[G.R. No. 132266. December 21, 1999]
CASTILEX INDUSTRIAL CORPORATION, petitioner, vs. VICENTE VASQUEZ, JR. and LUISA SO VASQUEZ, and CEBU DOCTORS HOSPITAL, INC., respondents.
The pivotal issue in this petition is whether an employer may be held vicariously liable for the death resulting from the negligent operation by a managerial employee of a company-issued vehicle.
The antecedents, as succinctly summarized by the Court of Appeals, are as follows:
On 28 August 1988, at around 1:30 to 2:00 in the morning, Romeo So Vasquez, was driving a Honda motorcycle around Fuente Osmea Rotunda. He was traveling counter-clockwise, (the normal flow of traffic in a rotunda) but without any protective helmet or goggles. He was also only carrying a Students Permit to Drive at the time. Upon the other hand, Benjamin Abad [was a] manager of Appellant Castilex Industrial Corporation, registered owner [of] a Toyota Hi-Lux Pick-up with plate no. GBW-794. On the same date and time, Abad drove the said company car out of a parking lot but instead of going around the Osmea rotunda he made a short cut against [the] flow of the traffic in proceeding to his route to General Maxilom St. or to Belvic St.
In the process, the motorcycle of Vasquez and the pick-up of Abad collided with each other causing severe injuries to the former. Abad stopped his vehicle and brought Vasquez to the Southern Islands Hospital and later to the Cebu Doctors Hospital.
On September 5, 1988, Vasquez died at the Cebu Doctors Hospital. It was there that Abad signed an acknowledgment of Responsible Party (Exhibit K) wherein he agreed to pay whatever hospital bills, professional fees and other incidental charges Vasquez may incur.
After the police authorities had conducted the investigation of the accident, a Criminal Case was filed against Abad but which was subsequently dismissed for failure to prosecute. So, the present action for damages was commenced by Vicente Vasquez, Jr. and Luisa So Vasquez, parents of the deceased Romeo So Vasquez, against Jose Benjamin Abad and Castilex Industrial Corporation. In the same action, Cebu Doctors Hospital intervened to collect unpaid balance for the medical expense given to Romeo So Vasquez.[1]
The trial court ruled in favor of private respondents Vicente and Luisa Vasquez and ordered Jose Benjamin Abad (hereafter ABAD) and petitioner Castilex Industrial Corporation (hereafter CASTILEX) to pay jointly and solidarily (1) Spouses Vasquez, the amounts of P8,000.00 for burial expenses; P50,000.00 as moral damages; P10,000.00 as attorneys fees; and P778,752.00 for loss of earning capacity; and (2) Cebu Doctors Hospital, the sum of P50,927.83 for unpaid medical and hospital bills at 3% monthly interest from 27 July 1989 until fully paid, plus the costs of litigation.[2]
CASTILEX and ABAD separately appealed the decision.
In its decision[3] of 21 May 1997, the Court of Appeals affirmed the ruling of the trial court holding ABAD and CASTILEX liable but held that the liability of the latter is only vicarious and not solidary with the former. It reduced the award of damages representing loss of earning capacity from P778,752.00 to P214,156.80; and the interest on the hospital and medical bills, from 3% per month to 12% per annum from 5 September 1988 until fully paid.
Upon CASTILEXs motion for reconsideration, the Court of Appeals modified its decision by (1) reducing the award of moral damages from P50,000 to P30,000 in view of the deceaseds contributory negligence; (b) deleting the award of attorneys fees for lack of evidence; and (c) reducing the interest on hospital and medical bills to 6% per annum from 5 September 1988 until fully paid.[4]
Hence, CASTILEX filed the instant petition contending that the Court of Appeals erred in (1) applying to the case the fifth paragraph of Article 2180 of the Civil Code, instead of the fourth paragraph thereof; (2) that as a managerial employee, ABAD was deemed to have been always acting within the scope of his assigned task even outside office hours because he was using a vehicle issued to him by petitioner; and (3) ruling that petitioner had the burden to prove that the employee was not acting within the scope of his assigned task.
Jose Benjamin ABAD merely adopted the statement of facts of petitioner which holds fast on the theory of negligence on the part of the deceased.
On the other hand, respondents Spouses Vasquez argue that their sons death was caused by the negligence of petitioners employee who was driving a vehicle issued by petitioner and who was on his way home from overtime work for petitioner; and that petitioner is thus liable for the resulting injury and subsequent death of their son on the basis of the fifth paragraph of Article 2180. Even if the fourth paragraph of Article 2180 were applied, petitioner cannot escape liability therefor. They moreover argue that the Court of Appeals erred in reducing the amount of compensatory damages when the award made by the trial court was borne both by evidence adduced during the trial regarding deceaseds wages and by jurisprudence on life expectancy. Moreover, they point out that the petition is procedurally not acceptable on the following grounds: (1) lack of an explanation for serving the petition upon the Court of Appeals by registered mail, as required under Section 11, Rule 13 of the Rules of Civil Procedure; and (2) lack of a statement of the dates of the expiration of the original reglementary period and of the filing of the motion for extension of time to file a petition for review.
For its part, respondent Cebu Doctors Hospital maintains that petitioner CASTILEX is indeed vicariously liable for the injuries and subsequent death of Romeo Vasquez caused by ABAD, who was on his way home from taking snacks after doing overtime work for petitioner. Although the incident occurred when ABAD was not working anymore the inescapable fact remains that said employee would not have been situated at such time and place had he not been required by petitioner to do overtime work. Moreover, since petitioner adopted the evidence adduced by ABAD, it cannot, as the latters employer, inveigle itself from the ambit of liability, and is thus estopped by the records of the case, which it failed to refute.
We shall first address the issue raised by the private respondents regarding some alleged procedural lapses in the petition.
Private respondents contention of petitioners violation of Section 11 of Rule 13 and Section 4 of Rule 45 of the 1997 Rules of Civil Procedure holds no water.
Section 11 of Rule 13 provides:
SEC. 11. Priorities in modes of service and filing. -- Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed.
