenance of the crossings. Moreover, every corporation constructing or
operating a railway shall make and construct at all points where such railway
16
17

crosses any public road, good, sufficient, and safe crossings, and erect at such
points, at sufficient elevation from such road as to admit a free passage of vehicles
of every kind, a sign with large and distinct letters placed thereon, to give notice of
the proximity of the railway, and warn persons of the necessity of looking out for
trains.18[18] The failure of the PNR to put a cross bar, or signal light, flagman or
switchman, or semaphore is evidence of negligence and disregard of the safety of
the public, even if there is no law or ordinance requiring it, because public safety
demands that said device or equipment be installed.

The petitioners insist that a train has a right-of-way in a railroad crossing
under the existing laws. They derive their theory from Section 42 (d), Article III of
R.A. 4136, otherwise known as the Land Transportation and Traffic Code, which
states that:

The driver of a vehicle upon a highway shall bring to a full stop such
vehicle before traversing any through highway or railroad crossing: Provided,
That when it is apparent that no hazard exists, the vehicle may be slowed down to
five miles per hour instead of bringing it to a full stop.

They claim that motorists are enjoined by law to stop, look and listen before
crossing railroad tracks and that a heavier responsibility rests upon the motorists in
avoiding accidents at level crossings.

18

It is true that one driving an automobile must use his faculties of seeing and
hearing when nearing a railroad crossing. However, the obligation to bring to a full
stop vehicles moving in public highways before traversing any through street only
accrues from the time the said through street or crossing is so designated and signposted. From the records of the case, it can be inferred that Amores exercised all
the necessary precautions required of him as to avoid injury to himself and to
others. The witnesses testimonies showed that Amores slackened his speed, made a
full stop, and then proceeded to cross the tracks when he saw that there was no
impending danger to his life. Under these circumstances, we are convinced that
Amores did everything, with absolute care and caution, to avoid the collision.

It is settled that every person or motorist crossing a railroad track should use
ordinary prudence and alertness to determine the proximity of a train before
attempting to cross. We are persuaded that the circumstances were beyond the
control of Amores for no person would sacrifice his precious life if he had the
slightest opportunity to evade the catastrophe. Besides, the authority in this
jurisdiction is that the failure of a railroad company to install a semaphore or at the
very least, to post a flagman or watchman to warn the public of the passing train
amounts to negligence.19[19]

In view of the foregoing, We will now discuss the liability of petitioner
PNR. Article 218020[20] of the New Civil Code discusses the liability of the
19
20

employer once negligence or fault on the part of the employee has been
established. The employer is actually liable on the assumption of juris tantum that
the employer failed to exercise diligentissimi patris families in

the selection and supervision of its employees. The liability is primary and can
only be negated by showing due diligence in the selection and supervision of the
employee, a factual matter that has not been demonstrated. 21[21] Even the
existence of hiring procedures and supervisory employees cannot be incidentally
invoked to overturn the presumption of negligence on the part of the employer. 22
[22]

WHEREFORE, the petition is DENIED. The Decision of the Court of
Appeals dated March 31, 2003 in CA-G.R. CV No. 54906 is hereby AFFIRMED.

SO ORDERED

21
22

KEPPEL CEBU SHIPYARD, INC.,
Petitioner,

G.R. Nos.
180880-81

- versus -

PIONEER INSURANCE AND SURETY
CORPORATION,
Respondent.
X----------------------------X
PIONEER INSURANCE AND SURETY
CORPORATION,
Petitioner,

G.R. Nos.
180896-97
Present:
- versus YNARES-SANTIAGO, J.,*
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
*

KEPPEL CEBU SHIPYARD, INC.,
Respondent.

NACHURA, and
PERALTA, JJ.

Promulgated:

September 25, 2009

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

DECISION

NACHURA, J.:

Before us are the consolidated petitions filed by the partiesPioneer Insurance
and Surety Corporation23[1] (Pioneer) and Keppel Cebu Shipyard, Inc. 24[2]
23
24

(KCSI)to review on certiorari the Decision25[3] dated December 17, 2004 and the
Amended Decision26[4] dated December 20, 2007 of the Court of Appeals (CA) in
CA-G.R. SP Nos. 74018 and 73934.

On January 26, 2000, KCSI and WG&A Jebsens Shipmanagement, Inc. (WG&A)
executed a Shiprepair Agreement27[5] wherein KCSI would renovate and
reconstruct WG&As M/V Superferry 3 using its dry docking facilities pursuant to
its restrictive safety and security rules and regulations. Prior to the execution of the
Shiprepair Agreement, Superferry 3 was already insured by WG&A with Pioneer
for US$8,472,581.78. The Shiprepair Agreement reads

SHIPREPAIR AGREEMENT28[6]
Company:WG & A JEBSENS SHIPMANAGEMENT INC.
Address:
Harbour Center II, Railroad & Chicago Sts.
Port Area, City of Manila
We, WG & A JEBSENS SHIPMGMT. Owner/Operator of M/V SUPERFERRY 3
and KEPPEL CEBU SHIPYARD, INC. (KCSI) enter into an agreement that the
Drydocking and Repair of the above-named vessel ordered by the Owners
Authorized Representative shall be carried out under the Keppel Cebu Shipyard
Standard Conditions of Contract for Shiprepair, guidelines and regulations on
safety and security issued by Keppel Cebu Shipyard. In addition, the following
are mutually agreed upon by the parties:
25
26
27
28

The Owner shall inform its insurer of Clause 2029[7] and 22
(a)30[8] (refer at the back hereof) and shall include Keppel
Cebu Shipyard as a co-assured in its insurance policy.
2. The Owner shall waive its right to claim for any loss of profit
or loss of use or damages consequential on such loss of use
resulting from the delay in the redelivery of the above vessel.
1.

29
30

3.

Owners sub-contractors or workers are not permitted to work
in the yard without the written approval of the Vice President
Operations.

4.

In consideration of Keppel Cebu Shipyard allowing Owner to
carry out own repairs onboard the vessel, the Owner shall
indemnify and hold Keppel Cebu Shipyard harmless from any
or all claims, damages, or liabilities arising from death or
bodily injuries to Owners workers, or damages to the vessel or
other property however caused.

5.

On arrival, the Owner Representative, Captain, Chief Officer
and Chief Engineer will be invited to attend a conference with
our Production, Safety and Security personnel whereby they
will be briefed on, and given copies of Shipyard safety
regulations.

6.

An adequate number of officers and crew must remain on
board at all times to ensure the safety of the vessel and
compliance of safety regulations by crew and owner employed
workmen.

7.

The ships officers/crew or owner appointed security personnel
shall maintain watch against pilferage and acts of sabotage.

8.

The yard must be informed and instructed to provide the
necessary security arrangement coverage should there be
inadequate or no crew on board to provide the expressed safety
and security enforcement.

9.

The Owner shall be liable to Keppel Cebu Shipyard for any
death and/or bodily injuries for the [K]eppel Cebu Shipyards
employees and/or contract workers; theft and/or damages to
Keppel Cebu Shipyards properties and other liabilities which
are caused by the workers of the Owner.

10. The invoice shall be based on quotation reference 99-KCSI211 dated December 20, 1999 tariff dated March 15, 1998.

11. Payment term shall be as follows:

12. The Owner and Keppel Cebu Shipyard shall endeavor to settle
amicably any dispute that may arise under this Agreement.
Should all efforts for an amicable settlement fail, the disputes
shall be submitted for arbitration in Metro Manila in
accordance with provisions of Executive Order No. 1008
under the auspices of the Philippine Arbitration Commission.

(Signed)
BARRY CHIA SOO HOCK _________(Signed)__________
(Printed Name/Signature Above Name)

(Printed Name/Signature Above Name)

Vice President Operations
Keppel Cebu Shipyard, Inc.

Authorized Representative
for and in behalf of:
WG & A Jebsens Shipmgmt.

JAN. 26, 2000 . ________________________
Date

Date

On February 8, 2000, in the course of its repair, M/V Superferry 3 was
gutted by fire. Claiming that the extent of the damage was pervasive, WG&A
declared the vessels damage as a total constructive loss and, hence, filed an
insurance claim with Pioneer.

On June 16, 2000, Pioneer paid the insurance claim of WG&A in the amount
of US$8,472,581.78. WG&A, in turn, executed a Loss and Subrogation
Receipt31[9] in favor of Pioneer, to wit:

LOSS AND SUBROGATION RECEIPT
16 June 2000
Our Claim Ref: MH-NIL-H0-99-00018
US$8,472,581.78
-----------------------------------------------RECEIVED from PIONEER INSURANCE & SURETY CORPORATION the
sum of U.S. DOLLARS EIGHT MILLION FOUR HUNDRED SEVENTYTWO THOUSAND FIVE HUNDRED EIGHTY-ONE & 78/100 (US$
8,472,581.78) equivalent to PESOS THREE HUNDRED SIXTY MILLION &
00/100 (Php 360,000,000.00), in full satisfaction, compromise and discharge of
all claims for loss and expenses sustained to the vessel SUPERFERRY 3 insured
under Policy Nos. MH-H0-99-0000168-00-D (H&M) and MH-H0-99-0000169
(I.V.) by reason as follows:
Fire on board at Keppel Cebu Shipyard
on 08 February 2000
and in consideration of which the undersigned hereby assigns and transfers to the
said company each and all claims and demands against any person, persons,
corporation or property arising from or connected with such loss or damage and
31

the said company is subrogated in the place of and to the claims and demands of
the undersigned against said person, persons, corporation or property in the
premises to the extent of the amount above-mentioned.
WILLIAM, GOTHONG & ABOITIZ, INC.
&/OR ABOITIZ SHIPPING CORP.
By:
(Signed)
______________________________________
Witnesses:
(Signed)
______________________________________
(Signed)
______________________________________

Armed with the subrogation receipt, Pioneer tried to collect from KCSI, but
the latter denied any responsibility for the loss of the subject vessel. As KCSI
continuously refused to pay despite repeated demands, Pioneer, on August 7, 2000,
filed a Request for Arbitration before the Construction Industry Arbitration
Commission (CIAC) docketed as CIAC Case No. 21-2000, seeking the following
reliefs:

1.
To pay to the claimant Pioneer Insurance and Surety Corporation
the sum of U.S.$8,472,581.78 or its equivalent amount in Philippine Currency,
plus interest thereon computed from the date of the Loss and Subrogation Receipt
on 16 June 2000 or from the date of filing of [the] Request for Arbitration, as may
be found proper;
2.
To pay to claimant WG&A, INC. and/or Aboitiz Shipping
Corporation and WG&A Jebsens Shipmanagement, Inc. the sum of
P500,000,000.00 plus interest thereon from the date of filing [of the] Request for
Arbitration or date of the arbitral award, as may be found proper;
3.
To pay to the claimants herein the sum of P3,000,000.00 for and
as attorneys fees; plus other damages as may be established during the
proceedings, including arbitration fees and other litigation expenses, and the costs
of suit.

It is likewise further prayed that Clauses 1 and 2 on the unsigned page 1 of the
Shiprepair Agreement (Annex A) as well as the hardly legible Clauses 20 and 22
(a) and other similar clauses printed in very fine print on the unsigned dorsal page
thereof, be all declared illegal and void ab initio and without any legal effect
whatsoever.32[10]

KCSI and WG&A reached an amicable settlement, leading the latter to file a
Notice of Withdrawal of Claim on April 17, 2001 with the CIAC. The CIAC
granted the withdrawal on October 22, 2001, thereby dismissing the claim of
WG&A against KCSI. Hence, the arbitration proceeded with Pioneer as the
remaining claimant.

In the course of the proceedings, Pioneer and KCSI stipulated, among
others, that: (1) on January 26, 2000, M/V Superferry 3 arrived at KCSI in LapuLapu City, Cebu, for dry docking and repairs; (2) on the same date, WG&A signed
a ship repair agreement with KCSI; and (3) a fire broke out on board M/V
Superferry 3 on February 8, 2000, while still dry docked in KCSIs shipyard.33[11]

As regards the disputed facts, below are the respective positions of the
parties, viz.:

Pioneers Theory of the Case:
32
33

First, Pioneer (as Claimant) is the real party in interest in this case and that
Pioneer has been subrogated to the claim of its assured. The Claimant claims that
it has the preponderance of evidence over that of the Respondent. Claimant cited
documentary references on the Statutory Source of the Principle of Subrogation.
Claimant then proceeded to explain that the Right of Subrogation:
Is by Operation of Law
exists in Property Insurance
is not Dependent Upon Privity of Contract.
Claimant then argued that Payment Operates as Equitable Assignment of Rights
to Insurer and that the Right of Subrogation Entitles Insurer to Recover from the
Liable Party.
Second, Respondent Keppel had custody of and control over the M/V Superferry
3 while said vessel was in Respondent Keppels premises. In its Draft Decision,
Claimant stated:
A.

B.
C.

D.

The evidence presented during the hearings indubitably
proves that respondent not only took custody but assumed
responsibility and control over M/V Superferry 3 in
carrying out the dry-docking and repair of the vessel.
The presence on board the M/V Superferry 3 of its officers
and crew does not relieve the respondent of its
responsibility for said vessel.
Respondent Keppel assumed responsibility over M/V
Superferry 3 when it brought the vessel inside its graving
dock and applied its own safety rules to the dry-docking
and repairs of the vessel.
The practice of allowing a shipowner and its subcontractors to perform maintenance works while the vessel
was within respondents premises does not detract from the
fact that control and custody over M/V Superferry 3 was
transferred to the yard.

From the preceding statements, Claimant claims that Keppel is clearly
liable for the loss of M/V Superferry 3.
Third, the Vessels Safety Manual cannot be relied upon as proof of the Masters
continuing control over the vessel.
Fourth, the Respondent Yard is liable under the Doctrine of Res Ipsa Loquitur.
According to Claimant, the Yard is liable under the ruling laid down by the
Supreme Court in the Manila City case. Claimant asserts that said ruling is
applicable hereto as The Law of the Case.

Fifth, the liability of Respondent does not arise merely from the application of the
Doctrine of Res Ipsa Loquitur, but from its negligence in this case.
Sixth, the Respondent Yard was the employer responsible for the negligent acts of
the welder. According to Claimant;
In contemplation of law, Sevillejo was not a loaned servant/employee. The
yard, being his employer, is solely and exclusively liable for his negligent
acts. Claimant proceeded to enumerate its reasons:
A.

The Control Test The yard exercised control over
Sevillejo. The power of control is not diminished by the
failure to exercise control.

B.

There was no independent work contract between Joniga
and Sevillejo Joniga was not the employer of Sevillejo, as
Sevillejo remained an employee of the yard at the time the
loss occurred.

C.

The mere fact that Dr. Joniga requested Sevillejo to
perform some of the Owners hot works under the 26
January 2000 work order did not make Dr. Joniga the
employer of Sevillejo.

Claimant proffers that Dr. Joniga was not a Contractor of the Hot Work
Done on Deck A. Claimant argued that:
A.

The yard, not Dr. Joniga, gave the welders their marching
orders, and

B.

Dr. Jonigas authority to request the execution of owners
hot works in the passenger areas was expressly recognized
by the Yard Project Superintendent Orcullo.

Seventh, the shipowner had no legal duty to apply for a hotworks permit since it
was not required by the yard, and the owners hotworks were conducted by
welders who remained employees of the yard. Claimant contends that the need, if
any, for an owners application for a hot work permit was canceled out by the

yards actual knowledge of Sevillejos whereabouts and the fact that he was in deck
A doing owners hotworks.
Eight[h], in supplying welders and equipment as per The Work Order Dated 26
January 2000, the Yard did so at its own risk, and acted as a Less Than Prudent
Ship Repairer.
The Claimant then disputed the statements of Manuel Amagsila by claiming that
Amagsila was a disgruntled employee. Nevertheless, Claimant claims that
Amagsila affirmed that the five yard welders never became employees of the
owner so as to obligate the latter to be responsible for their conduct and
performance.
Claimant enumerated further badges of yard negligence.
According to Claimant:
A.
B.
C.
D.

Yards water supply was inadequate.
Yard Fire Fighting Efforts and Equipment Were Inadequate.
Yard Safety Practices and Procedures Were Unsafe or Inadequate.
Yard Safety Assistants and Firewatch-Men were Overworked.

Finally, Claimant disputed the theories propounded by the Respondent (The
Yard). Claimant presented its case against:
(i)
(ii)
(iii)
(iv)
(v)

Non-removal of the life jackets theory.
Hole-in-the[-]floor theory.
Need for a plan theory.
The unauthorized hot works theory.
The Marina report theory.

The Claimant called the attention of the Tribunal (CIAC) on the non-appearance
of the welder involved in the cause of the fire, Mr. Severino Sevillejo. Claimant
claims that this is suppression of evidence by Respondent.

KCSIs Theory of the Case
1.

The Claimant has no standing to file the Request for Arbitration and the
Tribunal has no jurisdiction over the case:
(a)
There is no valid arbitration agreement between the Yard and the
Vessel Owner. On January 26, 2000, when the ship repair
agreement (which includes the arbitration agreement) was signed
by WG&A Jebsens on behalf of the Vessel, the same was still
owned by Aboitiz Shipping. Consequently, when another firm,
WG&A, authorized WG&A Jebsens to manage the MV Superferry

(b)

3, it had no authority to do so. There is, as a result, no binding
arbitration agreement between the Vessel Owner and the Yard to
which the Claimant can claim to be subrogated and which can
support CIAC jurisdiction.
The Claimant is not a real party in interest and has no standing
because it has not been subrogated to the Vessel Owner. For the
reason stated above, the insurance policies on which the Claimant
bases its right of subrogation were not validly obtained. In any
event, the Claimant has not been subrogated to any rights which
the Vessel may have against the Yard because:
i.

The Claimant has not proved payment of the proceeds of
the policies to any specific party. As a consequence, it has
also not proved payment to the Vessel Owner.

ii.

The Claimant had no legally demandable obligation to
pay under the policies and did so only voluntarily. Under
the policies, the Claimant and the Vessel agreed that there is
no Constructive Total Loss unless the expense of
recovering and repairing the vessel would exceed the
Agreed Value of P360 million assigned by the parties to the
Vessel, a threshold which the actual repair cost for the
Vessel did not reach. Since the Claimant opted to pay
contrary to the provisions of the policies, its payment was
voluntary, and there was no resulting subrogation to the
Vessel.

iii.

2.
3.

There was also no subrogation under Article 1236 of the
Civil Code. First, if the Claimant asserts a right of payment
only by virtue of Article 1236, then there is no legal
subrogation under Article 2207 and it does not succeed to
the Vessels rights under the Ship [R]epair Agreement and
the arbitration agreement. It does not have a right to
demand arbitration and will have only a purely civil law
claim for reimbursement to the extent that its payment
benefited the Yard which should be filed in court. Second,
since the Yard is not liable for the fire and the resulting
damage to the Vessel, then it derived no benefit from the
Claimants payment to the Vessel Owner. Third, in any
event, the Claimant has not proved payment of the proceeds
to the Vessel Owner.
The Ship [R]epair Agreement was not imposed upon the Vessel. The Vessel
knowingly and voluntarily accepted that agreement. Moreover, there are no
signing or other formal defects that can invalidate the agreement.
The proximate cause of the fire and damage to the Vessel was not any
negligence committed by Angelino Sevillejo in cutting the bulkhead door or

any other shortcoming by the Yard. On the contrary, the proximate cause of
the fire was Dr. Jonigas and the Vessels deliberate decision to have Angelino
Sevillejo undertake cutting work in inherently dangerous conditions created
by them.

(a)
(b)

The Claimants material witnesses lied on the record and the
Claimant presented no credible proof of any negligence by
Angelino Sevillejo.
Uncontroverted evidence proved that Dr. Joniga neglected or
decided not to obtain a hot work permit for the bulkhead cutting
and also neglected or refused to have the ceiling and the flammable
lifejackets removed from underneath the area where he instructed
Angelino Sevillejo to cut the bulkhead door. These decisions or
oversights guaranteed that the cutting would be done in extremely
hazardous conditions and were the proximate cause of the fire and
the resulting damage to the Vessel.

(c)

The Yards expert witness, Dr. Eric Mullen gave the only credible
account of the cause and the mechanics of ignition of the fire. He
established that: i) the fire started when the cutting of the bulkhead
door resulted in sparks or hot molten slag which fell through preexisting holes on the deck floor and came into contact with and
ignited the flammable lifejackets stored in the ceiling void directly
below; and ii) the bottom level of the bulkhead door was
immaterial, because the sparks and slag could have come from the
cutting of any of the sides of the door. Consequently, the cutting
itself of the bulkhead door under the hazardous conditions created
by Dr. Joniga, rather than the positioning of the doors bottom edge,
was the proximate cause of the fire.

(d)

The Manila City case is irrelevant to this dispute and in any case,
does not establish governing precedent to the effect that when a
ship is damaged in dry dock, the shipyard is presumed at fault.
Apart from the differences in the factual setting of the two cases,
the Manila City pronouncements regarding the res ipsa loquitur
doctrine are obiter dicta without value as binding precedent.
Furthermore, even if the principle were applied to create a
presumption of negligence by the Yard, however, that presumption
is conclusively rebutted by the evidence on record.

(e)

The Vessels deliberate acts and its negligence created the
inherently hazardous conditions in which the cutting work that
could otherwise be done safely ended up causing a fire and the
damage to the Vessel. The fire was a direct and logical

consequence of the Vessels decisions to: (1) take Angelino
Sevillejo away from his welding work at the Promenade Deck
restaurant and instead to require him to do unauthorized cutting
work in Deck A; and (2) to have him do that without satisfying the
requirements for and obtaining a hot work permit in violation of
the Yards Safety Rules and without removing the flammable
ceiling and life jackets below, contrary to the requirements not
only of the Yards Safety Rules but also of the demands of standard
safe practice and the Vessels own explicit safety and hot work
policies.
(f)

4.

The vessel has not presented any proof to show that the Yard was
remiss in its fire fighting preparations or in the actual conduct of
fighting the 8 February 2000 fire. The Yard had the necessary
equipment and trained personnel and employed all those resources
immediately and fully to putting out the 8 February 2000 fire.

Even assuming that Angelino Sevillejo cut the bulkhead door close to the
deck floor, and that this circumstance rather than the extremely hazardous
conditions created by Dr. Joniga and the Vessel for that activity caused the
fire, the Yard may still not be held liable for the resulting damage.
(a)

(b)

The Yards only contractual obligation to the Vessel in respect of
the 26 January 2000 Work Order was to supply welders for the
Promenade Deck restaurant who would then perform welding work
per owner[s] instruction. Consequently, once it had provided those
welders, including Angelino Sevillejo, its obligation to the Vessel
was fully discharged and no claim for contractual breach, or for
damages on account thereof, may be raised against the Yard.
The Yard is also not liable to the Vessel/Claimant on the basis of
quasi-delict.
i.
The Vessel exercised
supervision and control over Angelino Sevillejo when he
was doing work at the Promenade Deck restaurant and
especially when he was instructed by Dr. Joniga to cut the
bulkhead door. Consequently, the Vessel was the party with
actual control over his tasks and is deemed his true and
effective employer for purposes of establishing Article
2180 employer liability.
ii.
Even assuming that the Yard
was Angelino Sevillejos employer, the Yard may
nevertheless not be held liable under Article 2180 because
Angelino Sevillejo was acting beyond the scope of his tasks
assigned by the Yard (which was only to do welding for the

Promenade Deck restaurant) when he cut the bulkhead door
pursuant to instructions given by the Vessel.
iii.
The Yard is nonetheless not
liable under Article 2180 because it exercised due diligence
in the selection and supervision of Angelino Sevillejo.
5.

Assuming that the Yard is liable, it cannot be compelled to pay the full
amount of P360 million paid by the Claimant.
(a)

(b)

(c)

Under the law, the Yard may not be held liable to the Claimant, as
subrogee, for an amount greater than that which the Vessel could
have recovered, even if the Claimant may have paid a higher
amount under its policies. In turn, the right of the Vessel to recover
is limited to actual damage to the MV Superferry 3, at the time of
the fire.
Under the Ship [R]epair Agreement, the liability of the Yard is
limited to P50 million a stipulation which, under the law and
decisions of the Supreme Court, is valid, binding and enforceable.
The Vessel breached its obligation under Clause 22 (a) of the
Yards Standard Terms to name the Yard as co-assured under the
policies a breach which makes the Vessel liable for damages. This
liability should in turn be set-off against the Claimants claim for
damages.

The Respondent listed what it believes the Claimant wanted to impress upon the
Tribunal. Respondent enumerated and disputed these as follows:
1.
2.
3.
4.

5.

Claimants counsel contends that the cutting of the bulkhead door
was covered by the 26 January 2000 Work Order.
Claimants counsel contends that Dr. Joniga told Gerry Orcullo
about his intention to have Angelino Sevillejo do cutting work at
the Deck A bulkhead on the morning of 8 February 2000.
Claimants counsel contends that under Article 1727 of the Civil
Code, The contractor is responsible for the work done by persons
employed by him.
Claimants counsel contends that [t]he second reason why there
was no job spec or job order for this cutting work, [is] the cutting
work was known to the yard and coordinated with Mr. Gerry
Orcullo, the yard project superintendent.
Claimants counsel also contends, to make the Vessels
unauthorized hot works activities seem less likely, that they could
easily be detected because Mr. Avelino Aves, the Yard Safety
Superintendent, admitted that No hot works could really be hidden
from the Yard, your Honors, because the welding cables and the

gas hoses emanating from the dock will give these hotworks away
apart from the assertion and the fact that there were also safety
assistants supposedly going around the vessel.
Respondent disputed the above by presenting its own argument in its Final
Memorandum.34[12]

On October 28, 2002, the CIAC rendered its Decision 35[13] declaring both
WG&A and KCSI guilty of negligence, with the following findings and
conclusions

The Tribunal agrees that the contractual obligation of the Yard is to provide the
welders and equipment to the promenade deck. [The] Tribunal agrees that the
cutting of the bulkhead door was not a contractual obligation of the Yard.
However, by requiring, according to its own regulations, that only Yard welders
are to undertake hotworks, it follows that there are certain qualifications of Yard
welders that would be requisite of yard welders against those of the vessel
welders. To the Tribunal, this means that yard welders are aware of the Yard
safety rules and regulations on hotworks such as applying for a hotwork permit,
discussing the work in a production meeting, and complying with the conditions
of the hotwork permit prior to implementation. By the requirement that all
hotworks are to be done by the Yard, the Tribunal finds that Sevillejo remains a
yard employee. The act of Sevillejo is however mitigated in that he was not even
a foreman, and that the instructions to him was (sic) by an authorized person. The
Tribunal notes that the hotworks permit require[s] a request by at least a foreman.
The fact that no foreman was included in the five welders issued to the Vessel was
never raised in this dispute. As discussed earlier by the Tribunal, with the fact that
what was ask (sic) of Sevillejo was outside the work order, the Vessel is
considered equally negligent. This Tribunal finds the concurrent negligence of the
Yard through Sevillejo and the Vessel through Dr. Joniga as both contributory to
the cause of the fire that damaged the vessel.36[14]

34
35
36

Holding that the liability for damages was limited to P50,000,000.00, the CIAC
ordered KCSI to pay Pioneer the amount of P25,000,000.00, with interest at 6%
per annum from the time of the filing of the case up to the time the decision is
promulgated, and 12% interest per annum added to the award, or any balance
thereof, after it becomes final and executory. The CIAC further ordered that the
arbitration costs be imposed on both parties on a pro rata basis.37[15]

Pioneer appealed to the CA and its petition was docketed as CA-G.R. SP No.
74018. KCSI likewise filed its own appeal and the same was docketed as CA-G.R.
SP No. 73934. The cases were consolidated.

On December 17, 2004, the Former Fifteenth Division of the CA rendered
its Decision, disposing as follows:

WHEREFORE, premises considered, the Petition of Pioneer (CA-G.R. SP
No. 74018) is DISMISSED while the Petition of the Yard (CA-G.R. SP No.
73934) is GRANTED, dismissing petitioners claims in its entirety. No costs.
The Yard and The WG&A are hereby ordered to pay the arbitration costs
pro-rata.
SO ORDERED.38[16]

37
38

Aggrieved, Pioneer sought reconsideration of the December 17, 2004
Decision, insisting that it suffered from serious errors in the appreciation of the
evidence and from gross misapplication of the law and jurisprudence on
negligence. KCSI, for its part, filed a motion for partial reconsideration of the same
Decision.

On December 20, 2007, an Amended Decision was promulgated by the
Special Division of Five Former Fifteenth Division of the CA in light of the dissent
of Associate Justice Lucas P. Bersamin,39[17] joined by Associate Justice Japar B.
Dimaampao. The fallo of the Amended Decision reads

WHEREFORE, premises considered, the Court hereby decrees that:
1. Pioneers Motion for Reconsideration is PARTIALLY GRANTED,
ordering The Yard to pay Pioneer P25 Million, without legal interest, within 15
days from the finality of this Amended Decision, subject to the following
modifications:
1.1 Pioneers Petition (CA-G.R. SP No. 74018) is PARTIALLY
GRANTED as the Yard is hereby ordered to pay Pioneer P25 Million without
legal interest;
2. The Yard is hereby declared as equally negligent, thus, the total
GRANTING of its Petition (CA-G.R. SP No. 73934) is now reduced to
PARTIALLY GRANTED, in so far as it is ordered to pay Pioneer P25 Million,
without legal interest, within 15 days from the finality of this Amended Decision;
and
3. The rest of the disposition in the original Decision remains the same.
39

SO ORDERED.40[18]

Hence, these petitions. Pioneer bases its petition on the following grounds:

I
THE COURT OF APPEALS ERRED IN BASING ITS ORIGINAL DECISION
ON NON-FACTS LEADING IT TO MAKE FALSE LEGAL CONCLUSIONS;
NON-FACTS REMAIN TO INVALIDATE THE AMENDED DECISION. THIS
ALSO VIOLATES SECTION 14, ARTICLE VIII OF THE CONSTITUTION.
II
THE COURT OF APPEALS ERRED IN LIMITING THE LEGAL
LIABILITY OF THE YARD TO THE SUM OF P50,000,000.00, IN THAT:
A.
STARE DECISIS RENDERS INAPPLICABLE ANY
INVOCATION OF LIMITED LIABILITY BY THE YARD.
B.
THE LIMITATION CLAUSE IS CONTRARY TO
PUBLIC POLICY.
C.
THE VESSEL OWNER DID NOT AGREE THAT THE
YARDS LIABILITY FOR LOSS OR DAMAGE TO THE VESSEL
ARISING FROM YARDS NEGLIGENCE IS LIMITED TO THE SUM
OF P50,000,000.00 ONLY.
D.
IT IS INIQUITOUS TO ALLOW THE YARD TO LIMIT
LIABILITY, IN THAT:
(i)
THE YARD HAD CUSTODY AND CONTROL
OVER THE VESSEL (M/V SUPERFERRY 3) ON 08
FEBRUARY 2000 WHEN IT WAS GUTTED BY FIRE;
(ii)
THE DAMAGING FIRE INCIDENT HAPPENED
IN THE COURSE OF THE REPAIRS EXCLUSIVELY
PERFORMED BY YARD WORKERS.
III
40

THE COURT OF APPEALS ERRED IN ITS RULING THAT WG&A
WAS CONCURRENTLY NEGLIGENT, CONSIDERING THAT:
A.
DR. JONIGA, THE VESSELS PASSAGE TEAM
LEADER, DID NOT SUPERVISE OR CONTROL THE REPAIRS.
B.
IT WAS THE YARD THROUGH ITS PROJECT
SUPERINTENDENT GERMINIANO ORCULLO THAT SUPERVISED
AND CONTROLLED THE REPAIR WORKS.
C.
SINCE ONLY YARD WELDERS COULD PERFORM
HOT WORKS IT FOLLOWS THAT THEY ALONE COULD BE
GUILTY OF NEGLIGENCE IN DOING THE SAME.
D.
THE YARD AUTHORIZED THE HOT WORK OF YARD
WELDER ANGELINO SEVILLEJO.
E.
THE NEGLIGENCE OF ANGELINO SEVILLEJO WAS
THE PROXIMATE CAUSE OF THE LOSS.
F.
WG&A WAS NOT GUILTY OF NEGLIGENCE, BE IT
DIRECT OR CONTRIBUTORY TO THE LOSS.
IV
THE COURT OF APPEALS CORRECTLY RULED THAT WG&A
SUFFERED A CONSTRUCTIVE TOTAL LOSS OF ITS VESSEL BUT ERRED
BY NOT HOLDING THAT THE YARD WAS LIABLE FOR THE VALUE OF
THE FULL CONSTRUCTIVE TOTAL LOSS.
V
THE COURT OF APPEALS ERRED IN NOT HOLDING THE YARD
LIABLE FOR INTEREST.

VI
THE COURT OF APPEALS ERRED IN NOT HOLDING THE YARD
SOLELY LIABLE FOR ARBITRATION COSTS.41[19]

On the other hand, KCSI cites the following grounds for the allowance of its
petition, to wit:

1. ABSENCE OF YARD RESPONSIBILITY
IT WAS GRIEVOUS ERROR FOR THE COURT OF APPEALS TO ADOPT,
WITHOUT EXPLANATION, THE CIACS RULING THAT THE YARD WAS
EQUALLY NEGLIGENT BECAUSE OF ITS FAILURE TO REQUIRE A HOT
WORKS PERMIT FOR THE CUTTING WORK DONE BY ANGELINO
SEVILLEJO, AFTER THE COURT OF APPEALS ITSELF HAD SHOWN
THAT RULING TO BE COMPLETELY WRONG AND BASELESS.
2. NO CONSTRUCTIVE TOTAL LOSS
IT WAS EQUALLY GRIEVOUS ERROR FOR THE COURT OF APPEALS TO
RULE, WITHOUT EXPLANATION, THAT THE VESSEL WAS A
CONSTRUCTIVE TOTAL LOSS AFTER HAVING ITSELF EXPLAINED
WHY THE VESSEL COULD NOT BE A CONSTRUCTIVE TOTAL LOSS.
3. FAILURE OR REFUSAL TO ADDRESS
KEPPELS MOTION FOR RECONSIDERATION
FINALLY, IT WAS ALSO GRIEVOUS ERROR FOR THE COURT OF
APPEALS TO HAVE EFFECTIVELY DENIED, WITHOUT ADDRESSING IT
AND ALSO WITHOUT EXPLANATION, KEPPELS PARTIAL MOTION FOR
RECONSIDERATION OF THE ORIGINAL DECISION WHICH SHOWED: 1)
WHY PIONEER WAS NOT SUBROGATED TO THE RIGHTS OF THE
VESSEL OWNER AND SO HAD NO STANDING TO SUE THE YARD; 2)
WHY KEPPEL MAY NOT BE REQUIRED TO REIMBURSE PIONEERS
PAYMENTS TO THE VESSEL OWNER IN VIEW OF THE CO-INSURANCE
CLAUSE IN THE SHIPREPAIR AGREEMENT; AND 3) WHY PIONEER
ALONE SHOULD BEAR THE COSTS OF ARBITRATION.
41

4. FAILURE TO CREDIT FOR SALVAGE RECOVERY
EVEN IF THE COURT OF APPEALS RULINGS ON ALL OF THE
FOREGOING ISSUES WERE CORRECT AND THE YARD MAY PROPERLY
BE HELD EQUALLY LIABLE FOR THE DAMAGE TO THE VESSEL AND
REQUIRED TO PAY HALF OF THE DAMAGES AWARDED (P25 MILLION),
THE COURT OF APPEALS STILL ERRED IN NOT DEDUCTING THE
SALVAGE VALUE OF THE VESSEL RECOVERED AND RECEIVED BY
THE INSURER, PIONEER, TO REDUCE ANY LIABILITY ON THE PART OF
THE YARD TO P9.874 MILLION.42[20]

To our minds, these errors assigned by both Pioneer and KCSI may be summed up
in the following core issues:

A. To whom may negligence over the fire that broke out on board M/V
Superferry 3 be imputed?
B. Is subrogation proper? If proper, to what extent can subrogation be
made?
C. Should interest be imposed on the award of damages? If so, how much?
D. Who should bear the cost of the arbitration?

To resolve these issues, it is imperative that we digress from the general rule
that in petitions for review under Rule 45 of the Rules of Court, only questions of
law shall be entertained. Considering the disparate findings of fact of the CIAC
and the CA which led them to different conclusions, we are constrained to revisit
the factual circumstances surrounding this controversy.43[21]
42
43

The Courts Ruling

A.The issue of negligence

Undeniably, the immediate cause of the fire was the hot work done by
Angelino Sevillejo (Sevillejo) on the accommodation area of the vessel,
specifically on Deck A. As established before the CIAC

The fire broke out shortly after 10:25 and an alarm was raised (Exh. 1-Ms. Aini
Ling,44[22] p. 20). Angelino Sevillejo tried to put out the fire by pouring the
contents of a five-liter drinking water container on it and as he did so, smoke
came up from under Deck A. He got another container of water which he also
poured whence the smoke was coming. In the meantime, other workers in the
immediate vicinity tried to fight the fire by using fire extinguishers and buckets of
water. But because the fire was inside the ceiling void, it was extremely difficult
to contain or extinguish; and it spread rapidly because it was not possible to direct
water jets or the fire extinguishers into the space at the source. Fighting the fire
was extremely difficult because the life jackets and the construction materials of
the Deck B ceiling were combustible and permitted the fire to spread within the
ceiling void. From there, the fire dropped into the Deck B accommodation areas
at various locations, where there were combustible materials. Respondent points
to cans of paint and thinner, in addition to the plywood partitions and foam
mattresses on deck B (Exh. 1-Mullen, 45[23] pp. 7-8, 18; Exh. 2-Mullen, pp. 1112).46[24]

44
45
46

Pioneer contends that KCSI should be held liable because Sevillejo was its
employee who, at the time the fire broke out, was doing his assigned task, and that
KCSI was solely responsible for all the hot works done on board the vessel. KCSI
claims otherwise, stating that the hot work done was beyond the scope of
Sevillejos assigned tasks, the same not having been authorized under the Work
Order47[25] dated January 26, 2000 or under the Shiprepair Agreement. KCSI
further posits that WG&A was itself negligent, through its crew, particularly Dr.
Raymundo Joniga (Dr. Joniga), for failing to remove the life jackets from the
ceiling void, causing the immediate spread of the fire to the other areas of the ship.

We rule in favor of Pioneer.

First. The Shiprepair Agreement is clear that WG&A, as owner of M/V
Superferry 3, entered into a contract for the dry docking and repair of the vessel
under KCSIs Standard Conditions of Contract for Shiprepair, and its guidelines and
regulations on safety and security. Thus, the CA erred when it said that WG&A
would renovate and reconstruct its own vessel merely using the dry docking
facilities of KCSI.

Second. Pursuant to KCSIs rules and regulations on safety and security, only
employees of KCSI may undertake hot works on the vessel while it was in the
graving dock in Lapu-Lapu City, Cebu. This is supported by Clause 3 of the
47

Shiprepair Agreement requiring the prior written approval of KCSIs Vice President
for Operations before WG&A could effect any work performed by its own workers
or sub-contractors. In the exercise of this authority, KCSIs Vice-President for
Operations, in the letter dated January 2, 1997, banned any hot works from being
done except by KCSIs workers, viz.:

The Yard will restrict all hot works in the engine room, accommodation
cabin, and fuel oil tanks to be carried out only by shipyard workers x x x.48[26]

WG&A recognized and complied with this restrictive directive such that,
during the arrival conference on January 26, 2000, Dr. Joniga, the vessels passage
team leader in charge of its hotel department, specifically requested KCSI to finish
the hot works started by the vessels contractors on the passenger accommodation
decks.49[27] This was corroborated by the statements of the vessels hotel manager
Marcelo Rabe50[28] and the vessels quality control officer Joselito Esteban. 51[29]
KCSI knew of the unfinished hot works in the passenger accommodation areas. Its
safety supervisor Esteban Cabalhug confirmed that KCSI was aware that the
owners of this vessel (M/V Superferry 3) had undertaken their own (hot) works
prior to arrival alongside (sic) on 26 th January, and that no hot work permits could
thereafter be issued to WG&As own workers because this was not allowed for the
48
49
50
51

Superferry 3.52[30] This shows that Dr. Joniga had authority only to request the
performance of hot works by KCSIs welders as needed in the repair of the vessel
while on dry dock.

Third. KCSI welders covered by the Work Order performed hot works on various
areas of the M/V Superferry 3, aside from its promenade deck. This was a
recognition of Dr. Jonigas authority to request the conduct of hot works even on
the passenger accommodation decks, subject to the provision of the January 26,
2000 Work Order that KCSI would supply welders for the promenade deck of the
ship.

At the CIAC proceedings, it was adequately shown that between February 4
and 6, 2000, the welders of KCSI: (a) did the welding works on the ceiling hangers
in the lobby of Deck A; (b) did the welding and cutting works on the deck beam to
access aircon ducts; and (c) did the cutting and welding works on the protection
bars at the tourist dining salon of Deck B, 53[31] at a rate of P150.00/welder/hour.54
[32] In fact, Orcullo, Project Superintendent of KCSI, admitted that as early as
February 3, 2000 (five days before the fire) [the Yard] had acknowledged Dr.
Jonigas authority to order such works or additional jobs.55[33]
52
53
54
55

It is evident, therefore, that although the January 26, 2000 Work Order was a
special order for the supply of KCSI welders to the promenade deck, it was not
restricted to the promenade deck only. The Work Order was only a special
arrangement between KCSI and WG&A that meant additional cost to the latter.

Fourth. At the time of the fire, Sevillejo was an employee of KCSI and was subject
to the latters direct control and supervision.

Indeed, KCSI was the employer of Sevillejopaying his salaries; retaining the
power and the right to discharge or substitute him with another welder; providing
him and the other welders with its equipment; giving him and the other welders
marching orders to work on the vessel; and monitoring and keeping track of his
and the other welders activities on board, in view of the delicate nature of their
work.56[34] Thus, as such employee, aware of KCSIs Safety Regulations on
Vessels Afloat/Dry, which specifically provides that (n)o hotwork (welding/cutting
works) shall be done on board [the] vessel without [a] Safety Permit from KCSI
Safety Section,57[35] it was incumbent upon Sevillejo to obtain the required hot
work safety permit before starting the work he did, including that done on Deck A
where the fire started.

56
57

Fifth. There was a lapse in KCSIs supervision of Sevillejos work at the time the
fire broke out.

It was established that no hot works could be hidden from or remain
undetected by KCSI because the welding cables and the gas hoses emanating from
the dock would give the hot works away. Moreover, KCSI had roving fire
watchmen and safety assistants who were moving around the vessel.58[36] This
was confirmed by Restituto Rebaca (Rebaca), KCSIs Safety Supervisor, who
actually spotted Sevillejo on Deck A, two hours before the fire, doing his cutting
work without a hot work permit, a fire watchman, or a fire extinguisher. KCSI
contends that it did its duty when it prohibited Sevillejo from continuing the hot
work. However, it is noteworthy that, after purportedly scolding Sevillejo for
working without a permit and telling him to stop until the permit was acquired and
the other safety measures were observed, Rebaca left without pulling Sevillejo out
of the work area or making sure that the latter did as he was told. Unfortunately for
KCSI, Sevillejo reluctantly proceeded with his cutting of the bulkhead door at
Deck A after Rebaca left, even disregarding the 4-inch marking set, thus cutting the
door level with the deck, until the fire broke out.

This conclusion on the failure of supervision by KCSI was absolutely supported by
Dr. Eric Mullen of the Dr. J.H. Burgoyne & Partners (International) Ltd.,
Singapore, KCSIs own fire expert, who observed that

58

4.3. The foregoing would be compounded by Angelino Sevillejo being an
electric arc welder, not a cutter. The dangers of ignition occurring as a result of
the two processes are similar in that both electric arc welding and hot cutting
produce heat at the work area and sparks and incendive material that can travel
some distance from the work area. Hence, the safety precautions that are expected
to be applied by the supervisor are the same for both types of work. However, the
quantity and incendivity of the spray from the hot cutting are much greater than
those of sparks from electric arc welding, and it may well be that Angelino
Sevillejo would not have a full appreciation of the dangers involved. This
made it all the more important that the supervisor, who should have had
such an appreciation, ensured that the appropriate safety precautions were
carried out.59[37]

In this light, therefore, Sevillejo, being one of the specially trained welders
specifically authorized by KCSI to do the hot works on M/V Superferry 3 to the
exclusion of other workers, failed to comply with the strict safety standards of
KCSI, not only because he worked without the required permit, fire watch, fire
buckets, and extinguishers, but also because he failed to undertake other
precautionary measures for preventing the fire. For instance, he could have, at the
very least, ensured that whatever combustible material may have been in the
vicinity would be protected from the sparks caused by the welding torch. He could
have easily removed the life jackets from the ceiling void, as well as the foam
mattresses, and covered any holes where the sparks may enter.

Conjunctively, since Rebaca was already aware of the hazard, he should
have taken all possible precautionary measures, including those above mentioned,
before allowing Sevillejo to continue with his hot work on Deck A. In addition to
scolding Sevillejo, Rebaca merely checked that no fire had started yet. Nothing

59

more. Also, inasmuch as KCSI had the power to substitute Sevillejo with another
electric arc welder, Rebaca should have replaced him.

There is negligence when an act is done without exercising the competence
that a reasonable person in the position of the actor would recognize as necessary
to prevent an unreasonable risk of harm to another. Those who undertake any work
calling for special skills are required to exercise reasonable care in what they do. 60
[38] Verily, there is an obligation all persons have to take due care which, under
ordinary circumstances of the case, a reasonable and prudent man would take. The
omission of that care constitutes negligence. Generally, the degree of care required
is graduated according to the danger a person or property may be subjected to,
arising from the activity that the actor pursues or the instrumentality that he uses.
The greater the danger, the greater the degree of care required. Extraordinary risk
demands extraordinary care. Similarly, the more imminent the danger, the higher
degree of care warranted.61[39] In this aspect,

60
61

KCSI failed to exercise the necessary degree of caution and foresight called for by
the circumstances.

We cannot subscribe to KCSIs position that WG&A, through Dr. Joniga, was
negligent.

On the one hand, as discussed above, Dr. Joniga had authority to request the
performance of hot works in the other areas of the vessel. These hot works were
deemed included in the January 26, 2000 Work Order and the Shiprepair
Agreement. In the exercise of this authority, Dr. Joniga asked Sevillejo to do the
cutting of the bulkhead door near the staircase of Deck A. KCSI was aware of what
Sevillejo was doing, but failed to supervise him with the degree of care warranted
by the attendant circumstances.

Neither can Dr. Joniga be faulted for not removing the life jackets from the
ceiling void for two reasons (1) the life jackets were not even contributory to the
occurrence of the fire; and (2) it was not incumbent upon him to remove the same.
It was shown during the hearings before the CIAC that the removal of the life
jackets would not have made much of a difference. The fire would still have
occurred due to the presence of other combustible materials in the area. This was
the uniform conclusion of both WG&As62[40] and KCSIs63[41] fire experts. It was
also proven during the CIAC proceedings that KCSI did not see the life jackets as
62

being in the way of the hot works, thus, making their removal from storage
unnecessary.64[42]

These circumstances, taken collectively, yield the inevitable conclusion that
Sevillejo was negligent in the performance of his assigned task. His negligence
was the proximate cause of the fire on board M/V Superferry 3. As he was then
definitely engaged in the performance of his assigned tasks as an employee of
KCSI, his negligence gave rise to the vicarious liability of his employer 65[43]
under Article 2180 of the Civil Code, which provides

Art. 2180. The obligation imposed by article 2176 is demandable not only for
ones own act or omission, but also for those of persons for whom one is
responsible.
xxxx
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.
xxxx
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.

63
64
65

KCSI failed to prove that it exercised the necessary diligence incumbent
upon it to rebut the legal presumption of its negligence in supervising Sevillejo. 66
[44] Consequently, it is responsible for the damages caused by the negligent act of
its employee, and its liability is primary and solidary. All that is needed is proof
that the employee has, by his negligence, caused damage to another in order to
make the employer responsible for the tortuous act of the former.67[45] From the
foregoing disquisition, there is ample proof of the employees negligence.

B. The right of subrogation

Pioneer asseverates that there existed a total constructive loss so that it had
to pay WG&A the full amount of the insurance coverage and, by operation of law,
it was entitled to be subrogated to the rights of WG&A to claim the amount of the
loss. It further argues that the limitation of liability clause found in the Shiprepair
Agreement is null and void for being iniquitous and against public policy.

KCSI counters that a total constructive loss was not adequately proven by
Pioneer, and that there is no proof of payment of the insurance proceeds. KCSI
insists on the validity of the limited-liability clause up to P50,000,000.00, because
WG&A acceded to the provision when it executed the Shiprepair Agreement.
66
67

KCSI also claims that the salvage value of the vessel should be deducted from
whatever amount it will be made to pay to Pioneer.

We find in favor of Pioneer, subject to the claim of KCSI as to the salvage
value of M/V Superferry 3.

In marine insurance, a constructive total loss occurs under any of the
conditions set forth in Section 139 of the Insurance Code, which provides

Sec. 139. A person insured by a contract of marine insurance may abandon
the thing insured, or any particular portion hereof separately valued by the policy,
or otherwise separately insured, and recover for a total loss thereof, when the
cause of the loss is a peril insured against:
(a)
If more than three-fourths thereof in value is actually lost, or would
have to be expended to recover it from the peril;
(b)
If it is injured to such an extent as to reduce its value more than
three-fourths; x x x.

It appears, however, that in the execution of the insurance policies over M/V
Superferry 3, WG&A and Pioneer incorporated by reference the American Institute
Hull Clauses 2/6/77, the Total Loss Provision of which reads

Total Loss

In ascertaining whether the Vessel is a constructive Total Loss the Agreed
Value shall be taken as the repaired value and nothing in respect of the damaged
or break-up value of the Vessel or wreck shall be taken into account.
There shall be no recovery for a constructive Total Loss hereunder unless
the expense of recovering and repairing the Vessel would exceed the Agreed
Value in policies on Hull and Machinery. In making this determination, only
expenses incurred or to be incurred by reason of a single accident or a sequence of
damages arising from the same accident shall be taken into account, but expenses
incurred prior to tender of abandonment shall not be considered if such are to be
claimed separately under the Sue and Labor clause. x x x.

In the course of the arbitration proceedings, Pioneer adduced in evidence the
estimates made by three (3) disinterested and qualified shipyards for the cost of the
repair of the vessel, specifically: (a) P296,256,717.00, based on the Philippine
currency equivalent of the quotation dated April 17, 2000 turned in by Tsuneishi
Heavy Industries (Cebu) Inc.; (b) P309,780,384.15, based on the Philippine
currency equivalent of the quotation of Sembawang Shipyard Pte. Ltd., Singapore;
and (c) P301,839,974.00, based on the Philippine currency equivalent of the
quotation of Singapore Technologies Marine Ltd. All the estimates showed that the
repair expense would exceed P270,000,000.00, the amount equivalent to of the
vessels insured value of P360,000,000.00. Thus, WG&A opted to abandon M/V
Superferry 3 and claimed from Pioneer the full amount of the policies. Pioneer
paid WG&As claim, and now demands from KCSI the full amount of
P360,000,000.00, by virtue of subrogation.

KCSI denies the liability because, aside from its claim that it cannot be held
culpable for negligence resulting in the destructive fire, there was no constructive
total loss, as the amount of damage was only US$3,800,000.00 or

P170,611,260.00, the amount of repair expense quoted by Simpson, Spence &
Young.

In the face of this apparent conflict, we hold that Section 139 of the
Insurance Code should govern, because (1) Philippine law is deemed incorporated
in every locally executed contract; and (2) the marine insurance policies in
question expressly provided the following:

IMPORTANT
This insurance is subject to English jurisdiction, except in the event that
loss or losses are payable in the Philippines, in which case if the said laws and
customs of England shall be in conflict with the laws of the Republic of the
Philippines, then the laws of the Republic of the Philippines shall govern.
(Underscoring supplied.)

The CA held that Section 139 of the Insurance Code is merely permissive on
account of the word may in the provision. This is incorrect. Properly considered,
the word may in the provision is intended to grant the insured (WG&A) the option
or discretion to choose the abandonment of the thing insured (M/V Superferry 3),
or any particular portion thereof separately valued by the policy, or otherwise
separately insured, and recover for a total loss when the cause of the loss is a peril
insured against. This option or discretion is expressed as a right in Section 131 of
the same Code, to wit:

Sec. 131. A constructive total loss is one which gives to a person insured a
right to abandon under Section one hundred thirty-nine.

It cannot be denied that M/V Superferry 3 suffered widespread damage from
the fire that occurred on February 8, 2000, a covered peril under the marine
insurance policies obtained by WG&A from Pioneer. The estimates given by the
three disinterested and qualified shipyards show that the damage to the ship would
exceed P270,000,000.00, or of the total value of the policies P360,000,000.00.
These estimates constituted credible and acceptable proof of the extent of the
damage sustained by the vessel. It is significant that these estimates were
confirmed by the Adjustment Report dated June 5, 2000 submitted by Richards
Hogg Lindley (Phils.), Inc., the average adjuster that Pioneer had enlisted to verify
and confirm the extent of the damage. The Adjustment Report verified and
confirmed that the damage to the vessel amounted to a constructive total loss and
that the claim for P360,000,000.00 under the policies was compensable.68[46] It is
also noteworthy that KCSI did not cross-examine Henson Lim, Director of
Richards Hogg, whose affidavit-direct testimony submitted to the CIAC confirmed
that the vessel was a constructive total loss.

Considering the extent of the damage, WG&A opted to abandon the ship and
claimed the value of its policies. Pioneer, finding the claim compensable, paid the
claim, with WG&A issuing a Loss and Subrogation Receipt evidencing receipt of
the payment of the insurance proceeds from Pioneer. On this note, we find as
unacceptable the claim of KCSI that there was no ample proof of payment simply
68

because the person who signed the Receipt appeared to be an employee of Aboitiz
Shipping Corporation.69[47] The Loss and Subrogation Receipt issued by WG&A
to Pioneer is the best evidence of payment of the insurance proceeds to the former,
and no controverting evidence was presented by KCSI to rebut the presumed
authority of the signatory to receive such payment.

On the matter of subrogation, Article 2207 of the Civil Code provides

Art. 2207. If the plaintiffs property has been insured and he has received
indemnity from the insurance company for the injury or loss arising out of the
wrong or breach of contract complained of, the insurance company shall be
subrogated to the rights of the insured against the wrongdoer or the person who
has violated the contract. If the amount paid by the insurance company does not
fully cover the injury or loss, the aggrieved party shall be entitled to recover the
deficiency from the person causing the loss or injury.

Subrogation is the substitution of one person by another with reference to a
lawful claim or right, so that he who is substituted succeeds to the rights of the
other in relation to a debt or claim, including its remedies or securities. The
principle covers a situation wherein an insurer has paid a loss under an insurance
policy is entitled to all the rights and remedies belonging to the insured against a
third party with respect to any loss covered by the policy. It contemplates full
substitution such that it places the party subrogated in the shoes of the creditor, and
he may use all means that the creditor could employ to enforce payment.70[48]
69
70

We have held that payment by the insurer to the insured operates as an
equitable assignment to the insurer of all the remedies that the insured may have
against the third party whose negligence or wrongful act caused the loss. The right
of subrogation is not dependent upon, nor does it grow out of, any privity of
contract. It accrues simply upon payment by the insurance company of the
insurance claim. The doctrine of subrogation has its roots in equity. It is designed
to promote and to accomplish justice; and is the mode that equity adopts to compel
the ultimate payment of a debt by one who, in justice, equity, and good conscience,
ought to pay.71[49]

We cannot accept KCSIs insistence on upholding the validity Clause 20,
which provides that the limit of its liability is only up to P50,000,000.00; nor of
Clause 22(a), that KCSI stands as a co-assured in the insurance policies, as found
in the Shiprepair Agreement.

Clauses 20 and 22(a) of the Shiprepair Agreement are without factual and
legal foundation. They are unfair and inequitable under the premises. It was
established during arbitration that WG&A did not voluntarily and expressly agree
to these provisions. Engr. Elvin F. Bello, WG&As fleet manager, testified that he
did not sign the fine-print portion of the Shiprepair Agreement where Clauses 20
and 22(a) were found, because he did not want WG&A to be bound by them.
However, considering that it was only KCSI that had shipyard facilities large
71

enough to accommodate the dry docking and repair of big vessels owned by
WG&A, such as M/V Superferry 3, in Cebu, he had to sign the front portion of the
Shiprepair Agreement; otherwise, the vessel would not be accepted for dry
docking.72[50]

Indeed, the assailed clauses amount to a contract of adhesion imposed on
WG&A on a take-it-or-leave-it basis. A contract of adhesion is so-called because
its terms are prepared by only one party, while the other party merely affixes his
signature signifying his adhesion thereto. Although not invalid, per se, a contract of
adhesion is void when the weaker party is imposed upon in dealing with the
dominant bargaining party, and its option is reduced to the alternative of taking it
or leaving it, completely depriving such party of the opportunity to bargain on
equal footing.73[51]

Clause 20 is also a void and ineffectual waiver of the right of WG&A to be
compensated for the full insured value of the vessel or, at the very least, for its
actual market value. There was clearly no intention on the part of WG&A to
relinquish such right. It is an elementary rule that a waiver must be positively
proved, since a waiver by implication is not normally countenanced. The norm is
that a waiver must not only be voluntary, but must have been made knowingly,
intelligently, and with sufficient awareness of the relevant circumstances and likely

72
73

consequences. There must be persuasive evidence to show an actual intention to
relinquish the right.74[52] This has not been demonstrated in this case.

Likewise, Clause 20 is a stipulation that may be considered contrary to
public policy. To allow KCSI to limit its liability to only P50,000,000.00,
notwithstanding the fact that there was a constructive total loss in the amount of
P360,000,000.00, would sanction the exercise of a degree of diligence short of
what is ordinarily required. It would not be difficult for a negligent party to escape
liability by the simple expedient of paying an amount very much lower than the
actual damage or loss sustained by the other.75[53]

Along the same vein, Clause 22(a) cannot be upheld. The intention of the
parties to make each other a co-assured under an insurance policy is to be gleaned
principally from the insurance contract or policy itself and not from any other
contract or agreement, because the insurance policy denominates the assured and
the beneficiaries of the insurance contract. Undeniably, the hull and machinery
insurance procured by WG&A from Pioneer named only the former as the assured.
There was no manifest intention on the part of WG&A to constitute KCSI as a coassured under the policies. To have deemed KCSI as a co-assured under the
policies would have had the effect of nullifying any claim of WG&A from Pioneer
for any loss or damage caused by the negligence of KCSI. No ship owner would
agree to make a ship repairer a co-assured under such insurance policy. Otherwise,
74
75

any claim for loss or damage under the policy would be rendered nugatory. WG&A
could not have intended such a result.76[54]

Nevertheless, we concur with the position of KCSI that the salvage value of
the damaged M/V Superferry 3 should be taken into account in the grant of any
award. It was proven before the CIAC that the machinery and the hull of the vessel
were separately sold for P25,290,000.00 (or US$468,333.33) and US$363,289.50,
respectively. WG&As claim for the upkeep of the wreck until the same were sold
amounts to P8,521,737.75 (or US$157,809.96), to be deducted from the proceeds
of the sale of the machinery and the hull, for a net recovery of US$673,812.87, or
equivalent to P30,252,648.09, at P44.8977/$1, the prevailing exchange rate when
the Request for Arbitration was filed. Not considering this salvage value in the
award would amount to unjust enrichment on the part of Pioneer.

C. On the imposition of interest

Pursuant to our ruling in Eastern Shipping Lines, Inc. v. Court of Appeals,77
[55] the award in favor of Pioneer in the amount of P350,146,786.89 should earn
interest at 6% per annum from the filing of the case until the award becomes final
and executory. Thereafter, the rate of interest shall be 12% per annum from the
date the award becomes final and executory until its full satisfaction.
76
77

D.

On the payment for the cost of arbitration

It is only fitting that both parties should share in the burden of the cost of
arbitration, on a pro rata basis. We find that Pioneer had a valid reason to institute
a suit against KCSI, as it believed that it was entitled to claim reimbursement of
the amount it paid to WG&A. However, we disagree with Pioneer that only KCSI
should shoulder the arbitration costs. KCSI cannot be faulted for defending itself
for perceived wrongful acts and conditions. Otherwise, we would be putting a price
on the right to litigate on the part of Pioneer.

WHEREFORE, the Petition of Pioneer Insurance and Surety Corporation
in G.R. No. 180896-97 and the Petition of Keppel Cebu Shipyard, Inc. in G.R. No.
180880-81 are PARTIALLY GRANTED and the Amended Decision dated
December 20, 2007 of the Court of Appeals is MODIFIED. Accordingly, KCSI is
ordered to pay Pioneer the amount of P360,000,000.00 less P30,252,648.09,
equivalent to the salvage value recovered by Pioneer from M/V Superferry 3, or
the net total amount of P329,747,351.91, with six percent (6%) interest per annum
reckoned from the time the Request for Arbitration was filed until this Decision
becomes final and executory, plus twelve percent (12%) interest per annum on the
said amount or any balance thereof from the finality of the Decision until the same
will have been fully paid. The arbitration costs shall be borne by both parties on a
pro rata basis. Costs against KCSI.

SO ORDERED.

NORMAN A. GAID, G.R. No. 171636
Petitioner,
Present:

QUISUMBING, J.,
Chairperson,
- versus - CARPIO MORALES,
TINGA,
VELASCO, JR., and
PERALTA, JJ.
PEOPLE OF THE PHILIPPINES,
Respondent. Promulgated:
April 7, 2009

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

DECISION

TINGA, J.:

Before the Court is a petition for review on certiorari [1] assailing
the 12 July 2005 Decision[2] of the Court of Appeals and its
subsequent
Resolution[3] denying
petitioners
motion
for
reconsideration.

Petitioner Norman A. Gaid was charged with the crime of reckless
imprudence resulting in homicide in an information which reads
as follow:

That on or about 12:00 high noon of October 25, 2001,
infront of the Laguindingan National High School,
Poblacion, Laguindingan, Misamis Oriental, Philippines
and within the jurisdiction of this Honorable Court, the
said accused mentioned above while driving a passengers
jeepney color white bearing plate no. KVG-771 owned by
barangay captain Levy Etom has no precautionary
measure to preempt the accident, did then and there
willfully, unlawfully and feloniously ran [sic] over Michael
Dayata resulting of [sic] his untimely death as
pronounced
by
the
attending
physician
of Northern Mindanao Medical Center Hospital, Cagayan
de Oro City.

CONTRARY TO LAW.[4]

Petitioner entered a not guilty plea. Thereafter, trial ensued.

The antecedent facts are undisputed.

At around 12:00 noon on 25 October 2001, petitioner was
driving his passenger jeepney along a two-lane road where the
Laguindingan National High School is located toward the direction
of Moog in Misamis Oriental. His jeepney was filled to seating
capacity.[5] At the time several students were coming out of the
school premises.[6]Meanwhile, a fourteen year-old student, Michael
Dayata (Dayata), was seen by eyewitness Artman Bongolto
(Bongolto) sitting near a store on the left side of the road. From
where he was at the left side of the road, Dayata raised his left
hand to flag down petitioners jeepney [7] which was traveling on
the right lane of the road. [8] However, neither did petitioner nor
the conductor, Dennis Mellalos (Mellalos), saw anybody flagging
down the jeepney to ride at that point. [9]

The next thing Bongalto saw, Dayatas feet was pinned to the
rear wheel of the jeepney, after which, he laid flat on the ground
behind the jeepney.[10] Another prosecution witness, Usaffe Actub
(Actub), who was also situated on the left side of the street but
directly in front of the school gate, heard a strong impact coming
from the jeep sounding as if the driver forced to accelerate in
order to hurdle an obstacle. [11] Dayata was then seen lying on the
ground[12] and caught in between the rear tires. [13] Petitioner felt
that the left rear tire of the jeepney had bounced and the vehicle
tilted to the right side.[14]

Mellalos heard a shout that a boy was run over, prompting
him to jump off the jeepney to help the victim. Petitioner stopped
and saw Mellalos carrying the body of the victim. [15] Mellalos
loaded the victim on a motorcycle and brought him to the
hospital. Dayata
was
first
brought
to
the Laguindingan Health Center, but it was closed. Mellalos then
proceeded to the El Salvador Hospital. Upon advice of its doctors,
however,
Dayata
was
brought
to

the Northern Mindanao Medical Center where he was pronounced
dead on arrival.[16]

Dr. Tammy Uy issued an autopsy report stating craniocerebral injuries as the cause of death. [17] She testified that the
head injuries of Dayata could have been caused by having run
over by the jeepney.[18]

The
Municipal
Circuit
Trial
Court
(MCTC)
of
[19]
Laguindingan
found petitioner guilty beyond reasonable doubt
of the crime charged. The lower court held petitioner negligent in
his driving considering that the victim was dragged to a distance
of 5.70 meters from the point of impact. He was also scored for
not stopping his vehicle after noticing that the jeepneys left rear
tire jolted causing the vehicle to tilt towards the right. [20] On
appeal, the Regional Trial Court (RTC) [21] affirmed in toto the
decision of the MCTC.

The Court of Appeals affirmed the trial courts judgment with
modification in that it found petitioner guilty only of simple
negligence resulting in homicide.

The Court of Appeals exonerated petitioner from the charge
of reckless imprudence resulting to homicide on the ground that
he was not driving recklessly at the time of the
accident. However, the appellate court still found him to be
negligent when he failed to promptly stop his vehicle to check
what caused the sudden jotting of its rear tire. [22]

In its 6 February 2006 Resolution, the Court of Appeals
denied petitioners motion for reconsideration. [23]

Hence, the instant petition.

Petitioner submits that the Court of Appeals erred in finding
that there is (sic) absolutely lack of precaution on the part of the
petitioner when he continued even after he had noticed that the
left rear tire and the jeep tilted to its right side. [24] Petitioner
stressed that he, in fact, stopped his jeep when its left rear tire
bounced and upon hearing that somebody had been ran over.

Moreover, petitioner asserts that the Court of Appeals
committed a grave abuse of discretion in convicting him of the
offense
of
simple
negligence
resulting
in
homicide.
Assuming arguendo that he failed to promptly stop his vehicle,
petitioner maintains that no prudent man placed in the same
situation could have foreseen the vehicular accident or could
have stopped his vehicle in time when its left rear tire bounced
due to the following reasons: (1) the victim was only a trespasser;
(2) petitioners attention was focused on the road and the students
outside the schools gate; and (3) the jeepney was fully loaded
with passengers and cargoes and it was impossible for the
petitioner to promptly stop his vehicle. [25]

The Office of the Solicitor-General (OSG) maintained that
petitioner was negligent when he continued to run towards the
direction of Moog, Laguindingan, dragging the victim a few
meters from the point of impact, despite hearing that a child had
been run over.[26]

The presence or absence of negligence on the part of
petitioner is determined by the operative events leading to the
death of Dayata which actually comprised of two phases or
stages. The first stage began when Dayata flagged down the
jeepney while positioned on the left side of the road and ended
when he was run over by the jeepney. The second stage covered
the span between the moment immediately after the victim was
run over and the point when petitioner put the jeepney to a halt.

During the first stage, petitioner was not shown to be
negligent.

Reckless imprudence consists of voluntarily doing or failing
to do, without malice, an act from which material damage results
by reason of an inexcusable lack of precaution on the part of the
person performing or failing to perform such act. [27]

In Manzanares v. People,[28] this Court convicted petitioner of
the crime of reckless imprudence resulting in multiple homicide
and serious physical injuries when he was found driving the Isuzu
truck very fast before it smashed into a jeepney. [29] Likewise,
in Pangonorom v. People,[30] a public utility driver, who was driving
very fast, failed to slow down and hit a swerving car. He was
found negligent by this Court.

In the instant case, petitioner was driving slowly at the time
of the accident, as testified to by two eyewitnesses. Prosecution
witness Actub affirmed this fact on cross-examination, thus:

ATTY. MACUA:

(to the witness)
Q Mr. Witness, when the passenger jeepney passed by the
gate of the Laguindingan National High School, is it
running slowly, am I correct?
A Yes, he was running slowly.[31]

The slow pace of the jeepney was seconded by Mellalos:

Q You testified that you heard somebody outside from the
vehicle shouting that a boy was ran over, am I
correct?
A Yes, Sir.

Q Now, before you heard that shouting, did you observe
any motion from the vehicle?
A The jeep was moving slowly and I noticed that there was
something that [sic] the jeep a little bit bounced up
as if a hump thats the time I heard a shout from
outside.[32]

Petitioner stated that he was driving at no more than 15
kilometers per hour.[33]

It appears from the evidence Dayata came from the left side
of the street. Petitioner, who was driving the jeepney on the right
lane, did not see the victim flag him down.He also failed to see
him go near the jeepney at the left side. Understandably,
petitioner was focused on the road ahead. In Dayatas haste to
board the jeep which was then running, his feet somehow got
pinned to the left rear tire, as narrated by Bongolto. Actub only
saw Dayata after he heard a strong impact coming from the jeep.

With the foregoing facts, petitioner can not be held liable
during the first stage. Specifically, he cannot be held liable for
reckless imprudence resulting in homicide, as found by the trial
court. The proximate cause of the accident and the death of the
victim was definitely his own negligence in trying to catch up with
the moving jeepney to get a ride.

In the instant case, petitioner had exercised extreme
precaution as he drove slowly upon reaching the vicinity of the
school. He cannot be faulted for not having seen the victim who
came from behind on the left side.

However, the Court of Appeals found petitioner guilty of
simple negligence resulting in homicide for failing to stop driving
at the time when he noticed the bouncing of his vehicle. Verily,
the appellate court was referring to the second stage of the
incident.

Negligence has been defined as the failure to observe for the
protection of the interests of another person that degree of care,
precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury. [34]

The elements of simple negligence: are (1) that there is lack
of precaution on the part of the offender; and (2) that the damage
impending to be caused is not immediate or the danger is not
clearly manifest.[35]

The standard test in determining whether a person is
negligent in doing an act whereby injury or damage results to the
person or property of another is this: could a prudent man, in the
position of the person to whom negligence is attributed, foresee
harm to the person injured as a reasonable consequence of the
course actually pursued? If so, the law imposes a duty on the
actor to refrain from that course or to take precautions to guard
against its mischievous results, and the failure to do so
constitutes negligence. Reasonable foresight of harm, followed by
the ignoring of the admonition born of this provision, is always
necessary before negligence can be held to exist. [36]

In Philippine National Construction Corporation v. Court of Appeals,[37] the
petitioner was the franchisee that operates and maintains the toll facilities in the
North and South Luzon Toll Expressways. It failed to exercise the requisite
diligence in maintaining the NLEX safe for motorists. The lighted cans and lane
dividers on the highway were removed even as flattened sugarcanes lay scattered
on the ground. The highway was still wet from the juice and sap of the flattened
sugarcanes. The petitioner should have foreseen that the wet condition of the

highway would endanger motorists passing by at night or in the wee hours of the
morning.[38] Consequently, it was held liable for damages.

In an American case, Hernandez v. Lukas,[39] a motorist traveling within the
speed limit and did all was possible to avoid striking a child who was then six
years old only.The place of the incident was a neighborhood where children were
playing in the parkways on prior occasions. The court ruled that it must be still
proven that the driver did not exercise due care. The evidence showed that the
driver was proceeding in lawful manner within the speed limit when the child ran
into the street and was struck by the drivers vehicle. Clearly, this was an
emergency situation thrust upon the driver too suddenly to avoid.

In this case, the courts below zeroed in on the fact that
petitioner did not stop the jeepney when he felt the bouncing of
his vehicle, a circumstance which the appellate courtequates with
negligence. Petitioner contends that he did not immediately stop
because he did not see anybody go near his vehicle at the time of
the incident.[40]

Assuming arguendo that petitioner had been negligent, it
must be shown that his negligence was the proximate cause of
the accident. Proximate cause is defined as that which, in the
natural and continuous sequence, unbroken by any efficient,
intervening
cause,
produces the injury, and without which the result would not have
occurred.[41] In order to establish a motorist's liability for the
negligent operation of a vehicle, it must be shown that there was
a direct causal connection between such negligence and the
injuries or damages complained of. Thus, negligence that is not a
substantial contributing factor in the causation of the accident is
not the proximate cause of an injury.[42]

The head injuries sustained by Dayata at the point of impact
proved to be the immediate cause of his death, as indicated in the
post-mortem findings.[43] His skull was crushed as a result of the
accident. Had petitioner immediately stopped the jeepney, it
would still not have saved the life of the victim as the injuries he
suffered were fatal.

The evidence on record do not show that the jeepney
dragged the victim after he was hit and run over by the
jeepney. Quite the contrary, the evidence discloses that the victim
was not dragged at all. In fact, it is the other way
around. Bongolto narrated that after the impact, he saw Dayata
left behind the jeepney.[44] Actub saw Dayata in a prone position
and bleeding within seconds after impact. [45] Right after the
impact, Mellalos immediately jumped out of the jeepney and saw
the victim lying on the ground.[46] The distance of 5.70 meters is
the length of space between the spot where the victim fell to the
ground and the spot where the jeepney stopped as observed by
the trial judge during the ocular inspection at the scene of the
accident.[47]

Moreover, mere suspicions and speculations that the victim
could have lived had petitioner stopped can never be the basis of
a conviction in a criminal case. [48] The Court must be satisfied that
the guilt of the accused had been proven beyond reasonable
doubt.[49] Conviction must rest on nothing less than a moral
certainty of the guilt of the accused. The overriding consideration

is not whether the court doubts the innocence of the accused but
whether it entertains doubt as to his guilt. [50]

Clearly then, the prosecution was not able to establish that
the proximate cause of the victims death was petitioners alleged
negligence, if at all, even during the second stage of the incident.

If at all again, petitioners failure to render assistance to the
victim would constitute abandonment of ones victim punishable
under Article 275 of the Revised Penal Code.However, the
omission is not covered by the information. Thus, to hold
petitioner criminally liable under the provision would be
tantamount to a denial of due process.

Therefore, petitioner must be acquitted at least on
reasonable doubt. The award of damages must also be deleted
pursuant to Article 2179 of the Civil Code which states that when
the plaintiffs own negligence was the immediate and proximate
cause of his injury, he cannot recover damages.
WHEREFORE, the petition is GRANTED. The decision of the
Court of Appeals dated 12 July 2005 is REVERSED and SET
ASIDE. Petitioner Norman A. Gaid isACQUITTED of the crime of
Simple Negligence Resulting in Homicide as found by the Court of
Appeals and of the charge of Reckless Imprudence Resulting in
Homicide in Criminal Case No. 1937 of the MCTC of Laguindingan,
Misamis Oriental.

SO ORDERED.
G.R. No. 180440

December 5, 2012

DR. GENEVIEVE L. HUANG, Petitioner,
vs.
PHILIPPINE HOTELIERS, INC., DUSIT THANI PUBLIC CO., LTD. And FIRST LEPANTO TAISHO
INSURANCE CORPORATION, Respondents.
DECISION
PEREZ, J.:
For this Court’s resolution is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
assailing the Decision1 of the Court of Appeals in CA-G.R. CV No. 87065 dated 9 August 2007,
affirming the Decision2 of Branch 56 of the Regional Trial Court (RTC) of Makati City in Civil Case
No. 96-1367 dated 21 February 2006, dismissing for lack of merit herein petitioner Dr. Genevieve L.
Huang’s Complaint for Damages. Assailed as well is the Court of Appeals’ Resolution 3 dated 5
November 2007 denying for lack of merit petitioner’s Motion for Reconsideration.
This case stemmed from a Complaint for Damages filed on 28 August 1996 by petitioner Dr.
Genevieve L. Huang4 against herein respondents Philippine Hoteliers, Inc. (PHI)5 and Dusit Thani
Public Co., Ltd. (DTPCI),6 as owners of Dusit Thani Hotel Manila (Dusit Hotel);7 and co-respondent
First Lepanto Taisho Insurance Corporation (First Lepanto), 8 as insurer of the aforesaid hotel. The
said Complaint was premised on the alleged negligence of respondents PHI and DTPCI’s staff, in
the untimely putting off all the lights within the hotel’s swimming pool area, as well as the locking of
the main entrance door of the area, prompting petitioner to grope for a way out. While doing so, a
folding wooden counter top fell on her head causing her serious brain injury. The negligence was
allegedly compounded by respondents PHI and DTPCI’s failure to render prompt and adequate
medical assistance.
Petitioner’s version of the antecedents of this case is as follows:
On 11 June 1995, Delia Goldberg (Delia), a registered guest of Dusit Hotel, invited her friend,
petitioner Dr. Genevieve L. Huang, for a swim at the hotel’s swimming pool facility. They started
bathing at around 5:00 p.m. At around 7:00 p.m., the hotel’s swimming pool attendant informed them
that the swimming pool area was about to be closed. The two subsequently proceeded to the
shower room adjacent to the swimming pool to take a shower and dress up. However, when they
came out of the bathroom, the entire swimming pool area was already pitch black and there was no
longer any person around but the two of them. They carefully walked towards the main door leading
to the hotel but, to their surprise, the door was locked. 9
Petitioner and Delia waited for 10 more minutes near the door hoping someone would come to their
rescue but they waited in vain. Delia became anxious about their situation so petitioner began to
walk around to look for a house phone. Delia followed petitioner. After some time, petitioner saw a
phone behind the lifeguard’s counter. While slowly walking towards the phone, a hard and heavy

object, which later turned out to be the folding wooden counter top, fell on petitioner’s head that
knocked her down almost unconscious.10
Delia immediately got hold of the house phone and notified the hotel telephone operator of the
incident. Not long after, the hotel staff arrived at the main entrance door of the swimming pool area
but it took them at least 20 to 30 minutes to get inside. When the door was finally opened, three
hotel chambermaids assisted petitioner by placing an ice pack and applying some ointment on her
head. After petitioner had slightly recovered, she requested to be assisted to the hotel’s coffee shop
to have some rest. Petitioner demanded the services of the hotel physician. 11
Dr. Violeta Dalumpines (Dr. Dalumpines) arrived. She approached petitioner and introduced herself
as the hotel physician. However, instead of immediately providing the needed medical assistance,
Dr. Dalumpines presented a "Waiver" and demanded that it be signed by petitioner, otherwise, the
hotel management will not render her any assistance. Petitioner refused to do so. 12
After eating her dinner and having rested for a while, petitioner left the hotel’s coffee shop and went
home. Thereupon, petitioner started to feel extraordinary dizziness accompanied by an
uncomfortable feeling in her stomach, which lasted until the following day. Petitioner was constrained
to stay at home, thus, missing all her important appointments with her patients. She also began
experiencing "on" and "off" severe headaches that caused her three (3) sleepless nights. 13
Petitioner, thus, decided to consult a certain Dr. Perry Noble (Dr. Noble), a neurologist from Makati
Medical Center, who required her to have an X-ray and a Magnetic Resonance Imaging (MRI)
tests.14 The MRI Report15dated 23 August 1995 revealed the following findings:
CONSULTATION REPORT:
MRI examination of the brain shows scattered areas of intraparenchymal contusions and involving
mainly the left middle and posterior temporal and slightly the right anterior temporal lobe.
Other small areas of contusions with suggestive pertechiae are seen in the left fronto-parietal, left
parieto-occipital and with deep frontal periventricular subcortical and cortical regions. There is no
mass effect nor signs of localized hemorrhagic extravasation.
The ventricles are not enlarged, quite symmetrical without shifts or deformities; the peripheral sulci
are within normal limits.
The C-P angles, petromastoids, sella, extrasellar and retro orbital areas appear normal.
The brainstem is unremarkable.
IMPRESSION: Scattered small intraparenchymal contusions mainly involving the left middleposterior temporal lobe and also right medial anterior temporal, both deep frontal subcortical, left
parieto-occipital subcortical and cortical regions. Ischemic etiology not ruled out. No localized intra or extracerebral hemorrhage.16

Petitioner claimed that the aforesaid MRI result clearly showed that her head was bruised. Based
also on the same MRI result, Dr. Noble told her that she has a very serious brain injury. In view
thereof, Dr. Noble prescribed the necessary medicine for her condition. 17
Petitioner likewise consulted a certain Dr. Ofelia Adapon, also a neurologist from Makati Medical
Center, who required her to undergo an Electroencephalogram examination (EEG) to measure the
electrostatic in her brain.18Based on its result,19 Dr. Ofelia Adapon informed her that she has a
serious condition—a permanent one. Dr. Ofelia Adapon similarly prescribed medicines for her brain
injury.20
Petitioner’s condition did not get better. Hence, sometime in September 1995, she consulted another
neuro-surgeon by the name of Dr. Renato Sibayan (Dr. Sibayan), who required her to have an X-ray
test.21 According to petitioner, Dr. Sibayan’s finding was the same as those of the previous doctors
that she had consulted—she has a serious brain injury.22
By reason of the unfortunate 11 June 1995 incident inside the hotel’s swimming pool area, petitioner
also started to feel losing her memory, which greatly affected and disrupted the practice of her
chosen profession.23 Thus, on 25 October 1995, petitioner, through counsel, sent a demand letter 24 to
respondents PHI and DTPCI seeking payment of an amount not less than P100,000,000.00
representing loss of earnings on her remaining life span. But, petitioner’s demand was unheeded.
In November 1995, petitioner went to the United States of America (USA) for further medical
treatment. She consulted a certain Dr. Gerald Steinberg and a certain Dr. Joel Dokson 25 from Mount
Sinai Hospital who both found that she has "post traumatic-post concussion/contusion cephalgiasvascular and neuralgia."26 She was then prescribed to take some medications for severe pain and to
undergo physical therapy. Her condition did not improve so she returned to the Philippines. 27
Petitioner, once again, consulted Dr. Sibayan, who simply told her to just relax and to continue taking
her medicines. Petitioner also consulted other neurologists, who all advised her to just continue her
medications and to undergo physical therapy for her neck pain. 28
Sometime in 1996, petitioner consulted as well a certain Dr. Victor Lopez (Dr. Lopez), an
ophthalmologist from the Makati Medical Center, because of her poor vision, which she has
experienced for several months.29 Petitioner’s Eye Report dated 5 March 199630 issued by Dr. Lopez
stated: "IMPRESSION: Posterior vitreous detachment, right eye of floaters." Dr. Lopez told petitioner
that her detached eye is permanent and very serious. Dr. Lopez then prescribed an eye drop to
petitioner.31
For petitioner’s frustration to dissipate and to regain her former strength and physical well-being, she
consulted another neuro-surgeon from Makati Medical Center by the name of Dr. Leopoldo P. Pardo,
Jr. (Dr. Pardo, Jr.).32She disclosed to Dr. Pardo, Jr. that at the age of 18 she suffered a stroke due to
mitral valve disease and that she was given treatments, which also resulted in thrombocytopenia. In
Dr. Pardo, Jr.’s medical evaluation of petitioner dated 15 May 1996, 33 he made the following
diagnosis and opinion:
DIAGNOSIS AND OPINION:

This patient sustained a severe head injury in (sic) 11 June 1995 and as a result of which she
developed the following injuries:
1. Cerebral Concussion and Contusion
2. Post-traumatic Epilepsy
3. Post-concussional Syndrome
4. Minimal Brain Dysfunction
5. Cervical Sprain, chronic recurrent
It is my opinion that the symptoms she complained of in the foregoing history are all related to and a
result of the injury sustained on 11 June 1995.
It is further my opinion that the above diagnosis and complaints do materially affect her duties and
functions as a practicing physician and dermatologist, and that she will require treatment for an
undetermined period of time.
The percentage of disability is not calculated at this time and will require further evaluation and
observation.34
Dr. Pardo, Jr. then advised petitioner to continue her medications.35
Petitioner likewise consulted a certain Dr. Tenchavez36 for her follow-up EEG.37 He similarly
prescribed medicine for petitioner’s deep brain injury. He also gave her pain killer for her headache
and advised her to undergo physical therapy. Her symptoms, however, persisted all the more. 38
In 1999, petitioner consulted another neurologist at the Makati Medical Center by the name of Dr.
Martesio Perez (Dr. Perez) because of severe fleeting pains in her head, arms and legs; difficulty in
concentration; and warm sensation of the legs, which symptoms also occurred after the 11 June
1995 incident. Upon examination, Dr. Perez observed that petitioner has been experiencing severe
pains and she has a slight difficulty in concentration. He likewise noted that there was a slight spasm
of petitioner’s neck muscle but, otherwise, there was no objective neurologic finding. The rest of
petitioner’s neurologic examination was essentially normal.39
Dr. Perez’s neurologic evaluation40 of petitioner reflected, among others: (1) petitioner’s past medical
history, which includes, among others, mitral valve stenosis; (2) an interpretation of petitioner’s EEG
results in October 1995 and in January 1999, i.e., the first EEG showed sharp waves seen bilaterally
more on the left while the second one was normal; and (3) interpretation of petitioner’s second MRI
result, i.e., petitioner has a permanent damage in the brain, which can happen either after a head
injury or after a stroke. Dr. Perez concluded that petitioner has post-traumatic or post concussion
syndrome.41

Respondents, on the other hand, denied all the material allegations of petitioner and, in turn,
countered the latter’s statement of facts, thus:
According to respondents PHI and DTPCI, a sufficient notice had been posted on the glass door of
the hotel leading to the swimming pool area to apprise the people, especially the hotel guests, that
the swimming pool area is open only from 7:00 a.m. to 7:00 p.m. 42 Though the hotel’s swimming pool
area is open only between the aforestated time, the lights thereon are kept on until 10:00 p.m. for,
(1) security reasons; (2) housekeeping personnel to do the cleaning of the swimming pool
surroundings; and (3) people doing their exercise routine at the Slimmer’s World Gym adjacent to
the swimming pool area, which was then open until 10:00 p.m., to have a good view of the hotel’s
swimming pool. Even granting that the lights in the hotel’s swimming pool area were turned off, it
would not render the area completely dark as the Slimmer’s World Gym near it was wellilluminated.43
Further, on 11 June 1995, at round 7:00 p.m., the hotel’s swimming pool attendant advised petitioner
and Delia to take their showers as it was already closing time. Afterwards, at around 7:40 p.m.,
Pearlie Benedicto-Lipana (Ms. Pearlie), the hotel staff nurse, who was at the hotel clinic located at
the mezzanine floor, received a call from the hotel telephone operator informing her that there was a
guest requiring medical assistance at the hotel’s swimming pool area located one floor above the
clinic.44
Immediately, Ms. Pearlie got hold of her medical kit and hurriedly went to the hotel’s swimming pool
area. There she saw Delia and petitioner, who told her that she was hit on the head by a folding
wooden counter top. Although petitioner looked normal as there was no indication of any blood or
bruise on her head, Ms. Pearlie still asked her if she needed any medical attention to which
petitioner replied that she is a doctor, she was fine and she did not need any medical attention.
Petitioner, instead, requested for a hirudoid cream to which Ms. Pearlie acceded. 45
At about 8:00 p.m., after attending to petitioner, Ms. Pearlie went back to the hotel clinic to inform Dr.
Dalumpines of the incident at the hotel’s swimming pool area. But before she could do that, Dr.
Dalumpines had already chanced upon Delia and petitioner at the hotel’s coffee shop and the latter
reported to Dr. Dalumpines that her head was hit by a folding wooden counter top while she was
inside the hotel’s swimming pool area. When asked by Dr. Dalumpines how she was, petitioner
responded she is a doctor, she was fine and she was already attended to by the hotel nurse, who
went at the hotel’s swimming pool area right after the accident. Dr. Dalumpines then called Ms.
Pearlie to verify the same, which the latter confirmed. 46
Afterwards, Dr. Dalumpines went back to petitioner and checked the latter’s condition. Petitioner
insisted that she was fine and that the hirudoid cream was enough. Having been assured that
everything was fine, Dr. Dalumpines requested petitioner to execute a handwritten
certification47 regarding the incident that occurred that night. Dr. Dalumpines then suggested to
petitioner to have an X-ray test. Petitioner replied that it was not necessary. Petitioner also refused
further medical attention.48
On 13 June 1995, petitioner called up Dr. Dalumpines. The call, however, had nothing to do with the
11 June 1995 incident. Instead, petitioner merely engaged in small talk with Dr. Dalumpines while

having her daily massage. The two talked about petitioner’s personal matters, i.e., past medical
history, differences with siblings and family over inheritance and difficulty in practice. Petitioner even
disclosed to Dr. Dalumpines that she once fell from a horse; that she had a stroke; had hysterectomy
and is incapable of having children for her uterus had already been removed; that she had blood
disorder, particularly lack of platelets, that can cause bleeding; and she had an "on" and "off"
headaches. Petitioner oftentimes called Dr. Dalumpines at the hotel clinic to discuss topics similar to
those discussed during their 13 June 1995 conversation. 49
Also, during one of their telephone conversations, petitioner requested for a certification regarding
the 11 June 1995 incident inside the hotel’s swimming pool area. Dr. Dalumpines accordingly issued
Certification dated 7 September 1995, which states that: 50
C E R TI F I C ATI O N
This is to certify that as per Clinic records, duty nurse Pearlie was called to attend to an accident at
the poolside at 7:45PM on 11 June 1995.
Same records show that there, she saw petitioner who claimed the folding countertop fell on her
head when she lifted it to enter the lifeguard’s counter to use the phone. She asked for Hirudoid.
The same evening petitioner met Dr. Dalumpines at the Coffee Shop. After narrating the poolside
incident and declining Dr. Dalumpines’ offer of assistance, she reiterated that the Hirudoid cream
was enough and that petitioner being a doctor herself, knew her condition and she was all right.
This certification is given upon the request of petitioner for whatever purpose it may serve, 7
September 1995 at Makati City.51 (Emphasis supplied).
Petitioner personally picked up the afore-quoted Certification at the hotel clinic without any objection
as to its contents.52
From 11 June 1995 until 7 September 1995, the hotel clinic never received any complaint from
petitioner regarding the latter’s condition. The hotel itself neither received any written complaint from
petitioner.53
After trial, the court a quo in its Decision dated 21 February 2006 dismissed petitioner’s Complaint
for lack of merit.
The trial court found petitioner’s testimony self-serving, thus, devoid of credibility. Petitioner failed to
present any evidence to substantiate her allegation that the lights in the hotel’s swimming pool area
were shut off at the time of the incident. She did not even present her friend, Delia, to corroborate
her testimony. More so, petitioner’s testimony was contradicted by one of the witnesses presented
by the respondents who positively declared that it has been a normal practice of the hotel
management not to put off the lights until 10:00 p.m. to allow the housekeepers to do the cleaning of
the swimming pool surroundings, including the toilets and counters. Also, the lights were kept on for
security reasons and for the people in the nearby gym to have a good view of the swimming pool
while doing their exercise routine. Besides, there was a remote possibility that the hotel’s swimming

pool area was in complete darkness as the aforesaid gym was then open until 10:00 p.m., and the
lights radiate to the hotel’s swimming pool area. As such, petitioner would not have met the accident
had she only acted with care and caution.54
The trial court further struck down petitioner’s contention that the hotel management did not extend
medical assistance to her in the aftermath of the accident. Records showed that the hotel
management immediately responded after being notified of the accident. The hotel nurse and the
two chambermaids placed an ice pack on petitioner’s head. They were willing to extend further
emergency assistance but petitioner refused and merely asked for a hirudoid cream. Petitioner even
told them she is a doctor and she was fine. Even the medical services offered by the hotel physician
were turned down by petitioner. Emphatically, petitioner cannot fault the hotel for the injury she
sustained as she herself did not heed the warning that the swimming pool area is open only from
7:00 a.m. to 7:00 p.m. As such, since petitioner’s own negligence was the immediate and proximate
cause of her injury, she cannot recover damages.55
The trial court similarly observed that the records revealed no indication that the head injury
complained of by petitioner was the result of the alleged 11 June 1995 accident. Firstly, petitioner
had a past medical history which might have been the cause of her recurring brain injury. Secondly,
the findings of Dr. Perez did not prove a causal relation between the 11 June 1995 accident and the
brain damage suffered by petitioner. Even Dr. Perez himself testified that the symptoms being
experienced by petitioner might have been due to factors other than the head trauma she allegedly
suffered. It bears stressing that petitioner had been suffering from different kinds of brain problems
since she was 18 years old, which may have been the cause of the recurring symptoms of head
injury she is experiencing at present. Absent, therefore, of any proof establishing the causal relation
between the injury she allegedly suffered on 11 June 1995 and the head pains she now suffers, her
claim must fail. Thirdly, Dr. Teresita Sanchez’s (Dr. Sanchez) testimony cannot be relied upon since
she testified on the findings and conclusions of persons who were never presented in court. Ergo,
her testimony thereon was hearsay. Fourthly, the medical reports/evaluations/certifications issued by
myriads of doctors whom petitioner sought for examination or treatment were neither identified nor
testified to by those who issued them. Being deemed as hearsay, they cannot be given probative
value. Even assuming that petitioner suffered head injury as a consequence of the 11 June 1995
accident, she cannot blame anyone but herself for staying at the hotel’s swimming pool area beyond
its closing hours and for lifting the folding wooden counter top that eventually hit her head. 56
For petitioner’s failure to prove that her serious and permanent injury was the result of the 11 June
1995 accident, thus, her claim for actual or compensatory damages, loss of income, moral damages,
exemplary damages and attorney’s fees, must all fail. 57
With regard to respondent First Lepanto’s liability, the trial court ruled that under the contract of
insurance, suffice it to state that absent any cause for any liability against respondents PHI and
DTPCI, respondent First Lepanto cannot be made liable thereon.
Dissatisfied, petitioner elevated the matter to the Court of Appeals with the following assignment of
errors: (1) the trial court erred in finding that the testimony of petitioner is self-serving and thus void
of credibility; (2) the trial court erred in applying the doctrine of proximate cause in cases of breach of
contract and even assuming arguendo that the doctrine is applicable, petitioner was able to prove by

sufficient evidence the causal connection between her injuries and respondents PHI and DTPCI’s
negligent act; and (3) the trial court erred in holding that petitioner is not entitled to damages. 58
On 9 August 2007, the Court of Appeals rendered a Decision affirming the findings and conclusions
of the trial court.
The Court of Appeals ratiocinated in this wise:
At the outset, it is necessary for our purpose to determine whether to decide this case on the theory
that herein respondents PHI and DTPCI are liable for breach of contract or on the theory of quasidelict.
xxxx
It cannot be gainsaid that herein petitioner’s use of the hotel’s pool was only upon the invitation of
Delia, the hotel’s registered guest. As such, she cannot claim contractual relationship between her
and the hotel. Since the circumstances of the present case do not evince a contractual relation
between petitioner and respondents, the rules on quasi-delict , thus, govern.
The pertinent provision of 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
quasi-delict."
A perusal of Article 2176 shows that obligations arising from quasi-delict or tort, also known as extracontractual obligations, arise only between parties not otherwise bound by contract, whether express
or implied. Thus, to sustain a claim liability under quasi-delict, the following requisites must concur:
(a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some other person
for whose acts he must respond; and (c) the connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by the plaintiff.
Viewed from the foregoing, the question now is whether respondents PHI and DTPCI and its
employees were negligent? We do not think so. Several factors militate against petitioner’s
contention.
One. Petitioner recognized the fact that the pool area’s closing time is 7:00 p.m.. She,
herself, admitted during her testimony that she was well aware of the sign when she and
Delia entered the pool area. Hence, upon knowing, at the outset, of the pool’s closing time,
she took the risk of overstaying when she decided to take shower and leave the area beyond
the closing hour. In fact, it was only upon the advise of the pool attendants that she
thereafter took her shower.
Two. She admitted, through her certification that she lifted the wooden bar countertop, which
then fell onto her head. The admission in her certificate proves the circumstances
surrounding the occurrence that transpired on the night of 11 June 1995. This is contrary to
her assertion in the complaint and testimony that, while she was passing through the counter

door, she was suddenly knocked out by a hard and heavy object. In view of the fact that she
admitted having lifted the counter top, it was her own doing, therefore, that made the counter
top fell on to her head.
Three. We cannot likewise subscribe to petitioner’s assertion that the pool area was totally
dark in that she herself admitted that she saw a telephone at the counter after searching for
one. It must be noted that petitioner and Delia had walked around the pool area with ease
since they were able to proceed to the glass entrance door from shower room, and back to
the counter area where the telephone was located without encountering any untoward
incident. Otherwise, she could have easily stumbled over, or slid, or bumped into something
while searching for the telephone. This negates her assertion that the pool area was
completely dark, thereby, totally impairing her vision.
xxxx
The aforementioned circumstances lead us to no other conclusion than that the proximate and
immediate cause of the injury of petitioner was due to her own negligence.
Moreover, petitioner failed to sufficiently substantiate that the medical symptoms she is currently
experiencing are the direct result of the head injury she sustained on 11 June 1995 as was aptly
discussed in the lower court’s findings.
xxxx
It bears stressing that in civil cases, the law requires that the party who alleges a fact and
substantially asserts the affirmative of the issue has the burden of proving it. Hence, for petitioner to
be entitled to damages, she must show that she had suffered an actionable injury. Regrettably,
petitioner failed in this regard.59 (Emphasis supplied).
Petitioner’s Motion for Reconsideration was denied for lack of merit in a Resolution dated 5
November 2007.
Hence, this Petition raising the following issues:
(1) Whether or not the findings of fact of the trial court and of the Court of Appeals are
conclusive in this case.
(2) Whether or not herein respondents PHI and DTPCI are responsible by implied contract to
exercise due care for the safety and welfare of the petitioner.
(3) Whether or not the cause of action of the petitioner can be based on both breach of
contract and tort.
(4) Whether or not it is respondents PHI and DTPCI and its employees who are liable to the
petitioner for negligence, applying the well-established doctrines of res ipsa loquitur and
respondeat superior.