The explanation why service of a copy of the petition upon the Court of Appeals was done by registered mail is found on Page 28 of the petition. Thus, there has been compliance with the aforequoted provision.
As regards the allegation of violation of the material data rule under Section 4 of Rule 45, the same is unfounded. The material dates required to be stated in the petition are the following: (1) the date of receipt of the judgment or final order or resolution subject of the petition; (2) the date of filing of a motion for new trial or reconsideration, if any; and (3) the date of receipt of the notice of the denial of the motion. Contrary to private respondents claim, the petition need not indicate the dates of the expiration of the original reglementary period and the filing of a motion for extension of time to file the petition. At any rate, aside from the material dates required under Section 4 of Rule 45, petitioner CASTILEX also stated in the first page of the petition the date it filed the motion for extension of time to file the petition.
Now on the merits of the case.
The negligence of ABAD is not an issue at this instance. Petitioner CASTILEX presumes said negligence but claims that it is not vicariously liable for the injuries and subsequent death caused by ABAD.
Petitioner contends that the fifth paragraph of Article 2180 of the Civil Code should only apply to instances where the employer is not engaged in business or industry. Since it is engaged in the business of manufacturing and selling furniture it is therefore not covered by said provision. Instead, the fourth paragraph should apply.
Petitioners interpretation of the fifth paragraph is not accurate. The phrase even though the former are not engaged in any business or industry found in the fifth paragraph should be interpreted to mean that it is not necessary for the employer to be engaged in any business or industry to be liable for the negligence of his employee who is acting within the scope of his assigned task.[5]
A distinction must be made between the two provisions to determine what is applicable. Both provisions apply to employers: the fourth paragraph, to owners and managers of an establishment or enterprise; and the fifth paragraph, to employers in general, whether or not engaged in any business or industry. The fourth paragraph covers negligent acts of employees committed either in the service of the branches or on the occasion of their functions, while the fifth paragraph encompasses negligent acts of employees acting within the scope of their assigned task. The latter is an expansion of the former in both employer coverage and acts included. Negligent acts of employees, whether or not the employer is engaged in a business or industry, are covered so long as they were acting within the scope of their assigned task, even though committed neither in the service of the branches nor on the occasion of their functions. For, admittedly, employees oftentimes wear different hats. They perform functions which are beyond their office, title or designation but which, nevertheless, are still within the call of duty.
This court has applied the fifth paragraph to cases where the employer was engaged in a business or industry such as truck operators[6] and banks.[7] The Court of Appeals cannot, therefore, be faulted in applying the said paragraph of Article 2180 of the Civil Code to this case.
Under the fifth paragraph of Article 2180, whether or not engaged in any business or industry, an employer is liable for the torts committed by employees within the scope of his assigned tasks. But it is necessary to establish the employer-employee relationship; once this is done, the plaintiff must show, to hold the employer liable, that the employee was acting within the scope of his assigned task when the tort complained of was committed. It is only then that the employer may find it necessary to interpose the defense of due diligence in the selection and supervision of the employee.[8]
It is undisputed that ABAD was a Production Manager of petitioner CASTILEX at the time of the tort occurrence. As to whether he was acting within the scope of his assigned task is a question of fact, which the court a quo and the Court of Appeals resolved in the affirmative.
Well-entrenched in our jurisprudence is the rule that the factual findings of the Court of Appeals are entitled to great respect, and even finality at times. This rule is, however, subject to exceptions such as when the conclusion is grounded on speculations, surmises, or conjectures.[9] Such exception obtain in the present case to warrant review by this Court of the finding of the Court of Appeals that since ABAD was driving petitioners vehicle he was acting within the scope of his duties as a manager.
Before we pass upon the issue of whether ABAD was performing acts within the range of his employment, we shall first take up the other reason invoked by the Court of Appeals in holding petitioner CASTILEX vicariously liable for ABADs negligence, i.e., that the petitioner did not present evidence that ABAD was not acting within the scope of his assigned tasks at the time of the motor vehicle mishap. Contrary to the ruling of the Court of Appeals, it was not incumbent upon the petitioner to prove the same. It was enough for petitioner CASTILEX to deny that ABAD was acting within the scope of his duties; petitioner was not under obligation to prove this negative averment. Ei incumbit probatio qui dicit, non qui negat (He who asserts, not he who denies, must prove). The Court has consistently applied the ancient rule that if the plaintiff, upon whom rests the burden of proving his cause of action, fails to show in a satisfactory manner facts which he bases his claim, the defendant is under no obligation to prove his exception or defense.[10]
Now on the issue of whether the private respondents have sufficiently established that ABAD was acting within the scope of his assigned tasks.
ABAD, who was presented as a hostile witness, testified that at the time of the incident, he was driving a company-issued vehicle, registered under the name of petitioner. He was then leaving the restaurant where he had some snacks and had a chat with his friends after having done overtime work for the petitioner.
No absolutely hard and fast rule can be stated which will furnish the complete answer to the problem of whether at a given moment, an employee is engaged in his employers business in the operation of a motor vehicle, so as to fix liability upon the employer because of the employees action or inaction; but rather, the result varies with each state of facts.[11]
In Filamer Christian Institute v. Intermediate Appellate Court,[12] this Court had the occasion to hold that acts done within the scope of the employees assigned tasks includes any act done by an employee in furtherance of the interests of the employer or for the account of the employer at the time of the infliction of the injury or damages.