(5) Whether the petitioner’s debilitating and permanent injuries were a result of the accident
she suffered at the hotel on 11 June 1995.
(6) Whether or not the petitioner is entitled to the payment of damages, attorney’s fees,
interest, and the costs of suit.
(7) Whether or not the respondent insurance company is liable, even directly, to the
petitioner.
(8) Whether or not petitioner’s motion for reconsideration of the decision of the Court of
Appeals is pro forma.60
Petitioner argues that the rule that "findings of fact of the lower courts are conclusive and must be
respected on appeal" finds no application herein because this case falls under the jurisprudentially
established exceptions. Moreover, since the rationale behind the afore-mentioned rule is that "the
trial judge is in a vantage point to appreciate the conduct and behavior of the witnesses and has the
unexcelled opportunity to evaluate their testimony," one logical exception to the rule that can be
deduced therefrom is when the judge who decided the case is not the same judge who heard and
tried the case.
Petitioner further faults the Court of Appeals in ruling that no contractual relationship existed
between her and respondents PHI and DTPCI since her use of the hotel’s swimming pool facility was
only upon the invitation of the hotel’s registered guest. On the contrary, petitioner maintains that an
implied contract existed between them in view of the fact that the hotel guest status extends to all
those who avail of its services—its patrons and invitees. It follows then that all those who patronize
the hotel and its facilities, including those who are invited to partake of those facilities, like petitioner,
are generally regarded as guests of the hotel. As such, respondents PHI and DTPCI are responsible
by implied contract for the safety and welfare of petitioner while the latter was inside their premises
by exercising due care, which they failed to do.
Petitioner even asserts that the existence of a contract between the parties does not bar any liability
for tort since the act that breaks a contract may also be a tort. Hence, the concept of change of
theory of cause of action pointed to by respondents is irrelevant.
Petitioner similarly avows that the doctrines of res ipsa loquitur and respondeat superior are
applicable in this case. She argues that a person who goes in a hotel without a "bukol" or hematoma
and comes out of it with a "bukol" or hematoma is a clear case of res ipsa loquitur. It was an accident
caused by the fact that the hotel staff was not present to lift the heavy counter top for petitioner as is
normally expected of them because they negligently locked the main entrance door of the hotel’s
swimming pool area. Following the doctrine of res ipsa loquitur, respondents PHI and DTPCI’s
negligence is presumed and it is incumbent upon them to prove otherwise but they failed to do so.
Further, respondents PHI and DTPCI failed to observe all the diligence of a good father of a family in
the selection and supervision of their employees, hence, following the doctrine of respondeat
superior, they were liable for the negligent acts of their staff in not verifying if there were still people
inside the swimming pool area before turning off the lights and locking the door. Had respondents
PHI and DTPCI’s employees done so, petitioner would not have been injured. Since respondents

PHI and DTPCI’s negligence need not be proved, the lower courts erred in shifting the burden to
petitioner and, thereafter, holding the hotel and its employees not negligent for petitioner’s failure to
prove their negligence. Moreover, petitioner alleges that there was no contributory negligence on her
part for she did not do anything that could have contributed to her injury. And, even if there was, the
same does not bar recovery.
Petitioner equally declares that the evidence on record, including the objective medical findings, had
firmly established that her permanent debilitating injuries were the direct result of the 11 June 1995
accident inside the hotel’s swimming pool area. This fact has not been totally disputed by the
respondents. Further, the medical experts who had been consulted by petitioner were in unison in
their diagnoses of her condition. Petitioner was also able to prove that the falling of the folding
wooden counter top on her head while she was at the hotel’s swimming pool area was the cause of
her head, eye and neck injuries.
Petitioner reiterates her claim for an award of damages, to wit: actual, including loss of income;
moral, exemplary; as well as attorney’s fees, interest and costs of suit. She states that respondents
PHI and DTPCI are liable for quasi-delict under Articles 19, 2176 and 2180 of the New Civil Code. At
the same time, they are liable under an implied contract for they have a public duty to give due
courtesy, to exercise reasonable care and to provide safety to hotel guests, patrons and invitees.
Respondent First Lepanto, on the other hand, is directly liable under the express contract of
insurance.
Lastly, petitioner contends that her Motion for Reconsideration before the Court of Appeals was not
pro forma for it specifically pointed out the alleged errors in the Court of Appeals Decision.
The instant Petition is devoid of merit.
Primarily, only errors of law and not of facts are reviewable by this Court in a Petition for Review on
Certiorari under Rule 45 of the Rules of Court.61 This Court is not a trier of facts and it is beyond its
function to re-examine and weigh anew the respective evidence of the parties. 62 Besides, this Court
adheres to the long standing doctrine that the factual findings of the trial court, especially when
affirmed by the Court of Appeals, are conclusive on the parties and this Court. 63 Nonetheless, this
Court has, at times, allowed exceptions thereto, to wit:
(a) When the findings are grounded entirely on speculation, surmises, or conjectures;
(b) When the inference made is manifestly mistaken, absurd, or impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the Court of Appeals went beyond the issues of the case, or
its findings are contrary to the admissions of both the appellant and the appellee;

(g) When the Court of Appeals’ findings are contrary to those by the trial court;
(h) When the findings are conclusions without citation of specific evidence on which they are
based;
(i) When the facts set forth in the petition as well as in the petitioner’s main and reply briefs
are not disputed by the respondent;
(j) When the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; or
(k) When the Court of Appeals manifestly overlooked certain relevant facts not disputed by
the parties, which, if properly considered, would justify a different conclusion. 64
Upon meticulous perusal of the records, however, this Court finds that none of these exceptions is
obtaining in this case. No such justifiable or compelling reasons exist for this Court to depart from
the general rule. This Court will not disturb the factual findings of the trial court as affirmed by the
Court of Appeals and adequately supported by the evidence on record.
Also, this Court will not review the factual findings of the trial court simply because the judge who
heard and tried the case was not the same judge who penned the decision. This fact alone does not
diminish the veracity and correctness of the factual findings of the trial court. 65 Indeed, "the efficacy
of a decision is not necessarily impaired by the fact that its writer only took over from a colleague
who had earlier presided at the trial, unless there is showing of grave abuse of discretion in the
factual findings reached by him."66 In this case, there was none.
It bears stressing that in this jurisdiction there is a disputable presumption that the trial court’s
decision is rendered by the judge in the regular performance of his official duties. While the said
presumption is only disputable, it is satisfactory unless contradicted or overcame by other evidence.
Encompassed in this presumption of regularity is the presumption that the trial court judge, in
resolving the case and drafting the decision, reviewed, evaluated, and weighed all the evidence on
record. That the said trial court judge is not the same judge who heard the case and received the
evidence is of little consequence when the records and transcripts of stenographic notes (TSNs) are
complete and available for consideration by the former,67 just like in the present case.
Irrefragably, the fact that the judge who penned the trial court’s decision was not the same judge who
heard the case and received the evidence therein does not render the findings in the said decision
erroneous and unreliable. While the conduct and demeanor of witnesses may sway a trial court
judge in deciding a case, it is not, and should not be, his only consideration. Even more vital for the
trial court judge’s decision are the contents and substance of the witnesses’ testimonies, as borne
out by the TSNs, as well as the object and documentary evidence submitted and made part of the
records of the case.68
This Court examined the records, including the TSNs, and found no reason to disturb the factual
findings of both lower courts. This Court, thus, upholds their conclusiveness.

In resolving the second and third issues, a determination of the cause of action on which petitioner’s
Complaint for Damages was anchored upon is called for.
Initially, petitioner was suing respondents PHI and DTPCI mainly on account of their negligence but
not on any breach of contract. Surprisingly, when the case was elevated on appeal to the Court of
Appeals, petitioner had a change of heart and later claimed that an implied contract existed between
her and respondents PHI and DTPCI and that the latter were liable for breach of their obligation to
keep her safe and out of harm. This allegation was never an issue before the trial court. It was not
the cause of action relied upon by the petitioner not until the case was before the Court of Appeals.
Presently, petitioner claims that her cause of action can be based both on quasi-delict and breach of
contract.
A perusal of petitioner’s Complaint evidently shows that her cause of action was based solely on
quasi-delict. Telling are the following allegations in petitioner’s Complaint:
6. THAT, in the evening of 11 June 1995, between the hours from 7:00 to 8:00 o’clock, after
herein petitioner and her friend from New York, Delia, the latter being then a Hotel guest,
were taking their shower after having a dip in the hotel’s swimming pool, without any notice
or warning, the Hotel’s staff put off all the lights within the pool area including the lights on
the hallway and also locked the main entrance door of the pool area, x x x;
7. THAT, Hotel guest Delia started to panic while petitioner pacified her by telling her not to
worry as they would both find their way out. Petitioner knowing that within the area there is a
house phone, started to look around while Delia was following her, eventually petitioner saw
a phone behind the counter x x x, that while slowly moving on towards the phone on a
stooping manner due to the darkness CAUSED BY UNTIMELY AND NEGLIGENTLY
PUTTING OFF WITH THE LIGHTS BY THE HEREIN RESPONDENTS PHI AND DTPCI’S
EMPLOYEE while passing through the open counter door with its Folding Counter Top also
opened, x x x, a hard and heavy object fell onto the head of the petitioner that knocked her
down almost unconscious which hard and heavy object turned out to be the Folding Counter
Top;
8. THAT, Delia immediately got hold of the house phone and notified the Hotel Telephone
Operator about the incident, immediately the hotel staffs (sic) arrived but they were stranded
behind the main door of the pool entrance and it too (sic) them more than twenty (20)
minutes to locate the hotel maintenance employee who holds the key of the said main
entrance door;
9. THAT, when the door was opened, two Hotel Chamber Maids assisted the petitioner to get
out of the counter door. Petitioner being a Physician tried to control her feelings although
groggy and requested for a HURIDOID, a medicine for HEMATOMA, as a huge lump
developed on her head while the two Chamber Maids assisted petitioner by holding the bag
of ice on her head and applying the medicine on the huge lump;
10. THAT, petitioner after having recovered slightly from her nightmare, though still feeling
weak, asked to be assisted to the Hotel Coffee Shop to take a rest but requested for the

hotel’s Physician. Despite her insistent requests, the Dusit Hotel refused to lift a finger to
assists petitioner who was then in distress until a lady approached and introduced herself as
the Hotel’s house Doctor. Instead however of assisting petitioner by asking her what kind of
assistance the Hotel could render, in a DISCOURTEOUS MANNER presented instead a
paper and demanding petitioner to affix her signature telling her that the Hotel Management
would only assists and answer for all expenses incurred if petitioner signs the paper
presented, but she refused and petitioner instead wrote a marginal note on the said paper
stating her reason therefore, said paper later on turned out to be a WAIVER OF RIGHT or
QUIT CLAIM;
xxxx
14. THAT, due to the unfortunate incident caused by respondents PHI and DTPCI’s gross
negligence despite medical assistance, petitioner started to feel losing her memory that
greatly affected and disrupted the practice of her chosen profession x x x.
xxxx
19. THAT, due to respondents PHI and DTPCI’s gross negligence as being narrated which
caused petitioner to suffer sleepless nights, depression, mental anguish, serious anxiety,
wounded feelings, and embarrassment with her Diplomate friends in the profession and
industry, her social standing in the community was greatly affected and hence, respondents
PHI and DTPCI must be imposed the hereunder damages, prayed for x x x and Artile (sic)
2176 and 2199 of the New Civil Code of the Philippines x x x.
xxxx
22. THAT, as to Moral, Exemplary and Actual Damages, as well as petitioner’s Loss of
Income, the amounts are stated in its prayer hereunder.69
It is clear from petitioner’s allegations that her Complaint for Damages was predicated on the alleged
negligence of respondents PHI and DTPCI’s staff in the untimely putting off of all the lights within the
hotel’s swimming pool area, as well as the locking of its main door, prompting her to look for a way
out leading to the fall of the folding wooden counter top on her head causing her serious brain injury.
The said negligence was allegedly compounded by respondents PHI and DTPCI’s failure to render
prompt and adequate medical assistance. These allegations in petitioner’s Complaint constitute a
cause of action for quasi-delict, which under the New Civil Code is defined as an act, or omission
which causes damage to another, there being fault or negligence.70
It is evident from petitioner’s Complaint and from her open court testimony that the reliance was on
the alleged tortious acts committed against her by respondents PHI and DTPCI, through their
management and staff. It is now too late in the day to raise the said argument for the first time before
this Court.71
Petitioner’s belated reliance on breach of contract as her cause of action cannot be sanctioned by
this Court. Well-settled is the rule that a party is not allowed to change the theory of the case or the

cause of action on appeal. Matters, theories or arguments not submitted before the trial court cannot
be considered for the first time on appeal or certiorari.72 When a party adopts a certain theory in the
court below, he will not be permitted to change his theory on appeal for to permit him to do so would
not only be unfair to the other party but it would also be offensive to the basic rules of fair play,
justice and due process.73 Hence, a party is bound by the theory he adopts and by the cause of
action he stands on and cannot be permitted after having lost thereon to repudiate his theory and
cause of action and adopt another and seek to re-litigate the matter anew either in the same forum
or on appeal.74
In that regard, this Court finds it significant to take note of the following differences between quasidelict (culpa aquilina) and breach of contract (culpa contractual). In quasi-delict, negligence is direct,
substantive and independent, while in breach of contract, negligence is merely incidental to the
performance of the contractual obligation; there is a pre-existing contract or obligation. 75 In quasidelict, the defense of "good father of a family" is a complete and proper defense insofar as parents,
guardians and employers are concerned, while in breach of contract, such is not a complete and
proper defense in the selection and supervision of employees. 76 In quasi- delict , there is no
presumption of negligence and it is incumbent upon the injured party to prove the negligence of the
defendant, otherwise, the former’s complaint will be dismissed, while in breach of contract,
negligence is presumed so long as it can be proved that there was breach of the contract and the
burden is on the defendant to prove that there was no negligence in the carrying out of the terms of
the contract; the rule of respondeat superior is followed. 77
Viewed from the foregoing, petitioner’s change of theory or cause of action from quasi-delict to
breach of contract only on appeal would necessarily cause injustice to respondents PHI and DTPCI.
First, the latter will have no more opportunity to present evidence to contradict petitioner’s new
argument. Second, the burden of proof will be shifted from petitioner to respondents PHI and DTPCI.
Petitioner’s change of theory from quasi-delict to breach ofcontract must be repudiated.
As petitioner’s cause of action is based on quasi-delict, it is incumbent upon her to prove the
presence of the following requisites before respondents PHI and DTPCI can be held liable, to wit: (a)
damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some other person for
whose acts he must respond; and (c) the connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by the plaintiff. 78 Further, since petitioner’s
case is for quasi-delict , the negligence or fault should be clearly established as it is the basis of her
action.79 The burden of proof is upon petitioner. Section 1, Rule 131 of the Rules of Court provides
that "burden of proof is the duty of a party to present evidence on the facts in issue necessary to
establish his claim or defense by the amount of evidence required by law." It is then up for the
plaintiff to establish his cause of action or the defendant to establish his defense. Therefore, if the
plaintiff alleged in his complaint that he was damaged because of the negligent acts of the
defendant, he has the burden of proving such negligence. It is even presumed that a person takes
ordinary care of his concerns. The quantum of proof required is preponderance of evidence. 80
In this case, as found by the trial court and affirmed by the Court of Appeals, petitioner utterly failed
to prove the alleged negligence of respondents PHI and DTPCI. Other than petitioner’s self-serving
testimony that all the lights in the hotel’s swimming pool area were shut off and the door was locked,
which allegedly prompted her to find a way out and in doing so a folding wooden counter top fell on

her head causing her injury, no other evidence was presented to substantiate the same. Even her
own companion during the night of the accident inside the hotel’s swimming pool area was never
presented to corroborate her allegations. Moreover, petitioner’s aforesaid allegations were
successfully rebutted by respondents PHI and DTPCI. Here, we quote with conformity the
observation of the trial court, thus:
x x x Besides not being backed up by other supporting evidence, said statement is being
contradicted by the testimony of Engineer Dante L. Costas,81 who positively declared that it has been
a normal practice of the Hotel management not to put off the lights until 10:00P.M. in order to allow
the housekeepers to do the cleaning of the pool’s surrounding, the toilets and the counters. It was
also confirmed that the lights were kept on for security reasons and so that the people exercising in
the nearby gym may be able to have a good view of the swimming pool. This Court also takes note
that the nearby gymnasium was normally open until 10:00 P.M. so that there was a remote possibility
the pool area was in complete darkness as was alleged by herein petitioner, considering that the
illumination which reflected from the gym. Ergo, considering that the area were sufficient (sic)
illuminated when the alleged incident occurred, there could have been no reason for the petitioner to
have met said accident, much less to have been injured as a consequence thereof, if she only acted
with care and caution, which every ordinary person is expected to do. 82
More telling is the ratiocination of the Court of Appeals, to wit:
Viewed from the foregoing, the question now is whether respondents PHI and DTPCI and its
employees were negligent? We do not think so. Several factors militate against petitioner’s
contention.
One. Petitioner recognized the fact that the pool area’s closing time is 7:00 p.m.. She, herself,
admitted during her testimony that she was well aware of the sign when she and Delia entered the
pool area. Hence, upon knowing, at the outset, of the pool’s closing time, she took the risk of
overstaying when she decided to take shower and leave the area beyond the closing hour. In fact, it
was only upon the advise of the pool attendants that she thereafter took her shower.
Two. She admitted, through her certification, that she lifted the wooden bar countertop, which then
fell on to her head. The admission in her certificate proves the circumstances surrounding the
occurrence that transpired on the night of 11 June 1995. This is contrary to her assertion in the
complaint and testimony that, while she was passing through the counter door, she was suddenly
knocked out by a hard and heavy object. In view of the fact that she admitted having lifted the
countertop, it was her own doing, therefore, that made the counter top fell on to her head.
Three. We cannot likewise subscribe to petitioner’s assertion that the pool area was totally dark in
that she herself admitted that she saw a telephone at the counter after searching for one. It must be
noted that petitioner and Delia had walked around the pool area with ease since they were able to
proceed to the glass entrance door from the shower room, and back to the counter area where the
telephone was located without encountering any untoward incident. Otherwise, she could have
easily stumbled over, or slid, or bumped into something while searching for the telephone. This
negates her assertion that the pool area was completely dark, thereby, totally impairing her vision.

xxxx
The aforementioned circumstances lead us to no other conclusion than that the proximate and
immediate cause of the injury of petitioner was due to her own negligence. 83 (Emphasis supplied).
Even petitioner’s assertion of negligence on the part of respondents PHI and DTPCI in not rendering
medical assistance to her is preposterous. Her own Complaint affirmed that respondents PHI and
DTPCI afforded medical assistance to her after she met the unfortunate accident inside the hotel’s
swimming pool facility. Below is the portion of petitioner’s Complaint that would contradict her very
own statement, thus:
14. THAT, due to the unfortunate incident caused by respondents PHI and DTPCI’s gross negligence
despite medical assistance, petitioner started to feel losing her memory that greatly affected and
disrupted the practice of her chosen profession. x x x. 84 (Emphasis supplied).
Also, as observed by the trial court, respondents PHI and DTPCI, indeed, extended medical
assistance to petitioner but it was petitioner who refused the same. The trial court stated, thus:
Further, herein petitioner’s asseverations that the Hotel Management did not extend medical
assistance to her in the aftermath of the alleged accident is not true. Again, this statement was not
supported by any evidence other that the sole and self-serving testimony of petitioner. Thus, this
Court cannot take petitioner’s statement as a gospel truth. It bears stressing that the Hotel
Management immediately responded after it received notice of the incident. As a matter of fact, Ms.
Pearlie, the Hotel nurse, with two chambermaids holding an ice bag placed on petitioner’s head
came to the petitioner to extend emergency assistance when she was notified of the incident, but
petitioner merely asked for Hirudoid, saying she was fine, and that she was a doctor and know how
to take care of herself. Also, the Hotel, through its in-house physician, Dr. Dalumpines offered its
medical services to petitioner when they met at the Hotel’s coffee shop, but again petitioner declined
the offer. Moreover, the Hotel as a show of concern for the petitioner’s welfare, shouldered the
expenses for the MRI services performed on petitioner at the Makati Medical Center. Emphatically,
petitioner herself cannot fault the Hotel for the injury she allegedly suffered because she herself did
not heed the warning at the pool to the effect that it was only open from 7:00 to 7:00 P.M. Thus,
when the petitioner’s own negligence was the immediate and proximate cause of his injury,
shecannot recover damages x x x.85
With the foregoing, the following were clearly established, to wit: (1) petitioner stayed in the hotel’s
swimming pool facility beyond its closing hours; (2) she lifted the folding wooden counter top that
eventually hit her head; and (3) respondents PHI and DTPCI extended medical assistance to her. As
such, no negligence can be attributed either to respondents PHI and DTPCI or to their staff and/or
management. Since the question of negligence is one of fact, this Court is bound by the said factual
findings made by the lower courts. It has been repeatedly held that the trial court's factual findings,
when affirmed by the Court of Appeals, are conclusive and binding upon this Court, if they are not
tainted with arbitrariness or oversight of some fact or circumstance of significance and influence.
Petitioner has not presented sufficient ground to warrant a deviation from this rule. 86

With regard to petitioner’s contention that the principles of res ipsa loquitur and respondeat superior
are applicable in this case, this Court holds otherwise.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for
itself." It relates to the fact of an injury that sets out an inference to the cause thereof or establishes
the plaintiff’s prima facie case. The doctrine rests on inference and not on presumption. The facts of
the occurrence warrant the supposition of negligence and they furnish circumstantial evidence of
negligence when direct evidence is lacking.87 Simply stated, this doctrine finds no application if there
is direct proof of absence or presence of negligence. If there is sufficient proof showing the
conditions and circumstances under which the injury occurred, then the creative reason for the said
doctrine disappears.88
Further, the doctrine of res ipsa loquitur applies where, (1) the accident was of such character as to
warrant an inference that it would not have happened except for the defendant’s negligence; (2) the
accident must have been caused by an agency or instrumentality within the exclusive management
or control of the person charged with the negligence complained of; and (3) the accident must not
have been due to any voluntary action or contribution on the part of the person injured. 89
In the case at bench, even granting that respondents PHI and DTPCI’s staff negligently turned off
the lights and locked the door, the folding wooden counter top would still not fall on petitioner’s head
had she not lifted the same. Although the folding wooden counter top is within the exclusive
management or control of respondents PHI and DTPCI, the falling of the same and hitting the head
of petitioner was not due to the negligence of the former. As found by both lower courts, the folding
wooden counter top did not fall on petitioner’s head without any human intervention. Records
showed that petitioner lifted the said folding wooden counter top that eventually fell and hit her head.
The same was evidenced by the, (1) 11 June 1995 handwritten certification of petitioner herself; (2)
her Letter dated 30 August 1995 addressed to Mr. Yoshikazu Masuda (Mr. Masuda), General
Manager of Dusit Hotel; and, (3) Certification dated 7 September 1995 issued to her by Dr.
Dalumpines upon her request, which contents she never questioned.
Here, we, respectively, quote the 11 June 1995 handwritten certification of petitioner; her letter to Mr.
Masuda dated 30 August 1995; and Dr. Dalumpines’ Certification dated 7 September 1995, to wit:
Petitioner’s 11 June 1995 Handwritten Certification:
I was requested by Dr. Dalumpines to write that I was assured of assistance should it be necessary
with regard an accident at the pool. x x x The phone was in an enclosed area on a chair – I lifted the
wooden bar counter top which then fell on my head producing a large hematoma x x x. 90
Petitioner’s Letter addressed to Mr. Masuda dated 30 August 1995:
Dear Mr. Masuda,
xxxx

x x x We searched and saw a phone on a chair behind a towel counter. However, in order to get
behind the counter I had to lift a hinged massive wooden section of the counter which subsequently
fell and knocked me on my head x x x.91
Dr. Dalumpines’ Certification dated 7 September 1995:
C E R TI F I C ATI O N
This is to certify that as per Clinic records, duty nurse Pearlie was called to attend to an accident at
the poolside at 7:45PM on 11 June 1995.
Same records show that there, she saw petitioner who claimed the folding countertop fell on her
head when she lifted it to enter the lifeguard’s counter to use the phone. She asked for Hirudoid.
The same evening petitioner met Dr. Dalumpnes at the Coffee Shop. After narrating the poolside
incident and declining Dr. Dalumpines’ offer of assistance, she reiterated that the Hirudoid cream
was enough and that petitioner]being a doctor herself, knew her condition and she was all right.
This certification is given upon the request of petitioner for whatever purpose it may serve, 7
September 1995 at Makati City.92 (Emphasis supplied).
This Court is not unaware that in petitioner’s Complaint and in her open court testimony, her
assertion was, "while she was passing through the counter door, she was suddenly knocked out by a
hard and heavy object, which turned out to be the folding wooden counter top." However, in her open
court testimony, particularly during cross-examination, petitioner confirmed that she made such
statement that "she lifted the hinge massive wooden section of the counter near the swimming
pool."93 In view thereof, this Court cannot acquiesce petitioner’s theory that her case is one of res
ipsa loquitur as it was sufficiently established how petitioner obtained that "bukol" or "hematoma."
The doctrine of respondeat superior finds no application in the absence of any showing that the
employees of respondents PHI and DTPCI were negligent. Since in this case, the trial court and the
appellate court found no negligence on the part of the employees of respondents PHI and DTPCI,
thus, the latter cannot also be held liable for negligence and be made to pay the millions of pesos
damages prayed for by petitioner.
The issue on whether petitioner’s debilitating and permanent injuries were the result of the accident
she suffered at the hotel’s swimming pool area on 11 June 1995 is another question of fact, which is
beyond the function of this Court to resolve. More so, this issue has already been properly passed
upon by the trial court and the Court of Appeals. To repeat, this Court is bound by the factual findings
of the lower courts and there is no cogent reason to depart from the said rule.
The following observations of the trial court are controlling on this matter:
Firstly, petitioner had a past medical history which might have been the cause of her recurring brain
injury.

Secondly, the findings of Dr. Perez did not prove a causal relation between the 11 June 1995
accident and the brain damage suffered by petitioner. Dr. Perez himself testified that the symptoms
being experienced by petitioner might have been due to factors other than the head trauma she
allegedly suffered. Emphasis must be given to the fact that petitioner had been suffering from
different kinds of brain problems since she was 18 years old, which may have been the cause of the
recurring symptoms of head injury she is experiencing at present.
Thirdly, Dr. Sanchez’s testimony cannot be relied upon since she testified on the findings and
conclusions of persons who were never presented in court. Ergo, her testimony thereon was
hearsay. A witness can testify only with regard to facts of which they have personal knowledge.
Testimonial or documentary evidence is hearsay if it is based, not on the personal knowledge of the
witness, but on the knowledge of some other person not on the witness stand. Consequently,
hearsay evidence -- whether objected to or not -- has no probative value. 94
Fourthly, the medical reports/evaluations/certifications issued by myriads of doctors whom petitioner
sought for examination or treatment were neither identified nor testified to by those who issued them.
Being deemed as hearsay, they cannot be given probative value.
1âwphi1

The aforesaid medical reports/evaluations/certifications of different doctors in favor of petitioner
cannot be given probative value and their contents cannot be deemed to constitute proof of the facts
stated therein. It must be stressed that a document or writing which is admitted not as independent
evidence but merely as part of the testimony of a witness does not constitute proof of the facts
related therein.95 In the same vein, the medical certificate which was identified and interpreted in
court by another doctor was not accorded probative value because the doctor who prepared it was
not presented for its identification. Similarly, in this case, since the doctors who examined petitioner
were not presented to testify on their findings, the medical certificates issued on their behalf and
identified by another doctor cannot be admitted as evidence. Since a medical certificate involves an
opinion of one who must first be established as an expert witness, it cannot be given weight or credit
unless the doctor who issued it is presented in court to show his qualifications. 96 Thus, an unverified
and unidentified private document cannot be accorded probative value. It is precluded because the
party against whom it is presented is deprived of the right and opportunity to cross-examine the
person to whom the statements or writings are attributed. Its executor or author should be presented
as a witness to provide the other party to the litigation the opportunity to question its contents. Being
mere hearsay evidence, failure to present the author of the letter renders its contents suspect and of
no probative value.97
All told, in the absence of negligence on the part of respondents PHI and DTPCI, as well as their
management and staff, they cannot be made Iiable to pay for the millions of damages prayed for by
the petitioner. Since respondents PHI and DTPCI arc not liable, it necessarily follows that
respondent First Lepanto cannot also be made liable under the contract or Insurance.
WHEREFORE, premises considered, the Decision and Resolution or the Court of Appeals in CAG.R. CV No. 87065 dated 9 August 2007 and 5 November 2007, respectively, are hereby
AFFIRMED. Costs against petitioner.
SO ORDERED.

SOFIA M. GUILLANG, represented G.R. No. 162987
by SUSAN GUILLANG-CABATBAT,
REYNALDO, GERARDO,
BIENVENIDO, DAWNA, and NELLIE,
all surnamed GUILLANG,
GENARO GUILLANG,
JOSE DIGNADICE, and
ALVIN LLANILLO,
Petitioners,
Present:
PUNO, C.J., Chairperson,
- versus - CARPIO,
CORONA,
LEONARDO-DE CASTRO, and
BERSAMIN, JJ.

RODOLFO BEDANIA Promulgated:
and RODOLFO DE SILVA,
Respondents. May 21, 2009

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

DECISION

CARPIO, J.:
The Case

This is a petition for review[1] of the 3 June 2003 Decision[2] and
the 23 March 2004 Resolution[3] of the Court of Appeals in CA-G.R.
CV No. 69289. The 3 June 2003 Decision set aside the 5
December 2000 Decision[4] of the Regional Trial Court, Branch 30,
Manila (trial court). The 23 March 2004 Resolution denied the
motion for reconsideration.

The Facts

On 25 October 1994, at about 5:45 in the afternoon, petitioner
Genaro M. Guillang (Genaro) was driving his brand new Toyota
Corolla GLI sedan with conduction sticker no. 54-DFT (car) along
Emilio Aguinaldo Highway (highway) in Cavite. Genaro, Antero
Guillang (Antero), Felipe Jurilla, Jose Dignadice (Dignadice), and
Alvin Llanillo (Llanillo) had all just left from Golden City,
Dasmarias, Cavite, and were on their way to Manila. At the other
side of the highway, respondent Rodolfo A. Bedania (Bedania) was
driving a ten-wheeler Isuzu cargo truck with plate no. CAC-923

(truck) towards Tagaytay City. The truck was owned by respondent
Rodolfo de Silva (de Silva).

Along the highway and the road leading to the Orchard Golf
Course, Bedania negotiated a U-turn. When the truck entered the
opposite lane of the highway, Genaros car hit the right portion of
the truck. The truck dragged Genaros car some five meters to the
right of the road.

As a consequence, all the passengers of the car were rushed to
the De La Salle University Medical Center in Dasmarias, Cavite for
treatment. Because of severe injuries, Antero was later
transferred to the Philippine General Hospital. However, on 3
November 1994, Antero died due to the injuries he sustained from
the collision. The car was a total wreck while the truck sustained
minor damage.

On 24 April 1995, petitioners Genaro, Llanillo, Dignadice, and the
heirs of Antero[5] instituted a complaint for damages based on
quasi-delict against respondents Bedania and de Silva.

On 5 December 2000, the trial court rendered a decision in favor
of petitioners. The trial court found Bedania grossly negligent for
recklessly maneuvering the truck by making a sudden U-turn in
the highway without due regard to traffic rules and the safety of
other motorists. The trial court also declared de Silva grossly
negligent in the selection and supervision of his driver,
Bedania. The dispositive portion of the decision provides:

WHEREFORE, judgment is hereby rendered ordering
defendants Rodolfo A. Bedania and Rodolfo de Silva,
jointly and severally, to pay plaintiffs, as follows:

1. The sum of P508,566.03 representing the
damage/repair costs of the Toyota to plaintiff Genaro
M. Guillang.

2. The sum of P50,000.00 for the death of Antero
Guillang plus P185,000.00 for his burial expenses, to
the heirs of Antero Guillang.

3. For hospital and medical expenses as reflected
in Exhibits E, E-1 to E-30 to plaintiffs Genaro M.
Guillang, Jose Dignadice and Alvin Llanillo.

4. The sum of P50,000.00 as moral damages for
the heirs of the deceased Antero Guillang.

5. The sum of P50,000.00 as moral damages each
to plaintiffs Jose Dignadice, Alvin Llanillo and Genaro
Guillang.

6.

The sum of P50,000.00 as exemplary damages.

7. The sum of P100,000.00 as and for attorneys
fess.

8.

The costs of the suit.

SO ORDERED.[6]

Respondents appealed to the Court of Appeals.

On 3 June 2003, the Court of Appeals rendered its decision in
favor of respondents. The dispositive portion of the decision
provides:

IN VIEW OF ALL THE FOREGOING, the appealed decision
is REVERSED and SET ASIDE. The complaint of the herein
appellees in Civil Case No. 95-73666 is DISMISSED, for
lack of merit. The appellants counterclaims in the instant
case are likewise DISMISSED. No pronouncement as to
cost.

SO ORDERED.[7]

Petitioners filed a motion for reconsideration. On 23 March 2004,
the Court of Appeals denied the motion.

Hence, this petition.

The Ruling of the Regional Trial Court

According to the trial court, there is a presumption that a person
driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation. [8]In this case, the
trial court found that the Traffic Accident Investigation Report
(report),[9] corroborated by the testimonies of the witnesses,
showed that the truck committed a traffic violation by executing a
U-turn without signal lights. The trial court also declared that
Bedania violated Sections 45(b),[10] 48,[11] and 54[12] of Republic Act
No. 4136[13] when he executed the sudden U-turn. The trial court
added that Bedania violated another traffic rule when he
abandoned the victims after the collision. [14] The trial court
concluded that Bedania was grossly negligent in his driving and
held him liable for damages.

Moreover, the trial court found that Bedania did not make the Uturn at an intersection. According to the trial court, vehicles trying
to maneuver to change directions must seek an intersection
where it is safer to maneuver and not recklessly make a U-turn in
a highway. The trial court said Bedania should have observed
extreme caution in making a U-turn because it was unexpected
that a long cargo truck would execute a U-turn along the highway.

The trial court also said that Bedanias gross negligence raised the
legal presumption that de Silva, as Bedanias employer, was
negligent in the selection and supervision of his employees. The
trial court said that, under Articles 2176 [15] and 2180[16] of the Civil
Code, de Silvas liability was based on culpa aquiliana which holds
the employer primarily liable for tortious acts of his employees,
subject to the defense that he exercised all the diligence of a

good father of a family in the selection and supervision of his
employees.The trial court ruled that de Silva failed to prove this
defense and, consequently, held him liable for damages.

The Ruling of the Court of Appeals

The Court of Appeals reversed the trial courts decision and said
that the trial court overlooked substantial facts and circumstances
which, if properly considered, would justify a different conclusion
and alter the results of the case.

The Court of Appeals dismissed the testimonies of the witnesses
and declared that they were contrary to human observation,
knowledge and experience. The Court of Appeals also said that
the following were the physical evidences in the case:

1.

It was not yet dark when the incident transpired;

2.
The four-lane highway the appellees were cruising
on was wide, straight, dry, relatively plain and with no
obstructions to the drivers vision;

3.
The point of impact of the collision is on the lane
where the car was cruising and the car hit the gas tank of
the truck located at its right middle portion, which
indicates that the truck had already properly positioned

itself and had already executed the U-turn before the
impact occurred;

4.
Genaro Guillang was not able to stop the car in
time and the cars front portion was totally wrecked. This
negates appellees contention that they were traveling at
a moderate speed; and

5.
The sheer size of the truck makes it improbable
for the said vehicle to negotiate a U-turn at a sudden and
fast speed as appellees vigorously suggest without
toppling over on its side.[17](Citations omitted)

The Court of Appeals concluded that the collision was caused by
Genaros negligence. The Court of Appeals declared that the truck
arrived at the intersection way ahead of the car and had already
executed the U-turn when the car, traveling at a fast speed, hit
the trucks side. The Court of Appeals added that considering the
time and the favorable visibility of the road and the road
conditions, Genaro, if he was alert, had ample time to react to the
changing conditions of the road. The Court of Appeals found no
reason for Genaro not to be prudent because he was approaching
an intersection and there was a great possibility that vehicles
would be traversing the intersection either going to or from
Orchard Golf Course. The Court of Appeals said Genaro should
have slowed down upon reaching the intersection. The Court of
Appeals concluded that Genaros failure to observe the necessary
precautions was the proximate cause of Anteros death and the
injuries of the petitioners.

The Court of Appeals also relied on the testimony of Police Traffic
Investigator Efren Videna (Videna) that the car was running at a
fast speed and overtook another vehicle just before the collision
occurred.[18] The Court of Appeals concluded that Genaro did not
see the truck as the other vehicle temporarily blocked his view of
the intersection. The Court of Appeals also gave weight to
Videnas testimony that it was normal for a ten-wheeler truck to
make a U-turn on that part of the highway because the entrance
to Orchard Golf Course was spacious. [19]

The Issues

Petitioners raise the following issues:

1.
Did the Court of Appeals decide a question of
substance in this case in a way probably not in accord
with law or with the applicable decisions of the
Honorable Supreme Court?

2.
Did the Court of Appeals depart from the
accepted and usual course of judicial proceedings
particularly when it revised, and recast the findings of
facts of the trial court pertaining to credibility of
witnesses of which the trial court was at the vantage
point to evaluate?

3.
Did the Court of Appeals act with grave abuse
of discretion amounting to lack of jurisdiction when

it rendered the palpably questionable Court of
AppealsDecision that tampered with the findings of fact
of the trial court for no justifiable reason?

4.
Is the Court of Appeals judgment and
resolution reversing the decision of the trial court
supported by the evidence and the law and
jurisprudence applicable?[20]

The issue in this case is who is liable for the damages suffered by
petitioners. The trial court held Bedania and de Silva, as Bedanias
employer, liable because the proximate cause of the collision was
the sudden U-turn executed by Bedania without any signal
lights. On the other hand, the Court of Appeals reversed the trial
courts decision and held Genaro liable because the proximate
cause of the collision was Genaros failure to stop the car despite
seeing that Bedania was making a U-turn.

The Ruling of the Court

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
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. [21]

However, this rule is subject to certain exceptions. One of these is
when the findings of the appellate court are contrary to those of
the trial court.[22] Findings of fact of the trial court and the Court of
Appeals may also be set aside when such findings are not
supported by the evidence or where the lower courts conclusions
are based on a misapprehension of facts. [23] Such is the situation
in this case and we shall re-examine the facts and evidence
presented before the lower courts.

Article 2176 of the Civil Code provides that whoever by act or
omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relations
between the parties, is called a quasi-delict. To sustain a claim
based on quasi-delict, the following requisites must concur: (a)
damage suffered by the plaintiff; (b) fault or negligence of
defendant; and (c) connection of cause and effect between the
fault or negligence of defendant and the damage incurred by the
plaintiff.[24]

There is no dispute that petitioners suffered damages because of
the collision. However, the issues on negligence and proximate
cause are disputed.

On the Presumption of Negligence and Proximate Cause

Negligence is defined as the failure to observe for the protection
of the interest of another person that degree of care, precaution,
and vigilance which the circumstances justly demand, whereby
such other person suffers injury. In Picart v. Smith,[25] we held that

the test of negligence is whether the defendant in doing the
alleged negligent act used that reasonable care and caution
which an ordinary person would have used in the same situation.

The conclusion of the Court of Appeals that Genaro was negligent
is not supported by the evidence on record. In ruling that Genaro
was negligent, the Court of Appeals gave weight and credence to
Videnas testimony. However, we find that Videnas testimony was
inconsistent with the police records and report that he made on
the day of the collision.First, Videna testified that the car was
running fast and overtook another vehicle that already gave way
to the truck.[26] But this was not indicated in either the report or
the police records. Moreover, if the car was speeding, there
should have been skid marks on the road when Genaro stepped
on the brakes to avoid the collision. But the sketch of the accident
showed no skid marks made by the car. [27] Second, Videna
testified that the petitioners came from a drinking spree because
he was able to smell liquor. [28] But in the report,[29] Videna
indicated that the condition of Genaro was normal. Videna did not
indicate in the report that Genaro had been drinking liquor or that
Genaro was obviously drunk. Third, Videna testified that when he
arrived at the scene, Bedania was inside his truck. [30] This
contradicts the police records where Videna stated that after the
collision Bedania escaped and abandoned the victims. [31] The
police records also showed that Bedania was arrested by the
police at his barracks in Anabu, Imus, Cavite and was turned over
to the police only on 26 October 1994.[32]

Under Article 2185 of the Civil Code, unless there is proof to the
contrary, a person driving a vehicle is presumed negligent if at
the time of the mishap, he was violating any traffic regulation.

In this case, the report[33] showed that the truck, while making the
U-turn, failed to signal, a violation of traffic rules. The police
records also stated that, after the collision, Bedania escaped and
abandoned the petitioners and his truck. [34] This is another
violation of a traffic regulation. [35] Therefore, the presumption
arises that Bedania was negligent at the time of the mishap.
The evidence presented in this case also does not support the
conclusion of the Court of Appeals that the truck had already
executed the U-turn before the impact occurred. If the truck had
fully made the U-turn, it should have been hit on its rear. [36] If
the truck had already negotiated even half of the turn and is
almost on the other side of the highway, then the truck should
have been hit in the middle portion of the trailer or cargo
compartment. But the evidence clearly shows, and the Court of
Appeals even declared, that the car hit the trucks gas tank,
located at the trucks right middle portion, which disproves the
conclusion of the Court of Appeals that the truck had already
executed the U-turn when it was hit by the car.

Moreover, the Court of Appeals said that the point of impact was
on the lane where the car was cruising. Therefore, the car had
every right to be on that road and the car had the right of way
over the truck that was making a U-turn. Clearly, the truck
encroached upon the cars lane when it suddenly made the U-turn.

The Court of Appeals also concluded that Bedania made the Uturn at an intersection. Again, this is not supported by the
evidence on record. The police sketch[37] does not indicate an
intersection and only shows that there was a road leading to the
Orchard Golf Course near the place of the collision. Furthermore,
U-turns are generally not advisable particularly on major streets.
[38]
Contrary to Videnas testimony, it is not normal for a truck to
make a U-turn on a highway. We agree with the trial court that if

Bedania wanted to change direction, he should seek an
intersection where it is safer to maneuver the truck. Bedania
should have also turned on his signal lights and made sure that
the highway was clear of vehicles from the opposite direction
before executing the U-turn.

The finding of the Court of Appeals that it was not yet dark when
the collision occurred is also not supported by the evidence on
record. The report stated that the daylight condition at the time of
the collision was darkness.[39]

Contrary to the conclusion of the Court of Appeals, the sheer size
of the truck does not make it improbable for the truck to execute
a sudden U-turn. The trial courts decision did not state that the
truck was traveling at a fast speed when it made the U-turn. The
trial court said the truck made a sudden U-turn, meaning the Uturn was made unexpectedly and with no warning, as shown by
the fact that the trucks signal lights were not turned on.

Clearly, Bedanias negligence was the proximate cause of the
collision which claimed the life of Antero and injured the
petitioners. Proximate cause is that which, in the natural and
continuous sequence, unbroken by any efficient, intervening
cause, produces the injury, and without which the result would
not have occurred.[40] The cause of the collision is traceable to the
negligent act of Bedania for if the U-turn was executed with the
proper precaution, the mishap in all probability would not have
happened. The sudden U-turn of the truck without signal lights
posed a serious risk to oncoming motorists. Bedania failed to
prevent or minimize that risk. The trucks sudden U-turn triggered
a series of events that led to the collision and, ultimately, to the
death of Antero and the injuries of petitioners.

We agree with the trial court that de Silva, as Bedanias employer,
is also liable for the damages suffered by petitioners. De Silva
failed to prove that he exercised all the diligence of a good father
of a family in the selection and supervision of his employees.

On the Award of Damages and Attorneys Fees

According to prevailing jurisprudence, civil indemnity for death
caused by a quasi-delict is pegged at P50,000.[41] Moral damages
in the amount of P50,000 is also awarded to the heirs of the
deceased taking into consideration the pain and anguish they
suffered.[42] Bienvenido Guillang (Bienvenido), Anteros son,
testified that Sofia, Anteros wife and his mother, became
depressed after Anteros death and that Sofia died a year after.
[43]
Bienvenido also testified on the pain and anguish their family
suffered as a consequence of their fathers death. [44] We sustain
the trial courts award of P50,000 as indemnity for death
and P50,000 as moral damages to the heirs of Antero.

As to funeral and burial expenses, the court can only award such
amount as are supported by proper receipts. [45] In this case,
petitioners proved funeral and burial expenses ofP55,000 as
evidenced by Receipt No. 1082,[46] P65,000 as evidenced by
Receipt No. 1146[47] and P15,000 as evidenced by Receipt No.
1064,[48] all issued by the Manila South Cemetery Association, Inc.,
aggregating P135,000. We reduce the trial courts award of funeral
and burial expenses from P185,000 to P135,000.

As to hospitalization expenses, only substantiated and proven
expenses, or those that appear to have been genuinely incurred
in connection with the hospitalization of the victims will be
recognized in court.[49] In this case, the trial court did not specify
the amount of hospitalization expenses to be awarded to the
petitioners. Since petitioners presented receipts for hospitalization
expenses during the trial, we will determine the proper amounts
to be awarded to each of them. We award hospitalization
expenses of P27,000.98 to the heirs of Antero,[50] P10,881.60 to
Llanillo,[51] P5,436.77
to
Dignadice,[52] and P300
to
[53]
Genaro
because these are the amounts duly substantiated by
receipts.

We affirm the trial courts award of P508,566.03 for the repair of
the car. The Court notes that there is no dispute that Genaro was
driving a brand new Toyota Corolla GLI sedan and that, after the
collision, the car was a total wreck. In this case, the repair order
presented by Genaro is sufficient proof of the damages sustained
by the car.[54]

Moral damages may be recovered in quasi-delicts causing
physical injuries.[55] However, in accordance with prevailing
jurisprudence, we reduce the award of moral damages
from P50,000 to P30,000 each to Llanillo, Dignadice, and Genaro
since they only suffered physical injuries brought about by the
collision.[56]

In quasi-delicts, exemplary damages may be granted if the
defendant acted with gross negligence. [57] While the amount of
exemplary damages need not be proved, the plaintiff must show
that he is entitled to moral, temperate or compensatory damages
before the court may consider the question of whether or not

exemplary damages should be awarded. [58] In this case, Bedania
was grossly negligent in suddenly making a U-turn in the highway
without signal lights. To serve as an example for the public good,
we affirm the trial courts award of exemplary damages in the
amount of P50,000.

Finally, we affirm the trial courts award of attorneys fees in the
amount of P100,000. Under Article 2208 of the Civil Code,
attorneys fees may be recovered when, as in this case, exemplary
damages are awarded.

WHEREFORE, we REVERSE the 3 June 2003 Decision and 23
March 2004 Resolution of the Court of Appeals in CA-G.R. CV No.
69289. We REINSTATE withMODIFICATIONS the 5 December
2000 Decision of the Regional Trial Court, Branch 30,
Manila. We ORDER Rodolfo Bedania and Rodolfo de Silva, jointly
and severally, to pay the following amounts:

1.