The court a quo and the Court of Appeals were one in holding that the driving by a manager of a company-issued vehicle is within the scope of his assigned tasks regardless of the time and circumstances.
We do not agree. The mere fact that ABAD was using a service vehicle at the time of the injurious incident is not of itself sufficient to charge petitioner with liability for the negligent operation of said vehicle unless it appears that he was operating the vehicle within the course or scope of his employment.
The following are principles in American Jurisprudence on the employers liability for the injuries inflicted by the negligence of an employee in the use of an employers motor vehicle:
I. Operation of Employers Motor Vehicle in Going to or from Meals
It has been held that an employee who uses his employers vehicle in going from his work to a place where he intends to eat or in returning to work from a meal is not ordinarily acting within the scope of his employment in the absence of evidence of some special business benefit to the employer. Evidence that by using the employers vehicle to go to and from meals, an employee is enabled to reduce his time-off and so devote more time to the performance of his duties supports the finding that an employee is acting within the scope of his employment while so driving the vehicle.[13]
II. Operation of Employers Vehicle in Going to or from Work
In the same vein, traveling to and from the place of work is ordinarily a personal problem or concern of the employee, and not a part of his services to his employer. Hence, in the absence of some special benefit to the employer other than the mere performance of the services available at the place where he is needed, the employee is not acting within the scope of his employment even though he uses his employers motor vehicle.[14]
The employer may, however, be liable where he derives some special benefit from having the employee drive home in the employers vehicle as when the employer benefits from having the employee at work earlier and, presumably, spending more time at his actual duties. Where the employees duties require him to circulate in a general area with no fixed place or hours of work, or to go to and from his home to various outside places of work, and his employer furnishes him with a vehicle to use in his work, the courts have frequently applied what has been called the special errand or roving commission rule, under which it can be found that the employee continues in the service of his employer until he actually reaches home. However, even if the employee be deemed to be acting within the scope of his employment in going to or from work in his employers vehicle, the employer is not liable for his negligence where at the time of the accident, the employee has left the direct route to his work or back home and is pursuing a personal errand of his own.
III. Use of Employers Vehicle Outside Regular Working Hours
An employer who loans his motor vehicle to an employee for the latters personal use outside of regular working hours is generally not liable for the employees negligent operation of the vehicle during the period of permissive use, even where the employer contemplates that a regularly assigned motor vehicle will be used by the employee for personal as well as business purposes and there is some incidental benefit to the employer. Even where the employees personal purpose in using the vehicle has been accomplished and he has started the return trip to his house where the vehicle is normally kept, it has been held that he has not resumed his employment, and the employer is not liable for the employees negligent operation of the vehicle during the return trip.[15]
The foregoing principles and jurisprudence are applicable in our jurisdiction albeit based on the doctrine of respondeat superior, not on the principle of bonus pater familias as in ours. Whether the fault or negligence of the employee is conclusive on his employer as in American law or jurisprudence, or merely gives rise to the presumption juris tantum of negligence on the part of the employer as in ours, it is indispensable that the employee was acting in his employers business or within the scope of his assigned task.[16]
In the case at bar, it is undisputed that ABAD did some overtime work at the petitioners office, which was located in Cabangcalan, Mandaue City. Thereafter, he went to Goldies Restaurant in Fuente Osmea, Cebu City, which is about seven kilometers away from petitioners place of business.[17] A witness for the private respondents, a sidewalk vendor, testified that Fuente Osmea is a lively place even at dawn because Goldies Restaurant and Back Street were still open and people were drinking thereat. Moreover, prostitutes, pimps, and drug addicts littered the place.[18]
At the Goldies Restaurant, ABAD took some snacks and had a chat with friends. It was when ABAD was leaving the restaurant that the incident in question occurred. That same witness for the private respondents testified that at the time of the vehicular accident, ABAD was with a woman in his car, who then shouted: Daddy, Daddy![19] This woman could not have been ABADs daughter, for ABAD was only 29 years old at the time.
To the mind of this Court, ABAD was engaged in affairs of his own or was carrying out a personal purpose not in line with his duties at the time he figured in a vehicular accident. It was then about 2:00 a.m. of 28 August 1988, way beyond the normal working hours. ABADs working day had ended; his overtime work had already been completed. His being at a place which, as petitioner put it, was known as a haven for prostitutes, pimps, and drug pushers and addicts, had no connection to petitioners business; neither had it any relation to his duties as a manager. Rather, using his service vehicle even for personal purposes was a form of a fringe benefit or one of the perks attached to his position.
Since there is paucity of evidence that ABAD was acting within the scope of the functions entrusted to him, petitioner CASTILEX had no duty to show that it exercised the diligence of a good father of a family in providing ABAD with a service vehicle. Thus, justice and equity require that petitioner be relieved of vicarious liability for the consequences of the negligence of ABAD in driving its vehicle.[20]
WHEREFORE, the petition is GRANTED, and the appealed decision and resolution of the Court of Appeals is AFFIRMED with the modification that petitioner Castilex Industrial Corporation be absolved of any liability for the damages caused by its employee, Jose Benjamin Abad.
SO ORDERED.

G.R. No. L-25142 March 25, 1975
PHILIPPINE RABBIT BUS LINES, INC. and FELIX PANGALANGAN, plaintiffs-appellants, vs. PHIL-AMERICAN FORWARDERS, INC., ARCHIMEDES J. BALINGIT and FERNANDO PINEDA, defendants-appellees.
Angel A. Sison for plaintiffs-appellants.
Fidel Zosimo U. Canilao for defendants-appellees. AQUINO, J.:ñé+.£ªwph!1
Philippine Rabbit Bus Lines, Inc. and Felix Pangalangan appealed on pure questions of law from the order of the Court of First Instance of Tarlac, dismissing their complaint against Archimedes J. Balingit.
The dismissal was based on the ground that Balingit as the manager of Phil-American Forwarders, Inc., which together with Fernando Pineda and Balingit, was sued for damages in an action based on quasi-delict or culpa aquiliana, is not the manager of an establishment contemplated in article 2180 of the Civil Code (Civil Case No. 3865).
In the complaint for damages filed by the bus company and Pangalangan against Phil-American Forwarders, Inc., Balingit and Pineda, it was alleged that on November 24, 1962, Pineda drove recklessly a freight truck, owned by Phil-American Forwarders, Inc., along the national highway at Sto. Tomas, Pampanga. The truck bumped the bus driven by Pangalangan, which was owned by Philippine Rabbit Bus Lines, Inc. As a result of the bumping, Pangalangan suffered injuries and the bus was damaged and could not be used for seventy-nine days, thus depriving the company of earnings amounting to P8,665.51. Balingit was the manager of Phil-American Forwarders, Inc.
Among the defenses interposed by the defendants in their answer was that Balingit was not Pineda's employer.
Balingit moved that the complaint against him be dismissed on the ground that the bus company and the bus driver had no cause of action against him. As already stated, the lower court dismissed the action as to Balingit. The bus company and its driver appealed.
The Civil Code provides:têñ.£îhqwâ£
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.
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. xxx xxx xxx
The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxx xxx xxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (1903a)
The novel and unprecedented legal issue in this appeal is whether the terms "employers" and "owners and managers of an establishment or enterprise" (dueños o directores de un establicimiento o empresa) used in article 2180 of the Civil Code, formerly article 1903 of the old Code, embrace the manager of a corporation owning a truck, the reckless operation of which allegedly resulted in the vehicular accident from which the damage arose.
We are of the opinion that those terms do not include the manager of a corporation. It may be gathered from the context of article 2180 that the term "manager" ("director" in the Spanish version) is used in the sense of "employer".
Hence, under the allegations of the complaint, no tortious or quasi-delictual liability can be fastened on Balingit as manager of Phil-American Forwarders, Inc., in connection with the vehicular accident already mentioned because he himself may be regarded as an employee or dependiente of his employer, Phil-American Forwarders, Inc.
Thus, it was held "que es dependiente, a los efectos de la responsabilidad subsidiaria establecida en el num 3.0del (art.) 1903, el director de un periodico explotado por una sociedad, porque cualquiera que sea su jerarquia y aunque Ileve la direccion de determinadas convicciones politicas no por eso deja de estar subordinado a la superior autoridad de la Empresa" (Decision of Spanish Supreme Court dated December 6, 1912 cited in 12 Manresa, Codigo Civil Español 5th Ed. 662; 1913 Enciclopedia Juridica Española 992).
The bus company and its driver, in their appellants' brief, injected a new factual issue which was not alleged in their complaint. They argue that Phil- American Forwarders, Inc. is merely a business conduit of Balingit because out of its capital stock with a par value of P41,200, Balingit and his wife had subscribed P40,000 and they paid P10,000 on their subscription, while the other incorporators, namely, Rodolfo Limjuco, Ponciano Caparas and Rafael Suntay paid P250.25 and P25, respectively.
That argument implies that the veil of corporate fiction should be pierced and that Phil-American Forwarders, Inc. and Balingit and his wife should be treated as one and the same civil personality.
We cannot countenance that argument in this appeal. It was not raised in the lower court. The case has to be decided on the basis of the pleadings filed in the trial court where it was assumed that Phil-American Forwarders, Inc. has a personality separate and distinct from that of the Balingit spouses.
The legal issue, which the plaintiffs-appellants can ventilate in this appeal, is one which was raised in the lower court and which is within the issues framed by the parties (Sec. 18, Rule 46, Rules of Court).
When a party deliberately adopts a certain theory and the case is decided upon that theory in the court below, he will not be permitted to change his theory on appeal because, to permit him to do so, could be unfair to the adverse party (2 Moran's Comments on the Rules of Court, 1970 Ed. p. 505).
WHEREFORE, the lower court's order of dismissal is affirmed. Costs against the plaintiffs-appellants.
SO ORDERED.