Funeral and Burial Expenses of P135,000 to the heirs of
Antero Guillang;

2.

Hospitalization Expenses of P27,000.98 to the heirs of
Antero Guillang, P10,881.60 to Alvin Llanillo, P5,436.77 to
Jose Dignadice, and P300 to Genaro Guillang; and

3.

Moral damages of P30,000 each to Alvin Llanillo, Jose
Dignadice, and Genaro Guillang.

SO ORDERED.

G.R. No. 157917

August 29, 2012

SPOUSES TEODORO1 and NANETTE PERENA, Petitioners,
vs.
SPOUSES TERESITA PHILIPPINE NICOLAS and L. ZARATE, NATIONAL RAILWAYS, and the
COURT OF APPEALS Respondents.
DECISION

BERSAMIN, J.:
The operator of a. school bus service is a common carrier in the eyes of the law. He is bound to
observe extraordinary diligence in the conduct of his business. He is presumed to be negligent when
death occurs to a passenger. His liability may include indemnity for loss of earning capacity even if
the deceased passenger may only be an unemployed high school student at the time of the
accident.
The Case
By petition for review on certiorari, Spouses Teodoro and Nanette Perefia (Perefias) appeal the
adverse decision promulgated on November 13, 2002, by which the Court of Appeals (CA) affirmed
with modification the decision rendered on December 3, 1999 by the Regional Trial Court (RTC),
Branch 260, in Parañaque City that had decreed them jointly and severally liable with Philippine
National Railways (PNR), their co-defendant, to Spouses Nicolas and Teresita Zarate (Zarates) for
the death of their 15-year old son, Aaron John L. Zarate (Aaron), then a high school student of Don
Bosco Technical Institute (Don Bosco).
Antecedents
The Pereñas were engaged in the business of transporting students from their respective residences
in Parañaque City to Don Bosco in Pasong Tamo, Makati City, and back. In their business, the
Pereñas used a KIA Ceres Van (van) with Plate No. PYA 896, which had the capacity to transport 14
students at a time, two of whom would be seated in the front beside the driver, and the others in the
rear, with six students on either side. They employed Clemente Alfaro (Alfaro) as driver of the van.
In June 1996, the Zarates contracted the Pereñas to transport Aaron to and from Don Bosco. On
August 22, 1996, as on previous school days, the van picked Aaron up around 6:00 a.m. from the
Zarates’ residence. Aaron took his place on the left side of the van near the rear door. The van, with
its air-conditioning unit turned on and the stereo playing loudly, ultimately carried all the 14 student
riders on their way to Don Bosco. Considering that the students were due at Don Bosco by 7:15
a.m., and that they were already running late because of the heavy vehicular traffic on the South
Superhighway, Alfaro took the van to an alternate route at about 6:45 a.m. by traversing the narrow
path underneath the Magallanes Interchange that was then commonly used by Makati-bound
vehicles as a short cut into Makati. At the time, the narrow path was marked by piles of construction
materials and parked passenger jeepneys, and the railroad crossing in the narrow path had no
railroad warning signs, or watchmen, or other responsible persons manning the crossing. In fact, the
bamboo barandilla was up, leaving the railroad crossing open to traversing motorists.
At about the time the van was to traverse the railroad crossing, PNR Commuter No. 302 (train),
operated by Jhonny Alano (Alano), was in the vicinity of the Magallanes Interchange travelling
northbound. As the train neared the railroad crossing, Alfaro drove the van eastward across the
railroad tracks, closely tailing a large passenger bus. His view of the oncoming train was blocked
because he overtook the passenger bus on its left side. The train blew its horn to warn motorists of
its approach. When the train was about 50 meters away from the passenger bus and the van, Alano
applied the ordinary brakes of the train. He applied the emergency brakes only when he saw that a

collision was imminent. The passenger bus successfully crossed the railroad tracks, but the van
driven by Alfaro did not. The train hit the rear end of the van, and the impact threw nine of the 12
students in the rear, including Aaron, out of the van. Aaron landed in the path of the train, which
dragged his body and severed his head, instantaneously killing him. Alano fled the scene on board
the train, and did not wait for the police investigator to arrive.
Devastated by the early and unexpected death of Aaron, the Zarates commenced this action for
damages against Alfaro, the Pereñas, PNR and Alano. The Pereñas and PNR filed their respective
answers, with cross-claims against each other, but Alfaro could not be served with summons.
At the pre-trial, the parties stipulated on the facts and issues, viz:
A. FACTS:
That spouses Zarate were the legitimate parents of Aaron John L. Zarate;(1)
Spouses Zarate engaged the services of spouses Pereña for the adequate and safe
transportation carriage of the former spouses' son from their residence in Parañaque to his
school at the Don Bosco Technical Institute in Makati City;(2)
During the effectivity of the contract of carriage and in the implementation thereof, Aaron,
the minor son of spouses Zarate died in connection with a vehicular/train collision which
occurred while Aaron was riding the contracted carrier Kia Ceres van of spouses Pereña,
then driven and operated by the latter's employee/authorized driver Clemente Alfaro, which
van collided with the train of PNR, at around 6:45 A.M. of August 22, 1996, within the vicinity
of the Magallanes Interchange in Makati City, Metro Manila, Philippines;(3)
At the time of the vehicular/train collision, the subject site of the vehicular/train collision was
a railroad crossing used by motorists for crossing the railroad tracks;(4)
During the said time of the vehicular/train collision, there were no appropriate and safety
warning signs and railings at the site commonly used for railroad crossing;(5)
At the material time, countless number of Makati bound public utility and private vehicles
used on a daily basis the site of the collision as an alternative route and short-cut to
Makati;(6)
The train driver or operator left the scene of the incident on board the commuter train
involved without waiting for the police investigator;(7)
The site commonly used for railroad crossing by motorists was not in fact intended by the
railroad operator for railroad crossing at the time of the vehicular collision;(8)
PNR received the demand letter of the spouses Zarate;(9)

PNR refused to acknowledge any liability for the vehicular/train collision;(10)
The eventual closure of the railroad crossing alleged by PNR was an internal arrangement
between the former and its project contractor; and(11)
The site of the vehicular/train collision was within the vicinity or less than 100 meters from
the Magallanes station of PNR.(12)
B. ISSUES
(1) Whether or not defendant-driver of the van is, in the performance of his functions, liable
for negligence constituting the proximate cause of the vehicular collision, which resulted in
the death of plaintiff spouses' son;
(2) Whether or not the defendant spouses Pereña being the employer of defendant Alfaro
are liable for any negligence which may be attributed to defendant Alfaro;
(3) Whether or not defendant Philippine National Railways being the operator of the railroad
system is liable for negligence in failing to provide adequate safety warning signs and
railings in the area commonly used by motorists for railroad crossings, constituting the
proximate cause of the vehicular collision which resulted in the death of the plaintiff spouses'
son;
(4) Whether or not defendant spouses Pereña are liable for breach of the contract of carriage
with plaintiff-spouses in failing to provide adequate and safe transportation for the latter's
son;
(5) Whether or not defendants spouses are liable for actual, moral damages, exemplary
damages, and attorney's fees;
(6) Whether or not defendants spouses Teodorico and Nanette Pereña observed the
diligence of employers and school bus operators;
(7) Whether or not defendant-spouses are civilly liable for the accidental death of Aaron John
Zarate;
(8) Whether or not defendant PNR was grossly negligent in operating the commuter train
involved in the accident, in allowing or tolerating the motoring public to cross, and its failure
to install safety devices or equipment at the site of the accident for the protection of the
public;
(9) Whether or not defendant PNR should be made to reimburse defendant spouses for any
and whatever amount the latter may be held answerable or which they may be ordered to
pay in favor of plaintiffs by reason of the action;

(10) Whether or not defendant PNR should pay plaintiffs directly and fully on the amounts
claimed by the latter in their Complaint by reason of its gross negligence;
(11) Whether or not defendant PNR is liable to defendants spouses for actual, moral and
exemplary damages and attorney's fees.2
The Zarates’ claim against the Pereñas was upon breach of the contract of carriage for the safe
transport of Aaron; but that against PNR was based on quasi-delict under Article 2176, Civil Code.
In their defense, the Pereñas adduced evidence to show that they had exercised the diligence of a
good father of the family in the selection and supervision of Alfaro, by making sure that Alfaro had
been issued a driver’s license and had not been involved in any vehicular accident prior to the
collision; that their own son had taken the van daily; and that Teodoro Pereña had sometimes
accompanied Alfaro in the van’s trips transporting the students to school.
For its part, PNR tended to show that the proximate cause of the collision had been the reckless
crossing of the van whose driver had not first stopped, looked and listened; and that the narrow path
traversed by the van had not been intended to be a railroad crossing for motorists.
Ruling of the RTC
On December 3, 1999, the RTC rendered its decision, 3 disposing:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and
against the defendants ordering them to jointly and severally pay the plaintiffs as follows:
(1) (for) the death of Aaron- Php50,000.00;
(2) Actual damages in the amount of Php100,000.00;
(3) For the loss of earning capacity- Php2,109,071.00;
(4) Moral damages in the amount of Php4,000,000.00;
(5) Exemplary damages in the amount of Php1,000,000.00;
(6) Attorney’s fees in the amount of Php200,000.00; and
(7) Cost of suit.
SO ORDERED.
On June 29, 2000, the RTC denied the Pereñas’ motion for reconsideration, 4 reiterating that the
cooperative gross negligence of the Pereñas and PNR had caused the collision that led to the death
of Aaron; and that the damages awarded to the Zarates were not excessive, but based on the
established circumstances.

The CA’s Ruling
Both the Pereñas and PNR appealed (C.A.-G.R. CV No. 68916).
PNR assigned the following errors, to wit:5
The Court a quo erred in:
1. In finding the defendant-appellant Philippine National Railways jointly and severally liable
together with defendant-appellants spouses Teodorico and Nanette Pereña and defendantappellant Clemente Alfaro to pay plaintiffs-appellees for the death of Aaron Zarate and
damages.
2. In giving full faith and merit to the oral testimonies of plaintiffs-appellees witnesses despite
overwhelming documentary evidence on record, supporting the case of defendantsappellants Philippine National Railways.
The Pereñas ascribed the following errors to the RTC, namely:
The trial court erred in finding defendants-appellants jointly and severally liable for actual, moral and
exemplary damages and attorney’s fees with the other defendants.
The trial court erred in dismissing the cross-claim of the appellants Pereñas against the Philippine
National Railways and in not holding the latter and its train driver primarily responsible for the
incident.
The trial court erred in awarding excessive damages and attorney’s fees.
The trial court erred in awarding damages in the form of deceased’s loss of earning capacity in the
absence of sufficient basis for such an award.
On November 13, 2002, the CA promulgated its decision, affirming the findings of the RTC, but
limited the moral damages to P 2,500,000.00; and deleted the attorney’s fees because the RTC did
not state the factual and legal bases, to wit:6
WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court, Branch 260
of Parañaque City is AFFIRMED with the modification that the award of Actual Damages is reduced
to P59,502.76; Moral Damages is reduced to P 2,500,000.00; and the award for Attorney’s Fees is
Deleted.
SO ORDERED.
The CA upheld the award for the loss of Aaron’s earning capacity, taking cognizance of the ruling in
Cariaga v. Laguna Tayabas Bus Company and Manila Railroad Company,7 wherein the Court gave
the heirs of Cariaga a sum representing the loss of the deceased’s earning capacity despite Cariaga

being only a medical student at the time of the fatal incident. Applying the formula adopted in the
American Expectancy Table of Mortality:–
2/3 x (80 - age at the time of death) = life expectancy
the CA determined the life expectancy of Aaron to be 39.3 years upon reckoning his life expectancy
from age of 21 (the age when he would have graduated from college and started working for his own
livelihood) instead of 15 years (his age when he died). Considering that the nature of his work and
his salary at the time of Aaron’s death were unknown, it used the prevailing minimum wage
of P 280.00/day to compute Aaron’s gross annual salary to be P 110,716.65, inclusive of the
thirteenth month pay. Multiplying this annual salary by Aaron’s life expectancy of 39.3 years, his
gross income would aggregate to P 4,351,164.30, from which his estimated expenses in the sum
of P 2,189,664.30 was deducted to finally arrive at P 2,161,500.00 as net income. Due to Aaron’s
computed net income turning out to be higher than the amount claimed by the Zarates,
only P 2,109,071.00, the amount expressly prayed for by them, was granted.
On April 4, 2003, the CA denied the Pereñas’ motion for reconsideration. 8
Issues
In this appeal, the Pereñas list the following as the errors committed by the CA, to wit:
I. The lower court erred when it upheld the trial court’s decision holding the petitioners jointly and
severally liable to pay damages with Philippine National Railways and dismissing their cross-claim
against the latter.
II. The lower court erred in affirming the trial court’s decision awarding damages for loss of earning
capacity of a minor who was only a high school student at the time of his death in the absence of
sufficient basis for such an award.
III. The lower court erred in not reducing further the amount of damages awarded, assuming
petitioners are liable at all.
Ruling
The petition has no merit.
1.
Were the Pereñas and PNR jointly
and severally liable for damages?
The Zarates brought this action for recovery of damages against both the Pereñas and the PNR,
basing their claim against the Pereñas on breach of contract of carriage and against the PNR on
quasi-delict.
The RTC found the Pereñas and the PNR negligent. The CA affirmed the findings.

We concur with the CA.
To start with, the Pereñas’ defense was that they exercised the diligence of a good father of the
family in the selection and supervision of Alfaro, the van driver, by seeing to it that Alfaro had a
driver’s license and that he had not been involved in any vehicular accident prior to the fatal collision
with the train; that they even had their own son travel to and from school on a daily basis; and that
Teodoro Pereña himself sometimes accompanied Alfaro in transporting the passengers to and from
school. The RTC gave scant consideration to such defense by regarding such defense as
inappropriate in an action for breach of contract of carriage.
We find no adequate cause to differ from the conclusions of the lower courts that the Pereñas
operated as a common carrier; and that their standard of care was extraordinary diligence, not the
ordinary diligence of a good father of a family.
Although in this jurisdiction the operator of a school bus service has been usually regarded as a
private carrier,9primarily because he only caters to some specific or privileged individuals, and his
operation is neither open to the indefinite public nor for public use, the exact nature of the operation
of a school bus service has not been finally settled. This is the occasion to lay the matter to rest.
A carrier is a person or corporation who undertakes to transport or convey goods or persons from
one place to another, gratuitously or for hire. The carrier is classified either as a private/special
carrier or as a common/public carrier.10 A private carrier is one who, without making the activity a
vocation, or without holding himself or itself out to the public as ready to act for all who may desire
his or its services, undertakes, by special agreement in a particular instance only, to transport goods
or persons from one place to another either gratuitously or for hire. 11The provisions on ordinary
contracts of the Civil Code govern the contract of private carriage.The diligence required of a private
carrier is only ordinary, that is, the diligence of a good father of the family. In contrast, a common
carrier is a person, corporation, firm or association engaged in the business of carrying or
transporting passengers or goods or both, by land, water, or air, for compensation, offering such
services to the public.12Contracts of common carriage are governed by the provisions on common
carriers of the Civil Code, the Public Service Act,13 and other special laws relating to transportation. A
common carrier is required to observe extraordinary diligence, and is presumed to be at fault or to
have acted negligently in case of the loss of the effects of passengers, or the death or injuries to
passengers.14
In relation to common carriers, the Court defined public use in the following terms in United States v.
Tan Piaco,15viz:
"Public use" is the same as "use by the public". The essential feature of the public use is not
confined to privileged individuals, but is open to the indefinite public. It is this indefinite or
unrestricted quality that gives it its public character. In determining whether a use is public, we must
look not only to the character of the business to be done, but also to the proposed mode of doing it.
If the use is merely optional with the owners, or the public benefit is merely incidental, it is not a
public use, authorizing the exercise of the jurisdiction of the public utility commission. There must be,
in general, a right which the law compels the owner to give to the general public. It is not enough that
the general prosperity of the public is promoted. Public use is not synonymous with public interest.

The true criterion by which to judge the character of the use is whether the public may enjoy it by
right or only by permission.
In De Guzman v. Court of Appeals,16 the Court noted that Article 1732 of the Civil Code avoided any
distinction between a person or an enterprise offering transportation on a regular or an isolated
basis; and has not distinguished a carrier offering his services to the general public, that is, the
general community or population, from one offering his services only to a narrow segment of the
general population.
Nonetheless, the concept of a common carrier embodied in Article 1732 of the Civil Code coincides
neatly with the notion of public service under the Public Service Act, which supplements the law on
common carriers found in the Civil Code. Public service, according to Section 13, paragraph (b) of
the Public Service Act, includes:
x x x every person that now or hereafter may own, operate, manage, or control in the Philippines, for
hire or compensation, with general or limited clientèle, whether permanent or occasional, and done
for the general business purposes, any common carrier, railroad, street railway, traction railway,
subway motor vehicle, either for freight or passenger, or both, with or without fixed route and
whatever may be its classification, freight or carrier service of any class, express service, steamboat,
or steamship line, pontines, ferries and water craft, engaged in the transportation of passengers or
freight or both, shipyard, marine repair shop, ice-refrigeration plant, canal, irrigation system, gas,
electric light, heat and power, water supply and power petroleum, sewerage system, wire or wireless
communications systems, wire or wireless broadcasting stations and other similar public services. x
x x.17
Given the breadth of the aforequoted characterization of a common carrier, the Court has considered
as common carriers pipeline operators,18 custom brokers and warehousemen,19 and barge
operators20 even if they had limited clientèle.
As all the foregoing indicate, the true test for a common carrier is not the quantity or extent of the
business actually transacted, or the number and character of the conveyances used in the activity,
but whether the undertaking is a part of the activity engaged in by the carrier that he has held out to
the general public as his business or occupation. If the undertaking is a single transaction, not a part
of the general business or occupation engaged in, as advertised and held out to the general public,
the individual or the entity rendering such service is a private, not a common, carrier. The question
must be determined by the character of the business actually carried on by the carrier, not by any
secret intention or mental reservation it may entertain or assert when charged with the duties and
obligations that the law imposes.21
Applying these considerations to the case before us, there is no question that the Pereñas as the
operators of a school bus service were: (a) engaged in transporting passengers generally as a
business, not just as a casual occupation; (b) undertaking to carry passengers over established
roads by the method by which the business was conducted; and (c) transporting students for a fee.
Despite catering to a limited clientèle, the Pereñas operated as a common carrier because they held
themselves out as a ready transportation indiscriminately to the students of a particular school living
within or near where they operated the service and for a fee.

The common carrier’s standard of care and vigilance as to the safety of the passengers is defined by
law. Given the nature of the business and for reasons of public policy, the common carrier is bound
"to observe extraordinary diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances of each case." 22 Article 1755 of
the Civil Code specifies that the common carrier should "carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very cautious persons, with a
due regard for all the circumstances." To successfully fend off liability in an action upon the death or
injury to a passenger, the common carrier must prove his or its observance of that extraordinary
diligence; otherwise, the legal presumption that he or it was at fault or acted negligently would
stand.23 No device, whether by stipulation, posting of notices, statements on tickets, or otherwise,
may dispense with or lessen the responsibility of the common carrier as defined under Article 1755
of the Civil Code. 24
And, secondly, the Pereñas have not presented any compelling defense or reason by which the
Court might now reverse the CA’s findings on their liability. On the contrary, an examination of the
records shows that the evidence fully supported the findings of the CA.
As earlier stated, the Pereñas, acting as a common carrier, were already presumed to be negligent
at the time of the accident because death had occurred to their passenger.25 The presumption of
negligence, being a presumption of law, laid the burden of evidence on their shoulders to establish
that they had not been negligent.26 It was the law no less that required them to prove their
observance of extraordinary diligence in seeing to the safe and secure carriage of the passengers to
their destination. Until they did so in a credible manner, they stood to be held legally responsible for
the death of Aaron and thus to be held liable for all the natural consequences of such death.
There is no question that the Pereñas did not overturn the presumption of their negligence by
credible evidence. Their defense of having observed the diligence of a good father of a family in the
selection and supervision of their driver was not legally sufficient. According to Article 1759 of the
Civil Code, their liability as a common carrier did not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employee. This was the
reason why the RTC treated this defense of the Pereñas as inappropriate in this action for breach of
contract of carriage.
The Pereñas were liable for the death of Aaron despite the fact that their driver might have acted
beyond the scope of his authority or even in violation of the orders of the common carrier.27 In this
connection, the records showed their driver’s actual negligence. There was a showing, to begin with,
that their driver traversed the railroad tracks at a point at which the PNR did not permit motorists
going into the Makati area to cross the railroad tracks. Although that point had been used by
motorists as a shortcut into the Makati area, that fact alone did not excuse their driver into taking that
route. On the other hand, with his familiarity with that shortcut, their driver was fully aware of the
risks to his passengers but he still disregarded the risks. Compounding his lack of care was that loud
music was playing inside the air-conditioned van at the time of the accident. The loudness most
probably reduced his ability to hear the warning horns of the oncoming train to allow him to correctly
appreciate the lurking dangers on the railroad tracks. Also, he sought to overtake a passenger bus
on the left side as both vehicles traversed the railroad tracks. In so doing, he lost his view of the train
that was then coming from the opposite side of the passenger bus, leading him to miscalculate his

chances of beating the bus in their race, and of getting clear of the train. As a result, the bus avoided
a collision with the train but the van got slammed at its rear, causing the fatality. Lastly, he did not
slow down or go to a full stop before traversing the railroad tracks despite knowing that his
slackening of speed and going to a full stop were in observance of the right of way at railroad tracks
as defined by the traffic laws and regulations.28 He thereby violated a specific traffic regulation on
right of way, by virtue of which he was immediately presumed to be negligent. 29
The omissions of care on the part of the van driver constituted negligence, 30 which, according to
Layugan v. Intermediate Appellate Court,31 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, 32 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.’"33
The test by which to determine the existence of negligence in a particular case has been aptly stated
in the leading case of Picart v. Smith,34 thuswise:
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. 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 speculation 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 the 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 the conduct or guarding against
its consequences. (Emphasis supplied)
Pursuant to the Picart v. Smith test of negligence, the Pereñas’ driver was entirely negligent when he
traversed the railroad tracks at a point not allowed for a motorist’s crossing despite being fully aware
of the grave harm to be thereby caused to his passengers; and when he disregarded the foresight of

harm to his passengers by overtaking the bus on the left side as to leave himself blind to the
approach of the oncoming train that he knew was on the opposite side of the bus.
Unrelenting, the Pereñas cite Phil. National Railways v. Intermediate Appellate Court, 35 where the
Court held the PNR solely liable for the damages caused to a passenger bus and its passengers
when its train hit the rear end of the bus that was then traversing the railroad crossing. But the
circumstances of that case and this one share no similarities. In Philippine National Railways v.
Intermediate Appellate Court, no evidence of contributory negligence was adduced against the
owner of the bus. Instead, it was the owner of the bus who proved the exercise of extraordinary
diligence by preponderant evidence. Also, the records are replete with the showing of negligence on
the part of both the Pereñas and the PNR. Another distinction is that the passenger bus in Philippine
National Railways v. Intermediate Appellate Court was traversing the dedicated railroad crossing
when it was hit by the train, but the Pereñas’ school van traversed the railroad tracks at a point not
intended for that purpose.
At any rate, the lower courts correctly held both the Pereñas and the PNR "jointly and severally"
liable for damages arising from the death of Aaron. They had been impleaded in the same complaint
as defendants against whom the Zarates had the right to relief, whether jointly, severally, or in the
alternative, in respect to or arising out of the accident, and questions of fact and of law were
common as to the Zarates.36 Although the basis of the right to relief of the Zarates (i.e., breach of
contract of carriage) against the Pereñas was distinct from the basis of the Zarates’ right to relief
against the PNR (i.e., quasi-delict under Article 2176, Civil Code), they nonetheless could be held
jointly and severally liable by virtue of their respective negligence combining to cause the death of
Aaron. As to the PNR, the RTC rightly found the PNR also guilty of negligence despite the school
van of the Pereñas traversing the railroad tracks at a point not dedicated by the PNR as a railroad
crossing for pedestrians and motorists, because the PNR did not ensure the safety of others through
the placing of crossbars, signal lights, warning signs, and other permanent safety barriers to prevent
vehicles or pedestrians from crossing there. The RTC observed that the fact that a crossing guard
had been assigned to man that point from 7 a.m. to 5 p.m. was a good indicium that the PNR was
aware of the risks to others as well as the need to control the vehicular and other traffic there. Verily,
the Pereñas and the PNR were joint tortfeasors.
2.
Was the indemnity for loss of
Aaron’s earning capacity proper?
The RTC awarded indemnity for loss of Aaron’s earning capacity. Although agreeing with the RTC on
the liability, the CA modified the amount. Both lower courts took into consideration that Aaron, while
only a high school student, had been enrolled in one of the reputable schools in the Philippines and
that he had been a normal and able-bodied child prior to his death. The basis for the computation of
Aaron’s earning capacity was not what he would have become or what he would have wanted to be
if not for his untimely death, but the minimum wage in effect at the time of his death. Moreover, the
RTC’s computation of Aaron’s life expectancy rate was not reckoned from his age of 15 years at the
time of his death, but on 21 years, his age when he would have graduated from college.

We find the considerations taken into account by the lower courts to be reasonable and fully
warranted.
Yet, the Pereñas submit that the indemnity for loss of earning capacity was speculative and
unfounded. They cited People v. Teehankee, Jr.,37 where the Court deleted the indemnity for victim
Jussi Leino’s loss of earning capacity as a pilot for being speculative due to his having graduated
from high school at the International School in Manila only two years before the shooting, and was at
the time of the shooting only enrolled in the first semester at the Manila Aero Club to pursue his
ambition to become a professional pilot. That meant, according to the Court, that he was for all
intents and purposes only a high school graduate.
1âwphi1

We reject the Pereñas’ submission.
First of all, a careful perusal of the Teehankee, Jr. case shows that the situation there of Jussi Leino
was not akin to that of Aaron here. The CA and the RTC were not speculating that Aaron would be
some highly-paid professional, like a pilot (or, for that matter, an engineer, a physician, or a lawyer).
Instead, the computation of Aaron’s earning capacity was premised on him being a lowly minimum
wage earner despite his being then enrolled at a prestigious high school like Don Bosco in Makati, a
fact that would have likely ensured his success in his later years in life and at work.
And, secondly, the fact that Aaron was then without a history of earnings should not be taken against
his parents and in favor of the defendants whose negligence not only cost Aaron his life and his right
to work and earn money, but also deprived his parents of their right to his presence and his services
as well. Our law itself states that the loss of the earning capacity of the deceased shall be the liability
of the guilty party in favor of the heirs of the deceased, and shall in every case be assessed and
awarded by the court "unless the deceased on account of permanent physical disability not caused
by the defendant, had no earning capacity at the time of his death." 38Accordingly, we emphatically
hold in favor of the indemnification for Aaron’s loss of earning capacity despite him having been
unemployed, because compensation of this nature is awarded not for loss of time or earnings but for
loss of the deceased’s power or ability to earn money.39
This favorable treatment of the Zarates’ claim is not unprecedented. In Cariaga v. Laguna Tayabas
Bus Company and Manila Railroad Company,40 fourth-year medical student Edgardo Carriaga’s
earning capacity, although he survived the accident but his injuries rendered him permanently
incapacitated, was computed to be that of the physician that he dreamed to become. The Court
considered his scholastic record sufficient to justify the assumption that he could have finished the
medical course and would have passed the medical board examinations in due time, and that he
could have possibly earned a modest income as a medical practitioner. Also, in People v.
Sanchez,41 the Court opined that murder and rape victim Eileen Sarmienta and murder victim Allan
Gomez could have easily landed good-paying jobs had they graduated in due time, and that their
jobs would probably pay them high monthly salaries from P 10,000.00 to P 15,000.00 upon their
graduation. Their earning capacities were computed at rates higher than the minimum wage at the
time of their deaths due to their being already senior agriculture students of the University of the
Philippines in Los Baños, the country’s leading educational institution in agriculture.

3.
Were the amounts of damages excessive?
The Pereñas plead for the reduction of the moral and exemplary damages awarded to the Zarates in
the respective amounts of P 2,500,000.00 and P 1,000,000.00 on the ground that such amounts
were excessive.
The plea is unwarranted.
The moral damages of P 2,500,000.00 were really just and reasonable under the established
circumstances of this case because they were intended by the law to assuage the Zarates’ deep
mental anguish over their son’s unexpected and violent death, and their moral shock over the
senseless accident. That amount would not be too much, considering that it would help the Zarates
obtain the means, diversions or amusements that would alleviate their suffering for the loss of their
child. At any rate, reducing the amount as excessive might prove to be an injustice, given the
passage of a long time from when their mental anguish was inflicted on them on August 22, 1996.
Anent the P 1,000,000.00 allowed as exemplary damages, we should not reduce the amount if only
to render effective the desired example for the public good. As a common carrier, the Pereñas
needed to be vigorously reminded to observe their duty to exercise extraordinary diligence to
prevent a similarly senseless accident from happening again. Only by an award of exemplary
damages in that amount would suffice to instill in them and others similarly situated like them the
ever-present need for greater and constant vigilance in the conduct of a business imbued with public
interest.
WHEREFORE, we DENY the petition for review on certiorari; AFFIRM the decision promulgated on
November 13, 2002; and ORDER the petitioners to pay the costs of suit.
SO ORDERED.

G.R. No. 126297

January 31, 2007

PROFESSIONAL SERVICES, INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467

January 31, 2007

NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR.,
EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE
AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590

January 31, 2007

MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankind’s most important and delicate endeavors, must
assume the grave responsibility of pursuing it with appropriate care. The care and service dispensed
through this high trust, however technical, complex and esoteric its character may be, must meet
standards of responsibility commensurate with the undertaking to preserve and protect the health,
and indeed, the very lives of those placed in the hospital’s keeping.1
Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals’
Decision2 dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming

with modification the Decision3 dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96,
Quezon City in Civil Case No. Q-43322 and nullifying its Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City
Hospital) because of difficulty of bowel movement and bloody anal discharge. After a series of
medical examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering
from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of the Medical City Hospital, performed an
anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had
spread on her left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained
the consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R.
No. 126467, to perform hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and
closed the incision.
However, the operation appeared to be flawed. In the corresponding Record of Operation dated April
11, 1984, the attending nurses entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no avail continue for closure."
On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including
the doctors’ fees, amounted to P60,000.00.
After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted
both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of
the surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous
nodes which were not removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further
treatment. After four months of consultations and laboratory examinations, Natividad was told she
was free of cancer. Hence, she was advised to return to the Philippines.
On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks
thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being informed
about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze
measuring 1.5 inches in width. He then assured her that the pains would soon vanish.
Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek
treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected
the presence of another foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in

width which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive
organs which forced stool to excrete through the vagina. Another surgical operation was needed to
remedy the damage. Thus, in October 1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a
complaint for damages against the Professional Services, Inc. (PSI), owner of the Medical City
Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. They alleged that the
latter are liable for negligence for leaving two pieces of gauze inside Natividad’s body and
malpractice for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an
administrative complaint for gross negligence and malpractice against Dr. Ampil and Dr. Fuentes,
docketed as Administrative Case No. 1690. The PRC Board of Medicine heard the case only with
respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was then in the
United States.
On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly
substituted by her above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and
Dr. Fuentes liable for negligence and malpractice, the decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants
PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the
plaintiffs, jointly and severally, except in respect of the award for exemplary damages and the
interest thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of
P21.60-US$1.00, as reimbursement of actual expenses incurred in the United States
of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;
c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic
Hospital, medical fees, and cost of the saline solution;
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;
4. As attorney’s fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the
complaint until full payment; and

6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed
as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its
Decision, which was granted in an Order dated May 11, 1993. Thereafter, the sheriff levied upon
certain properties of Dr. Ampil and sold them for P451,275.00 and delivered the amount to the
Aganas.
Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr.
Fuentes to indefinitely suspend any further execution of the RTC Decision. However, not long
thereafter, the Aganas again filed a motion for an alias writ of execution against the properties of PSI
and Dr. Fuentes. On September 21, 1993, the RTC granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to file with the Court of Appeals a petition for certiorari
and prohibition, with prayer for preliminary injunction, docketed as CA-G.R. SP No. 32198. During its
pendency, the Court of Appeals issued a Resolution5 dated October 29, 1993 granting Dr. Fuentes’
prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision 6 in
Administrative Case No. 1690 dismissing the case against Dr. Fuentes. The Board held that the
prosecution failed to show that Dr. Fuentes was the one who left the two pieces of gauze inside
Natividad’s body; and that he concealed such fact from Natividad.
On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV
No. 42062 and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case against defendant-appellant Dr. Juan
Fuentes is hereby DISMISSED, and with the pronouncement that defendant-appellant Dr. Miguel
Ampil is liable to reimburse defendant-appellant Professional Services, Inc., whatever amount the
latter will pay or had paid to the plaintiffs-appellees, the decision appealed from is hereby
AFFIRMED and the instant appeal DISMISSED.
Concomitant with the above, the petition for certiorari and prohibition filed by herein defendantappellant Dr. Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order
of the respondent judge dated September 21, 1993, as well as the alias writ of execution issued
pursuant thereto are hereby NULLIFIED and SET ASIDE. The bond posted by the petitioner in
connection with the writ of preliminary injunction issued by this Court on November 29, 1993 is
hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.

SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution 7 dated December
19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is
estopped from raising the defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr.
Ampil; and (3) it is not entitled to its counterclaim against the Aganas. PSI contends that Dr. Ampil is
not its employee, but a mere consultant or independent contractor. As such, he alone should answer
for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes
is not guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They
contend that the pieces of gauze are prima facie proofs that the operating surgeons have been
negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for
negligence and malpractice sans evidence that he left the two pieces of gauze in Natividad’s vagina.
He pointed to other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in performing
the hysterectomy; (2) the attending nurses’ failure to properly count the gauzes used during surgery;
and (3) the medical intervention of the American doctors who examined Natividad in the United
States of America.
For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr.
Ampil liable for negligence and malpractice; second, whether the Court of Appeals erred in absolving
Dr. Fuentes of any liability; and third, whether PSI may be held solidarily liable for the negligence of
Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other possible causes of
Natividad’s detriment. He argues that the Court should not discount either of the following
possibilities: first, Dr. Fuentes left the gauzes in Natividad’s body after performing hysterectomy;
second, the attending nurses erred in counting the gauzes; and third, the American doctors were the
ones who placed the gauzes in Natividad’s body.
Dr. Ampil’s arguments are purely conjectural and without basis. Records show that he did not
present any evidence to prove that the American doctors were the ones who put or left the gauzes in
Natividad’s body. Neither did he submit evidence to rebut the correctness of the record of operation,

particularly the number of gauzes used. As to the alleged negligence of Dr. Fuentes, we are mindful
that Dr. Ampil examined his (Dr. Fuentes’) work and found it in order.
The glaring truth is that all the major circumstances, taken together, as specified by the Court of
Appeals, directly point to Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of
the patient during the surgical operation.
Second, immediately after the operation, the nurses who assisted in the surgery noted in
their report that the ‘sponge count (was) lacking 2’; that such anomaly was ‘announced to
surgeon’ and that a ‘search was done but to no avail’ prompting Dr. Ampil to ‘continue for
closure’ x x x.
Third, after the operation, two (2) gauzes were extracted from the same spot of the body of
Mrs. Agana where the surgery was performed.
An operation requiring the placing of sponges in the incision is not complete until the sponges are
properly removed, and it is settled that the leaving of sponges or other foreign substances in the
wound after the incision has been closed is at least prima facie negligence by the operating
surgeon.8 To put it simply, such act is considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of authorities to the effect that such act is
negligence per se.9
Of course, the Court is not blind to the reality that there are times when danger to a patient’s life
precludes a surgeon from further searching missing sponges or foreign objects left in the body. But
this does not leave him free from any obligation. Even if it has been shown that a surgeon was
required by the urgent necessities of the case to leave a sponge in his patient’s abdomen, because
of the dangers attendant upon delay, still, it is his legal duty to so inform his patient within a
reasonable time thereafter by advising her of what he had been compelled to do. This is in order that
she might seek relief from the effects of the foreign object left in her body as her condition might
permit. The ruling in Smith v. Zeagler10 is explicit, thus:
The removal of all sponges used is part of a surgical operation, and when a physician or surgeon
fails to remove a sponge he has placed in his patient’s body that should be removed as part of the
operation, he thereby leaves his operation uncompleted and creates a new condition which imposes
upon him the legal duty of calling the new condition to his patient’s attention, and endeavoring with
the means he has at hand to minimize and avoid untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even
misled her that the pain she was experiencing was the ordinary consequence of her operation. Had
he been more candid, Natividad could have taken the immediate and appropriate medical remedy to
remove the gauzes from her body. To our mind, what was initially an act of negligence by Dr. Ampil
has ripened into a deliberate wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately, medical negligence. To
successfully pursue this kind of case, a patient must only prove that a health care provider either
failed to do something which a reasonably prudent health care provider would have done, or that he
did something that a reasonably prudent provider would not have done; and that failure or action
caused injury to the patient.11 Simply put, the elements are duty, breach, injury and proximate
causation. Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as
gauzes, from Natividad’s body before closure of the incision. When he failed to do so, it was his duty
to inform Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to Natividad,
necessitating her further examination by American doctors and another surgery. That Dr. Ampil’s
negligence is the proximate cause12 of Natividad’s injury could be traced from his act of closing the
incision despite the information given by the attending nurses that two pieces of gauze were still
missing. That they were later on extracted from Natividad’s vagina established the causal link
between Dr. Ampil’s negligence and the injury. And what further aggravated such injury was his
deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground
that it is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces of
gauze were left inside Natividad’s body is a prima facie evidence of Dr. Fuentes’ negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for itself." It is 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 Stated differently, where the thing which caused the
injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is
such that it should not have occurred if he, having such control used proper care, it affords
reasonable evidence, in the absence of explanation that the injury arose from the defendant’s want
of care, and the burden of proof is shifted to him to establish that he has observed due care and
diligence.14
From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res
ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the
control and management of the defendant; (3) the occurrence was such that in the ordinary course
of things, would not have happened if those who had control or management used proper care; and
(4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental
is the "control and management of the thing which caused the injury." 15
We find the element of "control and management of the thing which caused the injury" to be wanting.
Hence, the doctrine of res ipsa loquitur will not lie.

It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He
requested the assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found
that the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the
surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding
everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed
operating on Natividad. He was about to finish the procedure when the attending nurses informed
him that two pieces of gauze were missing. A "diligent search" was conducted, but the misplaced
gauzes were not found. Dr. Ampil then directed that the incision be closed. During this entire period,
Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital.
Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the
surgery room and all personnel connected with the operation. Their duty is to obey his orders. 16 As
stated before, Dr. Ampil was the lead surgeon. In other words, he was the "Captain of the Ship." That
he discharged such role is evident from his following conduct: (1) calling Dr. Fuentes to perform a
hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’
permission to leave; and (4) ordering the closure of the incision. To our mind, it was this act of
ordering the closure of the incision notwithstanding that two pieces of gauze remained unaccounted
for, that caused injury to Natividad’s body. Clearly, the control and management of the thing which
caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or
constitute an independent or separate ground of liability, being a mere evidentiary rule. 17 In other
words, mere invocation and application of the doctrine does not dispense with the requirement of
proof of negligence. Here, the negligence was proven to have been committed by Dr. Ampil and not
by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical development of hospitals and the resulting
theories concerning their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical
services to the lowest classes of society, without regard for a patient’s ability to pay.18 Those who
could afford medical treatment were usually treated at home by their doctors. 19 However, the days of
house calls and philanthropic health care are over. The modern health care industry continues to
distance itself from its charitable past and has experienced a significant conversion from a not-forprofit health care to for-profit hospital businesses. Consequently, significant changes in health law
have accompanied the business-related changes in the hospital industry. One important legal
change is an increase in hospital liability for medical malpractice. Many courts now allow claims for
hospital vicarious liability under the theories of respondeat superior, apparent authority, ostensible
authority, or agency by estoppel. 20
In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code,
which reads:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.
A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of
respondeat superior, thus:
ART. 2180. 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.
x x x
x x x
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.
x x x
x x x
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.
A prominent civilist commented that professionals engaged by an employer, such as physicians,
dentists, and pharmacists, are not "employees" under this article because the manner in which they
perform their work is not within the control of the latter (employer). In other words, professionals are
considered personally liable for the fault or negligence they commit in the discharge of their duties,
and their employer cannot be held liable for such fault or negligence. In the context of the present
case, "a hospital cannot be held liable for the fault or negligence of a physician or surgeon in the
treatment or operation of patients."21
The foregoing view is grounded on the traditional notion that the professional status and the very
nature of the physician’s calling preclude him from being classed as an agent or employee of a
hospital, whenever he acts in a professional capacity.22 It has been said that medical practice strictly
involves highly developed and specialized knowledge,23 such that physicians are generally free to
exercise their own skill and judgment in rendering medical services sans interference. 24 Hence, when
a doctor practices medicine in a hospital setting, the hospital and its employees are deemed to
subserve him in his ministrations to the patient and his actions are of his own responsibility.25
The case of Schloendorff v. Society of New York Hospital26 was then considered an authority for this
view. The "Schloendorff doctrine" regards a physician, even if employed by a hospital, as an
independent contractor because of the skill he exercises and the lack of control exerted over his
work. Under this doctrine, hospitals are exempt from the application of the respondeat superior
principle for fault or negligence committed by physicians in the discharge of their profession.

However, the efficacy of the foregoing doctrine has weakened with the significant developments in
medical care. Courts came to realize that modern hospitals are increasingly taking active role in
supplying and regulating medical care to patients. No longer were a hospital’s functions limited to
furnishing room, food, facilities for treatment and operation, and attendants for its patients. Thus, in
Bing v. Thunig,27 the New York Court of Appeals deviated from the Schloendorff doctrine, noting that
modern hospitals actually do far more than provide facilities for treatment. Rather, they regularly
employ, on a salaried basis, a large staff of physicians, interns, nurses, administrative and manual
workers. They charge patients for medical care and treatment, even collecting for such services
through legal action, if necessary. The court then concluded that there is no reason to exempt
hospitals from the universal rule of respondeat superior.
In our shores, the nature of the relationship between the hospital and the physicians is rendered
inconsequential in view of our categorical pronouncement in Ramos v. Court of Appeals 28 that for
purposes of apportioning responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending and visiting physicians. This Court
held:
"We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting "consultants," who
are allegedly not hospital employees, presents problems in apportioning responsibility for negligence
in medical malpractice cases. However, the difficulty is 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. x x x.
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, x x x, the control exercised, the
hiring, and the right to terminate consultants all fulfill the important hallmarks of an employeremployee 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 employeremployee relationship in effect exists between hospitals and their attending and visiting physicians. "
But the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its liability is also
anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine of
corporate negligence which have gained acceptance in the determination of a hospital’s liability for
negligent acts of health professionals. The present case serves as a perfect platform to test the
applicability of these doctrines, thus, enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as the "holding
out" theory, or doctrine of ostensible agency or agency by estoppel,29 has its origin from the law of
agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather
because of the actions of a principal or an employer in somehow misleading the public into believing
that the relationship or the authority exists.30 The concept is essentially one of estoppel and has been
explained in this manner:
"The principal is bound by the acts of his agent with the apparent authority which he knowingly
permits the agent to assume, or which he holds the agent out to the public as possessing. The
question in every case is whether the principal has by his voluntary act placed the agent in such a
situation that a person of ordinary prudence, conversant with business usages and the nature of the
particular business, is justified in presuming that such agent has authority to perform the particular
act in question.31
The applicability of apparent authority in the field of hospital liability was upheld long time ago in
Irving v. Doctor Hospital of Lake Worth, Inc.32 There, it was explicitly stated that "there does not
appear to be any rational basis for excluding the concept of apparent authority from the field of
hospital liability." Thus, in cases where it can be shown that a hospital, by its actions, has held out a
particular physician as its agent and/or employee and that a patient has accepted treatment from
that physician in the reasonable belief that it is being rendered in behalf of the hospital, then the
hospital will be liable for the physician’s negligence.
Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the
Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack
of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf
without authority.
In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and
specializations of the physicians associated or accredited by it, including those of Dr. Ampil and Dr.
Fuentes. We concur with the Court of Appeals’ conclusion that it "is now estopped from passing all
the blame to the physicians whose names it proudly paraded in the public directory leading the
public to believe that it vouched for their skill and competence." Indeed, PSI’s act is tantamount to
holding out to the public that Medical City Hospital, through its accredited physicians, offers quality
health care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their

qualifications, the hospital created the impression that they were its agents, authorized to perform
medical or surgical services for its patients. As expected, these patients, Natividad being one of
them, accepted the services on the reasonable belief that such were being rendered by the hospital
or its employees, agents, or servants. The trial court correctly pointed out:
x x x regardless of the education and status in life of the patient, he ought not be burdened with the
defense of absence of employer-employee relationship between the hospital and the independent
physician whose name and competence are certainly certified to the general public by the hospital’s
act of listing him and his specialty in its lobby directory, as in the case herein. The high costs of
today’s medical and health care should at least exact on the hospital greater, if not broader, legal
responsibility for the conduct of treatment and surgery within its facility by its accredited physician or
surgeon, regardless of whether he is independent or employed."33
The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable
of acting only through other individuals, such as physicians. If these accredited physicians do their
job well, the hospital succeeds in its mission of offering quality medical services and thus profits
financially. Logically, where negligence mars the quality of its services, the hospital should not be
allowed to escape liability for the acts of its ostensible agents.
We now proceed to the doctrine of corporate negligence or corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI
as owner, operator and manager of Medical City Hospital, "did not perform the necessary
supervision nor exercise diligent efforts in the supervision of Drs. Ampil and Fuentes and its nursing
staff, resident doctors, and medical interns who assisted Drs. Ampil and Fuentes in the performance
of their duties as surgeons."34 Premised on the doctrine of corporate negligence, the trial court held
that PSI is directly liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem
of allocating hospital’s liability for the negligent acts of health practitioners, absent facts to support
the application of respondeat superior or apparent authority. Its formulation proceeds from the
judiciary’s acknowledgment that in these modern times, the duty of providing quality medical service
is no longer the sole prerogative and responsibility of the physician. The modern hospitals have
changed structure. Hospitals now tend to organize a highly professional medical staff whose
competence and performance need to be monitored by the hospitals commensurate with their
inherent responsibility to provide quality medical care.35
The doctrine has its genesis in Darling v. Charleston Community Hospital.36 There, the Supreme
Court of Illinois held that "the jury could have found a hospital negligent, inter alia, in failing to have a
sufficient number of trained nurses attending the patient; failing to require a consultation with or
examination by members of the hospital staff; and failing to review the treatment rendered to the
patient." On the basis of Darling, other jurisdictions held that a hospital’s corporate negligence
extends to permitting a physician known to be incompetent to practice at the hospital. 37 With the
passage of time, more duties were expected from hospitals, among them: (1) the use of reasonable

care in the maintenance of safe and adequate facilities and equipment; (2) the selection and
retention of competent physicians; (3) the overseeing or supervision of all persons who practice
medicine within its walls; and (4) the formulation, adoption and enforcement of adequate rules and
policies that ensure quality care for its patients.38 Thus, in Tucson Medical Center, Inc. v. Misevich,39 it
was held that a hospital, following the doctrine of corporate responsibility, has the duty to see that it
meets the standards of responsibilities for the care of patients. Such duty includes the proper
supervision of the members of its medical staff. And in Bost v. Riley,40 the court concluded that a
patient who enters a hospital does so with the reasonable expectation that it will attempt to cure him.
The hospital accordingly has the duty to make a reasonable effort to monitor and oversee the
treatment prescribed and administered by the physicians practicing in its premises.
In the present case, it was duly established that PSI operates the Medical City Hospital for the
purpose and under the concept of providing comprehensive medical services to the public.
Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted
into its facility for medical treatment. Unfortunately, PSI failed to perform such duty. The findings of
the trial court are convincing, thus:
x x x PSI’s liability is traceable to its failure to conduct an investigation of the matter reported in the
nota bene of the count nurse. Such failure established PSI’s part in the dark conspiracy of silence
and concealment about the gauzes. Ethical considerations, if not also legal, dictated the holding of
an immediate inquiry into the events, if not for the benefit of the patient to whom the duty is primarily
owed, then in the interest of arriving at the truth. The Court cannot accept that the medical and the
healing professions, through their members like defendant surgeons, and their institutions like PSI’s
hospital facility, can callously turn their backs on and disregard even a mere probability of mistake or
negligence by refusing or failing to investigate a report of such seriousness as the one in Natividad’s
case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the
Medical City Hospital’s staff, composed of resident doctors, nurses, and interns. As such, it is
reasonable to conclude that PSI, as the operator of the hospital, has actual or constructive
knowledge of the procedures carried out, particularly the report of the attending nurses that the two
pieces of gauze were missing. In Fridena v. Evans,41 it was held that a corporation is bound by the
knowledge acquired by or notice given to its agents or officers within the scope of their authority and
in reference to a matter to which their authority extends. This means that the knowledge of any of
the staff of Medical City Hospital constitutes knowledge of PSI. Now, the failure of PSI, despite the
attending nurses’ report, to investigate and inform Natividad regarding the missing gauzes amounts
to callous negligence. Not only did PSI breach its duties to oversee or supervise all persons who
practice medicine within its walls, it also failed to take an active step in fixing the negligence
committed. This renders PSI, not only vicariously liable for the negligence of Dr. Ampil under Article
2180 of the Civil Code, but also directly liable for its own negligence under Article 2176. In Fridena,
the Supreme Court of Arizona held:
x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded.
The emerging trend is to hold the hospital responsible where the hospital has failed to monitor and
review medical services being provided within its walls. See Kahn Hospital Malpractice Prevention,
27 De Paul . Rev. 23 (1977).

Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P.
2d 335 (1972). In Purcell, the hospital argued that it could not be held liable for the malpractice of a
medical practitioner because he was an independent contractor within the hospital. The Court of
Appeals pointed out that the hospital had created a professional staff whose competence and
performance was to be monitored and reviewed by the governing body of the hospital, and the court
held that a hospital would be negligent where it had knowledge or reason to believe that a doctor
using the facilities was employing a method of treatment or care which fell below the recognized
standard of care.
Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain
inherent responsibilities regarding the quality of medical care furnished to patients within its walls
and it must meet the standards of responsibility commensurate with this undertaking. Beeck v.
Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed the
rulings of the Court of Appeals that a hospital has the duty of supervising the competence of the
doctors on its staff. x x x.
x x
x
x x x
In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital
with its knowledge, aid, and assistance, and that the negligence of the defendants was the
proximate cause of the patient’s injuries. We find that such general allegations of negligence, along
with the evidence produced at the trial of this case, are sufficient to support the hospital’s liability
based on the theory of negligent supervision."
Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for damages, let it be
emphasized that PSI, apart from a general denial of its responsibility, failed to adduce evidence
showing that it exercised the diligence of a good father of a family in the accreditation and
supervision of the latter. In neglecting to offer such proof, PSI failed to discharge its burden under
the last paragraph of Article 2180 cited earlier, and, therefore, must be adjudged solidarily liable with
Dr. Ampil. Moreover, as we have discussed, PSI is also directly liable to the Aganas.
One final word. Once a physician undertakes the treatment and care of a patient, the law imposes
on him certain obligations. In order to escape liability, he must possess that reasonable degree of
learning, skill and experience required by his profession. At the same time, he must apply
reasonable care and diligence in the exercise of his skill and the application of his knowledge, and
exert his best judgment.
WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of
Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
SO ORDERED.

OSCAR DEL CARMEN, JR.,
Petitioner,
- versus -

G.R. No. 173870
Present:

GERONIMO BACOY, Guardian and
CORONA, C.J., Chairperson,
representing the children, namely:
LEONARDO-DE CASTRO,
MARY MARJORIE B. MONSALUD,
BERSAMIN,
ERIC B. MONSALUD, METZIE ANN
DEL CASTILLO, and
B. MONSALUD, KAREEN B.
VILLARAMA, JR., JJ.
MONSALUD, LEONARDO B.
MONSALUD, JR., and CRISTINA B.
MONSALUD,
Promulgated:
Respondents.
April 25, 2012
x------------------------------------------------------------------x

DECISION
DEL CASTILLO, J.:
In this Petition for Review on Certiorari,[1] the registered owner of a motor vehicle
challenges the Decision[2] dated July 11, 2006 of the Court of Appeals (CA) in CA-G.R.
CV No. 67764 which held him liable for damages to the heirs of the victims who were
run over by the said vehicle.
Factual Antecedents
At dawn on New Years Day of 1993, Emilia Bacoy Monsalud (Emilia), along with her
spouse Leonardo Monsalud, Sr. and their daughter Glenda Monsalud, were on their way
home
from
a
Christmas
party
they
attended
in Poblacion,
Sominot, Zamboanga Del Sur. Upon reaching Purok Paglaom in Sominot, they were
run over by a Fuso passenger jeep bearing plate number UV-PEK-600 that was being
driven by Allan Maglasang (Allan). The jeep was registered in the name of petitioner
Oscar del Carmen, Jr. (Oscar Jr.) and used as a public utility vehicle plying the Molave,
Zamboanga del Sur to Sominot, Zamboanga del Sur and vice versa route.
Because of the unfortunate incident, Criminal Case No. 93-10347 [3] for Reckless
Imprudence Resulting in Multiple Homicide was filed against Allan before the Regional
Trial Court of Molave, Zamboanga del Sur, Branch 23. In a Decision dated March 13,
1997, said court declared Allan guilty beyond reasonable doubt of the crime charged.[4]
During the pendency of said criminal case, Emilias father, Geronimo Bacoy
(Geronimo), in behalf of the six minor children[5] of the Monsaluds, filed Civil Case No.
96-20219,[6] an independent civil action for damages based on culpa aquiliana. Aside
from Allan, also impleaded therein were his alleged employers, namely, the spouses
Oscar del Carmen, Sr. (Oscar Sr.) and Norma del Carmen (Spouses del Carmen) and the
registered owner of the jeep, their son Oscar Jr. Geronimo prayed for the reimbursement
of funeral and burial expenses, as well as the award of attorneys fees, moral and
exemplary damages resulting from the death of the three victims, and loss of net income
earnings of Emilia who was employed as a public school teacher at the time of her death.
[7]

Defendants refused to assume civil liability for the victims deaths. Oscar Sr.
averred that the Monsaluds have no cause of action against them because he and his wife
do not own the jeep and that they were never the employers of Allan. [8] For his part,
Oscar Jr. claimed to be a victim himself. He alleged that Allan and his friends[9] stole his
jeep while it was parked beside his drivers rented house to take it for a joyride. Both he
and a vehicle mechanic testified that the subject jeep can easily be started by mere
pushing sans the ignition key. The vehicles engine shall then run but without any
headlights on.[10] And implying that this was the manner by which the vehicle was
illegally taken, Oscar Jr. submitted as part of his documentary evidence the
statements[11] of Jemar Alarcon (Jemar) and Benjamin Andujar (Benjamin). The two,
who were with Allan in the jeep at the time of the accident, declared before the
investigating officer that during said time, the vehicles headlights were off. Because of
this allegation, Oscar Jr. even filed before the same trial court a carnapping case against
Allan and his companions docketed as Criminal Case No. 93-10380. [12] The case was,
however, dismissed for insufficiency of evidence.[13]
Oscar Jr. clarified that Allan was his jeep conductor and that it was the latters
brother, Rodrigo Maglasang (Rodrigo), who was employed as the driver.[14] In any event,
Allans employment as conductor was already severed before the mishap occurred on
January 1, 1993 since he served as such conductor only from the first week of December
until December 14, 1992.[15] In support of this, Oscar Jr. presented as witnesses Faustino
Sismundo (Faustino) and Cresencio Junior Baobao (Cresencio). Faustino, a resident of
Molave, testified that when he boarded the jeep heading to Sominot on December 31,
1992, it was Cresencio who was the conductor. He also believed that Crecencio started to
work as such at around December 15 or 16, 1992.[16] Cresencio, for his part, testified that
he worked as Oscar Jr.s conductor from December 15, 1992 to January 1, 1993 and that
Rodrigo was his driver.[17] He stated that upon learning that the jeep figured in an
accident, he never bothered to verify the news. Instead, he went to Midsalip to work there
as a conductor for his brothers vehicle, thereby terminating his employment with Oscar
Jr.[18]
Oscar Jr. likewise testified that it was routinary that after a days trip, the jeep
would be parked beside Rodrigos rented house[19] for the next early-morning operation.
Geronimo, on the other hand, averred that Allan was still Oscar Jr.s employee
subsequent to December 14, 1992. To prove this, he presented as witnesses Saturnino

Jumawan (Saturnino) and Jose Navarro (Jose). Saturnino testified that he would pay his
fare to Allan every time he would board the jeep in going to Molave and that the last time
he rode the subject vehicle was on December 23, 1992. He also claimed that immediately
before January 1, 1993, Rodrigo and Allan used to park the jeep at the yard of his house.
[20]
Jose likewise attested that Allan was still the jeep conductor during the said period as
he had ridden the jeep many times in mid-December of 1992.[21]
Ruling of the Regional Trial Court
In its Decision[22] dated April 17, 2000, the RTC exculpated the spouses del
Carmen from civil liability for insufficiency of evidence. However, their son Oscar Jr.
was held civilly liable in a subsidiary capacity. The RTC anchored its ruling primarily on
the principle of res ipsa loquitur, i.e., that a presumption of negligence on the part of a
defendant may be inferred if the thing that caused an injury is shown to be under his
management and that in the ordinary course of things, the accident would not have
happened had there been an exercise of care. Said court ratiocinated that Oscar Jr., as the
registered owner of the jeep, managed and controlled the same through his driver
Rodrigo, in whose house the jeep was usually parked. Since both Oscar Jr. and Rodrigo
were well aware that the jeep could easily be started by a mere push even without the
ignition key, they should have taken the necessary precaution to prevent the vehicle from
being used by unauthorized persons like Allan. The RTC thus concluded that such lack of
proper precaution, due care and foresight constitute negligence making the registered
owner of the vehicle civilly liable for the damage caused by the same.
The RTC disposed of the case as follows:
Wherefore, judgment is hereby entered in favor of the plaintiffs and
against the defendants Allan Maglasang and Oscar del Carmen, Jr. ordering
1.

Defendant ALLAN MAGLASANG to pay the plaintiffs, and in case of
insolvency, for defendant OSCAR DEL CARMEN, JR., to pay the
plaintiffs, the following sums:
a.
b.

P73,112.00 for their funeral and burial expenses;
P1,000,000.00 moral damages for the death of the late Emilia
Monsalud;

c.
d.
e.
f.
g.
2.

P250,000.00 moral damages for the death of the late Leonardo
Monsalud, Sr.;
P250,000.00 moral damages for the death of the late Glenda
Monsalud;
P40, 000.00, for exemplary damages;
P20,000.00 attorneys fees; and
The cost of this proceedings.

The dismissal of the complaint as against the spouses OSCAR DEL
CARMEN SR. and NORMA DEL CARMEN.
SO ORDERED.[23]

Oscar Jr. moved for reconsideration[24] contending that the provision on vicarious
liability of the employer under Article 2180 of the Civil Code[25] requires the existence of
employer-employee relationship and that the employee was acting within the scope of his
employment when the tort occurred. He stressed that even assuming that Allan was his
employee, he was hired not as a driver but as a conductor. Hence, Allan acted beyond the
scope of his employment when he drove the jeep.
Oscar Jr. also stressed that the fact that the jeep was running without its headlights
on at the time of the accident indubitably shows that the same was stolen. He further
alleged that the jeep could not have been taken by only one person. As Rodrigo declared
in Criminal Case No. 93-10380 (carnapping case), based on his experience, the jeep
cannot be pushed by only one person but by at least five people in order for it to
start. This was due to the vehicles mass and the deep canal which separates the parking
area from the curved road that was obstructed by a house.[26]
Setting aside its earlier decision, the lower court in its Order [27] dated June 21,
2000 granted the Motion for Reconsideration and absolved Oscar Jr. from civil
liability. It cited Article 103 of the Revised Penal Code which provides that for an
employer to be subsidiarily liable for the criminal acts of his employee, the latter should
have committed the same in the discharge of his duties. The court agreed with Oscar Jr.
that this condition is wanting in Allans case as he was not acting in the discharge of his
duties as a conductor when he drove the jeep.
The court also declared the doctrine of res ipsa loquitur inapplicable since the
property owner cannot be made responsible for the damages caused by his property by

reason of the criminal acts of another. It then adjudged that only Allan should bear the
consequences of his criminal acts. Thus:
WHEREFORE, premises considered, the MOTION FOR
RECONSIDERATION is granted, and defendant OSCAR DEL CARMEN
JR. is hereby absolved from all civil liability arising from the felonious acts of
convicted accused ALLAN MAGLASANG.
IT IS SO ORDERED.[28]

Geronimo appealed.
Ruling of the Court of Appeals
In its July 11, 2006 Decision,[29] the CA granted the appeal.
In resolving the case, the CA first determined the preliminary issue of whether
there was an employer-employee relationship between Oscar Jr. and Allan at the time of
the accident. It ruled in the affirmative and gave more credence to the testimonies of
Geronimos witnesses than to those of Oscar Jr.s witnesses, Faustino and Cresencio. The
CA ratiocinated that unlike the witness presented by Geronimo, Faustino never resided
in Poblacion and thus has limited knowledge of the place. His testimony was also
unreliable considering that he only rode the subject jeep twice [30] during the last two
weeks of December 1992. As regards Cresencios testimony, the appellate court found it
puzzling why he appeared to have acted uninterested upon learning that the jeep was the
subject of an accident when it was his bread and butter. Said court likewise considered
questionable Oscar Jr.s asseveration that Cresencio replaced Allan as conductor when
Cresencio testified that he replaced a certain Sumagang Jr.[31]
With regard to the main issue, the CA adjudged Oscar Jr. liable to the heirs of the
victims based on the principle that the registered owner of a vehicle is directly and
primarily responsible for the injuries or death of third parties caused by the operation of
such vehicle. It disbelieved Oscar Jr.s defense that the jeep was stolen not only because
the carnapping case filed against Allan and his companions was dismissed but also
because, given the circumstances, Oscar Jr. is deemed to have given Allan the implied
permission to use the subject vehicle. To support its conclusion, the CA cited the
following circumstances: siblings Rodrigo and Allan were both employees assigned to

the said jeep; after a days work, said vehicle would be parked just beside Rodrigos house
where Allan also lived; the jeep could easily be started even without the use of an ignition
key; the said parking area was not fenced or secured to prevent the unauthorized use of
the vehicle which can be started even without the ignition key.
The dispositive portion of the CA Decision reads:
WHEREFORE, premises considered, the instant appeal is
GRANTED. The assailed Order dated 21 June 2000 of the Regional Trial
Court (Branch 23), Molave, Zamboanga del Sur, in Civil Case No. 96-20,219
is SET ASIDE and a new one is hereby entered. OSCAR DEL CARMEN, Jr.
and ALLAN MAGLASANG are held primarily liable, jointly and severally, to
pay plaintiffs-appellants:
1. Civil indemnity for the death of Emilia Bacoy Monsalud, Leonardo
Monsalud Sr., and Glenda Monsalud in the amount of Fifty thousand pesos
(P50,000.00) each or for the total amount of One hundred fifty thousand pesos
(P150,000.00);
2. Temperate damages in the amount of Twenty-five Thousand Pesos
(P25,000.00) each for the death of Emilia Monsalud, Leonardo Monsalud Sr.,
and Glenda Monsalud (collectively the Monsaluds) or for the total amount of
Seventy-five thousand pesos (P75,000.00);
3.
Moral damages in the amount of Fifty Thousand Pesos
(P50,000.00) each for the death of the Monsaluds or for a total amount of One
Hundred Fifty Thousand Pesos (P150,000.00);
4.

Exemplary damages of Forty Thousand Pesos (P40,000.00).

No pronouncement as to costs.
SO ORDERED. [32]

Issues

As a result of the adverse judgment, Oscar Jr. filed this Petition for Review
on Certiorari alleging that the CA erred in:
1.

x x x basing its conclusions and findings on speculations, surmises
and conjectures; misapprehension of facts which are in conflict with the
findings of the trial court;

2.

x x x declaring a question of substance not in accord with law and
with the applicable decisions of the Supreme Court;

3.

x x x departing from the regular course of the judicial proceedings
in the disposition of the appeal and [in going] beyond the issues of the
case.[33]

Oscar Jr. points out that the CA failed to consider the RTCs ruling in its June 21,
2000 Order which was in accord with Article 2180 of the Civil Code, i.e., that the tort
committed by an employee should have been done within the scope of his assigned tasks
for an employer to be held liable under culpa aquiliana. However, the CA never touched
upon this matter even if it was glaring that Allans driving the subject vehicle was not
within the scope of his previous employment as conductor. Moreover, Oscar Jr. insists
that his jeep was stolen and stresses that the liability of a registered owner of a vehicle as
to third persons, as well as the doctrine of res ipsa loquitur, should not apply to him. He
asserts that although Allan and his companions were not found to have committed the
crime of carnapping beyond reasonable doubt, it was nevertheless established that the
jeep was illicitly taken by them from a well secured area. This is considering that the
vehicle was running without its headlights on at the time of the accident, a proof that it
was started without the ignition key.
Our Ruling
Petitioners own evidence casts doubt on his
claim that his jeep was stolen by Allan and his
alleged cohorts. Negligence is presumed under
the doctrine of res ipsa loquitur.

Oscar Jr.s core defense to release him from responsibility for the death of the Monsaluds
is that his jeep was stolen. He highlights that the unauthorized taking of the jeep from the
parking area was indeed carried out by the clandestine and concerted efforts of Allan and
his five companions, notwithstanding the obstacles surrounding the parking area and the
weight of the jeep.
Notably, the carnapping case filed against Allan and his group was already
dismissed by the RTC for insufficiency of evidence. But even in this civil case and as
correctly concluded by the CA, the evidentiary standard of preponderance of evidence
required was likewise not met to support Oscar Jr.s claim that his jeep was unlawfully
taken.
Two of Allans co-accused in the carnapping case, Jemar and Benjamin, declared
before the police that when Allan invited them to ride with him, he was already driving
the jeep:
04. Q- On that night, on or about 11:30 oclock on December 31, 1992, where
were you?
A- I went to the disco near [the] Public Market[,] Sominot, Zamboanga del
Sur.
05. Q- While you were in disco place, do you know if there was an incident
[that] happened?
A- No sir but when I was in the disco place, at about 3:30 at dawn more or
less[,] January 1, 1993, Allan Maglasang arrived driving the jeep and
he invited me to ride together with Benjamin Andujar, Dioscoro Sol,
Arniel Rezada and Joven Orot.[34]
xxxx
04. Q- On that night, on or about 9:00 oclock in the evening more or less on
December 31, 1992, where were you?
A- I went to the disco at [the] Public Market[,] Sominot, Zamboanga del Sur.
05. Q- While you were in the disco place, do you know if there was an
incident [that] happened?
A- No, sir, but when I was in the disco place, at about 3:30 at dawn more or
less[,] January 1, 1993, Allan Maglasang arrive[d] driving the jeep and
he invited me to ride together with Jemar Alarcon, Dioscoro Sol, Arniel
Rizada and Joven Orot.[35]

There were six accused in the carnapping case. If Jemar and Benjamin were fetched by
Allan who was driving the jeep, this would mean that only three men pushed the jeep
contrary to Rodrigos testimony in Criminal Case No. 93-10380 that it has to be pushed
by at least five people so that it could start without the ignition key.
On direct examination,[36] Oscar Jr. was asked as to what Rodrigo, his driver who had
informed him about the accident on January 1, 1993 at around 7:00 a.m., turned over to
him after the incident, viz:
Q: When Rodrigo Maglasang, your driver informed you about the accident,
what did he carry with him if any and turned over to you?
A: The OR (Official Receipt) and the CR (Certificate of Registration) Sir.
Q: How about the key of the vehicle?
A: It was not turned over, Sir.[37]

Assuming arguendo that Allan stole the jeep by having the same pushed by a group, the
ignition key should then be with Rodrigo as he was entrusted with the jeeps
possession. Thus, at the time Rodrigo faced his employer hours after the incident, it is
reasonable to expect that the driver should have also returned the key to the operator
together with the Official Receipt and Certificate of Registration. Notably, Rodrigo did
not do so and instead, the key was allegedly handed over to the police for reasons
unexplained and not available from the records. Interestingly, Oscar Jr. never presented
Rodrigo as his witness. Neither was he able to attest on cross-examination that Allan
really stole the jeep by pushing or that the key was handed over to him by Rodrigo:
Q: On December 31, 1992, you did not know that it was Rodrigo Maglasang
who gave the key to Allan Maglasang. Is that correct?
A: I was not there. So, I do not know but he had an affidavit to show that he
turned it over to the police.
Q: What I was asking you is that, [o]n the night of December 31, 1992, when
it was driven by Allan Maglasang, you did not know that the key was
voluntarily given by Rodrigo Maglasang to Allan Maglasang?
A: I was not there.

Q: So, you could not testify on that, is that correct?
A: Yes Sir, I was not there.[38]

Furthermore, Oscar Jr. acknowledged the dismissal of the carnapping case, thus:
Q: Now, there was a case filed against Allan Maglasang and [his] x x x coaccused x x x [n]amely: Benjamin Andojar, Dioscoro Sol, Joven Orot,
[Jemar Azarcon] and [Arniel] Rizada, for carnapping. Is that correct?
A: Yes Sir.
Q: That case was filed by you because you alleged that on December 31,
1992, your jeep was carnapped by Allan Maglasang and his coaccused, the said mentioned, is that correct?
A: Yes Sir.
Q: You testified on the case in Aurora, is that correct?
A: Yes, Sir.
Q: And you could well remember that this representation is the counsel of the
co-accused of Allan Maglasang, is that correct?
A: Yes Sir.
Q: And that case for carnapping was dismissed, is that correct?
A: Yes Sir.
Q: Even the case of Allan Maglasang, was also dismissed, is that correct
A: Yes Sir.
Q: Because there was no sufficient evidence to establish that the jeep was
carnapped, is that correct?
A: Yes Sir.[39]

While Oscar Jr. highlights that the headlights were not on to support his claim that
his jeep was stolen, this circumstance by itself will not prove that it really was stolen. The
reason why the headlights were not on at the time of the accident was not sufficiently
established during the trial. Besides, the fact that the headlights were not on cannot be
exclusively attributed to the lack of ignition key in starting the jeep as there may be other
possibilities such as electrical problems, broken headlights, or that they were simply
turned off.

Hence, sans the testimony of witnesses and other relevant evidence to support the
defense of unauthorized taking, we cannot subscribe to Oscar Jr.s claim that his jeep was
stolen. The evidence on record brings forth more questions than clear-cut answers.
Oscar Jr. alleges that the presumption of negligence under the doctrine of res ipsa
loquitur (literally, the thing speaks for itself) should not have been applied because he
was vigilant in securing his vehicle. He claims that the jeep was parked in a well secured
area not remote to the watchful senses of its driver Rodrigo.
Under the doctrine of res ipsa loquitur, [w]here the thing that caused the injury
complained of is shown to be under the management of the defendant or his servants; and
the accident, in the ordinary course of things, would not happen if those who had
management or control used proper care, it affords reasonable evidence in the absence of
a sufficient, reasonable and logical explanation by defendant that the accident arose from
or was caused by the defendants want of care.[40] Res ipsa loquitur is merely evidentiary,
a mode of proof, or a mere procedural convenience, since it furnishes a substitute for, and
relieves a plaintiff of, the burden of producing a specific proof of negligence. [41] It
recognizes that parties may establish prima facienegligence without direct proof, thus, it
allows the principle to substitute for specific proof of negligence. It permits the plaintiff
to present along with proof of the accident, enough of the attending circumstances to
invoke the doctrine, create an inference or presumption of negligence and thereby place
on the defendant the burden of proving that there was no negligence on his part. [42] The
doctrine is based partly on the theory that the defendant in charge of the instrumentality
which causes the injury either knows the cause of the accident or has the best opportunity
of ascertaining it while the plaintiff has no such knowledge, and is therefore compelled to
allege negligence in general terms.[43]
The requisites of the doctrine of res ipsa loquitur as established by jurisprudence
are as follows:
1) the accident is of a kind which does not ordinarily occur unless
someone is negligent;
2) the cause of the injury was under the exclusive control of the person
in charge and

3) the injury suffered must not have been due to any voluntary action
or contribution on the part of the person injured.[44]

The above requisites are all present in this case. First, no person just
walking along the road would suddenly be sideswiped and run over by an on-rushing
vehicle unless the one in charge of the said vehicle had been negligent. Second, the jeep
which caused the injury was under the exclusive control of Oscar Jr. as its owner. When
Oscar Jr. entrusted the ignition key to Rodrigo, he had the power to instruct him with
regard to the specific restrictions of the jeeps use, including who or who may not drive
it. As he is aware that the jeep may run without the ignition key, he also has the
responsibility to park it safely and securely and to instruct his driver Rodrigo to observe
the same precaution. Lastly, there was no showing that the death of the victims was due
to any voluntary action or contribution on their part.
The aforementioned requisites having been met, there now arises a presumption of
negligence against Oscar Jr. which he could have overcome by evidence that he exercised
due care and diligence in preventing strangers from using his jeep. Unfortunately, he
failed to do so.
What this Court instead finds worthy of credence is the CAs conclusion that Oscar
Jr. gave his implied permission for Allan to use the jeep. This is in view of Oscar Jr.s
failure to provide solid proof that he ensured that the parking area is well secured and that
he had expressly imposed restrictions as to the use of the jeep when he entrusted the same
to his driver Rodrigo. As fittingly inferred by the CA, the jeep could have been endorsed
to Allan by his brother Rodrigo since as already mentioned, Oscar Jr. did not give
Rodrigo any specific and strict instructions on matters regarding its use. Rodrigo
therefore is deemed to have been given the absolute discretion as to the vehicles
operation, including the discretion to allow his brother Allan to use it.
The operator on record of a vehicle is primarily
responsible to third persons for the deaths or
injuries consequent to its operation, regardless
of whether the employee drove the registered
owners vehicle in connection with his
employment.

Without disputing the factual finding of the CA that Allan was still his
employee at the time of the accident, a finding which we see no reason to disturb, Oscar
Jr. contends that Allan drove the jeep in his private capacity and thus, an employers
vicarious liability for the employees fault under Article 2180 of the Civil Code cannot
apply to him.
The contention is no longer novel. In Aguilar Sr. v. Commercial Savings Bank,
the car of therein respondent bank caused the death of Conrado Aguilar, Jr. while
being driven by its assistant vice president. Despite Article 2180, we still held the bank
liable for damages for the accident as said provision should defer to the settled doctrine
concerning accidents involving registered motor vehicles, i.e., that the registered owner
of any vehicle, even if not used for public service, would primarily be responsible to the
public or to third persons for injuries caused the latter while the vehicle was being driven
on the highways or streets.[46] We have already ratiocinated that:
[45]

The main aim of motor vehicle registration is to identify the owner so that if
any accident happens, or that any damage or injury is caused by the vehicle on
the public highways, responsibility therefor can be fixed on a definite
individual, the registered owner. Instances are numerous where vehicles
running on public highways caused accidents or injuries to pedestrians or other
vehicles without positive identification of the owner or drivers, or with very
scant means of identification. It is to forestall these circumstances, so
inconvenient or prejudicial to the public, that the motor vehicle registration is
primarily ordained, in the interest of the determination of persons responsible
for damages or injuries caused on public highways.[47]

Absent the circumstance of unauthorized use [48] or that the subject vehicle was
stolen[49] which are valid defenses available to a registered owner, Oscar Jr. cannot escape
liability forquasi-delict resulting from his jeeps use.
All told and considering that the amounts of damages awarded are in accordance
with prevailing jurisprudence, the Court concurs with the findings of the CA and sustains
the awards made. In addition, pursuant to Eastern Shipping Lines, Inc. v. Court of
Appeals,[50] an interest of six percent (6%) per annum on the amounts awarded shall be
imposed, computed from the time the judgment of the RTC is rendered on April 17, 2000
and twelve percent (12%) per annum on such amount upon finality of this Decision until
the payment thereof.

WHEREFORE, premises considered, the instant petition is DENIED. The
Decision dated July 11, 2006 of the Court of Appeals in CA-G.R. CV No. 67764 is
hereby AFFIRMEDwith further MODIFICATION that an interest of six percent (6%)
per annum on the amounts awarded shall be imposed, computed from the time the
judgment of the Regional Trial Court, Branch 23, Molave, Zamboanga del Sur is
rendered on April 17, 2000 and twelve percent (12%) per annum on such amount upon
finality of this Decision until the payment thereof.
SO ORDERED.

MALAYAN INSURANCE CO.,
INC.,

G.R. No. 194320

Petitioner,

Present:

- versus -

VELASCO, JR., J.,
Chairperson,
PERALTA,
MENDOZA,

REYES,* and
RODELIO ALBERTO and

PERLAS-BERNABE, JJ.

ENRICO ALBERTO REYES,
Respondents.

Promulgated:
February 1, 2012

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

DECISION

VELASCO, JR., J.:

The Case
Before Us is a Petition for Review on Certiorari under Rule 45,
seeking to reverse and set aside the July 28, 2010 Decision [1] of
the Court of Appeals (CA) and its October 29, 2010
Resolution[2] denying the motion for reconsideration filed by
petitioner Malayan Insurance Co., Inc. (Malayan Insurance). The
July 28, 2010 CA Decision reversed and set aside the
Decision[3] dated February 2, 2009 of the Regional Trial Court,
Branch 51 in Manila.

The Facts
At around 5 oclock in the morning of December 17, 1995, an
accident occurred at the corner of EDSA and Ayala
Avenue, Makati City, involving four (4) vehicles, to wit: (1) a
Nissan Bus operated by Aladdin Transit with plate number NYS
381; (2) an Isuzu Tanker with plate number PLR 684; (3) a Fuzo
Cargo Truck with plate number PDL 297; and (4) a Mitsubishi
Galant with plate number TLM 732.[4]

Based on the Police Report issued by the on-the-spot
investigator, Senior Police Officer 1 Alfredo M. Dungga (SPO1
Dungga), the Isuzu Tanker was in front of the Mitsubishi Galant
with the Nissan Bus on their right side shortly before the vehicular
incident. All three (3) vehicles were at a halt along EDSA facing
the south direction when the Fuzo Cargo Truck simultaneously
bumped the rear portion of the Mitsubishi Galant and the rear left
portion of the Nissan Bus. Due to the strong impact, these two
vehicles were shoved forward and the front left portion of the
Mitsubishi Galant rammed into the rear right portion of the Isuzu
Tanker.[5]

Previously, particularly on December 15, 1994, Malayan
Insurance issued Car Insurance Policy No. PV-025-00220 in favor
of First Malayan Leasing and Finance Corporation (the assured),
insuring the aforementioned Mitsubishi Galant against third party
liability, own damage and theft, among others. Having insured the
vehicle against such risks, Malayan Insurance claimed in its
Complaint dated October 18, 1999 that it paid the damages
sustained by the assured amounting to PhP 700,000. [6]

Maintaining that it has been subrogated to the rights and
interests of the assured by operation of law upon its payment to
the latter, Malayan Insurance sent several demand letters to
respondents Rodelio Alberto (Alberto) and Enrico Alberto Reyes
(Reyes), the registered owner and the driver, respectively, of the
Fuzo Cargo Truck, requiring them to pay the amount it had paid to
the assured. When respondents refused to settle their liability,
Malayan Insurance was constrained to file a complaint for
damages for gross negligence against respondents. [7]

In their Answer, respondents asserted that they cannot be
held liable for the vehicular accident, since its proximate cause
was the reckless driving of the Nissan Bus driver.They alleged that
the speeding bus, coming from the service road of EDSA,
maneuvered its way towards the middle lane without due regard
to Reyes right of way. When the Nissan Bus abruptly stopped,
Reyes stepped hard on the brakes but the braking action could
not cope with the inertia and failed to gain sufficient traction. As a
consequence, the Fuzo Cargo Truck hit the rear end of the
Mitsubishi Galant, which, in turn, hit the rear end of the vehicle in
front of it. The Nissan Bus, on the other hand, sideswiped the Fuzo
Cargo Truck, causing damage to the latter in the amount of PhP
20,000. Respondents also controverted the results of the Police
Report, asserting that it was based solely on the biased narration
of the Nissan Bus driver.[8]

After the termination of the pre-trial proceedings, trial
ensued. Malayan Insurance presented the testimony of its lone
witness, a motor car claim adjuster, who attested that he
processed the insurance claim of the assured and verified the
documents submitted to him. Respondents, on the other hand,
failed to present any evidence.

In its Decision dated February 2, 2009, the trial court, in Civil
Case No. 99-95885, ruled in favor of Malayan Insurance and
declared respondents liable for damages. The dispositive portion
reads:

WHEREFORE, judgment is hereby rendered in favor
of the plaintiff against defendants jointly and severally to
pay plaintiff the following:
1. The amount of P700,000.00 with legal
interest from the time of the filing of the
complaint;
2. Attorneys fees of P10,000.00 and;
3. Cost of suit.

SO ORDERED.[9]

Dissatisfied, respondents filed an appeal with the CA,
docketed as CA-G.R. CV No. 93112. In its Decision dated July 28,
2010, the CA reversed and set aside the Decision of the trial court
and ruled in favor of respondents, disposing:

WHEREFORE, the foregoing considered, the instant
appeal is hereby GRANTED and the assailed Decision
dated 2 February 2009 REVERSED and SET ASIDE. The
Complaint
dated
18
October
1999
is
hereby DISMISSED for lack of merit. No costs.

SO ORDERED.[10]

The CA held that the evidence on record has failed to
establish not only negligence on the part of respondents, but also
compliance with the other requisites and the consequent right of
Malayan Insurance to subrogation. [11] It noted that the police
report, which has been made part of the records of the trial court,
was not properly identified by the police officer who conducted
the on-the-spot investigation of the subject collision. It, thus, held
that an appellate court, as a reviewing body, cannot rightly
appreciate firsthand the genuineness of an unverified and
unidentified document, much less accord it evidentiary value. [12]

Subsequently, Malayan Insurance filed its Motion for
Reconsideration, arguing that a police report is a prima
facie evidence of the facts stated in it. And inasmuch as they
never questioned the presentation of the report in evidence,
respondents are deemed to have waived their right to question its
authenticity and due execution.[13]
In its Resolution dated October 29, 2010, the CA denied the
motion for reconsideration. Hence, Malayan Insurance filed the
instant petition.

The Issues
In its Memorandum[14] dated June 27, 2011, Malayan
Insurance raises the following issues for Our consideration:

I

WHETHER THE CA ERRED IN REFUSING ADMISSIBILITY OF
THE POLICE REPORT SINCE THE POLICE INVESTIGATOR
WHO PREPARED THE SAME DID NOT ACTUALLY TESTIFY IN
COURT THEREON.

II
WHETHER THE SUBROGATION OF MALAYAN INSURANCE IS
IMPAIRED AND/OR DEFICIENT.

On the other hand, respondents submit the following issues
in its Memorandum[15] dated July 7, 2011:

I
WHETHER THE CA IS CORRECT IN DISMISSING THE
COMPLAINT FOR FAILURE OF MALAYAN INSURANCE TO
OVERCOME THE BURDEN OF PROOF REQUIRED TO
ESTABLISH THE NEGLIGENCE OF RESPONDENTS.

II
WHETHER THE PIECES OF EVIDENCE PRESENTED BY
MALAYAN INSURANCE ARE SUFFICIENT TO CLAIM FOR THE
AMOUNT OF DAMAGES.

III

WHETHER THE SUBROGATION OF MALAYAN INSURANCE
HAS PASSED COMPLIANCE AND REQUISITES AS PROVIDED
UNDER PERTINENT LAWS.

Essentially, the issues boil down to the following: (1) the
admissibility of the police report; (2) the sufficiency of the
evidence to support a claim for gross negligence; and (3) the
validity of subrogation in the instant case.
Our Ruling
The petition has merit.

Admissibility of the Police Report

Malayan Insurance contends that, even without the
presentation of the police investigator who prepared the police
report, said report is still admissible in evidence, especially since
respondents failed to make a timely objection to its presentation
in evidence.[16] Respondents counter that since the police report
was never confirmed by the investigating police officer, it cannot
be considered as part of the evidence on record. [17]

Indeed, under the rules of evidence, a witness can testify
only to those facts which the witness knows of his or her personal
knowledge, that is, which are derived from the witness own
perception.[18] Concomitantly, a witness may not testify on
matters which he or she merely learned from others either

because said witness was told or read or heard those matters.
[19]
Such testimony is considered hearsay and may not be received
as proof of the truth of what the witness has learned. This is
known as the hearsay rule.[20]

As discussed in D.M. Consunji, Inc. v. CA,[21] Hearsay is not
limited to oral testimony or statements; the general rule that
excludes hearsay as evidence applies to written, as well as oral
statements.

There are several exceptions to the hearsay rule under the
Rules of Court, among which are entries in official records.
[22]
Section 44, Rule 130 provides:
Entries in official records made in the performance
of his duty by a public officer of the Philippines, or by a
person in the performance of a duty specially enjoined by
law are prima facie evidence of the facts therein stated.

In Alvarez v. PICOP Resources,[23] this Court reiterated the
requisites for the admissibility in evidence, as an exception to the
hearsay rule of entries in official records, thus: (a) that the entry
was made by a public officer or by another person specially
enjoined by law to do so; (b) that it was made by the public officer
in the performance of his or her duties, or by such other person in
the performance of a duty specially enjoined by law; and (c) that
the public officer or other person had sufficient knowledge of the
facts by him or her stated, which must have been acquired by the
public officer or other person personally or through official
information.

Notably, the presentation of the police report itself is
admissible as an exception to the hearsay rule even if the police
investigator who prepared it was not presented in court, as long
as the above requisites could be adequately proved. [24]

Here, there is no dispute that SPO1 Dungga, the on-the-spot
investigator, prepared the report, and he did so in the
performance of his duty. However, what is not clear is whether
SPO1 Dungga had sufficient personal knowledge of the facts
contained in his report. Thus, the third requisite is lacking.

Respondents failed to make a timely objection to the police
reports presentation in evidence; thus, they are deemed to have
waived their right to do so. [25] As a result, the police report is still
admissible in evidence.

Sufficiency of Evidence

Malayan Insurance contends that since Reyes, the driver of
the Fuzo Cargo truck, bumped the rear of the Mitsubishi Galant,
he is presumed to be negligent unless proved otherwise. It further
contends that respondents failed to present any evidence to
overturn
the
presumption
of
negligence. [26] Contrarily,
respondents claim that since Malayan Insurance did not present
any witness who shall affirm any negligent act of Reyes in driving
the Fuzo Cargo truck before and after the incident, there is no

evidence which
respondents.[27]

would

show

negligence

on

the

part

of

We agree with Malayan Insurance. Even if We consider the
inadmissibility of the police report in evidence, still, respondents
cannot evade liability by virtue of the res ipsa loquitur doctrine.
The D.M. Consunji, Inc. case is quite elucidating:

Petitioners contention, however, loses relevance in
the face of the application of res ipsa loquitur by the CA.
The effect of the doctrine is to warrant a presumption or
inference that the mere fall of the elevator was a result of
the person having charge of the instrumentality was
negligent. As a rule of evidence, the doctrine of res ipsa
loquitur is peculiar to the law of negligence which
recognizes
that prima
facie negligence
may
be
established without direct proof and furnishes a substitute
for specific proof of negligence.

The concept of res ipsa loquitur has been explained
in this wise:

While negligence is not ordinarily inferred or
presumed, and while the mere happening of an
accident or injury will not generally give rise to an
inference or presumption that it was due to
negligence on defendants part, under the doctrine
of res ipsa loquitur, which means, literally, the thing
or transaction speaks for itself, or in one jurisdiction,

that the thing or instrumentality speaks for itself,
the facts or circumstances accompanying an injury
may be such as to raise a presumption, or at least
permit an inference of negligence on the part of the
defendant, or some other person who is charged
with negligence.

x x x where it is shown that the thing or
instrumentality which caused the injury complained
of was under the control or management of the
defendant, and that the occurrence resulting in the
injury was such as in the ordinary course of things
would not happen if those who had its control or
management used proper care, there is sufficient
evidence, or, as sometimes stated, reasonable
evidence, in the absence of explanation by the
defendant, that the injury arose from or was caused
by the defendants want of care.

One of the theoretical bases for the doctrine is its
necessity, i.e., that necessary evidence is absent or not
available.

The res ipsa loquitur doctrine is based in part
upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows
the cause of the accident or has the best
opportunity of ascertaining it and that the plaintiff
has no such knowledge, and therefore is compelled
to allege negligence in general terms and to rely
upon the proof of the happening of the accident in
order to establish negligence. The inference which

the doctrine permits is grounded upon the fact that
the chief evidence of the true cause, whether
culpable or innocent, is practically accessible to the
defendant but inaccessible to the injured person.

It has been said that the doctrine of res ipsa
loquitur furnishes a bridge by which a plaintiff,
without knowledge of the cause, reaches over to
defendant who knows or should know the cause, for
any explanation of care exercised by the defendant
in respect of the matter of which the plaintiff
complains. The res ipsa loquitur doctrine, another
court has said, is a rule of necessity, in that it
proceeds on the theory that under the peculiar
circumstances in which the doctrine is applicable, it
is within the power of the defendant to show that
there was no negligence on his part, and direct proof
of defendants negligence is beyond plaintiffs power.
Accordingly, some courts add to the three
prerequisites for the application of the res ipsa
loquitur doctrine the further requirement that for
the res ipsa loquitur doctrine to apply, it must
appear that the injured party had no knowledge or
means of knowledge as to the cause of the accident,
or that the party to be charged with negligence has
superior knowledge or opportunity for explanation of
the accident.

The CA held that all the requisites of res ipsa
loquitur are present in the case at bar:

There is no dispute that appellees husband fell
down from the 14th floor of a building to the
basement while he was working with appellants
construction project, resulting to his death. The
construction site is within the exclusive control and
management of appellant. It has a safety engineer,
a project superintendent, a carpenter leadman and
others who are in complete control of the situation
therein. The circumstances of any accident that
would occur therein are peculiarly within the
knowledge of the appellant or its employees. On the
other hand, the appellee is not in a position to know
what caused the accident. Res ipsa loquitur is a rule
of necessity and it applies where evidence is absent
or not readily available, provided the following
requisites are present: (1) the accident was of a kind
which does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency which
caused the injury was under the exclusive control of
the person charged with negligence; and (3) the
injury suffered must not have been due to any
voluntary action or contribution on the part of the
person injured. x x x.

No worker is going to fall from the 14th floor of
a building to the basement while performing work in
a construction site unless someone is negligent[;]
thus, the first requisite for the application of the rule
of res ipsa loquitur is present. As explained earlier,
the construction site with all its paraphernalia and
human resources that likely caused the injury is
under the exclusive control and management of
appellant[;] thus[,] the second requisite is also
present. No contributory negligence was attributed

to the appellees deceased husband[;] thus[,] the last
requisite is also present. All the requisites for the
application of the rule of res ipsa loquitur are
present, thus a reasonable presumption or inference
of appellants negligence arises. x x x.

Petitioner does not dispute the existence of the
requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was
negligent did not arise since it proved that it exercised
due care to avoid the accident which befell respondents
husband.

Petitioner apparently misapprehends the procedural
effect of the doctrine. As stated earlier, the defendants
negligence is presumed or inferred when the plaintiff
establishes the requisites for the application of res ipsa
loquitur. Once the plaintiff makes out a prima facie case
of all the elements, the burden then shifts to defendant to
explain. The presumption or inference may be rebutted or
overcome by other evidence and, under appropriate
circumstances a disputable presumption, such as that of
due care or innocence, may outweigh the inference. It is
not for the defendant to explain or prove its defense to
prevent the presumption or inference from arising.
Evidence by the defendant of say, due care, comes into
play only after the circumstances for the application of
the doctrine has been established.[28]

In the case at bar, aside from the statement in the police
report, none of the parties disputes the fact that the Fuzo Cargo
Truck hit the rear end of the Mitsubishi Galant, which, in turn, hit

the rear end of the vehicle in front of it. Respondents, however,
point to the reckless driving of the Nissan Bus driver as the
proximate cause of the collision, which allegation is totally
unsupported by any evidence on record. And assuming that this
allegation is, indeed, true, it is astonishing that respondents never
even bothered to file a cross-claim against the owner or driver of
the Nissan Bus.

What is at once evident from the instant case, however, is
the presence of all the requisites for the application of the rule
of res ipsa loquitur. To reiterate, res ipsa loquituris a rule of
necessity which applies where evidence is absent or not readily
available. As explained in D.M. Consunji, Inc., it is partly based
upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of
the accident or has the best opportunity of ascertaining it and
that the plaintiff has no such knowledge, and, therefore, is
compelled to allege negligence in general terms and to rely upon
the proof of the happening of the accident in order to establish
negligence.

As mentioned above, the requisites for the application of
the res ipsa loquitur rule are the following: (1) the accident was of
a kind which does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency which caused the
injury was under the exclusive control of the person charged with
negligence; and (3) the injury suffered must not have been due to
any voluntary action or contribution on the part of the person
injured.[29]

In the instant case, the Fuzo Cargo Truck would not have had
hit the rear end of the Mitsubishi Galant unless someone is

negligent. Also, the Fuzo Cargo Truck was under the exclusive
control of its driver, Reyes. Even if respondents avert liability by
putting the blame on the Nissan Bus driver, still, this allegation
was self-serving and totally unfounded. Finally, no contributory
negligence was attributed to the driver of the Mitsubishi Galant.
Consequently, all the requisites for the application of the doctrine
of res ipsa loquitur are present, thereby creating a reasonable
presumption of negligence on the part of respondents.

It is worth mentioning that just like any other disputable
presumptions or inferences, the presumption of negligence may
be rebutted or overcome by other evidence to the contrary. It is
unfortunate, however, that respondents failed to present any
evidence before the trial court. Thus, the presumption of
negligence remains. Consequently, the CA erred in dismissing the
complaint for Malayan Insurances adverted failure to prove
negligence on the part of respondents.

Validity of Subrogation

Malayan Insurance contends that there was a valid
subrogation in the instant case, as evidenced by the claim check
voucher[30] and the Release of Claim and Subrogation
Receipt[31] presented by it before the trial court. Respondents,
however, claim that the documents presented by Malayan
Insurance do not indicate certain important details that would
show proper subrogation.

As noted by Malayan Insurance, respondents had all the
opportunity, but failed to object to the presentation of its
evidence. Thus, and as We have mentioned earlier, respondents

are deemed to have waived their right to make an objection. As
this Court held in Asian Construction and Development
Corporation v. COMFAC Corporation:

The rule is that failure to object to the offered
evidence renders it admissible, and the court
cannot, on its own, disregard such evidence. We
note that ASIAKONSTRUCTs counsel of record before the
trial court, Atty. Bernard Dy, who actively participated in
the initial stages of the case stopped attending the
hearings when COMFAC was about to end its
presentation. Thus, ASIAKONSTRUCT could not object to
COMFACs offer of evidence nor present evidence in its
defense; ASIAKONSTRUCT was deemed by the trial court
to have waived its chance to do so.

Note also that when a party desires the court
to reject the evidence offered, it must so state in
the form of a timely objection and it cannot raise
the objection to the evidence for the first time on
appeal. Because of a partys failure to timely object,
the evidence becomes part of the evidence in the
case. Thereafter, all the parties are considered
bound by any outcome arising from the offer of
evidence properly presented.[32] (Emphasis supplied.)

Bearing in mind that the claim check voucher and the
Release of Claim and Subrogation Receipt presented by Malayan
Insurance are already part of the evidence on record, and since it

is not disputed that the insurance company, indeed, paid PhP
700,000 to the assured, then there is a valid subrogation in the
case at bar. As explained inKeppel Cebu Shipyard, Inc. v. Pioneer
Insurance and Surety Corporation:

Subrogation is the substitution of one person by
another with reference to a lawful claim or right, so that
he who is substituted succeeds to the rights of the other
in relation to a debt or claim, including its remedies or
securities. The principle covers a situation wherein an
insurer has paid a loss under an insurance policy is
entitled to all the rights and remedies belonging to the
insured against a third party with respect to any loss
covered by the policy. It contemplates full substitution
such that it places the party subrogated in the shoes of
the creditor, and he may use all means that the creditor
could employ to enforce payment.

We have held that payment by the insurer to the
insured operates as an equitable assignment to the
insurer of all the remedies that the insured may have
against the third party whose negligence or wrongful act
caused the loss. The right of subrogation is not dependent
upon, nor does it grow out of, any privity of contract. It
accrues simply upon payment by the insurance company
of the insurance claim. The doctrine of subrogation has its
roots in equity. It is designed to promote and to
accomplish justice; and is the mode that equity adopts to
compel the ultimate payment of a debt by one who, in
justice, equity, and good conscience, ought to pay.[33]

Considering the above ruling, it is only but proper that
Malayan Insurance be subrogated to the rights of the assured.

WHEREFORE, the petition is hereby GRANTED. The CAs
July 28, 2010 Decision and October 29, 2010 Resolution in CA-G.R.
CV
No.
93112
are
herebyREVERSED and SET
ASIDE.
The Decision dated February 2, 2009 issued by the trial court in
Civil Case No. 99-95885 is hereby REINSTATED.

No pronouncement as to cost.

SO ORDERED.

G.R. No. 126297

February 2, 2010

PROFESSIONAL SERVICES, INC., Petitioner,
vs.
THE COURT OF APPEALS and NATIVIDAD and ENRIQUE AGANA, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 126467
NATIVIDAD [substituted by her children Marcelino Agana III, Enrique Agana, Jr., Emma
Agana-Andaya, Jesus Agana and Raymund Agana] and ENRIQUE AGANA, Petitioners,
vs.
THE COURT OF APPEALS and JUAN FUENTES, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 127590
MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
RESOLUTION
CORONA, J.:
With prior leave of court,1 petitioner Professional Services, Inc. (PSI) filed a second motion for
reconsideration2urging referral thereof to the Court en banc and seeking modification of the decision
dated January 31, 2007 and resolution dated February 11, 2008 which affirmed its vicarious and
direct liability for damages to respondents Enrique Agana and the heirs of Natividad Agana
(Aganas).
Manila Medical Services, Inc. (MMSI),3 Asian Hospital, Inc. (AHI),4 and Private Hospital Association
of the Philippines (PHAP)5 all sought to intervene in these cases invoking the common ground that,
unless modified, the assailed decision and resolution will jeopardize the financial viability of private
hospitals and jack up the cost of health care.
The Special First Division of the Court granted the motions for intervention of MMSI, AHI and PHAP
(hereafter intervenors),6 and referred en consulta to the Court en banc the motion for prior leave of
court and the second motion for reconsideration of PSI.7
Due to paramount public interest, the Court en banc accepted the referral8 and heard the parties on
oral arguments on one particular issue: whether a hospital may be held liable for the negligence of
physicians-consultants allowed to practice in its premises. 9
To recall the salient facts, PSI, together with Dr. Miguel Ampil (Dr. Ampil) and Dr. Juan Fuentes (Dr.
Fuentes), was impleaded by Enrique Agana and Natividad Agana (later substituted by her heirs), in a

complaint10 for damages filed in the Regional Trial Court (RTC) of Quezon City, Branch 96, for the
injuries suffered by Natividad when Dr. Ampil and Dr. Fuentes neglected to remove from her body
two gauzes11 which were used in the surgery they performed on her on April 11, 1984 at the Medical
City General Hospital. PSI was impleaded as owner, operator and manager of the hospital.
In a decision12 dated March 17, 1993, the RTC held PSI solidarily liable with Dr. Ampil and Dr.
Fuentes for damages.13 On appeal, the Court of Appeals (CA), absolved Dr. Fuentes but affirmed the
liability of Dr. Ampil and PSI, subject to the right of PSI to claim reimbursement from Dr. Ampil. 14
1avvphi1

On petition for review, this Court, in its January 31, 2007 decision, affirmed the CA decision. 15 PSI
filed a motion for reconsideration16 but the Court denied it in a resolution dated February 11, 2008. 17
The Court premised the direct liability of PSI to the Aganas on the following facts and law:
First, there existed between PSI and Dr. Ampil an employer-employee relationship as contemplated
in the December 29, 1999 decision in Ramos v. Court of Appeals18 that "for purposes of allocating
responsibility in medical negligence cases, an employer-employee relationship exists between
hospitals and their consultants."19Although the Court in Ramos later issued a Resolution dated April
11, 200220 reversing its earlier finding on the existence of an employment relationship between
hospital and doctor, a similar reversal was not warranted in the present case because the defense
raised by PSI consisted of a mere general denial of control or responsibility over the actions of Dr.
Ampil.21
Second, by accrediting Dr. Ampil and advertising his qualifications, PSI created the public impression
that he was its agent.22 Enrique testified that it was on account of Dr. Ampil's accreditation with PSI
that he conferred with said doctor about his wife's (Natividad's) condition. 23 After his meeting with Dr.
Ampil, Enrique asked Natividad to personally consult Dr. Ampil. 24 In effect, when Enrigue and
Natividad engaged the services of Dr. Ampil, at the back of their minds was that the latter was a staff
member of a prestigious hospital. Thus, under the doctrine of apparent authority applied in Nogales,
et al. v. Capitol Medical Center, et al.,25 PSI was liable for the negligence of Dr. Ampil.
Finally, as owner and operator of Medical City General Hospital, PSI was bound by its duty to
provide comprehensive medical services to Natividad Agana, to exercise reasonable care to protect
her from harm,26 to oversee or supervise all persons who practiced medicine within its walls, and to
take active steps in fixing any form of negligence committed within its premises. 27 PSI committed a
serious breach of its corporate duty when it failed to conduct an immediate investigation into the
reported missing gauzes.28
PSI is now asking this Court to reconsider the foregoing rulings for these reasons:
I
The declaration in the 31 January 2007 Decision vis-a-vis the 11 February 2009 Resolution that the
ruling in Ramos vs. Court of Appeals (G.R. No. 134354, December 29, 1999) that "an employeremployee relations exists between hospital and their consultants" stays should be set aside for being
inconsistent with or contrary to the import of the resolution granting the hospital's motion for

reconsideration in Ramos vs. Court of Appeals (G.R. No. 134354, April 11, 2002), which is applicable
to PSI since the Aganas failed to prove an employer-employee relationship between PSI and Dr.
Ampil and PSI proved that it has no control over Dr. Ampil. In fact, the trial court has found that there
is no employer-employee relationship in this case and that the doctor's are independent contractors.
II
Respondents Aganas engaged Dr. Miguel Ampil as their doctor and did not primarily and specifically
look to the Medical City Hospital (PSI) for medical care and support; otherwise stated, respondents
Aganas did not select Medical City Hospital (PSI) to provide medical care because of any apparent
authority of Dr. Miguel Ampil as its agent since the latter was chosen primarily and specifically based
on his qualifications and being friend and neighbor.
III
PSI cannot be liable under doctrine of corporate negligence since the proximate cause of Mrs.
Agana's injury was the negligence of Dr. Ampil, which is an element of the principle of corporate
negligence.29
In their respective memoranda, intervenors raise parallel arguments that the Court's ruling on the
existence of an employer-employee relationship between private hospitals and consultants will force
a drastic and complex alteration in the long-established and currently prevailing relationships among
patient, physician and hospital, with burdensome operational and financial consequences and
adverse effects on all three parties.30
The Aganas comment that the arguments of PSI need no longer be entertained for they have all
been traversed in the assailed decision and resolution.31
After gathering its thoughts on the issues, this Court holds that PSI is liable to the Aganas, not under
the principle of respondeat superior for lack of evidence of an employment relationship with Dr. Ampil
but under the principle of ostensible agency for the negligence of Dr. Ampil and, pro hac vice, under
the principle of corporate negligence for its failure to perform its duties as a hospital.
While in theory a hospital as a juridical entity cannot practice medicine, 32 in reality it utilizes doctors,
surgeons and medical practitioners in the conduct of its business of facilitating medical and surgical
treatment.33 Within that reality, three legal relationships crisscross: (1) between the hospital and the
doctor practicing within its premises; (2) between the hospital and the patient being treated or
examined within its premises and (3) between the patient and the doctor. The exact nature of each
relationship determines the basis and extent of the liability of the hospital for the negligence of the
doctor.
Where an employment relationship exists, the hospital may be held vicariously liable under Article
217634 in relation to Article 218035 of the Civil Code or the principle of respondeat superior. Even
when no employment relationship exists but it is shown that the hospital holds out to the patient that
the doctor is its agent, the hospital may still be vicariously liable under Article 2176 in relation to
Article 143136 and Article 186937 of the Civil Code or the principle of apparent authority.38 Moreover,

regardless of its relationship with the doctor, the hospital may be held directly liable to the patient for
its own negligence or failure to follow established standard of conduct to which it should conform as
a corporation.39
This Court still employs the "control test" to determine the existence of an employer-employee
relationship between hospital and doctor. In Calamba Medical Center, Inc. v. National Labor
Relations Commission, et al.40 it held:
Under the "control test", an employment relationship exists between a physician and a hospital if the
hospital controls both the means and the details of the process by which the physician is to
accomplish his task.
xxx

xxx

xxx

As priorly stated, private respondents maintained specific work-schedules, as determined by
petitioner through its medical director, which consisted of 24-hour shifts totaling forty-eight hours
each week and which were strictly to be observed under pain of administrative sanctions.
That petitioner exercised control over respondents gains light from the undisputed fact that
in the emergency room, the operating room, or any department or ward for that matter,
respondents' work is monitored through its nursing supervisors, charge nurses and
orderlies. Without the approval or consent of petitioner or its medical director, no operations
can be undertaken in those areas. For control test to apply, it is not essential for the employer
to actually supervise the performance of duties of the employee, it being enough that it has
the right to wield the power. (emphasis supplied)
Even in its December 29, 1999 decision41 and April 11, 2002 resolution42 in Ramos, the Court found
the control test decisive.
In the present case, it appears to have escaped the Court's attention that both the RTC and the CA
found no employment relationship between PSI and Dr. Ampil, and that the Aganas did not
question such finding. In its March 17, 1993 decision, the RTC found "that defendant doctors were
not employees of PSI in its hospital, they being merely consultants without any employer-employee
relationship and in the capacity of independent contractors." 43 The Aganas never questioned such
finding.
PSI, Dr. Ampil and Dr. Fuentes appealed44 from the RTC decision but only on the issues of
negligence, agency and corporate liability. In its September 6, 1996 decision, the CA mistakenly
referred to PSI and Dr. Ampil as employer-employee, but it was clear in its discussion on the matter
that it viewed their relationship as one of mere apparent agency.45
The Aganas appealed from the CA decision, but only to question the exoneration of Dr.
Fuentes.46 PSI also appealed from the CA decision, and it was then that the issue of employment,
though long settled, was unwittingly resurrected.

In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampil had no employeremployee relationship, such finding became final and conclusive even to this Court. 47 There was no
reason for PSI to have raised it as an issue in its petition. Thus, whatever discussion on the matter
that may have ensued was purely academic.
Nonetheless, to allay the anxiety of the intervenors, the Court holds that, in this particular instance,
the concurrent finding of the RTC and the CA that PSI was not the employer of Dr. Ampil is correct.
Control as a determinative factor in testing the employer-employee relationship between doctor and
hospital under which the hospital could be held vicariously liable to a patient in medical negligence
cases is a requisite fact to be established by preponderance of evidence. Here, there was
insufficient evidence that PSI exercised the power of control or wielded such power over the means
and the details of the specific process by which Dr. Ampil applied his skills in the treatment of
Natividad. Consequently, PSI cannot be held vicariously liable for the negligence of Dr. Ampil under
the principle of respondeat superior.
There is, however, ample evidence that the hospital (PSI) held out to the patient (Natividad) 48 that the
doctor (Dr. Ampil) was its agent. Present are the two factors that determine apparent authority: first,
the hospital's implied manifestation to the patient which led the latter to conclude that the doctor was
the hospital's agent; and second, the patient’s reliance upon the conduct of the hospital and the
doctor, consistent with ordinary care and prudence.49
Enrique testified that on April 2, 1984, he consulted Dr. Ampil regarding the condition of his wife; that
after the meeting and as advised by Dr. Ampil, he "asked [his] wife to go to Medical City to be
examined by [Dr. Ampil]"; and that the next day, April 3, he told his daughter to take her mother to Dr.
Ampil.50 This timeline indicates that it was Enrique who actually made the decision on whom
Natividad should consult and where, and that the latter merely acceded to it. It explains the
testimony of Natividad that she consulted Dr. Ampil at the instigation of her daughter.51
Moreover, when asked what impelled him to choose Dr. Ampil, Enrique testified:
Atty. Agcaoili
On that particular occasion, April 2, 1984, what was your reason for choosing Dr. Ampil to contact
with in connection with your wife's illness?
A. First, before that, I have known him to be a specialist on that part of the body as a surgeon,
second, I have known him to be a staff member of the Medical City which is a prominent and
known hospital. And third, because he is a neighbor, I expect more than the usual medical service to
be given to us, than his ordinary patients.52 (emphasis supplied)
Clearly, the decision made by Enrique for Natividad to consult Dr. Ampil was significantly influenced
by the impression that Dr. Ampil was a staff member of Medical City General Hospital, and that said
hospital was well known and prominent. Enrique looked upon Dr. Ampil not as independent of but as
integrally related to Medical City.

PSI's acts tended to confirm and reinforce, rather than negate, Enrique's view. It is of record that PSI
required a "consent for hospital care"53 to be signed preparatory to the surgery of Natividad. The form
reads:
Permission is hereby given to the medical, nursing and laboratory staff of the Medical City General
Hospital to perform such diagnostic procedures and to administer such medications and
treatments as may be deemed necessary or advisable by the physicians of this hospital for
and during the confinement of xxx. (emphasis supplied)
By such statement, PSI virtually reinforced the public impression that Dr. Ampil was a physician of its
hospital, rather than one independently practicing in it; that the medications and treatments he
prescribed were necessary and desirable; and that the hospital staff was prepared to carry them
out.
1avvphi1

PSI pointed out in its memorandum that Dr. Ampil's hospital affiliation was not the exclusive basis of
the Aganas’ decision to have Natividad treated in Medical City General Hospital, meaning that, had
Dr. Ampil been affiliated with another hospital, he would still have been chosen by the Aganas as
Natividad's surgeon.54
The Court cannot speculate on what could have been behind the Aganas’ decision but would rather
adhere strictly to the fact that, under the circumstances at that time, Enrique decided to consult Dr.
Ampil for he believed him to be a staff member of a prominent and known hospital. After his meeting
with Dr. Ampil, Enrique advised his wife Natividad to go to the Medical City General Hospital to be
examined by said doctor, and the hospital acted in a way that fortified Enrique's belief.
This Court must therefore maintain the ruling that PSI is vicariously liable for the negligence of Dr.
Ampil as its ostensible agent.
Moving on to the next issue, the Court notes that PSI made the following admission in its Motion for
Reconsideration:
51. Clearly, not being an agent or employee of petitioner PSI, PSI [sic] is not liable for Dr. Ampil's
acts during the operation. Considering further that Dr. Ampil was personally engaged as a doctor by
Mrs. Agana, it is incumbent upon Dr. Ampil, as "Captain of the Ship", and as the Agana's doctor to
advise her on what to do with her situation vis-a-vis the two missing gauzes. In addition to noting
the missing gauzes, regular check-ups were made and no signs of complications were
exhibited during her stay at the hospital, which could have alerted petitioner PSI's hospital to
render and provide post-operation services to and tread on Dr. Ampil's role as the doctor of
Mrs. Agana. The absence of negligence of PSI from the patient's admission up to her
discharge is borne by the finding of facts in this case. Likewise evident therefrom is the
absence of any complaint from Mrs. Agana after her discharge from the hospital which had
she brought to the hospital's attention, could have alerted petitioner PSI to act accordingly
and bring the matter to Dr. Ampil's attention. But this was not the case. Ms. Agana
complained ONLY to Drs. Ampil and Fuentes, not the hospital. How then could PSI possibly
do something to fix the negligence committed by Dr. Ampil when it was not informed about it
at all.55 (emphasis supplied)

PSI reiterated its admission when it stated that had Natividad Agana "informed the hospital of her
discomfort and pain, the hospital would have been obliged to act on it."56
The significance of the foregoing statements is critical.
First, they constitute judicial admission by PSI that while it had no power to control the means or
method by which Dr. Ampil conducted the surgery on Natividad Agana, it had the power to review
or cause the review of what may have irregularly transpired within its walls strictly for the purpose
of determining whether some form of negligence may have attended any procedure done inside its
premises, with the ultimate end of protecting its patients.
Second, it is a judicial admission that, by virtue of the nature of its business as well as its
prominence57 in the hospital industry, it assumed a duty to "tread on" the "captain of the ship" role of
any doctor rendering services within its premises for the purpose of ensuring the safety of the
patients availing themselves of its services and facilities.
Third, by such admission, PSI defined the standards of its corporate conduct under the
circumstances of this case, specifically: (a) that it had a corporate duty to Natividad even after her
operation to ensure her safety as a patient; (b) that its corporate duty was not limited to having its
nursing staff note or record the two missing gauzes and (c) that its corporate duty extended to
determining Dr. Ampil's role in it, bringing the matter to his attention, and correcting his negligence.
And finally, by such admission, PSI barred itself from arguing in its second motion for reconsideration
that the concept of corporate responsibility was not yet in existence at the time Natividad underwent
treatment;58 and that if it had any corporate responsibility, the same was limited to reporting the
missing gauzes and did not include "taking an active step in fixing the negligence committed." 59 An
admission made in the pleading cannot be controverted by the party making such admission and is
conclusive as to him, and all proofs submitted by him contrary thereto or inconsistent therewith
should be ignored, whether or not objection is interposed by a party.60
Given the standard of conduct that PSI defined for itself, the next relevant inquiry is whether the
hospital measured up to it.
PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil assumed the personal
responsibility of informing Natividad about the two missing gauzes. 61 Dr. Ricardo Jocson, who was
part of the group of doctors that attended to Natividad, testified that toward the end of the surgery,
their group talked about the missing gauzes but Dr. Ampil assured them that he would personally
notify the patient about it.62Furthermore, PSI claimed that there was no reason for it to act on the
report on the two missing gauzes because Natividad Agana showed no signs of complications. She
did not even inform the hospital about her discomfort. 63
The excuses proffered by PSI are totally unacceptable.
To begin with, PSI could not simply wave off the problem and nonchalantly delegate to Dr. Ampil the
duty to review what transpired during the operation. The purpose of such review would have been to
pinpoint when, how and by whom two surgical gauzes were mislaid so that necessary remedial

measures could be taken to avert any jeopardy to Natividad’s recovery. Certainly, PSI could not have
expected that purpose to be achieved by merely hoping that the person likely to have mislaid the
gauzes might be able to retrace his own steps. By its own standard of corporate conduct, PSI's duty
to initiate the review was non-delegable.
While Dr. Ampil may have had the primary responsibility of notifying Natividad about the missing
gauzes, PSI imposed upon itself the separate and independent responsibility of initiating the inquiry
into the missing gauzes. The purpose of the first would have been to apprise Natividad of what
transpired during her surgery, while the purpose of the second would have been to pinpoint any
lapse in procedure that led to the gauze count discrepancy, so as to prevent a recurrence thereof
and to determine corrective measures that would ensure the safety of Natividad. That Dr. Ampil
negligently failed to notify Natividad did not release PSI from its self-imposed separate responsibility.
Corollary to its non-delegable undertaking to review potential incidents of negligence committed
within its premises, PSI had the duty to take notice of medical records prepared by its own staff and
submitted to its custody, especially when these bear earmarks of a surgery gone awry. Thus, the
record taken during the operation of Natividad which reported a gauze count discrepancy should
have given PSI sufficient reason to initiate a review. It should not have waited for Natividad to
complain.
As it happened, PSI took no heed of the record of operation and consequently did not initiate a
review of what transpired during Natividad’s operation. Rather, it shirked its responsibility and
passed it on to others – to Dr. Ampil whom it expected to inform Natividad, and to Natividad herself
to complain before it took any meaningful step. By its inaction, therefore, PSI failed its own standard
of hospital care. It committed corporate negligence.
It should be borne in mind that the corporate negligence ascribed to PSI is different from the medical
negligence attributed to Dr. Ampil. The duties of the hospital are distinct from those of the doctorconsultant practicing within its premises in relation to the patient; hence, the failure of PSI to fulfill its
duties as a hospital corporation gave rise to a direct liability to the Aganas distinct from that of Dr.
Ampil.
All this notwithstanding, we make it clear that PSI’s hospital liability based on ostensible agency and
corporate negligence applies only to this case, pro hac vice. It is not intended to set a precedent and
should not serve as a basis to hold hospitals liable for every form of negligence of their doctorsconsultants under any and all circumstances. The ruling is unique to this case, for the liability of PSI
arose from an implied agency with Dr. Ampil and an admitted corporate duty to Natividad. 64
Other circumstances peculiar to this case warrant this ruling, 65 not the least of which being that the
agony wrought upon the Aganas has gone on for 26 long years, with Natividad coming to the end of
her days racked in pain and agony. Such wretchedness could have been avoided had PSI simply
done what was logical: heed the report of a guaze count discrepancy, initiate a review of what went
wrong and take corrective measures to ensure the safety of Nativad. Rather, for 26 years, PSI
hemmed and hawed at every turn, disowning any such responsibility to its patient. Meanwhile, the
options left to the Aganas have all but dwindled, for the status of Dr. Ampil can no longer be
ascertained.66

Therefore, taking all the equities of this case into consideration, this Court believes P15 million would
be a fair and reasonable liability of PSI, subject to 12% p.a. interest from the finality of this resolution
to full satisfaction.
WHEREFORE, the second motion for reconsideration is DENIED and the motions for intervention
are NOTED.
Professional Services, Inc. is ORDERED pro hac vice to pay Natividad (substituted by her children
Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund Agana)
and Enrique Agana the total amount of P15 million, subject to 12% p.a. interest from the finality of
this resolution to full satisfaction.
No further pleadings by any party shall be entertained in this case.
Let the long-delayed entry of judgment be made in this case upon receipt by all concerned parties of
this resolution.
SO ORDERED.

DR. MILAGROS L. CANTRE,

G.R. No. 160889

Petitioner,
Present:

QUISUMBING, J., Chairperson,
CARPIO,
- versus -

CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

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

Promulgated:

April 27, 2007

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

DECISION

QUISUMBING, J.:

For review on certiorari are the Decision [1] dated October 3,
2002 and Resolution[2] dated November 19, 2003 of the Court of
Appeals in CA-G.R. CV No. 58184, which affirmed with
modification the Decision[3] dated March 3, 1997 of the Regional
Trial Court of Quezon City, Branch 98, in Civil Case No. Q-9316562.

The facts, culled from the records, are as follows:

Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics
and Gynecology at the Dr. Jesus Delgado Memorial Hospital. She
was the attending physician of respondent Nora S. Go, who was
admitted at the said hospital on April 19, 1992.
At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth
child, a baby boy. However, at around 3:30 a.m., Nora suffered
profuse bleeding inside her womb due to some parts of the
placenta which were not completely expelled from her womb after
delivery.
Consequently,
Nora
suffered hypovolemic shock,
resulting in a drop in her blood pressure to 40 over 0. Petitioner
and the assisting resident physician performed various medical
procedures to stop the bleeding and to restore Noras blood
pressure. Her blood pressure was frequently monitored with the
use of a sphygmomanometer. While petitioner was massaging
Noras uterus for it to contract and stop bleeding, she ordered a
droplight to warm Nora and her baby.[4] Nora remained
unconscious until she recovered.

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

On May 7, 1992, John David brought Nora to the National
Bureau of Investigation for a physical examination, which was
conducted by medico-legal officer Dr. FlorestoArizala, Jr.[7] The
medico-legal officer later testified that Noras injury appeared to
be a burn and that a droplight when placed near the skin for
about 10 minutes could cause such burn. [8] He dismissed the
likelihood that the wound was caused by a blood pressure cuff as
the scar was not around the arm, but just on one side of the arm.
[9]

On May 22, 1992, Noras injury was referred to a plastic
surgeon at the Dr. Jesus Delgado Memorial Hospital for skin
grafting.[10] Her wound was covered with skin sourced from her
abdomen, which consequently bore a scar as well. About a year
after, on April 30, 1993, scar revision had to be performed at the
same hospital.[11] The surgical operation left a healed linear scar
in Noras left arm about three inches in length, the thickest portion
rising about one-fourth (1/4) of an inch from the surface of the
skin. The costs of the skin grafting and the scar revision were
shouldered by the hospital.[12]

Unfortunately, Noras arm would never be the same. Aside
from the unsightly mark, the pain in her left arm remains. When
sleeping, she has to cradle her wounded arm. Her movements
now are also restricted. Her children cannot play with the left side
of her body as they might accidentally bump the injured arm,
which aches at the slightest touch.

Thus, on June 21, 1993, respondent spouses filed a
complaint[13] for damages against petitioner, Dr. Abad, and the
hospital. Finding in favor of respondent spouses, the trial court
decreed:

In view of the foregoing consideration, judgment is
hereby rendered in favor of the plaintiffs and against the
defendants, directing the latters, (sic) jointly and
severally
(a)

to pay the sum of Five Hundred Thousand
Pesos (P500,000.00) in moral damages;

(b)

to pay the sum of One Hundred Fifty Thousand
Pesos (P150,000.00) exemplary damages;

(c)

to pay the sum of Eighty Thousand Pesos
(P80,000.00) nominal damages;

(d)

to pay Fifty Thousand Pesos (P50,000.00) for
and as attorneys fees; and

(e)

to pay Six Thousand
litigation expenses.

Pesos

(P6,000.00)

SO ORDERED.[14]

Petitioner, Dr. Abad, and the hospital all appealed to the
Court of Appeals, which affirmed with modification the trial court
decision, thus:

WHEREFORE, in view of all the foregoing, and finding
no reversible error in the appealed Decision dated March
3, 1997 of Branch 98 of the Regional Trial Court of Quezon
City in Civil Case No. Q-93-16562, the same is hereby
AFFIRMED, with the following MODIFICATIONS:
1.

Ordering defendant-appellant Dra. Milagros
[L.] Cantre only to pay plaintiffs-appellees John
David Go and Nora S. Go the sum of
P200,000.00 as moral damages;

2.

Deleting the award [of] exemplary damages,
attorneys fees and expenses of litigation;

3.

Dismissing the complaint with respect to
defendants-appellants Dr. Rainerio S. Abad and
Delgado Clinic, Inc.;

4.

Dismissing the counterclaims of defendantsappellants for lack of merit; and

5.

Ordering defendant-appellant Dra.
[L.] Cantre only to pay the costs.

Milagros

SO ORDERED.[15]

Petitioners motion for reconsideration was denied by the
Court of Appeals. Hence, the instant petition assigning the
following as errors and issues:
I.
WHETHER OR NOT, THE LOWER COURT, AND THE COURT
OF APPEALS COMMITTED GRAVE ABUSE OF THEIR
DISCRETION WHEN, NOTWITHSTANDING THAT BOTH
PARTIES HAVE RESTED THEIR RESPECTIVE CASES, THE
LOWER COURT ADMITTED THE ADDITIONAL EXHIBITS
FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO
BY ANY WITNESS AND THIS DECISION OF THE LOWER
COURT WAS UPHELD BY THE COURT OF APPEALS
LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;
II.
WHETHER OR NOT THE LOWER COURT COMMITTED
GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO
PREPONDERANCE OF EVIDENCE PRESENTED BY THE
PETITIONER, IT RULED THAT THE PETITIONER HAS NOT

AMPLY SHOWED THAT THE DROPLIGHT DID NOT TOUCH
THE BODY OF MRS. NORA GO, AND THIS DECISION OF THE
LOWER COURT WAS UPHELD BY THE COURT OF APPEALS
LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;
III.
WHETHER OR NOT THE LOWER COURT COMMITTED
GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO
PREPONDERANCE OF EVIDENCE PRESENTED BY THE
PETITIONER, IT RULED THAT PETITIONER DRA. CANTRE
WAS NOT ABLE TO AMPLY EXPLAIN HOW THE INJURY
(BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT
MRS. GO CAME ABOUT;
IV.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF ITS DISCRETION WHEN IT MADE A
RULING ON THE RESPONDENTS INJURY QUOTING THE
TESTIMONY OF SOMEONE WHO WAS NOT PRESENT AND
HAS NOT SEEN THE ORIGINAL, FRESH INJURY OF
RESPONDENT MRS. NORA GO;
V.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ABUSING ITS DISCRETION RULED THAT PETITIONER DRA.
CANTRE SHOULD HAVE INTENDED TO INFLICT THE INJURY
TO SAVE THE LIFE OF RESPONDENT MRS. GO;
VI.
WHETHER OR NOT THE LOWER COURT AND THE COURT
[OF] APPEALS COMMITTED GRAVE ABUSE OF DISCRETION
WHEN, CONTRARY TO THE DETAILED PROCEDURES DONE
BY PETITIONER, BOTH RULED THAT THE RESPONDENT
WAS LEFT TO THE CARE OF THE NURSING STAFF;

VII.
WHETHER OR NOT THE LOWER COURT COMMITTED
GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE
MEDICAL PURPOSES OF COSMETIC SURGERY, IT RULED
THAT THE COSMETIC SURGERY MADE THE SCARS EVEN
MORE UGLY AND DECLARED THE COSMETIC SURGERY A
FAILURE;
VIII.
WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE
OF
(SIC)
DISCRETION
WHEN,
CONTRARY
TO
RESPONDENTS CONTRARY TESTIMONIES AND THE
ABSENCE OF ANY TESTIMONY, IT RULED THAT THEY ARE
ENTITLED TO DAMAGES AND WHICH WAS UPHELD,
ALTHOUGH MODIFIED, BY THE COURT OF APPEALS
LIKEWISE ABUSING ITS DISCRETION.[16]

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

Respondents, however, counter that the genuineness and
due execution of the additional documentary exhibits were duly
admitted by petitioners counsel. Respondents point out that

petitioners blood pressure cuff theory is highly improbable, being
unprecedented in medical history and that the injury was
definitely caused by the droplight. At any rate, they argue, even if
the injury was brought about by the blood pressure cuff, petitioner
was still negligent in her duties as Noras attending physician.

Simply put, the threshold issues for resolution are: (1) Are
the questioned additional exhibits admissible in evidence? (2) Is
petitioner liable for the injury suffered by respondent Nora
Go? Thereafter, the inquiry is whether the appellate court
committed grave abuse of discretion in its assailed issuances.

As to the first issue, we agree with the Court of Appeals that
said exhibits are admissible in evidence. We note that the
questioned exhibits consist mostly of Noras medical records,
which were produced by the hospital during trial pursuant to a
subpoena duces tecum.
Petitioners
counsel
admitted
the
existence of the same when they were formally offered for
admission by the trial court. In any case, given the particular
circumstances of this case, a ruling on the negligence of
petitioner may be made based on the res ipsaloquitur doctrine
even in the absence of such additional exhibits.

Petitioners contention that the medico-legal officer who
conducted Noras physical examination never saw her original
injury before plastic surgery was performed is without basis and
contradicted by the records. Records show that the medico-legal
officer conducted the physical examination on May 7, 1992, while
the skin grafting and the scar revision were performed on Nora
on May 22, 1992 and April 30, 1993, respectively.

Coming now to the substantive matter, is petitioner liable for
the injury suffered by respondent Nora Go?

The Hippocratic Oath mandates physicians to give primordial consideration
to the well-being of their patients. If a doctor fails to live up to this precept, he is
accountable for his acts. This notwithstanding, courts face a unique restraint in
adjudicating medical negligence cases because physicians are not guarantors of
care and, they never set out to intentionally cause injury to their patients. However,
intent is immaterial in negligence cases because where negligence exists and is
proven, it automatically gives the injured a right to reparation for the damage
caused.[17]

In cases involving medical negligence, the doctrine
of res ipsa loquitur allows the mere existence of an injury to
justify a presumption of negligence on the part of the person who
controls the instrument causing the injury, provided that the
following requisites concur:

1. The accident is of a kind which ordinarily does not
occur in the absence of someones negligence;

2. It is caused by an instrumentality within the exclusive
control of the defendant or defendants; and
3. The possibility of contributing conduct which would
make the plaintiff responsible is eliminated. [18]

As to the first requirement, the gaping wound on Noras arm
is certainly not an ordinary occurrence in the act of delivering a
baby, far removed as the arm is from the organs involved in the

process of giving birth. Such injury could not have happened
unless negligence had set in somewhere.

Second, whether the injury was caused by the droplight or
by the blood pressure cuff is of no moment. Both instruments are
deemed within the exclusive control of the physician in charge
under the captain of the ship doctrine. This doctrine holds the
surgeon in charge of an operation liable for the negligence of his
assistants during the time when those assistants are under the
surgeons control.[19] In this particular case, it can be logically
inferred that petitioner, the senior consultant in charge during the
delivery of Noras baby, exercised control over the assistants
assigned to both the use of the droplight and the taking of Noras
blood pressure. Hence, the use of the droplight and the blood
pressure cuff is also within petitioners exclusive control.

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

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

wound on her arm,[20] for which petitioner cannot escape liability
under the captain of the ship doctrine.

Further, petitioners argument that the failed plastic surgery
was not intended as a cosmetic procedure, but rather as a
measure to prevent complication does not help her case. It does
not negate negligence on her part.

Based on the foregoing, the presumption that petitioner was
negligent in the exercise of her profession stands unrebutted. In
this connection, the Civil Code provides:

ART. 2176. Whoever by act or omission causes
damage to another, there being fault or negligence, is
obliged to pay for the damage done.
ART. 2217. Moral damages include physical
suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock,
social humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be
recovered if they are the proximate result of the
defendants wrongful act or omission.

Clearly, under the law, petitioner is obliged to pay Nora for
moral damages suffered by the latter as a proximate result of
petitioners negligence.

We note, however, that petitioner has served well as Noras
obstetrician for her past three successful deliveries. This is the

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

G.R. No. 126297

January 31, 2007

PROFESSIONAL SERVICES, INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467

January 31, 2007

NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR.,
EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE
AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590

January 31, 2007

MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankind’s most important and delicate endeavors, must
assume the grave responsibility of pursuing it with appropriate care. The care and service dispensed
through this high trust, however technical, complex and esoteric its character may be, must meet
standards of responsibility commensurate with the undertaking to preserve and protect the health,
and indeed, the very lives of those placed in the hospital’s keeping.1
Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals’
Decision2 dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming
with modification the Decision3 dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96,
Quezon City in Civil Case No. Q-43322 and nullifying its Order dated September 21, 1993.
The facts, as culled from the records, are:

On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City
Hospital) because of difficulty of bowel movement and bloody anal discharge. After a series of
medical examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering
from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of the Medical City Hospital, performed an
anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had
spread on her left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained
the consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R.
No. 126467, to perform hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and
closed the incision.
However, the operation appeared to be flawed. In the corresponding Record of Operation dated April
11, 1984, the attending nurses entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no avail continue for closure."
On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including
the doctors’ fees, amounted to P60,000.00.
After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted
both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of
the surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous
nodes which were not removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further
treatment. After four months of consultations and laboratory examinations, Natividad was told she
was free of cancer. Hence, she was advised to return to the Philippines.
On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks
thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being informed
about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze
measuring 1.5 inches in width. He then assured her that the pains would soon vanish.
Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek
treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected
the presence of another foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in
width which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive
organs which forced stool to excrete through the vagina. Another surgical operation was needed to
remedy the damage. Thus, in October 1984, Natividad underwent another surgery.

On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a
complaint for damages against the Professional Services, Inc. (PSI), owner of the Medical City
Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. They alleged that the
latter are liable for negligence for leaving two pieces of gauze inside Natividad’s body and
malpractice for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an
administrative complaint for gross negligence and malpractice against Dr. Ampil and Dr. Fuentes,
docketed as Administrative Case No. 1690. The PRC Board of Medicine heard the case only with
respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was then in the
United States.
On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly
substituted by her above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and
Dr. Fuentes liable for negligence and malpractice, the decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants
PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the
plaintiffs, jointly and severally, except in respect of the award for exemplary damages and the
interest thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of
P21.60-US$1.00, as reimbursement of actual expenses incurred in the United States
of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;
c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic
Hospital, medical fees, and cost of the saline solution;
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;
4. As attorney’s fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the
complaint until full payment; and
6. Costs of suit.
SO ORDERED.

Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed
as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its
Decision, which was granted in an Order dated May 11, 1993. Thereafter, the sheriff levied upon
certain properties of Dr. Ampil and sold them for P451,275.00 and delivered the amount to the
Aganas.
Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr.
Fuentes to indefinitely suspend any further execution of the RTC Decision. However, not long
thereafter, the Aganas again filed a motion for an alias writ of execution against the properties of PSI
and Dr. Fuentes. On September 21, 1993, the RTC granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to file with the Court of Appeals a petition for certiorari
and prohibition, with prayer for preliminary injunction, docketed as CA-G.R. SP No. 32198. During its
pendency, the Court of Appeals issued a Resolution5 dated October 29, 1993 granting Dr. Fuentes’
prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision 6 in
Administrative Case No. 1690 dismissing the case against Dr. Fuentes. The Board held that the
prosecution failed to show that Dr. Fuentes was the one who left the two pieces of gauze inside
Natividad’s body; and that he concealed such fact from Natividad.
On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV
No. 42062 and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case against defendant-appellant Dr. Juan
Fuentes is hereby DISMISSED, and with the pronouncement that defendant-appellant Dr. Miguel
Ampil is liable to reimburse defendant-appellant Professional Services, Inc., whatever amount the
latter will pay or had paid to the plaintiffs-appellees, the decision appealed from is hereby
AFFIRMED and the instant appeal DISMISSED.
Concomitant with the above, the petition for certiorari and prohibition filed by herein defendantappellant Dr. Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order
of the respondent judge dated September 21, 1993, as well as the alias writ of execution issued
pursuant thereto are hereby NULLIFIED and SET ASIDE. The bond posted by the petitioner in
connection with the writ of preliminary injunction issued by this Court on November 29, 1993 is
hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution 7 dated December
19, 1996.

Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is
estopped from raising the defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr.
Ampil; and (3) it is not entitled to its counterclaim against the Aganas. PSI contends that Dr. Ampil is
not its employee, but a mere consultant or independent contractor. As such, he alone should answer
for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes
is not guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They
contend that the pieces of gauze are prima facie proofs that the operating surgeons have been
negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for
negligence and malpractice sans evidence that he left the two pieces of gauze in Natividad’s vagina.
He pointed to other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in performing
the hysterectomy; (2) the attending nurses’ failure to properly count the gauzes used during surgery;
and (3) the medical intervention of the American doctors who examined Natividad in the United
States of America.
For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr.
Ampil liable for negligence and malpractice; second, whether the Court of Appeals erred in absolving
Dr. Fuentes of any liability; and third, whether PSI may be held solidarily liable for the negligence of
Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other possible causes of
Natividad’s detriment. He argues that the Court should not discount either of the following
possibilities: first, Dr. Fuentes left the gauzes in Natividad’s body after performing hysterectomy;
second, the attending nurses erred in counting the gauzes; and third, the American doctors were the
ones who placed the gauzes in Natividad’s body.
Dr. Ampil’s arguments are purely conjectural and without basis. Records show that he did not
present any evidence to prove that the American doctors were the ones who put or left the gauzes in
Natividad’s body. Neither did he submit evidence to rebut the correctness of the record of operation,
particularly the number of gauzes used. As to the alleged negligence of Dr. Fuentes, we are mindful
that Dr. Ampil examined his (Dr. Fuentes’) work and found it in order.
The glaring truth is that all the major circumstances, taken together, as specified by the Court of
Appeals, directly point to Dr. Ampil as the negligent party, thus:

First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of
the patient during the surgical operation.
Second, immediately after the operation, the nurses who assisted in the surgery noted in
their report that the ‘sponge count (was) lacking 2’; that such anomaly was ‘announced to
surgeon’ and that a ‘search was done but to no avail’ prompting Dr. Ampil to ‘continue for
closure’ x x x.
Third, after the operation, two (2) gauzes were extracted from the same spot of the body of
Mrs. Agana where the surgery was performed.
An operation requiring the placing of sponges in the incision is not complete until the sponges are
properly removed, and it is settled that the leaving of sponges or other foreign substances in the
wound after the incision has been closed is at least prima facie negligence by the operating
surgeon.8 To put it simply, such act is considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of authorities to the effect that such act is
negligence per se.9
Of course, the Court is not blind to the reality that there are times when danger to a patient’s life
precludes a surgeon from further searching missing sponges or foreign objects left in the body. But
this does not leave him free from any obligation. Even if it has been shown that a surgeon was
required by the urgent necessities of the case to leave a sponge in his patient’s abdomen, because
of the dangers attendant upon delay, still, it is his legal duty to so inform his patient within a
reasonable time thereafter by advising her of what he had been compelled to do. This is in order that
she might seek relief from the effects of the foreign object left in her body as her condition might
permit. The ruling in Smith v. Zeagler10 is explicit, thus:
The removal of all sponges used is part of a surgical operation, and when a physician or surgeon
fails to remove a sponge he has placed in his patient’s body that should be removed as part of the
operation, he thereby leaves his operation uncompleted and creates a new condition which imposes
upon him the legal duty of calling the new condition to his patient’s attention, and endeavoring with
the means he has at hand to minimize and avoid untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even
misled her that the pain she was experiencing was the ordinary consequence of her operation. Had
he been more candid, Natividad could have taken the immediate and appropriate medical remedy to
remove the gauzes from her body. To our mind, what was initially an act of negligence by Dr. Ampil
has ripened into a deliberate wrongful act of deceiving his patient.
This is a clear case of medical malpractice or more appropriately, medical negligence. To
successfully pursue this kind of case, a patient must only prove that a health care provider either
failed to do something which a reasonably prudent health care provider would have done, or that he
did something that a reasonably prudent provider would not have done; and that failure or action
caused injury to the patient.11 Simply put, the elements are duty, breach, injury and proximate
causation. Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as
gauzes, from Natividad’s body before closure of the incision. When he failed to do so, it was his duty

to inform Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to Natividad,
necessitating her further examination by American doctors and another surgery. That Dr. Ampil’s
negligence is the proximate cause12 of Natividad’s injury could be traced from his act of closing the
incision despite the information given by the attending nurses that two pieces of gauze were still
missing. That they were later on extracted from Natividad’s vagina established the causal link
between Dr. Ampil’s negligence and the injury. And what further aggravated such injury was his
deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground
that it is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces of
gauze were left inside Natividad’s body is a prima facie evidence of Dr. Fuentes’ negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for itself." It is 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 Stated differently, where the thing which caused the
injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is
such that it should not have occurred if he, having such control used proper care, it affords
reasonable evidence, in the absence of explanation that the injury arose from the defendant’s want
of care, and the burden of proof is shifted to him to establish that he has observed due care and
diligence.14
From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res
ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the
control and management of the defendant; (3) the occurrence was such that in the ordinary course
of things, would not have happened if those who had control or management used proper care; and
(4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental
is the "control and management of the thing which caused the injury." 15
We find the element of "control and management of the thing which caused the injury" to be wanting.
Hence, the doctrine of res ipsa loquitur will not lie.
It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He
requested the assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found
that the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the
surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding
everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed
operating on Natividad. He was about to finish the procedure when the attending nurses informed

him that two pieces of gauze were missing. A "diligent search" was conducted, but the misplaced
gauzes were not found. Dr. Ampil then directed that the incision be closed. During this entire period,
Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital.
Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the
surgery room and all personnel connected with the operation. Their duty is to obey his orders. 16 As
stated before, Dr. Ampil was the lead surgeon. In other words, he was the "Captain of the Ship." That
he discharged such role is evident from his following conduct: (1) calling Dr. Fuentes to perform a
hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’
permission to leave; and (4) ordering the closure of the incision. To our mind, it was this act of
ordering the closure of the incision notwithstanding that two pieces of gauze remained unaccounted
for, that caused injury to Natividad’s body. Clearly, the control and management of the thing which
caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or
constitute an independent or separate ground of liability, being a mere evidentiary rule. 17 In other
words, mere invocation and application of the doctrine does not dispense with the requirement of
proof of negligence. Here, the negligence was proven to have been committed by Dr. Ampil and not
by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical development of hospitals and the resulting
theories concerning their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical
services to the lowest classes of society, without regard for a patient’s ability to pay.18 Those who
could afford medical treatment were usually treated at home by their doctors. 19 However, the days of
house calls and philanthropic health care are over. The modern health care industry continues to
distance itself from its charitable past and has experienced a significant conversion from a not-forprofit health care to for-profit hospital businesses. Consequently, significant changes in health law
have accompanied the business-related changes in the hospital industry. One important legal
change is an increase in hospital liability for medical malpractice. Many courts now allow claims for
hospital vicarious liability under the theories of respondeat superior, apparent authority, ostensible
authority, or agency by estoppel. 20
In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code,
which reads:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.