G.R. No. 82248 January 30, 1992
ERNESTO MARTIN, petitioner, vs. HON. COURT OF APPEALS and MANILA ELECTRIC COMPANY, respondents.
Roberto M. Cabangis for petitioner.
Benjamin R. Reonal for private respondent. This case turns on the proper application of the familiar rule that he who alleges must prove his allegation.
Ernesto Martin was the owner of a private car bearing license plate No. NPA-930. At around 2 o'clock in the morning of May 11, 1982, while being driven by Nestor Martin, it crashed into a Meralco electric post on Valley Golf Road, in Antipolo, Rizal. The car was wrecked and the pole severely damaged. Meralco subsequently demanded reparation from Ernesto Martin, but the demand was rejected. It thereupon sued him for damages in the Regional Trial Court of Pasig, alleging inter alia that he was liable to it in the sum of P17,352.00 plus attorney's fees and litigation costs as the employer of Nestor Martin. The petitioner's main defense was that Nestor Martin was not his employee.
After the plaintiff had rested, the defendant moved to dismiss the complaint on the ground that no evidence had been adduced to show that Nestor Martin was his employee. The motion was denied. The case was considered submitted for decision with the express waiver by the defendant of his right to present his own evidence. The defendant thus did not rebut the plaintiff's allegation that he was Nestor Martin's employer.
In the decision dated August 27, 1985, Judge Eutropio Migriño held in favor of the plaintiff, awarding him the amount claimed, with 12% interest, and P4,000.00 attorney's fees, plus costs. 1 The decision was seasonably elevated to the Court of Appeals, which affirmed it in toto on February 22, 1988, 2 prompting this petition for review.
The petition has merit.
It is important to stress that the complaint for damages was filed by the private respondent against only Ernesto Martin as alleged employer of Nestor Martin, the driver of the car at the time of the accident. Nestor Martin was not impleaded. The action was based on tort under Article 2180 of the Civil Code, providing in part that:
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 above rule is applicable only if there is an employer-employee relationship although it is not necessary that the employer be engaged in any business or industry. It differs in this sense from Article 103 of the Revised Penal Code, which requires that the employer be engaged in an industry to be subsidiarily liable for the felony committed by his employee in the course of his employment.
Whether or not engaged in any business or industry, the employer under Article 2180 is liable for the torts committed by his employees within the scope of their assigned task. But it is necessary first to establish the employment relationship. Once this is done, the plaintiff must show, to hold the employer liable, that the employee was acting within the scope of his assigned task when the tort complained of was committed. It is only then that the defendant, as employer, may find it necessary to interpose the defense of due diligence in the selection and supervision of the employee as allowed in that article. 3
In the case at bar, no evidence whatsoever was adduced by the plaintiff to show that the defendant was the employer of Nestor Martin at the time of the accident. The trial court merely presumed the existence of the employer-employee relationship and held that the petitioner had not refuted that presumption. It noted that although the defendant alleged that he was not Nestor Martin's employer, "he did not present any proof to substantiate his allegation."
As the trial court put it:
There is no need to stretch one's imagination to realize that a car owner entrusts his vehicle only to his driver or to anyone whom he allows to drive it. Since neither plaintiff nor defendant has presented any evidence on the status of Nestor Martin, the Court presumes that he was at the time of the incident, an employee of the defendant. It is elementary that he who makes an allegation is required to prove the same. Defendant alleges that Nestor Martin was not his employee but he did not present any proof to substantiate his allegation. While it is true plaintiff did not present evidence on its allegation that Nestor Martin was defendant's employee, the Court believes and so holds, that there was no need for such evidence. As above adverted to, the Court can proceed on the presumption that one who drives the motor vehicle is an employee of the owner thereof.
A presumption is defined as an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known, 4 or a conjecture based on past experience as to what course human affairs ordinarily take. 5 It is either a presumption juris, or of law, or a presumption hominis, or of fact. 6
There is no law directing the deduction made by the courts below from the particular facts presented to them by the parties. Such deduction is not among the conclusive presumptions under Section 2 or the disputable presumptions under Section 3 of Rule 131 of the Rules of Court. In other words, it is not a presumption juris.
Neither is it a presumption hominis, which is a reasonable deduction from the facts proved without an express direction of law to that effect. 7 The facts proved, or not denied, viz., the ownership of the car and the circumstances of the accident, are not enough bases for the inference that the petitioner is the employer of Nestor Martin.
In the modern urban society, most male persons know how to drive and do not have to employ others to drive for them unless this is needed for business reasons. Many cannot afford this luxury, and even if they could, may consider it an unnecessary expense and inconvenience. In the present case, the more plausible assumption is that Nestor Martin is a close relative of Ernesto Martin and on the date in question borrowed the car for some private purpose. Nestor would probably not have been accommodated if he were a mere employee for employees do not usually enjoy the use of their employer's car at two o'clock in the morning.
As the employment relationship between Ernesto Martin and Nestor Martin could not be presumed, it was necessary for the plaintiff to establish it by evidence. Meralco had the burden of proof, or the duty "to present evidence on the fact in issue necessary to establish his claim" as required by Rule 131, Section 1 of the Revised Rules of Court. Failure to do this was fatal to its action.
It was enough for the defendant to deny the alleged employment relationship, without more, for he was not under obligation to prove this negative averment. Ei incumbit probatio qui dicit, non qui negat. 8 This Court has consistently applied the ancient rule that "if the plaintiff, upon whom rests the burden of proving his cause of action, fails to show in a satisfactory manner the facts upon which he bases his claim, the defendant is under no obligation to prove his exception or defense." 9
The case of Amor v. Soberano, 10 a Court of Appeals decision not elevated to this Court, was misapplied by the respondent court in support of the petitioner's position. The vehicle involved in that case was a six-by-six truck, which reasonably raised the factual presumption that it was engaged in business and that its driver was employed by the owner of the vehicle. The case at bar involves a private vehicle as its license plate indicates. No evidence was ever offered that it was being used for business purposes or that, in any case, its driver at the time of the accident was an employee of the petitioner.
It is worth mentioning in this connection that in Filamer Christian Institute v. Court of Appeals, 11 the owner of the jeep involved in the accident was absolved from liability when it was shown that the driver of the vehicle was not employed as such by the latter but was a "working scholar" as that term is defined by the Omnibus Rules Implementing the Labor Code. 12 He was assigned to janitorial duties. Evidence was introduced to establish the employment relationship but it failed nonetheless to hold the owner responsible. Significantly, no similar evidence was even presented in the case at bar, the private respondent merely relying on its mere allegation that Nestor Martin was the petitioner's employee. Allegation is not synonymous with proof.
The above observations make it unnecessary to examine the question of the driver's alleged negligence or the lack of diligence on the part of the petitioner in the selection and supervision of his employee. These questions have not arisen because the employment relationship contemplated in Article 1860 of the Civil Code has not been established.
WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED, and Civil Case No. 48045 in the Regional Trial Court of Pasig, Branch 151, is DISMISSED, with costs against the respondent. It is so ordered.