A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of
respondeat superior, thus:
ART. 2180. 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.
x x x
x x x
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.
x x x
x x x
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.
A prominent civilist commented that professionals engaged by an employer, such as physicians,
dentists, and pharmacists, are not "employees" under this article because the manner in which they
perform their work is not within the control of the latter (employer). In other words, professionals are
considered personally liable for the fault or negligence they commit in the discharge of their duties,
and their employer cannot be held liable for such fault or negligence. In the context of the present
case, "a hospital cannot be held liable for the fault or negligence of a physician or surgeon in the
treatment or operation of patients."21
The foregoing view is grounded on the traditional notion that the professional status and the very
nature of the physician’s calling preclude him from being classed as an agent or employee of a
hospital, whenever he acts in a professional capacity.22 It has been said that medical practice strictly
involves highly developed and specialized knowledge,23 such that physicians are generally free to
exercise their own skill and judgment in rendering medical services sans interference. 24 Hence, when
a doctor practices medicine in a hospital setting, the hospital and its employees are deemed to
subserve him in his ministrations to the patient and his actions are of his own responsibility.25
The case of Schloendorff v. Society of New York Hospital26 was then considered an authority for this
view. The "Schloendorff doctrine" regards a physician, even if employed by a hospital, as an
independent contractor because of the skill he exercises and the lack of control exerted over his
work. Under this doctrine, hospitals are exempt from the application of the respondeat superior
principle for fault or negligence committed by physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened with the significant developments in
medical care. Courts came to realize that modern hospitals are increasingly taking active role in
supplying and regulating medical care to patients. No longer were a hospital’s functions limited to
furnishing room, food, facilities for treatment and operation, and attendants for its patients. Thus, in
Bing v. Thunig,27 the New York Court of Appeals deviated from the Schloendorff doctrine, noting that

modern hospitals actually do far more than provide facilities for treatment. Rather, they regularly
employ, on a salaried basis, a large staff of physicians, interns, nurses, administrative and manual
workers. They charge patients for medical care and treatment, even collecting for such services
through legal action, if necessary. The court then concluded that there is no reason to exempt
hospitals from the universal rule of respondeat superior.
In our shores, the nature of the relationship between the hospital and the physicians is rendered
inconsequential in view of our categorical pronouncement in Ramos v. Court of Appeals 28 that for
purposes of apportioning responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending and visiting physicians. This Court
held:
"We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting "consultants," who
are allegedly not hospital employees, presents problems in apportioning responsibility for negligence
in medical malpractice cases. However, the difficulty is 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. x x x.
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, x x x, the control exercised, the
hiring, and the right to terminate consultants all fulfill the important hallmarks of an employeremployee 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 employeremployee relationship in effect exists between hospitals and their attending and visiting physicians. "
But the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its liability is also
anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine of
corporate negligence which have gained acceptance in the determination of a hospital’s liability for

negligent acts of health professionals. The present case serves as a perfect platform to test the
applicability of these doctrines, thus, enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as the "holding
out" theory, or doctrine of ostensible agency or agency by estoppel,29 has its origin from the law of
agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather
because of the actions of a principal or an employer in somehow misleading the public into believing
that the relationship or the authority exists.30 The concept is essentially one of estoppel and has been
explained in this manner:
"The principal is bound by the acts of his agent with the apparent authority which he knowingly
permits the agent to assume, or which he holds the agent out to the public as possessing. The
question in every case is whether the principal has by his voluntary act placed the agent in such a
situation that a person of ordinary prudence, conversant with business usages and the nature of the
particular business, is justified in presuming that such agent has authority to perform the particular
act in question.31
The applicability of apparent authority in the field of hospital liability was upheld long time ago in
Irving v. Doctor Hospital of Lake Worth, Inc.32 There, it was explicitly stated that "there does not
appear to be any rational basis for excluding the concept of apparent authority from the field of
hospital liability." Thus, in cases where it can be shown that a hospital, by its actions, has held out a
particular physician as its agent and/or employee and that a patient has accepted treatment from
that physician in the reasonable belief that it is being rendered in behalf of the hospital, then the
hospital will be liable for the physician’s negligence.
Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the
Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack
of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf
without authority.
In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and
specializations of the physicians associated or accredited by it, including those of Dr. Ampil and Dr.
Fuentes. We concur with the Court of Appeals’ conclusion that it "is now estopped from passing all
the blame to the physicians whose names it proudly paraded in the public directory leading the
public to believe that it vouched for their skill and competence." Indeed, PSI’s act is tantamount to
holding out to the public that Medical City Hospital, through its accredited physicians, offers quality
health care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their
qualifications, the hospital created the impression that they were its agents, authorized to perform
medical or surgical services for its patients. As expected, these patients, Natividad being one of
them, accepted the services on the reasonable belief that such were being rendered by the hospital
or its employees, agents, or servants. The trial court correctly pointed out:

x x x regardless of the education and status in life of the patient, he ought not be burdened with the
defense of absence of employer-employee relationship between the hospital and the independent
physician whose name and competence are certainly certified to the general public by the hospital’s
act of listing him and his specialty in its lobby directory, as in the case herein. The high costs of
today’s medical and health care should at least exact on the hospital greater, if not broader, legal
responsibility for the conduct of treatment and surgery within its facility by its accredited physician or
surgeon, regardless of whether he is independent or employed."33
The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable
of acting only through other individuals, such as physicians. If these accredited physicians do their
job well, the hospital succeeds in its mission of offering quality medical services and thus profits
financially. Logically, where negligence mars the quality of its services, the hospital should not be
allowed to escape liability for the acts of its ostensible agents.
We now proceed to the doctrine of corporate negligence or corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI
as owner, operator and manager of Medical City Hospital, "did not perform the necessary
supervision nor exercise diligent efforts in the supervision of Drs. Ampil and Fuentes and its nursing
staff, resident doctors, and medical interns who assisted Drs. Ampil and Fuentes in the performance
of their duties as surgeons."34 Premised on the doctrine of corporate negligence, the trial court held
that PSI is directly liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem
of allocating hospital’s liability for the negligent acts of health practitioners, absent facts to support
the application of respondeat superior or apparent authority. Its formulation proceeds from the
judiciary’s acknowledgment that in these modern times, the duty of providing quality medical service
is no longer the sole prerogative and responsibility of the physician. The modern hospitals have
changed structure. Hospitals now tend to organize a highly professional medical staff whose
competence and performance need to be monitored by the hospitals commensurate with their
inherent responsibility to provide quality medical care.35
The doctrine has its genesis in Darling v. Charleston Community Hospital.36 There, the Supreme
Court of Illinois held that "the jury could have found a hospital negligent, inter alia, in failing to have a
sufficient number of trained nurses attending the patient; failing to require a consultation with or
examination by members of the hospital staff; and failing to review the treatment rendered to the
patient." On the basis of Darling, other jurisdictions held that a hospital’s corporate negligence
extends to permitting a physician known to be incompetent to practice at the hospital. 37 With the
passage of time, more duties were expected from hospitals, among them: (1) the use of reasonable
care in the maintenance of safe and adequate facilities and equipment; (2) the selection and
retention of competent physicians; (3) the overseeing or supervision of all persons who practice
medicine within its walls; and (4) the formulation, adoption and enforcement of adequate rules and
policies that ensure quality care for its patients.38 Thus, in Tucson Medical Center, Inc. v. Misevich,39 it
was held that a hospital, following the doctrine of corporate responsibility, has the duty to see that it

meets the standards of responsibilities for the care of patients. Such duty includes the proper
supervision of the members of its medical staff. And in Bost v. Riley,40 the court concluded that a
patient who enters a hospital does so with the reasonable expectation that it will attempt to cure him.
The hospital accordingly has the duty to make a reasonable effort to monitor and oversee the
treatment prescribed and administered by the physicians practicing in its premises.
In the present case, it was duly established that PSI operates the Medical City Hospital for the
purpose and under the concept of providing comprehensive medical services to the public.
Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted
into its facility for medical treatment. Unfortunately, PSI failed to perform such duty. The findings of
the trial court are convincing, thus:
x x x PSI’s liability is traceable to its failure to conduct an investigation of the matter reported in the
nota bene of the count nurse. Such failure established PSI’s part in the dark conspiracy of silence
and concealment about the gauzes. Ethical considerations, if not also legal, dictated the holding of
an immediate inquiry into the events, if not for the benefit of the patient to whom the duty is primarily
owed, then in the interest of arriving at the truth. The Court cannot accept that the medical and the
healing professions, through their members like defendant surgeons, and their institutions like PSI’s
hospital facility, can callously turn their backs on and disregard even a mere probability of mistake or
negligence by refusing or failing to investigate a report of such seriousness as the one in Natividad’s
case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the
Medical City Hospital’s staff, composed of resident doctors, nurses, and interns. As such, it is
reasonable to conclude that PSI, as the operator of the hospital, has actual or constructive
knowledge of the procedures carried out, particularly the report of the attending nurses that the two
pieces of gauze were missing. In Fridena v. Evans,41 it was held that a corporation is bound by the
knowledge acquired by or notice given to its agents or officers within the scope of their authority and
in reference to a matter to which their authority extends. This means that the knowledge of any of
the staff of Medical City Hospital constitutes knowledge of PSI. Now, the failure of PSI, despite the
attending nurses’ report, to investigate and inform Natividad regarding the missing gauzes amounts
to callous negligence. Not only did PSI breach its duties to oversee or supervise all persons who
practice medicine within its walls, it also failed to take an active step in fixing the negligence
committed. This renders PSI, not only vicariously liable for the negligence of Dr. Ampil under Article
2180 of the Civil Code, but also directly liable for its own negligence under Article 2176. In Fridena,
the Supreme Court of Arizona held:
x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded.
The emerging trend is to hold the hospital responsible where the hospital has failed to monitor and
review medical services being provided within its walls. See Kahn Hospital Malpractice Prevention,
27 De Paul . Rev. 23 (1977).
Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P.
2d 335 (1972). In Purcell, the hospital argued that it could not be held liable for the malpractice of a
medical practitioner because he was an independent contractor within the hospital. The Court of
Appeals pointed out that the hospital had created a professional staff whose competence and

performance was to be monitored and reviewed by the governing body of the hospital, and the court
held that a hospital would be negligent where it had knowledge or reason to believe that a doctor
using the facilities was employing a method of treatment or care which fell below the recognized
standard of care.
Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain
inherent responsibilities regarding the quality of medical care furnished to patients within its walls
and it must meet the standards of responsibility commensurate with this undertaking. Beeck v.
Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed the
rulings of the Court of Appeals that a hospital has the duty of supervising the competence of the
doctors on its staff. x x x.
x x
x
x x x
In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital
with its knowledge, aid, and assistance, and that the negligence of the defendants was the
proximate cause of the patient’s injuries. We find that such general allegations of negligence, along
with the evidence produced at the trial of this case, are sufficient to support the hospital’s liability
based on the theory of negligent supervision."
Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for damages, let it be
emphasized that PSI, apart from a general denial of its responsibility, failed to adduce evidence
showing that it exercised the diligence of a good father of a family in the accreditation and
supervision of the latter. In neglecting to offer such proof, PSI failed to discharge its burden under
the last paragraph of Article 2180 cited earlier, and, therefore, must be adjudged solidarily liable with
Dr. Ampil. Moreover, as we have discussed, PSI is also directly liable to the Aganas.
One final word. Once a physician undertakes the treatment and care of a patient, the law imposes
on him certain obligations. In order to escape liability, he must possess that reasonable degree of
learning, skill and experience required by his profession. At the same time, he must apply
reasonable care and diligence in the exercise of his skill and the application of his knowledge, and
exert his best judgment.
WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of
Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
SO ORDERED.

G.R. No. 88582

March 5, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
HEINRICH S. RITTER, accused-appellant,
The Solicitor General for plaintiff-appellee.
Esteban B. Bautista for accused-appellant.
GUTIERREZ, JR., J.:
The appellant challenges his conviction of the crime involving a young girl of about 12 years old who
had been allegedly raped and who later died because of a foreign object left inside her vaginal
canal.
Heinrich Stefan Ritter was charged with the crime of rape with homicide under an information which
reads:
That on or about the tenth (10th day of October, 1986 in the City of Olongapo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused with lewd
design and with intent to kill one Rosario Baluyot, a woman under twelve (12) years of age,
did then and there wilfully, unlawfully and feloniously have carnal knowledge of said Rosario

Baluyot and inserted a foreign object into the vaginal canal of said Rosario Baluyot which
caused her death shortly thereafter, to the damage and prejudice of her relatives. (66)
When arraigned, the accused pleaded "Not Guilty". Thereafter, the case was set for trial on the
merits.
To prove the guilt of the accused, the prosecutor presented the following witnesses, namely: (1)
Jessie Ramirez, (2) Maria Burgos y Turla, (3) P/Cpl. Mariano Victoria, (4) Policarpio Baluyot, (5) Dr.
Reino Rosete, (6) Sumulong Daniel, (7) Jessica Herrera, (8) Sister Eva Palencia, (9) Conrado
Salonga, (10) Dr. Devonne Loop, (11) Dr. Leo Cruz, (12) Paul Maclor, (13) Aida Sarmiento, (14)
Patricia Prollamanta (15) Mel Santos, (16) Lorna Limos, (17) Eduard Lee Bungarner, (18) Ronaldo
Marquez, (19) Tom Bonte, (20) 2nd Asst. City Fiscal Nini Alcala, (21) lst Asst. City Fiscal Dorentino Z.
Floresta, (22) Corazon Caber, (23) Rodolfo Mercurio and (24) Fe Israel.
On the other hand, the defense offered in evidence Exhibits "1" to "24" and the testimonies of (1)
Heinrich S. Ritter, (2) Father Roque Villanueva, (3) Angelita Amulong (4) Gaspar Alcantara, (5) Dr.
Val Barcinal and (6) Dr. Pedro C. Solis.
The facts of the case upon which the lower court based its finding of guilt beyond reasonable doubt
are summarized in its decision, as follows:
The people's evidence show that on October 10, 1986 about midnight, accused Heinrich
Stefan Ritter brought a boy and girl namely: Jessie Ramirez and Rosario Baluyot inside his
hotel room at MGM Hotel along Magsaysay Drive, Olongapo City. These two (2) children
were chosen from among a bunch of street children. Once inside the hotel room accused
told them to take a bath. Jessie Ramirez, alias "Egan", was the first to take a bath and when
he came out Rosario Baluyot went to the bathroom to do the same. While Rosario Baluyot
was inside the bathroom, accused Ritter took out some pictures depicting dressed up young
boys, and put them on top of the table. Other things which were taken out and placed on top
of a table were three (3) other objects which he described as like that of a vicks inhaler. One
of these objects the accused played with his hands and placed it on his palms. The color of
which is grayish blue which turned out later to be the foreign object which was inserted
inside the vagina of Rosario Baluyot. The other objects were later established to be antinasal inhalers against pollution purchased by the accused in Bangkok when he went there
as a tourist. While Rosario was in the bathroom, accused told Ramirez to lay down on bed,
and so did the accused. He then started masturbating the young boy and also guided the
boy's hand for him to be masturbated, so that they masturbated each other, while they were
both naked, and he gave Jessie Ramirez an erection. When Rosario Baluyot came out of the
bathroom, she was told to remove her clothes by accused and to join him in bed. The
accused then placed himself between the two (2) children and accused started fingering
Rosario.
At this time, Ramirez was already sleepy, but Rosario touched him to call his attention. He
looked, and he saw accused placing his penis against the vagina of Rosario and that he was
trying to penetrate the vagina but it would not fit. After what he saw, Ramirez did not
anymore bother to look because he was sleepy and fell asleep.

The following morning, the accused, whom the juveniles described as an "American, paid
Ramirez alias"Egan" P200.00 and Rosario P300.00. He then left them in the hotel. After the
American left, they went downstairs, and Rosario told Egan that the American inserted
something in her vagina. But they could not do anything anymore, because the American
had already left, and neither did they report the matter to the police. Sometime the following
day, Jessie saw Rosario and he asked her whether the object was already removed from her
body and Rosario said "Yes". However, Jessie Ramirez claimed that on the evening of that
same date, he saw Rosario and she was complaining of pain in her vagina and when Egan
asked her, she said that the foreign object was not yet removed. Then there was another
occasion wherein Jessie was summoned and when he came he saw Rosario writhing in pain
and when he tried to talk to Rosario she scolded him with defamatory remarks. Thereafter,
he did not see Rosario anymore because he already went home to his aunt's house who
resided at Barrio Barretto and resumed his studies in the primary grades.
On May 14, 1987, Gaspar Alcantara, a defense witness, while garbage scavenging at Lot 21,
near the gate of the U.S. Naval Base saw Rosario at Magsaysay Drive near the Happy Bake
Shop near Lot 21, being ogled by people because Rosario's skirt was bloodied and she was
unconscious and foul smelling. Since nobody helped Rosario, he took pity on her condition
and brought her to the Olongapo City General Hospital in an unconscious condition, via
jeepney. He went to the Information desk and he was the one who gave the personal
circumstances of Rosario as to her name, age, her residence as Nagbakulaw, Lower
Kalaklan, and Gaspar Alcantara signed as "guardian" of Rosario, while Rosario was already
in the emergency room. Although Gaspar Alcantara denied that he did not know the name of
Rosario Baluyot when he brought her to the hospital, this is belied by the testimony of the
Information clerk Lorna Limos, who was then on duty. Limos testified that it was Alcantara
who supplied the personal circumstances of Rosario. The Court gives more credence to the
testimony of Miss Limos as against Gaspar Alcantara who became a defense witness, for the
reason that through his own testimony, Gaspar Alcantara claimed that even prior to May 14,
1987, he had already known Rosario Baluyot for more than one (1) year, because he has
seen the said girl go to the house of his twin brother, Melchor Alcantara, who is his
immediate neighbor. Rosario used to visit a girl by the name of "Nora" who was then in the
custody of his brother. His brother Melchor was also living with their mother, brother and
sister-in-law and their two (2) children in his house. Rosario as per Gaspar's testimony even
stays for one week or a few days at his brother's house when she visits Nora. So the Court
can safely assume that of all the more than one (1) year that he had regularly seen Rosario
at his brother's house, he must have already did come to know the name of Rosario Baluyot
including her age. In his testimony in Court he stated that he even asked Rosario for movie
and softdrinks money which can safely be concluded that he knows her very well. It is
against normal behavior especially to a Filipino who have a characteristic of curiosity not to
have found out the real name of the girl he claims to know only as "Tomboy".
While Rosario Baluyot was confined at the Olongapo City General Hospital, nobody was
attending to her since she is a street child, having stowed away from the custody of her
grandmother. Three (3) good samaritans who belong to religious and civic organizations, in
the persons of Jessica Herrera, Fe Israel and Sr. Eva Palencia, in one of their missions in the
hospital chanced upon Rosario Baluyot who was all alone with no relatives attending to her

and after finding out that she was only 12 years old decided to help her. After a short
interview with Rosario, regarding her name and age only because she clamped up about her
residence and her relatives, they decided to help her by providing her the medicine she
needed during her confinement in readiness for an operation. It was Fe Israel who was able
to get the name and age of Rosario Baluyot from Rosario Baluyot herself when she saw her
for the first time. For Fe Israel, the age of Rosario Baluyot was an important factor because
their program assisted only indigent patients from infants up to 13 years old.
Rosario's first ailment at the Olongapo City General Hospital was loose bowel movement
and vomiting, which was first suspected as gastro-enteritis, but which came out later as
symptoms of peritonitis due to a massive infection in the abdominal cavity. Subsequently, on
May 17, 1987, after she was examined by the physicians at the hospital, it was found out
that there was a foreign object lodged in her vaginal canal and she had vaginal discharge
tinged with blood and foul smelling odor emanating from her body. One of the doctors who
attended to her was Dr. Barcinal, an OB-GYNE. Dr. Barcinal tried to extract the foreign object
by means of a forceps, but several attempts proved futile because said object was deeply
embedded in the vaginal canal and was covered by tissues. Her abdomen was enlarged,
tender and distended, symptoms of peritonitis. The patient was feverish and incoherent when
she was scheduled for operation on May 19, 1987, after the first attempt for an operation on
May 17 was aborted allegedly because the consent of Dr. Reino Rosete, the hospital director
was not obtained. The surgeon who operated on her was Dr. Rosete himself. He testified
that Rosario had to be operated even in that condition in order to save her life. Her condition
was guarded. This was corroborated by Dr. Leo Cruz, the anesthesiologist during Rosario's
operation. It was in the evening of May 19 at about 7:00 p.m. when Dr. Rosete opened her
abdomen by making a 5 inch incision on her stomach. He found out that the fallopian tubes
were congested with pus and so with the peritonieum, and the pelvic cavity, and patches of
pus in the liver, although the gallbladder and kidney appeared to have septicemia, poisoning
of the blood. The peritonitis and septicemia were traced to have been caused through
infection by the foreign object which has been lodged in the intra-vaginal canal of Rosario.
The foreign object which was already agreed upon by both parties that it is a portion of a
sexual vibrator was extracted from the vagina of Rosario while under anesthesia. Said object
was coated with tissues, pus and blood. Dr. Rosete gave it to the assisting surgical nurse for
safekeeping and gave instructions to release it to the authorized person. This object was
shown by the nurse to Dr. Leo Cruz. Dr. Rosete considered the operation successful and the
patient was alive when he left her under Dr. Cruz. Dr. Cruz stayed with said patient in the
ward for about 30 minutes and thereafter he left. The following day, Rosario got serious and
it was Dr. Leo Cruz who pronounced her death at 2:00 to 2:15 in the afternoon of May 20,
1987.
Thereafter, a death certificate was prepared under the direction of Dr. Cruz which was
indicated therein that the cause of death was cardio-respiratory arrest, secondary to
septicemia caused by the foreign object lodged in the intra uteral vaginal canal of Rosario
Baluyot.
The foreign object was washed by nurse Obedina, then placed it in a transparent small jar
and labelled "Rosario Baluyot". Jessica Herrera asked the nurse for the foreign object, and it

was given to her under proper receipt. Herrera then showed the same to the persons who
helped financially Rosario's case, and afterwards she gave it to Sister Eva Palencia. Sis.
Palencia was in custody of the said object until Mr. Salonga came and asked her for the
object.
After Rosario Baluyot died, Sis. Palencia and a companion went to Gaspar Alcantara to ask
him in locating the relatives of Rosario. They were able to trace Rosario's grandmother, Mrs.
Maria Burgos Turla, and informed her that her granddaughter was already dead and lying in
state at St. Martin Funeral Parlor. Mrs. Turla went there with her son, who shouldered all the
burial expenses for Rosario.
Subsequently, Sis. Palencia, Fr. Cullens and Mr. Salonga came to her residence at Sta. Rita
and asked her if she was interested in filing a case against the person who caused the death
of her granddaughter. Of course she agreed. Hence, she was brought to the Fiscal's (City)
Office to file the same.
After the case was filed against the herein accused, Atty. Edmundo Legaspi with his
messenger came to her house and told her that the accused was willing to settle the case,
but that accused Ritter had only P15,000.00. The old woman did not accept it because she
knows that the accused is liable to pay damages anyway. After that, she received a letter
from Atty. Legaspi telling her to get a lawyer for her case. By this time, Mrs. Turla, who
wanted to have the case settled once and for all giving the reason that she can no longer
bear the situation, sent her nephew, Conrado Marcelo to Atty. Legaspi. Her nephew obliged
and told her that she will be paid at the office of Atty. Legaspi. On a date not clear in the
records, she went with her nephew Conrado Marcelo, and Roberto Sundiam, an assistant
barangay tanod of Sta. Rita, and while they were there, she saw Ritter arrive at the law
office. Ritter and Atty. Legaspi talked at the office near the bathroom, and thereafter Ritter
left. After he left, Atty. Legaspi told Rosario's grandmother that they are willing to settle for
P20,000.00, but that Ritter left only P15,000.00, so she received the money with the
understanding that there was a balance of P5,000.00 yet. She was made to sign a
statement, and she was asked to change the age of her granddaughter Rosario. With the
document prepared, she and the lawyer's messenger went to the Fiscal's office to have it
subscribed, and was subscribed before an assistant city fiscal. But the balance of P5,000.00
was not paid, because later on Atty. Legaspi became the OIC of Olongapo City and he could
no longer attend to it. Atty. Legaspi, during one of the hearings before the Court even
apologized to her.
As to the case, P/Cpl. Marino Victoria, as criminal investigator of Station "A", was directed by
Col. Daos, Station Commander of the Olongapo Police Department to make a follow up of
the case of Rosario Baluyot. On the other hand, since the suspect who inserted the foreign
object inside Rosario's vagina was said to be an American, the NISRA Subic Naval Base
also conducted its investigation headed by criminal investigator Agent Conrado Salonga.
Coordinating with the local police and with Sister Eva Palencia, since Rosario was a street
child at Magsaysay Drive, they rounded up about 43 street children and from some of them
they learned that Rosario Baluyot was with Jessie Ramirez with an American at the MGM
Hotel when the foreign object was inserted in her vagina. After finding Jessie Ramirez, they

asked him about Rosario Baluyot. They found out that indeed he was with Rosario Baluyot
sometime before Christmas of 1986 with an American, who brought them to the said hotel.
Jessie Ramirez was taken inside the U.S. Naval Base, Olongapo City and took his
statement. Then he was brought to Mr. Edward Lee Bungarner, a cartographer, and out of
the description supplied by Ramirez, a composite drawing was photocopied and copies
thereof were distributed to the local police and to the sentries at the gate of the U.S. Naval
Base. Some American servicemen who had resemblance to the composite drawing were
photographed and these were shown to Jessie Ramirez, but the result was negative. Aside
from the physical description by Ramirez about the appearance of the suspect, he also
described him as having the mannerisms of a homo-sexual.
After obtaining information that foreign homo-sexuals frequented Ermita, Manila, and
thinking that the so-called American may be European or Australian national, the team
composed of Agent Salonga, Mr. Heinsell, P/Cpl. Marino Victoria and P/Cpl. Andres
Montaon, Jessie Ramirez and Michael Johnson, another juvenile, proceeded to Manila. They
first went to the Manila NISRA Office, and thereafter checked in a hotel. That was on
September 23, 1987. On the first night, they went to Luneta Park where foreign homosexuals were said to be frequenting, but the result was negative. Then on September 25, at
about 11:00 p.m., while they were standing at the corner of A. Mabini and M.H. del Pilar
Street, a male caucasian who looked like a homo-sexual stopped by admiringly infront of the
two (2) juveniles, Ramirez and Johnson. Jessie Ramirez then reported to Mr. Salonga that
this foreigner had a similarity with the American suspect, so the two minors were instructed
to follow the foreigner and to strike a conversation. They did, and when they returned, Jessie
Ramirez told them that indeed the said foreigner was the one who brought him and Rosario
Baluyot to the MGM Hotel. Bobby Salonga told Ramirez that this foreigner had no beard
while the one previously described by Ramirez had a beard. Jessie Ramirez told them that
maybe he have just shaved it off. The said caucasian then entered a bar, and after several
minutes he came out, and Jessie Ramirez upon his signal with his thumbs up, as a signal to
confirm that the said foreigner is the suspect, arrested Ritter and brought him to the Manila
Western Police District. It could be mentioned at this stage that in this operation they were
accompanied by two (2) policemen from the Western Police District. The foreigner was hand
cuffed and was told that he was a suspect for Rape with Homicide. After the arrest, they first
went to the pension house of the suspect in Ermita, Manila to get his shoulder bag which
contained his personal belongings, and from there they brought him to the Western Police
Department. At the said police headquarters, they were allowed a permissive search by the
foreigner of his clutch bag and his small shoulder bag and confiscated his passport, I.D., 3
inhalers, money in the form of dollars and travellers checks amounting about $1,500.00 and
about P100.00, all duly receipted for. From the passport they learned that the suspect's
name was Heinrich Stefan Ritter, an Austrian national. During the questioning of Hitter,
Salonga and his team already left the headquarters and went to their hotel, because at this
time Jessie Ramirez was already shaking with fear after he identified the accused.
The following day, they brought the accused to Olongapo and was detained at the Olongapo
City Jail. The case for Rape with Homicide was filed against him at the City Fiscal of
Olongapo. At the preliminary investigation, accused was assisted by his own counsel. The
private complainant was Maria Burgos Turla because it was she who had custody of Rosario

Baluyot after her mother Anita Burgos died on January 12, 1982, and their father Policarpio
Baluyot had left them under her custody. When this case was filed, the father's whereabouts
was unknown, and he only appeared when the trial of this case before the Court was already
in progress. And upon his (Policarpio Baluyot) own admission, he only learned about the
death of his daughter Rosario Baluyot from the newspaper, long after Rosario was already
gone.
The defense tried to dislodge the case by claiming that there could be no crime of Rape with
Homicide because the suspect was described as an American while Ritter is an Austrian.
Also advanced by the defense is that, it is a case of mistaken identity. That Rosario Baluyot
was at the time of the commission of the offense, already more than 13 years old, she having
been born on December 26, 1973 as per baptismal certificate, wherein it appears that
Rosario Baluyot was baptized on December 25, 1974 and was born on December 26, 1973
as testified to by Fr. Roque Villanueva of St. James Parish Church who issued the Baptismal
Certificate, having custody and possession of the book of baptism for the year 1975, but
admitted that he had no personal knowledge about the matters or entries entered therein.
Likewise, the defense's stand is that the accused cannot be liable for Homicide because a
vibrator is not a weapon of death but it is a thing for the purpose of giving sexual pleasure,
and that the death of Rosario Baluyot was due to the incompetence of Dr. Rosete, the
surgeon and Director of the Olongapo City General Hospital, who operated on her. (Rollo,
pp. 109-116)
On March 29, 1989, the trial court rendered its decision. The dispositive portion of the decision reads
as follows:
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court holds, that the prosecution
has established the GUILT of the accused beyond reasonable doubt for the crime of Rape
with Homicide as defined and penalized in Art. 335 No. 3 of the Revised Penal Code, and
hereby sentences HEINRICH STEFAN RITTER to a penalty of RECLUSION PERPETUA, to
indemnify the heirs of the deceased in the sum of SIXTY THOUSAND PESOS (P60,000.00)
Philippine Currency, and TEN THOUSAND PESOS (Pl0,000.00) by way of attorney's fees to
the private prosecutors and to pay the costs. (Rollo, p. 126)
The accused now comes to this Court on the following assigned errors allegedly committed by the
court:
I
THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING THAT
THE ALLEGED OFFENSE WAS COMMITTED ON OCTOBER 10, 1986 AND THAT IT WAS
ACCUSED-APPELLANT WHO COMMITTED IT.
II
THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING THAT
ROSARIO BALUYOT WAS LESS THAN TWELVE (12) YEARS OLD WHEN THE ALLEGED

OFFENSE WAS COMMITTED AND IN HOLDING THAT THERE WAS RAPE WITH
HOMICIDE.
III
THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN GIVING
CREDENCE TO AND NOT REJECTING THE PROSECUTION'S EVIDENCE AND IN NOT
UPHOLDING THAT OF THE DEFENSE AND ACQUITTING THE ACCUSED.
Inasmuch as it is the bounden duty of this Court to affirm a judgment of conviction only if the guilt of
the accused has been proved beyond reasonable doubt, it behooves us to exert the most
painstaking effort to examine the records in the light of the arguments of both parties if only to satisfy
judicial conscience that the appellant indeed committed the criminal act (See People v. Villapaña,
161 SCRA 73 [1988]).
The appellant was convicted by the trial court of the crime of rape with homicide of a young girl who
died after the rape because of a foreign object, believed to be a sexual vibrator, left inside her
vagina.
As stated by the trial court one crucial issue in this case is the age of the victim—whether or not
Rosario Baluyot was less than twelve (12) years old at the time the alleged incident happened on
October 10, 1986. The age is important in determining whether or not there was statutory rape,
Article 335 of the Revised Penal Code defines the third type of rape as having carnal knowledge of a
woman under 12 years of age, in which case force, intimidation, deprivation of reason or
unconscious state do not have to be present.
The trial court found that Rosario was below 12 years old when she was sexually abused by the
accused and, therefore, rape was committed inspite of the absence of force or intimidation.
In resolving the issue, the trial court put great weight on the testimonies of the victim's grandmother
and father who testified that she was born on December 22, 1975. These oral declarations were
admitted pursuant to then Rule 130, Section 33 of the Rules of Court where, in the absence of a
birth certificate, the act or declaration about pedigree may be received in evidence on any notable
fact in the life of a member of the family. Since birth is a matter of pedigree within the rule which
permits the admission of hearsay evidence, oral declarations are therefore admissible as proof of
birth (Decision, p. 54).
The grandmother, Maria Burgos Turla, testified that she remembered Rosario's birth date because
her brother died in Pampanga and her daughter, Anita (Rosario's mother) was the only one who
failed to attend the funeral because the latter has just given birth allegedly to Rosario (T.S.N. p. 8,
Jan. 13, 1988).
The father likewise testified that as far as he could remember, Rosario was born on December 22,
1975 (T.S.N., p. 4, Jan. 27, 1988) and he was certain that Rosario was more than one (1) year old
when she was baptized (T.S.N., p. 45, Jan. 27, 1988).

The trial court further added that their testimony is supported by the clinical record and the death
certificate indicating that she was 12 years old when she was admitted at the Olongapo City General
Hospital for treatment. The age was supplied by Rosario's alleged guardian, Gaspar Alcantara to the
hospital's clinical record clerk, Lorna Limos. Fe Israel, a social worker who interviewed Rosario
Baluyot also testified that she was told by Rosario that she was 12 years old. The trial court
accepted this as adequate evidence of the truth. Moreover, Jessie Ramirez, the principal witness in
this case declared that he was born on September 5, 1973 and that he was older than Rosario
Baluyot. Therefore, since he was 13 years old in 1986, Rosario must have been less than 12 yeas
old in 1986. (Decision, p. 55)
The trial court concluded that the oral declarations of the grandmother and father supported by other
independent evidence such as the clinical record, death certificate and the testimonies of Fe Israel
and Jessie Ramirez, rendered the baptismal certificate presented by the defense without any
probative or evidentiary value. (Decision, p. 55)
The findings of the trial court with respect to Rosario Baluyot's age cannot stand the application of
evidentiary rules.
The trial court relied on Section 33, Rule 130 (now Section 40 of Rule 130 of the 1989 Revised
Rules of Court).
For oral evidence to be admissible under this Rule, the requisites are:
(1) That the declarant must be dead or outside of the Philippines or unable to testify;
(2) That pedigree is in issue;
(3) That the person whose pedigree is in question must be related to the declarant by birth or
marriage;
(4) That the declaration must be made before the controversy occurred or ante litem motam;
and
(5) That the relationship between the declarant and the person whose pedigree is in question
must as a general rule be shown by evidence other than such act or declaration.
These requirements were not satisfied by the evidence for the prosecution nor do the declarations
fall within the purview of the rule.
The victim's grandmother and father whose declarations regarding Rosario's age were admitted by
the trial court are both alive, in the Philippines and able to testify as they both did testify in court.
Their declarations were made at the trial which is certainly not before the controversy arose. The
other witnesses who testified on Rosario's age are not members of the victim's family. The
testimonies of Rosario's relatives must be weighed according to their own personal knowledge of
what happened and not as hearsay evidence on matters of family history.

At this point, we find the evidence regarding Rosario's age of doubtful value.
The trial court justified the admissibility of the grandmother's testimony pursuant to the ruling laid
down in U.S. v. Bergantino, (3 Phil., 118 [1903]) where the Court accepted the testimony of the
mother that her daughter was 14 years old and 4 months old. The mother stated that she knew the
age because the child was born about the time of the cholera epidemic of 1889. This was not
hearsay, but came from one who had direct knowledge of the child's birth.
It is however, equally true that human memory on dates or days is frail and unless the day is an
extraordinary or unusual one for the witness, there is no reasonable assurance of its correctness.
(People v. Dasig 93 Phil. 618, 632 [1953])
With respect to the grandmother's testimony, the date of the brother's death or funeral was never
established, which indicates that the day was rather insignificant to be remembered. The father's
declaration is likewise not entirely reliable. His testimony in court does not at all show that he had
direct knowledge of his daughter's birth. He was certain though that she was more than one (1) year
old at the time she was baptized.
The other witnesses are not at all competent to testify on the victim's age, nor was there any basis
shown to establish their competence for the purpose. The clinical records were based on Gaspar
Alcantara's incompetent information given when he brought the victim to the hospital. Alcantara
came to know her only about a year before her death. He had absolutely no knowledge about the
circumstances of Rosario's birth. The death certificate relied upon by the trial court was merely
based on the clinical records. It is even less reliable as a record of birth.
All the evidence presented by the prosecution showing that Rosario Baluyot was less than 12 years
old at the time of the alleged incident are not adequate to establish the exact date of birth, much less
offset a documentary record showing a different date.
The defense presented Rosario Baluyot's baptismal certificate which the trial court rejected as being
hearsay and of no value. As against the oral declarations made by interested witnesses establishing
Rosario's age to be less than 12 years old, the evidence on record is more convincing and worthy of
belief. (See Filinvest Land, Inc. v. Court of Appeals, 183 SCRA 664, 673 [1990]).
By virtue of a subpoena duces tecum and ad testificandum, issued by the lower court to the St.
James Parish Church, Subic, Zambales, Fr. Roque Villanueva a Roman Catholic priest testified and
stated that he is the head of said parish. He brought with him Baptismal Register No. 9 entitled
"Liber Baptisnorum", a latin term for baptismal book or record. On page 151, No. 3 of the said
Registry Book, there appears the name of Rosario Baluyot who was baptized on December 25,
1974, and born on December 26, 1973. Parents are Policarpio Baluyot and Anita Burgos, residents
of Subic, Zambales. Edita R. Milan appears as the only sponsor with Olongapo City as her address.
In the case of Macadangdang v. Court of appeals (100 SCRA 73 [1980]), we held that:
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In our jurisprudence, this Court has been more definite in its pronouncements on the value of
baptismal certificates. It thus ruled that while baptismal and marriage certificates may be
considered public documents, they are evidence only to prove the administration of the
sacraments on the dates therein specified—but not the veracity of the status or declarations
made therein with respect to his kinsfolk and/or citizenship (Paa v. Chan, L-25945, Oct. 31,
1967). Again, in the case of Fortus v. Novero (L-22378, 23 SCRA 1331 [1968]), this Court
held that a baptismal certificate is conclusive proof only of the baptism administered, in
conformity with the rites of the Catholic Church by the priest who baptized the child, but it
does not prove the veracity of the declarations and statements contained in the certificate
that concern the relationship of the person baptized. Such declarations and statements, in
order that their truth may be admitted, must indispensably be shown by proof recognized by
law. (At pp. 84-85)
In the same light, the entries made in the Registry Book may be considered as entries made in the
course of business under Section 43 of Rule 130, which is an exception to the hearsay rule. The
baptisms administered by the church are one of its transactions in the exercise of ecclesiastical
duties and recorded in a book of the church during the course of its business. (U.S. v. de Vera, 28
Phil. 105 [1914] Hence, the certificate (Exhibit "22") presented by the defense that Rosario Baluyot
was baptized on December 25, 1974 may be admitted in evidence as proof of baptism. Policarpio
Baluyot, the victim's father testified that he had in his possession a baptismal certificate different
from the one presented in court. However, no other baptismal record was ever presented to prove a
date different from that brought by the official custodian. Since the baptismal certificate states that
Rosario was baptized on December 25, 1974, it is therefore highly improbable that Rosario could
have been born on December 22, 1975. She could not have been baptized before she was born.
Exhibit "22" may be proof only of baptism but it puts a lie to the declaration that Rosario was born in
1975. With the father's assertion that Rosario was more than one (1) year old when she was
baptized, we are then more inclined to agree that Rosario was born in 1973 as stated in the
Baptismal Registry.
In the case of People v. Rebancos (172 SCRA 425 [1989]), the Court stated:
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. . . Although no birth certificate was presented because her birth had allegedly not been
registered, her baptismal certificate, coupled by her mother's testimony, was sufficient to
establish that Mary Rose was below twelve years old when she was violated by Rebancos.
(At. p. 426)
Unfortunately, in the instant case, nobody could corroborate the date on a more reliable document
as to Rosario's birth which could serve as sufficient proof that she was born on December 26, 1973.
Therefore, she was more than 12 years old at the time of the alleged incident on October 10, 1986.
Moreover, it is not incumbent upon the defense to prove Rosario's age. The burden of proof lies on
the prosecution to prove that Rosario was less than 12 years old at the time of the alleged incident in
a charge of statutory rape. The prosecution failed in this respect.

Since Rosario was not established to have been under 12 years of age at the time of the alleged
sexual violation, it was necessary to prove that the usual elements of rape were present; i.e. that
there was force of intimidation or that she was deprived of reason or otherwise unconscious in
accordance with Article 335 of the Revised Penal Code.
We agree with the defense that there was no proof of such facts. On the contrary, the evidence
shows that Rosario submitted herself to the sexual advances of the appellant. In fact, she appears to
have consented to the act as she was paid P300.00 the next morning while her companion, Jessie
Ramirez was paid P200.00 (T.S.N. p. 50, January 6, 1988). The environmental circumstances
coupled with the testimonies and evidence presented in court clearly give the impression that
Rosario Baluyot, a poor street child, was a prostitute inspite of her tender age. Circumstances in life
may have forced her to submit to sex at such a young age but the circumstances do not come under
the purview of force or intimidation needed to convict for rape.
In view of these clear facts which the prosecution failed to refute, no rape was committed. But was
Ritter guilty of homicide?
The trial court justified its ruling by saying that the death of the victim was a consequence of the
insertion of the foreign object into the victim's vagina by the appellant.
We now ask "Was the appellant responsible for the sexual vibrator left inside Rosario's vagina which
led to her death?
The trial court convicted the accused based on circumstantial evidence. Unfortunately, the
circumstances are capable of varying interpretations and are not enough to justify conviction.
Jessie Ramirez, the principal witness did not actually see the object inserted in Rosario's vagina.
Neither could he identify the object (Exhibit "C-2") taken from Rosario as the same object which the
appellant was holding at that time of the alleged incident.
In his sworn statement given to the police investigator on September 4, 1987, he answered that:
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T Habang kayo ay nasa loob ng kuwarto ng otel, mayroon ka bang napansin na inilabas ng
kano sa kanyang daladalahan kung mayroon man?
S Ang Amerikano ay may dala-dalang shoulder bag na kulay itim, at napansin ko na may
inilabas siya sa kanyang bag na parang vicks inhaler, na kanyang inamoy-amoy habang
nasa otel kami at pagkatapos niya ay inilapag niya sa lamiseta.
T Ilarawan mo nga sa akin ang bagay na nakita mong inilabas ng Amerikano?
S Ito ay may habang tatlong pulgada at ang takip nito ay may habang dalawang pulgada.
Iyong takip ay bilog na patulis at may tabang mga kalahating pulgada. Hindi ko napansin ang
hugis ng dulo ng bagay na may takip dahil natatakpan ng kamay at ilong ng Amerikano.

T Ipinakikita ko sa iyo ang isang larawan. Tignan mong mabuti ang larawang ito at sabihin
mo nga sa akin kung makikilala mo ang mga bagay na nasa larawang ito, na may kinalaman
sa nakita mong kinuha ng Amerikano sa kanyang bag?
S Napansin ko na ang kulay asul na bagay sa larawan ay katulad na katulad noong takip ng
bagay na inilabas ng Amerikano sa kanyang bag. Kaya lang ay bakit naging kulay asul
gayong ng makita ko ito ay kulay puti? (Exhibit "A", p. 2; Emphasis Supplied)
Presumably, what Jessie Ramirez saw was merely the Vicks inhaler which the appellant does not
deny having possessed at that time. He was certain that the object was white. (T.S.N. p. 91, January
6, 1988)
Later, Ramirez retracted and corrected himself. He said that it was grayish in color with color blue
(Medyo kulay abo na may kulay na parang blue). (T.S.N. p. 92, January 6, 1988) The inconsistency
of the witness' testimony casts doubt as to the veracity of the statements made especially when he
answered on additional cross-examination that the reason why he concluded that Exhibit "C-2" was
the same object being held by Ritter was because it was the only one shown to him by the
prosecution (T.S.N. pp. 109-110, January 6, 1988). Jessie Ramirez was not all certain about the
sexual vibrator because he did not actually see it in the possession of the appellant.
What he merely remembers is the revelation made by Rosario the next morning that the foreigner
inserted something inside her vagina. The trial court admitted such statement as part of the res
gestae. In a strained effort to accept such statement as part of res gestae, the trial court focused the
test of admissibility on the lapse of time between the event and the utterance. For the average 13
years old, the insertion of a mechanical device or anything for that matter into the vagina of a young
girl is undoubtedly startling. For Rosario and Jessie, however, there must be more evidence to show
that the statement, given after a night's sleep had intervened, was given instinctively because the
event was so startling Res gestae does not apply. (Section 42, Rule 130, Rules of Court)
Even if it were established that the appellant did insert something inside Rosario's vagina, the
evidence is still not adequate to impute the death of Rosario to the appellant's alleged act.
Jessie Ramirez testified that Rosario was able to remove the object inserted in her vagina. We
quote:
Q Now, you also stated on direct examination that later on Rosario even categorically
admitted to you that she was already able to remove the object allegedly inserted inside her
vagina, is that correct?
A Yes, sir.
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Q Will you kindly tell to this Honorable Court the exact words used by Rosario Baluyot later
on when you met her when you asked her and when she told you that she was already able
to remove that object from her vagina?
A "Oy, Jessie, natanggal na, "she told me that. I asked her, "Was it already removed?" And
she answered, "Yes, it was removed." But the same night, she again complained of pain of
her stomach. She sent one of her friends to call for me. And as a matter of fact, Tomboy was
uttering defamatory words against me as she was groaning in pain. (TSN, Jan. 6,1988, pp.
72-73)
This encounter happened on the night of the day following the day after both children were invited by
the foreigner to the hotel. (T.S.N. p. 73, January 6, 1988). Rosario was said to be groaning in pain so
we can just imagine the distress she was undergoing at this point in time. If the device inserted by
the appellant caused the pain, it is highly inconceivable how she was able to endure the pain and
discomfort until May, 1987, seven (7) months after the alleged incident. Evidence must not only
proceed from the mouth of a credible witness but it must be credible in itself such as the common
experience and observation of mankind can approve as probable under the circumstances. (People
vs. Patog, 144 SCRA 429 [1986]).
At this juncture, we find Dr. Pedro Solis' testimony rather significant. Dr. Pedro Solis, a witness for
the defense is considered an expert witness. (A Doctor of Medicine and a graduate of the State
University in 1940, a degree of Bachelor of Laws and member of the Bar 1949, and a graduate of
the Institute of Criminology University. He was awarded Post Graduate Diploma in Criminology in
1963, and also a graduate of United Nations Asia and Far East Asia Institute on the Prevention of
Crimes in Tokyo Japan 1965. He was appointed Medico Legal Officer of the National Bureau of
Investigation in 1940 until 1944. He became Chief Medico Legal Officer in 1970 and became the
Deputy Director of the NBI up to 1984. He is at present a Professorial Lecturer on Legal Medicine at
the UP, FEU, UE, and Fatima College of Medicine; a Medico Legal Consultant of the PGH Medical
Center, Makati Medical Center, UERM Medical Center, MCU Medical Center. He has been with the
NBI for 43 years. He has attended no less than 13 conferences abroad. He is the author of the
textbooks entitled "Legal Medicine" and "Medical Jurisprudence".) With his impressive legal and
medical background, his testimony is too authoritative to ignore. We quote the pertinent portions of
his testimony:
Q Now Dr. Solis, would you kindly go over this object marked as Exh. "C-2" which object was
described as a part of a sexual vibrator battery operated. Now, given this kind of object,
would you kindly tell us what would be the probable effect upon a 12 years old girl when it is
inserted into her vagina?
A Well, this vibrator must be considered a foreign body placed into a human being and as
such be considered a foreign object. As a foreign object, the tendency of the body may be:
No. 1—expel the foreign body—No. 2.—The tendency of the body is to react to that foreign
body. One of the reactions that maybe manifested by the person wherein such foreign body
is concerned is to cover the foreign body with human tissue, in a way to avoid its further
injury to the body.

Now, the second reaction is irritation thereby producing certain manifest symptoms and
changes in the area where the foreign body is located.
In severe cases, the symptoms manifestation might not only be localized but may be felt all
over the body, we call it systemic reaction. Now, considering the fact that this foreign body as
shown to me is already not complete, this shows exposure of its different parts for the body
to react. If there is mechanism to cause the foreign body to vibrate, there must be some sort
of power from within and that power must be a dry cell battery. [The] composition of the
battery are, manganese dioxide ammonium, salts, water and any substance that will cause
current flow. All of these substances are irritants including areas of the container and as
such, the primary reaction of the body is to cause irritation on the tissues, thereby
inflammatory changes develop and in all likelihood, aside from those inflammatory changes
would be a supervening infection in a way that the whole generative organ of the woman will
suffer from diseased process causing her the systemic reaction like fever, swelling of the
area, and other systemic symptoms. . . . . (TSN., pp. 13-15, October 19,1988)
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Q Now, given this object, how long would it take, Doctor before any reaction such as an
infection would set in, how many days after the insertion of this object in the vagina of a 12
year old girl?
A In the example given to me, considering that one of the ends is exposed, in a way that
vaginal secretion has more chance to get in, well, liberation of this irritant chemicals would
be enhanced and therefore in ashorter period of time, there being this vaginal reaction.
Q How many days or weeks would you say would that follow after the insertion?
A As I said, with my experience at the NBI, insertion of any foreign body in the vaginal canal
usually developed within, a period of two (2) weeks . . .
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Q . . . [T]he subject in this case was allegedly raped, and a sexual vibrator was inserted in
her vagina on October 10, 1986 and she was operated on, on May 19, 1987 the following
year, so it took more than 7 months before this was extracted, would you say that it will take
that long before any adverse infection could set in inside the vagina?
A Infection and inflamatory changes will develop in a shorter time. (TSN., Oct. 19,1988, p.
18)
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Q When you said shorter, how long would that be, Doctor?

A As I said, in my personal experience, hair pins, cottonballs and even this lipstick of women
usually, there are only about two (2) weeks time that the patient suffer some abnormal
symptoms.
Q Now, considering that this is a bigger object to the object that you mentioned, this object
has a shorter time?
A Yes, Sir shorter time. (TSN., Oct. 19. 1988, p. 20)
The trial court, however, ruled that "there is no hard and fast rule as to the time frame wherein
infection sets in upon insertion of a foreign body in the vagina canal. For Dr. Solis, the time frame is
not more than 10 months, and this case is still within the said time frame."
A more generous time interval may be allowed in non-criminal cases. But where an accused is
facing a penalty ofreclusion perpetua, the evidence against him cannot be based on probabilities
which are less likely than those probabilities which favor him.
It should be clarified that the time frame depends upon the kind of foreign body lodged inside the
body. An examination of the object gave the following results:
(1) Color: Blue
Size: (a) Circumference—3.031
inches (b) Length—approximately
2.179 inches.
Composition: Showed the general
characteristics of a styrene-butadiene plastic.
(2) The specimen can be electrically operated by means of a battery as per certification
dated 01 June 1988, signed by Mr. Rodolfo D. Mercuric, Shipboard Electrical Systems
Mechanics, Foreman II, SRF Shop 51, Subic (see attached certification).
(3) No comparative examination was made on specimen #1 and vibrator depicted in the
catalog because no actual physical dimensions and/or mechanical characteristics were
shown in the catalog. (Exhibit "LL")
The vibrator end was further subjected to a macro-photographic examination on the open end
portion which revealed the following:
Result of Examination
Macro-photographic examination on the open end portion of specimen #1 shows the
following inscription:
MABUCHI MOTOR JAPAN RE 14 PAT (Exhibit "MM")

From the above results, the subject object is certainly not considered as inert and based on Dr. Solis'
testimony, it is more likely that infection should set in much earlier. Considering also that the object
was inserted inside the vagina which is part of the generative organ of a woman, an organ which is
lined with a very thin layer of membrane with plenty of blood supply, this part of the body is more
susceptible to infection. (T.S.N. p. 34, October 19, 1988)
The truth of Dr. Solis' testimony is more probable under the circumstances of the case. We see no
reason why his opinions qualified by training and experience should not be controlling and binding
upon the Court in the determination of guilt beyond reasonable doubt. (People v. Tolentino, 166
SCRA 469 [1988]).
Dr. Barcinal, another witness for the defense also testified that he examined Rosario Baluyot on May
17, 1986 as a referral patient from the Department of Surgery to give an OB-GYN clearance to the
patient prior to operation. (T.S.N. p. 6, September 28, 1988)
Q And how many times did you examine this patient Rosario Baluyot on that day?
A I examined her twice on that day.
Q The first time that you examined her, what is the result of your findings, if any?
A My first examination, I examined the patient inside the delivery room. The patient was
brought to the delivery room wheel-chaired then from the wheel chair, the patient was
ambigatory (sic). She was able to walk from the door to the examining table. On
examination, the patient is conscious, she was fairly nourished, fairly developed, she had
fever, she was uncooperative at that time and examination deals more on the abdomen
which shows slightly distended abdomen with muscle guarding with tenderness all over, with
maximum tenderness over the hypogastric area. (T.S.N. p. 5, September 28, 1988)
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Q What about your second examination to the patient, what was your findings, if any?
A In my second examination, I repeated the internal examination wherein I placed my index
finger and middle finger inside the vagina of the patient and was able to palpate a hard
object. After which, I made a speculum examination wherein I was able to visualize the inner
portion of the vaginal canal, there I saw purulent foul smelling, blood tints, discharge in the
vaginal canal and a foreign body invaded on the posterior part of the vaginal canal.
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A I referred back to Dr. Fernandez about my findings and he asked me to try to remove the
said foreign object by the use of forceps which I tried to do so also but I failed to extract the
same.

Q All this time that you were examining the patient Rosario Baluyot both in the first and
second instance, Rosario Baluyot was conscious and were you able to talk to her when you
were examining her?
A Yes, sir.
Q And did you ask her why there is a foreign object lodge inside her vagina?
A Yes, Sir I asked her.
Q And what did she tell you, if any?
A She said in her own words that "GINAMIT AKO NG NEGRO AT SIYA ANG NAGLAGAY
NITO."
Q Did she also tell you when, this Negro who used her and who inserted and placed the
foreign object on her vagina?
A Yes, Sir I asked her and she said he used me three (3) months ago from the time I
examined her.
Q Now, you said that you referred the patient to the ward, what happened next with your
patient?
A To my knowledge, the patient is already scheduled on operation on that date.
Q Meaning, May 17, 1987?
A Yes, Sir I was presuming that the patient would undergo surgery after that?
(TSN, Sept. 28,1988, pp. 8-9; Emphasis supplied)
The trial court debunked Dr. Barcinals testimony considering Rosario's condition at that time. It ruled
that it is inconceivable that she would be striking a normal conversation with the doctors and would
be sitting on the examination table since Gaspar Alcantara stated that when he brought Rosario
Baluyot to the hospital, she was unconscious and writhing in pain.
It was not improbable for Rosario Baluyot to still be conscious and ambulant at that time because
there were several instances testified to by different witnesses that she was still able to talk prior to
her operation:
(1) Fe Israel, a witness for the prosecution and a member of the Olongapo Catholic Charismatic
Renewal Movement testified that as a member of this group she visits indigent children in the
hospital every Saturday and after office hours on working days.

On the Saturday prior to Rosario's death which was May 17, she was still able to talk to Rosario
Baluyot. In fact, one of her groupmates helped Rosario go to the comfort room to urinate. (T.S.N.,
pp. 16-19, May 25, 1988)
(2) Angelita Amulong, a witness for the defense is another para social worker who worked at Pope
John 23rd Community Center under Sister Eva Palencia. In one of her hospital visits, she
encountered Rosario Baluyot in the month of May, 1987. She actually saw a child who happened to
be Rosario Baluyot seated on the cement floor and when she asked why she was seated there, she
was told that it was too hot in the bed. She saw Rosario Baluyot for about 2 or 3 days successively.
(T.S.N. pp. 10-13, September 7, 1988)
(3) Gaspar Alcantara, the person who brought Rosario to the hospital actually testified that she was
conscious (T.S.N. p. 36, September 14, 1988) but writhing in pain. He took pity on her so he brought
her to the hospital (T.S.N. p. 12, September 14, 1988)
From the above testimonies, it is clear that Rosario was still conscious and could still answer
questions asked of her although she was complaining of stomach pains. Unfortunately, the medical
attention given to her failed to halt the aggravation of her condition. The operation on May 19 was
too late.
Rosario died because of septicemia, which in layman's language is blood poisoning, and peritonitis,
which is massive infection, in the abdominal cavity caused by the foreign object or the cut sexual
vibrator lodged in the vagina of the victim. This led to the infection from the uterus to the fallopian
tubes and into the peritoneum and the abdominal cavity.
The trial court convicted the accused citing the rationale of Article 4 of the RPC
He who is the cause of the cause is the cause of the evil caused.
But before the conviction is affirmed, we must first follow the rule as stated in the case of Urbano vs.
Intermediate Appellate Court (157 SCRA 1 [1988]) to wit:
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. 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. (Emphasis supplied)
In People v. Tempongko, Jr., (144 SCRA 583, 592 [1986]), we explained that:
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The basic principle in every criminal prosecution is that accusation is not synonymous with
guilt. The accused is presumed innocent until the contrary is proved by the prosecution. If the
prosecution fails, it fails utterly, even if the defense is weak or, indeed, even if there is no
defense at all. The defendant faces the full panoply of state authority with all "The People of
the Philippines" arrayed against him. In a manner of speaking, he goes to bat with all the

bases loaded. The odds are heavily against him. It is important, therefore, to equalize the
positions of the prosecution and the defense by presuming the innocence of the accused
until the state is able to refute the presumption by proof of guilt beyond reasonable doubt.
(At. p. 592)
The evidence for the accused maybe numerically less as against the number of witnesses and
preponderance of evidence presented by the prosecution but there is no direct and convincing proof
that the accused was responsible for the vibrator left inside the victim's vagina which caused her
death seven (7) months after its insertion. What the prosecution managed to establish were mere
circumstances which were not sufficient to overcome the constitutional presumption of innocence.
While circumstantial evidence may suffice to support a conviction it is imperative, though, that the
following requisites should concur:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt. (Rule 133, Sec. 4 Revised Rules of Court)
For the well-entrenched rule in evidence is that "before conviction can be had upon circumstantial
evidence, the circumstances proved should constitute an unbroken chain which leads to one fair and
reasonable conclusion pointing to the defendant, to the exclusion of all others, as the author of the
crime (People v. Subano, 73 Phil. 692 [1942]; Emphasis supplied). It must fairly exclude every
reasonable hypothesis of innocence (Dorado v. Court of Appeals, 153 SCRA 420, 433 [1987]). In this
case the circumstantial evidence presented by the prosecution does not conclusively point to the
liability of the appellant for the crime charged. (People v. Tolentino, supra)
We are aware of the wide publicity given to the plight of Rosario Baluyot and how her death
exemplified starkly the daily terrors that most street children encounter as they sell their bodies in
order to survive. At an age when innocence and youthful joys should preponderate in their lives, they
experience life in its most heartless and inhuman form. Instead of nothing more than gentle
disappointments occupying their young minds, they daily cope with tragedies that even adults should
never be made to carry.
It is with distressing reluctance that we have to seemingly set back the efforts of Government to
dramatize the death of Rosario Baluyot as a means of galvanizing the nation to care for its street
children. It would have meant a lot to social workers and prosecutors alike if one pedophile-killer
could be brought to justice so that his example would arouse public concern, sufficient for the
formulation and implementation of meaningful remedies. However, we cannot convict on anything
less than proof beyond reasonable doubt. The protections of the Bill of Rights and our criminal
justice system are as much, if not more so, for the perverts and outcasts of society as they are for
normal, decent, and law-abiding people.
The requirement of proof which produces in an unprejudiced mind moral certainty or conviction that
the accused did commit the offense has not been satisfied.

By way of emphasis, we reiterate some of the factors arousing reasonable doubt:
1. The evidence on Rosario Baluyot's baptism creates reasonable doubt about her being
less than 12 years old when the carnal knowledge took place. If the evidence for the
prosecution is to be believed, she was not yet born on the date she was baptized.
2. Since the proof of Rosario's being under 12 years of age is not satisfactory, the
prosecution has to prove force, intimidation, or deprivation of reason in order to convict for
rape. There is no such proof. In fact, the evidence shows a willingness to submit to the
sexual act for monetary considerations.
3. The only witness to the fact of Ritter's placing a vibrator inside the vagina of Rosario was
Jessie Ramirez. This witness did not see Ritter insert the vibrator. The morning after the
insertion, he was only told by Rosario about it. Two days later, he allegedly met Rosario who
informed him that she was able to remove the object. And yet, Ramirez testified that on the
night of that second encounter, he saw Rosario groaning because of pain in her stomach.
She was even hurling invectives. Ramirez' testimony is not only hearsay, it is also
contradictory.
4. It was improbable, according to expert medical testimony, for a foreign object with active
properties to cause pain, discomfort, and serious infection only after seven months inside a
young girl's vaginal canal. Infection would have set in much earlier. Jessie Ramirez recalled
that the incident happened in December of 1986. (TSN., January 6, 1988, pp. 15-17) The
evidence, however shows that the appellant was not here in the Philippines that December.
As per the Commission on Immigration Arrival and Departure Report, Heinrich Ritter arrived
in the Philippines on October 7, 1986 and left on October 12, 1986. He never returned until
September 23, 1987 (Exhibits "DD" and "EE") The incident could have happened only in
October, but then it would have been highly improbable for the sexual vibrator to stay inside
the vagina for seven (7) months with the kind of serious complications it creates.
5. The gynecologist who attended to Rosario during her hospital confinement testified that
she told him "Ginamit ako ng Negro at siya ang naglagay nito." The accused is not a black.
Noteworthy is the fact that nothing was mentioned about Rosario's activities after the hotel incident.
Considering Dr. Barcinal's testimony indicating that she was "used" by a "Negro" three (3) months
prior to admission in the hospital and Rosario's unfortunate profession, there is always the possibility
that she could have allowed herself to be violated by this perverse kind of sexual behavior where a
vibrator or vibrators were inserted into her vagina between October, 1986 and May, 1987.
Moreover, the long delay of seven (7) months after the incident in reporting the alleged crime
renders the evidence for the prosecution insufficient to establish appellant's guilty connection with
the requisite moral certainty. (See People v. Mula Cruz, 129 SCRA 156 [1984]).
The established facts do not entirely rule out the possibility that the appellant could have inserted a
foreign object inside Rosario's vagina. This object may have caused her death. It is possible that the
appellant could be the guilty person. However, the Court cannot base an affirmance of conviction

upon mere possibilities. Suspicions and possibilities are not evidence and therefore should not be
taken against the accused. (People v. Tolentino,supra)
Well-established is the rule that every circumstance favorable to the accused should be duly taken
into account. This rule applies even to hardened criminals or those whose bizarre behaviour violates
the mores of civilized society. The evidence against the accused must survive the test of reason. The
strongest suspicion must not be allowed to sway judgment. (See Sacay v. Sandiganbayan, 142
SCRA 593 [1986]). As stated in the case of People v. Ng (142 SCRA 615 [1986]):
. . . [F]rom the earliest years of this Court, it has emphasized the rule that reasonable doubt
in criminal cases must be resolved in favor of the accused. The requirement of proof beyond
reasonable doubt calls for moral certainty of guilt. It has been defined as meaning such proof
"to the satisfaction of the court, keeping in mind the presumption of innocence, as precludes
every reasonable hypothesis except that which it is given to support. It is not sufficient for the
proof to establish a probability, even though strong, that the fact charged is more likely to be
true than the contrary. It must establish the truth of the fact to a reasonable and moral
certainty—a certainty that convinces and satisfies the reason and the conscience of those
who are to act upon it. (Moreno, Philippine Law Dictionary, 1972 Edition, p. 379, citing U.S. v.
Reyes, 3 Phil. 3). . . .
In the instant case, since there are circumstances which prevent our being morally certain of the guilt
of the appellant, he is, therefore, entitled to an acquittal.
This notwithstanding, the Court can not ignore the acts of the appellant on the children, Jessie
Ramirez and Rosario Baluyot in October, 1986 at the MGM Hotel. Inspite of his flat denials, we are
convinced that he comes to this country not to look at historical sights, enrich his intellect or indulge
in legitimate pleasures but in order to satisfy the urgings of a sick mind.
With the positive Identification and testimony by Jessie Ramirez that it was the appellant who picked
him and Rosario from among the children and invited them to the hotel; and that in the hotel he was
shown pictures of young boys like him and the two masturbated each other, such actuations clearly
show that the appellant is a pedophile. When apprehended in Ermita, he was sizing up young
children. Dr. Solis defined pedophilia in his book entitled Legal Medicine, 1987 edition, as follows:
Pedophilia—A form of sexual perversion wherein a person has the compulsive desire to
have sexual intercourse with a child of either sex. Children of various ages participate in
sexual activities, like fellatio, cunnilingus, fondling with sex organs, or anal sexual
intercourse. Usually committed by a homosexual between a man and a boy the latter being a
passive partner.
Ritter was prosecuted for rape with homicide and not pedophilia, assuming this is a crime by itself.
Pedophilia is clearly a behavior offensive to public morals and violative of the declared policy of the
state to promote and protect the physical, moral, spiritual and social well-being of our youth. (Article
II, Section 13, 1987 Constitution) (Harvey v. Defensor Santiago, 162 SCRA 840, 848 [1989]).
Pedophiles, especially thrill seeking aliens have no place in our country.

In this case, there is reasonable ground to believe that the appellant committed acts injurious not
only to Rosario Baluyot but also to the public good and domestic tranquility of the people. The state
has expressly committed itself to defend the right of children to assistance and special protection
from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their
development. (Art. XV, Section 3 [2] . . . (Harvey v. Santiago,supra). The appellant has abused
Filipino children, enticing them with money. The appellant should be expelled from the country.
Furthermore, it does not necessarily follow that the appellant is also free from civil liability which is
impliedly instituted with the criminal action. (Rule III, Section 1) The well-settled doctrine is that a
person while not criminally liable, may still be civilly liable. We reiterate what has been stated
in Urbano v. IAC, supra.
. . . 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 rise 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 the 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 indemnifying 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.
Rosario Baluyot is a street child who ran away from her grandmother's house. Circumstances
forced her to succumb and enter this unfortunate profession. Nonetheless, she has left behind heirs
who have certainly suffered mental anguish, anxiety and moral shock by her sudden and incredulous
death as reflected in the records of the case. Though we are acquitting the appellant for the crime of
rape with homicide, we emphasize that we are not ruling that he is innocent or blameless. It is only
the constitutional presumption of innocence and the failure of the prosecution to build an airtight
case for conviction which saved him, not that the facts of unlawful conduct do not exist. As earlier
stated, there is the likelihood that he did insert the vibrator whose end was left inside Rosario's
vaginal canal and that the vibrator may have caused her death. True, we cannot convict on
probabilities or possibilities but civil liability does not require proof beyond reasonable doubt. The
Court can order the payment of indemnity on the facts found in the records of this case.
1âwphi1

The appellant certainly committed acts contrary to morals, good customs, public order or public
policy (see Article 21 Civil Code). As earlier mentioned, the appellant has abused Filipino children,
enticing them with money. We can not overstress the responsibility for proper behavior of all adults in
the Philippines, including the appellant towards young children. The sexual exploitation committed
by the appellant should not and can not be condoned. Thus, considering the circumstances of the
case, we are awarding damages to the heirs of Rosario Baluyot in the amount of P30,000.00.
And finally, the Court deplores the lack of criminal laws which will adequately protect street children
from exploitation by pedophiles, pimps, and, perhaps, their own parents or guardians who profit from
the sale of young bodies. The provisions on statutory rape and other related offenses were never
intended for the relatively recent influx of pedophiles taking advantage of rampant poverty among
the forgotten segments of our society. Newspaper and magazine articles, media exposes, college
dissertations, and other studies deal at length with this serious social problem but pedophiles like the
appellant will continue to enter the Philippines and foreign publications catering to them will continue
to advertise the availability of Filipino street children unless the Government acts and acts soon. We
have to acquit the appellant because the Bill of Rights commands us to do so. We, however, express
the Court's concern about the problem of street children and the evils committed against them.
Something must be done about it.
WHEREFORE, the appealed judgment is REVERSED and SET ASIDE. Appellant HEINRICH
STEFAN RITTER is ACQUITTED on grounds of reasonable doubt. The appellant is ordered to pay
the amount of P30,000.00 by way of moral and exemplary damages to the heirs of Rosario Baluyot.
The Commissioner of Immigration and Deportation is hereby directed to institute proper deportation
proceedings against the appellant and to immediately expel him thereafter with prejudice to re-entry
into the country.
SO ORDERED.

HEIRS OF EDUARDO
SIMON,
Petitioners,

-versus -

G.R. No. 157547
Present:
BRION, Acting Chairperson,**
BERSAMIN,
ABAD,***
VILLARAMA, JR., and
SERENO, JJ.

Promulgated:
ELVIN* CHAN AND THE
COURT OF APPEALS,
February 23, 2011
Respondent.
x-----------------------------------------------------------------------------------------x
DECISION
BERSAMIN, J.:
There is no independent civil action to recover the civil liability arising from
the issuance of an unfunded check prohibited and punished under Batas Pambansa
Bilang 22(BP 22).
Antecedents
On July 11, 1997, the Office of the City Prosecutor of Manila filed in the
Metropolitan Trial Court of Manila (MeTC) an information charging the late
Eduardo Simon (Simon) with a violation of BP 22, docketed as Criminal Case No.
275381 entitled People v. Eduardo Simon. The accusatory portion reads:
That sometime in December 1996 in the City of Manila,
Philippines, the said accused, did then and there willfully, unlawfully
and feloniously make or draw and issue to Elvin Chan to apply on

account or for value Landbank Check No. 0007280 dated December 26,
1996 payable to cash in the amount of P336,000.00 said accused well
knowing that at the time of issue she/he/they did not have sufficient
funds in or credit with the drawee bank for payment of such check in full
upon its presentment, which check when presented for payment within
ninety (90) days from the date thereof was subsequently dishonored by
the drawee bank for Account Closed and despite receipt of notice of such
dishonor, said accused failed to pay said Elvin Chan the amount of the
check or to make arrangement for full payment of the same within five
(5) banking days after receiving said notice.
CONTRARY TO LAW. [1]

More than three years later, or on August 3, 2000, respondent Elvin Chan
commenced in the MeTC in Pasay City a civil action for the collection of the
principal amount ofP336,000.00, coupled with an application for a writ
of preliminary attachment (docketed as Civil Case No. 915-00). [2] He alleged in his
complaint the following:
xxx
2. Sometime in December 1996 defendant employing fraud, deceit,
and misrepresentation encashed a check dated December 26, 1996 in the
amount of P336,000.00 to the plaintiff assuring the latter that the check
is duly funded and that he had an existing account with the Land Bank of
the Philippines, xerox copy of the said check is hereto attached as Annex
A;
3. However, when said check was presented for payment the same
was dishonored on the ground that the account of the defendant with the
Land Bank of the Philippines has been closed contrary to his
representation that he has an existing account with the said bank and that
the said check was duly funded and will be honored when presented for
payment;
4. Demands had been made to the defendant for him to make good
the payment of the value of the check, xerox copy of the letter of
demand is hereto attached as Annex B, but despite such demand
defendant refused and continues to refuse to comply with plaintiffs valid
demand;

5. Due to the unlawful failure of the defendant to comply with the
plaintiffs valid demands, plaintiff has been compelled to retain the
services of counsel for which he agreed to pay as reasonable attorneys
fees the amount of P50,000.00 plus additional amount of P2,000.00 per
appearance.
ALLEGATION IN SUPPORT OF PRAYER
FOR PRELIMINARY ATTACHMENT
6. The defendant as previously alleged has been guilty of fraud in
contracting the obligation upon which this action is brought and that
there is no sufficient security for the claims sought in this action which
fraud consist in the misrepresentation by the defendant that he has an
existing account and sufficient funds to cover the check when in fact his
account was already closed at the time he issued a check;
7. That the plaintiff has a sufficient cause of action and this action is
one which falls under Section 1, sub-paragraph (d), Rule 57 of the
Revised Rules of Court of the Philippines and the amount due the
plaintiff is as much as the sum for which the plaintiff seeks the writ of
preliminary attachment;
8. That the plaintiff is willing and able to post a bond conditioned
upon the payment of damages should it be finally found out that the
plaintiff is not entitled to the issuance of a writ of preliminary
attachment.[3]

On August 9, 2000, the MeTC in Pasay City issued a writ of preliminary
attachment, which was implemented on August 17, 2000 through the sheriff
attaching a Nissan vehicle of Simon.[4]
On August 17, 2000, Simon filed an urgent motion to dismiss with
application to charge plaintiffs attachment bond for damages,[5] pertinently
averring:
xxx
On the ground of litis pendentia, that is, as a consequence of the
pendency of another action between the instant parties for the same

cause before the Metropolitan Trial Court of Manila, Branch X (10)
entitled People of the Philippines vs. Eduardo Simon, docketed thereat as
Criminal Case No. 275381-CR, the instant action is dismissable under
Section 1, (e), Rule 16, 1997 Rules of Civil Procedure, xxx
xxx
While the instant case is civil in nature and character as
contradistinguished from the said Criminal Case No. 915-00 in the
Metropolitan Trial Court of Manila, Branch X (10), the basis of the
instant civil action is the herein plaintiffs criminal complaint against
defendant arising from a charge of violation of Batas Pambansa Blg. 22
as a consequence of the alleged dishonor in plaintiffs hands upon
presentment for payment with drawee bank a Land Bank Check No.
0007280 dated December 26, 1996 in the amount of P336,000- drawn
allegedly issued to plaintiff by defendant who is the accused in said case,
a photocopy of the Criminal information filed by the Assistant City
Prosecutor of Manila on June 11, 1997 hereto attached and made integral
part hereof as Annex 1.
It is our understanding of the law and the rules, that, when a
criminal action is instituted, the civil action for recovery of civil liability
arising from the offense charged is impliedly instituted with the criminal
action, unless the offended party expressly waives the civil action or
reserves his right to institute it separately xxx.

On August 29, 2000, Chan opposed Simons urgent motion to dismiss with
application to charge plaintiffs attachment bond for damages, stating:
1. The sole ground upon which defendant seeks to dismiss plaintiffs
complaint is the alleged pendency of another action between the same
parties for the same cause, contending among others that the pendency of
Criminal Case No. 275381-CR entitled People of the Philippines vs.
Eduardo Simon renders this case dismissable;
2. The defendant further contends that under Section 1, Rule 111 of
the Revised Rules of Court, the filing of the criminal action, the civil
action for recovery of civil liability arising from the offense charged is
impliedly instituted with the criminal action which the plaintiff does not
contest; however, it is the submission of the plaintiff that an implied
reservation of the right to file a civil action has already been made, first,
by the fact that the information for violation of B.P. 22 in Criminal Case

No. 2753841 does not at all make any allegation of damages suffered by
the plaintiff nor is there any claim for recovery of damages; on top of
this the plaintiff as private complainant in the criminal case, during the
presentation of the prosecution evidence was not represented at all by a
private prosecutor such that no evidence has been adduced by the
prosecution on the criminal case to prove damages; all of these we
respectfully submit demonstrate an effective implied reservation of the
right of the plaintiff to file a separate civil action for damages;
3. The defendant relies on Section 3 sub-paragraph (a) Rule 111 of
the Revised Rules of Court which mandates that after a criminal action
has been commenced the civil action cannot be instituted until final
judgment has been rendered in the criminal action; however, the
defendant overlooks and conveniently failed to consider that under
Section 2, Rule 111 which provides as follows:
In the cases provided for in Articles 31, 32, 33, 34 and 2177
of the Civil Code of the Philippines, an independent civil action
entirely separate and distinct from the criminal action, may be
brought by the injured party during the pendency of criminal
case provided the right is reserved as required in the preceding
section. Such civil action shall proceed independently of the
criminal prosecution, and shall require only a preponderance of
evidence.
In as much as the case is one that falls under Art. 33 of the Civil Code of
the Philippines as it is based on fraud, this action therefore may be
prosecuted independently of the criminal action;
4. In fact we would even venture to state that even without any
reservation at all of the right to file a separate civil action still the
plaintiff is authorized to file this instant case because the plaintiff seeks
to enforce an obligation which the defendant owes to the plaintiff by
virtue of the negotiable instruments law. The plaintiff in this case sued
the defendant to enforce his liability as drawer in favor of the plaintiff as
payee of the check. Assuming the allegation of the defendant of the
alleged circumstances relative to the issuance of the check, still when he
delivered the check payable to bearer to that certain Pedro Domingo, as
it was payable to cash, the same may be negotiated by delivery by who
ever was the bearer of the check and such negotiation was valid and
effective against the drawer;

5. Indeed, assuming as true the allegations of the defendant
regarding the circumstances relative to the issuance of the check it would
be entirely impossible for the plaintiff to have been aware that such
check was intended only for a definite person and was not negotiable
considering that the said check was payable to bearer and was not even
crossed;
6. We contend that what cannot be prosecuted separate and apart
from the criminal case without a reservation is a civil action arising from
the criminal offense charged. However, in this instant case since the
liability of the defendant are imposed and the rights of the plaintiff are
created by the negotiable instruments law, even without any reservation
at all this instant action may still be prosecuted;
7. Having this shown, the merits of plaintiffs complaint the
application for damages against the bond is totally without any legal
support and perforce should be dismissed outright. [6]

On October 23, 2000, the MeTC in Pasay City granted Simons urgent
motion to dismiss with application to charge plaintiffs attachment bond for
damages,[7] dismissing the complaint of Chan because:
xxx
After study of the arguments of the parties, the court resolves to
GRANT the Motion to Dismiss and the application to charge plaintiffs
bond for damages.
For litis pendentia to be a ground for the dismissal of an action, the
following requisites must concur: (a) identity of parties or at least such
as to represent the same interest in both actions; (b) identity of rights
asserted and relief prayed for, the relief being founded on the same acts;
and (c) the identity in the two (2) cases should be such that the judgment,
which may be rendered in one would, regardless of which party is
successful, amount to res judicata in the other. xxx
A close perusal of the herein complaint denominated as Sum of
Money and the criminal case for violation of BP Blg. 22 would readily
show that the parties are not only identical but also the cause of action
being asserted, which is the recovery of the value of Landbank Check

No. 0007280 in the amount of P336,000.00. In both civil and criminal
cases, the rights asserted and relief prayed for, the reliefs being founded
on the same facts, are identical.
Plaintiffs claim that there is an effective implied waiver of his right
to pursue this civil case owing to the fact that there was no allegation of
damages in BP Blg. 22 case and that there was no private prosecutor
during the presentation of prosecution evidence is unmeritorious. It is
basic that when a complaint or criminal Information is filed, even
without any allegation of damages and the intention to prove and claim
them, the offended party has the right to prove and claim for them,
unless a waiver or reservation is made or unless in the meantime, the
offended party has instituted a separate civil action. xxx The over-all
import of the said provision conveys that the waiver which includes
indemnity under the Revised Penal Code, and damages arising under
Articles 32, 33, and 34 of the Civil Code must be both clear and express.
And this must be logically so as the primordial objective of the Rule is to
prevent the offended party from recovering damages twice for the same
act or omission of the accused.
Indeed, the evidence discloses that the plaintiff did not waive or
made a reservation as to his right to pursue the civil branch of the
criminal case for violation of BP Blg. 22 against the defendant herein. To
the considered view of this court, the filing of the instant complaint for
sum of money is indeed legally barred. The right to institute a separate
civil action shall be made before the prosecution starts to present its
evidence and under circumstances affording the offended party a
reasonable opportunity to make such reservation. xxx
Even assuming the correctness of the plaintiffs submission that the
herein case for sum of money is one based on fraud and hence falling
under Article 33 of the Civil Code, still prior reservation is required by
the Rules, to wit:
In the cases provided for in Articles 31, 32, 33, 34 and 2177
of the Civil Code of the Philippines, an independent civil action
entirely separate and distinct from the criminal action, may be
brought by the injured party during the pendency of criminal
case provided the right is reserved as required in the preceding
section. Such civil action shall proceed independently of the

criminal prosecution, and shall require only a preponderance of
evidence.
xxx
WHEREFORE, premises considered, the court resolves to:
1. Dismiss the instant complaint on the ground of litis pendentia;
2. Dissolve/Lift the Writ of Attachment issued by this court
on August 14, 2000;
3. Charge the plaintiffs bond the amount of P336,000.00 in favor
of the defendant for the damages sustained by the latter by virtue
of the implementation of the writ of attachment;
4. Direct the Branch Sheriff of this Court to RESTORE with
utmost dispatch to the defendants physical possession the
vehicle seized from him on August 16, 2000; and
5. Direct the plaintiff to pay the defendant the sum of P5,000.00
by way of attorneys fees.
SO ORDERED.

Chans motion for reconsideration was denied on December 20, 2000,[8] viz:
Considering that the plaintiffs arguments appear to be a mere
repetition of his previous submissions, and which submissions this court
have already passed upon; and taking into account the inapplicability of
the ratio decidendi in the Tactaquin vs. Palileo case which the plaintiff
cited as clearly in that case, the plaintiff therein expressly made a
reservation to file a separate civil action, the Motion for Reconsideration
is DENIED for lack of merit.
SO ORDERED.

On July 31, 2001, the Regional Trial Court (RTC) in Pasay City upheld the
dismissal of Chans complaint, disposing:[9]

WHEREFORE, finding no error in the appealed decision, the same
is hereby AFFIRMED in toto.
SO ORDERED.

On September 26, 2001, Chan appealed to the Court of Appeals (CA)
by petition for review,[10] challenging the propriety of the dismissal of his complaint
on the ground of litis pendentia.
In his comment, [11] Simon countered that Chan was guilty of bad faith and
malice in prosecuting his alleged civil claim twice in a manner that caused him
(Simon) utter embarrassment and emotional sufferings; and that the dismissal of
the civil case because of the valid ground of litis pendentia based on Section 1 (e),
Rule 16 of the 1997 Rules of Civil Procedure was warranted.
On June 25, 2002, the CA promulgated its assailed decision, [12] overturning
the RTC, viz:
xxx
As a general rule, an offense causes two (2) classes of injuries. The
first is the social injury produced by the criminal act which is sought to
be repaired through the imposition of the corresponding penalty, and the
second is the personal injury caused to the victim of the crime which
injury is sought to be compensated through indemnity which is also civil
in nature. Thus, every person criminally liable for a felony is also civilly
liable.
The offended party may prove the civil liability of an accused
arising from the commission of the offense in the criminal case since the
civil action is either deemed instituted with the criminal action or is
separately instituted.
Rule 111, Section 1 of the Revised Rules of Criminal Procedure,
which became effective on December 1, 2000, provides that:
(a) When a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense charged
shall be deemed instituted with the criminal action unless
the offended party waives the civil action, reserves the right

to institute it separately or institute the civil action prior to
the criminal action.
Rule 111, Section 2 further states:
After the criminal action has been commenced, the separate
civil action arising therefrom cannot be instituted until final
judgment has been entered in the criminal action.
However, with respect to civil actions for recovery of civil liability
under Articles 32, 33, 34 and 2176 of the Civil Code arising from the
same act or omission, the rule has been changed.
In DMPI Employees Credit Association vs. Velez, the Supreme
Court pronounced that only the civil liability arising from the offense
charged is deemed instituted with the criminal action unless the offended
party waives the civil action, reserves his right to institute it separately,
or institutes the civil action prior to the criminal action. Speaking
through Justice Pardo, the Supreme Court held:
There is no more need for a reservation of the right to file
the independent civil action under Articles 32, 33, 34 and
2176 of the Civil Code of the Philippines. The reservation
and waiver referred to refers only to the civil action for the
recovery of the civil liability arising from the offense
charged. This does not include recovery of civil liability
under Articles 32, 33, 34, and 2176 of the Civil Code of
the Philippines arising from the same act or omission which
may be prosecuted separately without a reservation.
Rule 111, Section 3 reads:
Sec. 3. When civil action may proceed independently.
In the cases provided in Articles 32, 33, 34, and 2176 of
the Civil Code of the Philippines, the independent civil
action may be brought by the offended party. It shall
proceed independently of the criminal action and shall
require only a preponderance of evidence. In no case,
however, may the offended party recover damages twice
for the same act or omission charged in the criminal
action.

The changes in the Revised Rules on Criminal Procedure
pertaining to independent civil actions which became
effective on December 1, 2000 are applicable to this case.
Procedural laws may be given retroactive effect to actions
pending and undetermined at the time of their passage. There
are no vested rights in the rules of procedure. xxx
Thus, Civil Case No. CV-94-124, an independent civil
action for damages on account of the fraud committed
against respondent Villegas under Article 33 of the Civil
Code, may proceed independently even if there was no
reservation as to its filing.
It must be pointed that the abovecited case is similar with the
instant suit. The complaint was also brought on allegation of fraud under
Article 33 of the Civil Code and committed by the respondent in the
issuance of the check which later bounced. It was filed before the trial
court, despite the pendency of the criminal case for violation of BP 22
against the respondent. While it may be true that the changes in the
Revised Rules on Criminal Procedure pertaining to independent civil
action became effective on December 1, 2000, the same may be given
retroactive application and may be made to apply to the case at bench,
since procedural rules may be given retroactive application. There are no
vested rights in the rules of procedure.

In view of the ruling on the first assigned error, it is therefore an
error to adjudge damages in favor of the petitioner.
WHEREFORE, the petition is hereby GRANTED. The Decision
dated July 13, 2001 rendered by the Regional Trial Court of Pasay City,
Branch 108 affirming the dismissal of the complaint filed by petitioner is
hereby REVERSED and SET ASIDE. The case is hereby REMANDED
to the trial court for further proceedings.
SO ORDERED.

On March 14, 2003, the CA denied Simons motion for reconsideration.[13]

Hence, this appeal, in which the petitioners submit that the CA erroneously
premised its decision on the assessment that the civil case was an independent civil
action under Articles 32, 33, 34, and 2176 of the Civil Code; that the CAs reliance
on the ruling in DMPI Employees Credit Cooperative Inc. v. Velez [14] stretched the
meaning and intent of the ruling, and was contrary to Sections 1 and 2 of Rule 111
of the Rules of Criminal Procedure; that this case was a simple collection suit for a
sum of money, precluding the application of Section 3 of Rule 111 of the Rules of
Criminal Procedure.[15]
In his comment,[16] Chan counters that the petition for review should be denied
because the petitioners used the wrong mode of appeal; that his cause of action,
being based on fraud, was an independent civil action; and that the appearance of a
private prosecutor in the criminal case did not preclude the filing of his separate
civil action.

Issue
The lone issue is whether or not Chans civil action to recover the amount of the
unfunded check (Civil Case No. 915-00) was an independent civil action.
Ruling
The petition is meritorious.
A
Applicable Law and Jurisprudence on the
Propriety of filing a separate civil action based on BP 22
The Supreme Court has settled the issue of whether or not a violation of BP
22 can give rise to civil liability in Banal v. Judge Tadeo, Jr.,[17] holding:
xxx
Article 20 of the New Civil Code provides:

Every person who, contrary to law, wilfully or negligently
causes damage to another, shall indemnify the latter for the
same.
Regardless, therefore, of whether or not a special law so provides,
indemnification of the offended party may be had on account of the
damage, loss or injury directly suffered as a consequence of the
wrongful act of another. The indemnity which a person is sentenced to
pay forms an integral part of the penalty imposed by law for the
commission of a crime (Quemel v. Court of Appeals, 22 SCRA 44,
citing Bagtas v. Director of Prisons, 84 Phil 692). Every crime gives
rise to a penal or criminal action for the punishment of the guilty party,
and also to civil action for the restitution of the thing, repair of the
damage, and indemnification for the losses (United States v. Bernardo,
19 Phil 265).
xxx
Civil liability to the offended party cannot thus be denied. The payee of
the check is entitled to receive the payment of money for which the
worthless check was issued. Having been caused the damage, she is
entitled to recompense.
Surely, it could not have been the intendment of the framers of Batas
Pambansa Blg. 22 to leave the offended private party defrauded and
empty-handed by excluding the civil liability of the offender, giving her
only the remedy, which in many cases results in a Pyrrhic victory, of
having to file a separate civil suit. To do so may leave the offended
party unable to recover even the face value of the check due her,
thereby unjustly enriching the errant drawer at the expense of the
payee. The protection which the law seeks to provide would, therefore,
be brought to naught.
xxx

However, there is no independent civil action to recover the value of a bouncing
check issued in contravention of BP 22. This is clear from Rule 111 of the Rules of
Court,effective December 1, 2000, which relevantly provides:
Section 1. Institution of criminal and civil actions. - (a) When a
criminal action is instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be deemed instituted with

the criminal action unless the offended party waives the civil action,
reserves the right to institute it separately or institutes the civil action
prior to the criminal action.
The reservation of the right to institute separately the civil action
shall be made before the prosecution starts presenting its evidence and
under circumstances affording the offended party a reasonable
opportunity to make such reservation.
When the offended party seeks to enforce civil liability against the
accused by way of moral, nominal, temperate, or exemplary damages
without specifying the amount thereof in the complaint or information,
the filing fees therefor shall constitute a first lien on the judgment
awarding such damages.
Where the amount of damages, other than actual, is specified in the
complaint or information, the corresponding filing fees shall be paid by
the offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall be
required for actual damages.
No counterclaim, cross-claim or third-party complaint may be filed
by the accused in the criminal case, but any cause of action which could
have been the subject thereof may be litigated in a separate civil action.
(1a)
(b) The criminal action for violation of Batas Pambansa Blg. 22
shall be deemed to include the corresponding civil action. No
reservation to file such civil action separately shall be allowed.[18]
Upon filing of the aforesaid joint criminal and civil actions, the
offended party shall pay in full the filing fees based on the amount of the
check involved, which shall be considered as the actual damages
claimed. Where the complaint or information also seeks to recover
liquidated, moral, nominal, temperate or exemplary damages, the
offended party shall pay the filing fees based on the amounts alleged
therein. If the amounts are not so alleged but any of these damages are
subsequently awarded by the court, the filing fees based on the amount
awarded shall constitute a first lien on the judgment.

Where the civil action has been filed separately and trial thereof has
not yet commenced, it may be consolidated with the criminal action
upon application with the court trying the latter case. If the application is
granted, the trial of both actions shall proceed in accordance with section
2 of the Rule governing consolidation of the civil and criminal actions.
Section 3. When civil action may proceed independently. In the
cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines, the independent civil action may be brought by the
offended party. It shall proceed independently of the criminal action and
shall require only a preponderance of evidence. In no case, however,
may the offended party recover damages twice for the same act or
omission charged in the criminal action.

The aforequoted provisions of the Rules of Court, even if not yet in effect
when Chan commenced Civil Case No. 915-00 on August 3, 2000, are nonetheless
applicable. It is axiomatic that the retroactive application of procedural laws does
not violate any right of a person who may feel adversely affected, nor is it
constitutionally objectionable. The reason is simply that, as a general rule, no
vested right may attach to, or arise from, procedural laws. [19] Any new rules may
validly be made to apply to cases pending at the time of their promulgation,
considering that no party to an action has a vested right in the rules of procedure,
[20]
except that in criminal cases, the changes do not retroactively apply if they
permit or require a lesser quantum of evidence to convict than what is required at
the time of the commission of the offenses, because such retroactivity would be
unconstitutional for being ex post facto under the Constitution.[21]
Moreover, the application of the rule would not be precluded by the
violation of any assumed vested right, because the new rule was adopted from
Supreme Court Circular 57-97 that took effect on November 1, 1997.
Supreme Court Circular 57-97 states:
Any provision of law or Rules of Court to the contrary
notwithstanding, the following rules and guidelines shall henceforth be
observed in the filing and prosecution of all criminal cases under Batas
Pambansa Blg. 22 which penalizes the making or drawing and issuance
of a check without funds or credit:

1. The criminal action for violation of Batas Pambansa Blg. 22
shall be deemed to necessarily include the corresponding civil action,
and no reservation to file such civil action separately shall be
allowed or recognized.[22]
2. Upon the filing of the aforesaid joint criminal and civil actions,
the offended party shall pay in full the filing fees based upon the amount
of the check involved which shall be considered as the actual damages
claimed, in accordance with the schedule of fees in Section 7 (a) and
Section 8 (a), Rule 141 of the Rules of Court as last amended by
Administrative Circular No. 11-94 effective August 1, 1994. Where the
offended party further seeks to enforce against the accused civil liability
by way of liquidated, moral, nominal, temperate or exemplary damages,
he shall pay the corresponding filing fees therefor based on the amounts
thereof as alleged either in the complaint or information. If not so
alleged but any of these damages are subsequently awarded by the court,
the amount of such fees shall constitute a first lien on the judgment.
3. Where the civil action has heretofore been filed separately and
trial thereof has not yet commenced, it may be consolidated with the
criminal action upon application with the court trying the latter case. If
the application is granted, the trial of both actions shall proceed in
accordance with the pertinent procedure outlined in Section 2 (a) of Rule
111 governing the proceedings in the actions as thus consolidated.
4. This Circular shall be published in two (2) newspapers of general
circulation and shall take effect on November 1, 1997.

The reasons for issuing Circular 57-97 were amply explained in Hyatt
Industrial Manufacturing Corporation v. Asia Dynamic Electrix Corporation,
[23]
thus:

xxx
We agree with the ruling of the Court of Appeals that upon filing of
the criminal cases for violation of B.P. 22, the civil action for the
recovery of the amount of the checks was also impliedly instituted under
Section 1(b) of Rule 111 of the 2000 Rules on Criminal Procedure.
Under the present revised Rules, the criminal action for violation of B.P.

22 shall be deemed to include the corresponding civil action. The
reservation to file a separate civil action is no longer needed. The Rules
provide:
Section 1. Institution of criminal and civil actions.
(a)

xxx

(b) The criminal action for violation of Batas Pambansa
Blg. 22 shall be deemed to include the corresponding civil
action. No reservation to file such civil action separately shall
be allowed.
Upon filing of the aforesaid joint criminal and civil actions,
the offended party shall pay in full the filing fees based on the
amount of the check involved, which shall be considered as the
actual damages claimed. Where the complaint or information
also seeks to recover liquidated, moral, nominal, temperate or
exemplary damages, the offended party shall pay additional
filing fees based on the amounts alleged therein. If the amounts
are not so alleged but any of these damages are subsequently
awarded by the court, the filing fees based on the amount
awarded shall constitute a first lien on the judgment.
Where the civil action has been filed separately and trial
thereof has not yet commenced, it may be consolidated with the
criminal action upon application with the court trying the latter
case. If the application is granted, the trial of both actions shall
proceed in accordance with section 2 of this Rule governing
consolidation of the civil and criminal actions.
The foregoing rule was adopted from Circular No. 57-97 of this
Court. It specifically states that the criminal action for violation of B.P.
22 shall be deemed to include the corresponding civil action. It also
requires the complainant to pay in full the filing fees based on the
amount of the check involved. Generally, no filing fees are required for
criminal cases, but because of the inclusion of the civil action in
complaints for violation of B.P. 22, the Rules require the payment of
docket fees upon the filing of the complaint. This rule was enacted to
help declog court dockets which are filled with B.P. 22 cases as
creditors actually use the courts as collectors. Because ordinarily no

filing fee is charged in criminal cases for actual damages, the payee
uses the intimidating effect of a criminal charge to collect his credit
gratis and sometimes, upon being paid, the trial court is not even
informed thereof. The inclusion of the civil action in the criminal
case is expected to significantly lower the number of cases filed
before the courts for collection based on dishonored checks. It is
also expected to expedite the disposition of these cases. Instead of
instituting two separate cases, one for criminal and another for civil,
only a single suit shall be filed and tried. It should be stressed that
the policy laid down by the Rules is to discourage the separate filing
of the civil action. The Rules even prohibit the reservation of a
separate civil action, which means that one can no longer file a
separate civil case after the criminal complaint is filed in court. The
only instance when separate proceedings are allowed is when the
civil action is filed ahead of the criminal case. Even then, the Rules
encourage the consolidation of the civil and criminal cases. We have
previously observed that a separate civil action for the purpose of
recovering the amount of the dishonored checks would only prove to
be costly, burdensome and time-consuming for both parties and
would further delay the final disposition of the case. This
multiplicity of suits must be avoided. Where petitioners rights may
be fully adjudicated in the proceedings before the trial court, resort
to a separate action to recover civil liability is clearly unwarranted.
In view of this special rule governing actions for violation of B.P. 22,
Article 31 of the Civil Code cited by the trial court will not apply to
the case at bar.[24]

The CAs reliance on DMPI Employees Credit Association v. Velez [25] to give
due course to the civil action of Chan independently and separately of Criminal
Case No. 275381 was unwarranted. DMPI Employees, which involved a
prosecution for estafa, is not on all fours with this case, which is a prosecution for
a violation of BP 22. Although the Court has ruled that the issuance of a bouncing
check may result in two separate and distinct crimes of estafa and violation of BP
22,[26] the procedures for the recovery of the civil liabilities arising from these two
distinct crimes are different and non-interchangeable. In prosecutions of estafa, the
offended party may opt to reserve his right to file a separate civil action, or may
institute an independent action based on fraud pursuant to Article 33 of the Civil
Code,[27] as DMPI Employees has allowed. In prosecutions of violations of BP 22,
however, the Court has adopted a policy to prohibit the reservation or institution of

a separate civil action to claim the civil liability arising from the issuance of the
bouncing check upon the reasons delineated in Hyatt Industrial Manufacturing
Corporation, supra.
To repeat, Chans separate civil action to recover the amount of the check involved
in the prosecution for the violation of BP 22 could not be independently
maintained under both Supreme Court Circular 57-97 and the aforequoted
provisions of Rule 111 of the Rules of Court, notwithstanding the allegations of
fraud and deceit.
B
Aptness of the dismissal of the civil action
on the ground of litis pendentia
Did the pendency of the civil action in the MeTC in Manila (as the civil
aspect in Criminal Case No. 275381) bar the filing of Civil Case No. 915-00 in the
MeTC in PasayCity on the ground of litis pendentia?
For litis pendentia to be successfully invoked as a bar to an action, the
concurrence of the following requisites is necessary, namely: (a) there must be
identity of parties or at least such as represent the same interest in both actions; (b)
there must be identity of rights asserted and reliefs prayed for, the reliefs being
founded on the same facts; and, (c) the identity in the two cases should be such that
the judgment that may be rendered in one would, regardless of which party is
successful, amount to res judicata in respect of the other. Absent the first two
requisites, the possibility of the existence of the third becomes nil.[28]
A perusal of Civil Case No. 01-0033 and Criminal Case No. 275381
ineluctably shows that all the elements of litis pendentia are attendant. First of all,
the parties in the civil action involved in Criminal Case No. 275381 and in Civil
Case No. 915-00, that is, Chan and Simon, are the same. Secondly, the information
in Criminal Case No. 275381 and the complaint in Civil Case No. 915-00 both
alleged that Simon had issued Landbank Check No. 0007280 worth P336,000.00
payable to cash, thereby indicating that the rights asserted and the reliefs prayed
for, as well as the facts upon which the reliefs sought were founded, were identical
in all respects. And, thirdly, any judgment rendered in one case would necessarily

bar the other by res judicata; otherwise, Chan would be recovering twice upon the
same claim.
It is clear, therefore, that the MeTC in Pasay City properly dismissed Civil
Case No. 915-00 on the ground of litis pendentia through its decision
dated October 23, 2000; and that the RTC in Pasay City did not err in affirming the
MeTC.
WHEREFORE, we grant the petition for review on certiorari, and, accordingly,
we reverse and set aside the decision promulgated by the Court of Appeals on June
25, 2002. We reinstate the decision rendered on October 23, 2000 by the
Metropolitan Trial Court, Branch 45, in Pasay City.
Costs of suit to be paid by the respondent.
SO ORDERED.

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