[G.R. No. 77716. February 17, 1988.]

HEIRS OF THE LATE DOCTOR CORAZON DIAZ-LEUS, namely, her husband, CLETO P. LEUS and children, CEZAR LEUS, DRA. CORAZON D. LEUS JR., and CLARISSA LEUS, Petitioners, v. HERNANI MELVIDA, ALMARIO ROSAS, VICTORY LINER, INC., SPOUSES LEONISA GALI and JESUS GALI and COURT OF APPEALS, Respondents.

SYLLABUS

1. CIVIL LAW; DAMAGES; INDEPENDENT CIVIL ACTION; ACQUIRED IN A CRIMINAL PROSECUTION, NOT CIVILLY LIABLE WHERE THERE WAS A DECLARATION THAT NO CRIME WAS COMMITTED. — The findings of the Court of Appeals were a complete exoneration of Rosas. Since petitioner’s appeal on the civil aspect is predicated upon Rosas’ alleged negligence which has been found not to exist, this Court must likewise uphold the Court of Appeals’ ruling that Rosas’ acquittal in the criminal case carries with it the extinction of his civil liability which bars herein petitioners from recovering damages from Rosas.

2. ID.; ID.; ID.; ID.; EMPLOYER ALSO ABSOLVED FROM SUBDIVISION LIABILITY. — Since Rosas is absolved from any act of negligence which in effect prevents further recovery of any damages, the same is likewise true with respect to his employer Victory Liner, Inc. which at most would have been only subsidiarily liable.

3. CRIMINAL LAW; SUBSIDIARY CIVIL LIABILITY; REQUISITES. — In order that employers may be held liable under the above quoted provision of law, the following requisites must exist: (1) That an employee has committed a crime in the discharge of his duties; (2) that said employee is insolvent and has not satisfied his civil liability; and (3) that the employer is engaged in some kind of industry.

4. ID.; ID.; WILL NOT ATTACH WHERE PARTY SUED IS NOT ENGAGED IN INDUSTRY; CASE AT BAR. — The preceding requisites are not present in the case of the Gali spouses. They are not engaged in any kind of industry. Industry has been defined as any department or branch of art, occupation or business, especially, one which employs much labor and capital and is a distinct branch of trade, as the sugar industry. Thus, the Gali spouses cannot be held subsidiarily liable. As We stated in a previous case:" "Where the defendant is admittedly a private person who has no business or industry, and uses his automobile for private purposes, he is not also subsidiarily liable to the plaintiff for the damages to the latter’s car caused by the reckless imprudence of his insolvent driver."

Almario Rosas and Hernani Melvida were charged of the crime of Reckless Imprudence resulting in Double Homicide, Serious and Slight Physical Injuries and Damage to Property allegedly committed in the following manner:jgc:chanrobles.com.ph

"That on or about the 30th day of June, 1972, in the municipality of Meycauayan, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Hernani Melvida and Almario C. Rosas, being then the chauffeurs and the persons in charge of Plymouth car bearing plate No. 99-OW-Caloocan City 1971 and a Victory Liner bus with body number 512 and bearing plate No. 27-55 PUB Caloocan City 1972, respectively, did then and there wilfully, unlawfully and feloniously drive and operate their respective motor vehicles along the North Expressway (Marcelo H. Del Pilar Highway) towards opposite directions in the said municipality, in a negligent, careless and imprudent manner, without due regard to traffic laws, rules and regulations and the weather conditions, and without taking the necessary precautions to avoid injuries to persons and damage to property, causing by such negligence, carelessness and imprudence the said Plymouth car bearing plate No. 99-OWL-Caloocan City 1971 driven by the said accused Hernani Melvida to swerve to its left, cross the island, and move onto the lane for the opposite traffic, and the said Victory Liner bus with body number 512 and bearing plate No. 27-55 PUB Caloocan City 1972 to hit and bump the said Plymouth car, thereby inflicting on Dra. Corazon Diaz-Leus, Florencio Carbilledo Y Canhagas and Mrs. Leonisa Gali, passengers of the said Plymouth car, serious physical injuries, which directly caused the death of the said Dra. Corazon Diaz-Leus and Florencio Carbilledo Y Canhagas, to the damage and prejudice of the legal heirs of the said deceased Dra. Corazon Diaz-Leus and Florencio Carbilledo Y Canhagas, and incapacitated the said Mrs. Leonisa Gali from performing her customary labor and required her medical attendance for a period of more than 30 days and also inflicting slight physical injuries on Leonisa Payumo, passenger of the said Victory Liner bus, which required medical attendance and incapacitated her from performing her customary labor for a period of not more than 9 days, and further causing damages to the said Plymouth car and the said Victory Liner Bus, to the damage and prejudice of their owners, Jesus Gali and the Victory Liner Bus Lines Inc., respectively. Contrary to law." 1

Upon arraignment Rosas and Melvida entered a plea of not guilty and after trial a decision was rendered by the trial court, the dispositive portion of which reads —

"FOR ALL THE FOREGOING, the Court finds the accused Hernani Melvida guilty beyond reasonable doubt of the offense charged and he is hereby sentenced to suffer imprisonment of an indeterminate penalty of from SIX (6) MONTHS of arresto mayor; as minimum, to TWO (2) YEARS and FOUR (4) MONTHS of prision correccional, as maximum, with the accessory penalties prescribed by law; to indemnity (sic) the legal heirs of the deceased Dra. Corazon Diaz-Leus and Florencio Carbilledo the sum of P12,000.00. each; to pay the legal heirs of Dra. Leus the amount of P14,000.00 as funeral and death expenses; to pay the said legal heirs of the amount of P200,000.00 as moral damages, without subsidiary imprisonment in case of insolvency, and to pay the costs.

For failure to establish the guilt of accused Almario Rosas beyond reasonable doubt, he is hereby acquitted of the offense charged. With costs." 2

From said decision Cleto Leus and his children as legal heirs appealed to the Court of Appeals only with respect to the civil aspect. The vital issue raised to the Court of Appeals is whether or not accused-appellee Almario Rosas could still be held civilly liable despite his acquittal in the criminal case. 3 They also contend that the Victory Liner and Jesus Gali, owners of the colliding vehicles, are subsidiarily liable for damages.

The Court of Appeals made the following finding of facts:jgc:chanrobles.com.ph

"The facts adduced from the evidence presented by the prosecution shows that in the afternoon of June 30, 1972, a vehicular accident happened along the North Expressway. A Plymouth car bearing plate No. 99-OWL-Caloocan City figured in the accident. The car was driven by accused Hernani Melvida and the passengers were the victims Mrs. Leonisa Gali and the deceased Dra. Corazon Diaz-Leus, wife of complainant Atty. Cleto Leus and Florencio Carbilledo. The Plymouth car driven by accused came from a Quezon City hospital and was on its way home to Bulacan taking the North Expressway. Accused Melvida drove the car at a fast speed and in a negligent manner causing it to swerve to the left, traversing the grassy island which separates the North and the South lanes of the Expressway until it reached a portion of the left lane more or less two (2) feet from the asphalted portion of the south lane on the left side facing South going to Manila as shown in Exhibit ‘C’, ‘C-2’ and ‘C-3’ when it was bumped on the rear portion by a Victory Liner bus and dragged about 50 meters off the cemented road to the grassy island where it was crashed-landed on by the front portion of said Victory Liner bus. Said bus bearing plate No. 27-55 PUB-Caloocan City 1972 was driven by accused Almario Rosas, travelling South towards Manila in an imprudent and negligent manner without due regard to traffic rules and regulations and to the weather condition which was then stormy.

It also appears that before the accident, the bus driven by accused Rosas overtook the car of Dr. Romeo San Diego which was running at the speed of 80 kilometers per hour. The said bus when it overtook the car of Dr. San Diego was running at a fast speed thus creating a ‘whizzing sound’. As a result of the vehicular accident, Dra. Corazon Diaz-Leus was pinned to death inside the car together with another passenger Carbilledo."

Thereafter it was held —

"Upon review of the whole records WE find as the lower court did that the accident in question cannot be attributed to any negligence of appellee Rosas. The stubborn and undisputed facts reveal that appellee Rosas was driving his bus on his own lane of the highway going south when the Plymouth car suddenly encroached on his (Rosas) lane in front of its path after crossing the wise grassy strip of land separating the North and the South lane of the expressway. Appellee Rosas who was properly traversing his own lane should not be expected to anticipate and/or foresee that a private car coming from the North lane would be thrown to his path. Even, assuming as alleged that appellee Rosas was driving at a very fast speed, had the Plymouth car remained on its proper lane, collision would not have occurred. The proximate cause of the accident is the Plymouth car’s leaving its proper (north) lane, swerving to its left and intruding into the south-bound lane. The collision which resulted in the destruction of the Plymouth car had not been due to any negligence on appellee Rosas part. It was a fortuitous event which appellee Rosas could not prevent. And, since appellants appeal on the civil aspect is predicated upon appellee Rosas negligence which does not exist, it follows that his acquittal in the criminal case carries with it the extinction of his civil liability and therefore the offended parties, herein appellants may no longer appeal and recover damages from said appellee Rosas. As a consequence, the rule that — ‘Extinction of the penal action does not carry with it extinction of the civil,’ . . .; (Sec. 3, (c), Rule III, Rules of Court) does not apply to the present instance. The case falls squarely under the exception that ‘unless the extinction proceeds from a declaration in a (sic) initial judgment that the fact from which the civil might arise did not exist. . . ." (Sec. 3, (c), Rules of Court). It has been held that where the judgment of acquittal in a criminal prosecution for arson through reckless imprudence states that the offense was caused by fortuitous event, the civil action to recover damages is barred. (Cf. Tan v. Standard Vacuum Oil, Co., 48 O.G. 2745). The decision appealed from which is final and executory as regards its criminal phase, has not only acquitted accused, but also declared that the collision, which resulted in the destruction of appellants’ car, had not been due to any negligence on his part. Since appellants’ civil action is predicated upon accused alleged negligence, which does not exist, according to said final judgment, it follows necessarily that his acquittal in the criminal action carries with it the extinction of the civil responsibility arising therefrom. (Faraon v. Priela, G.R. L-23129, August 2, 1968, 24 SCRA 582).

Appellants also alleged that the lower court committed error in not considering the loss of earning capacity of the deceased Dra. Leus. According to appellants, the deceased as a doctor had an average earning of P600.00 covering the year 1971 and for six (6) months from January to June 1972 and an average earnings in business for the years 1971 and 1972, the sum of P1,010.

The deceased Dra. Leus was 59 years of age when she died. At such age the normal life expectancy is 14 years, according to the formula (2/3 x [80-30] adopted by the Supreme Court in the case of Villa Rey Transit, Inc. v. Court of Appeals, 31 SCRA 511 on the basis of the American Expectancy Table of Mortality or the Actualrial (sic) Combined Experience Table of Morality. In the computation of the amount recoverable by the heirs of the victim of tort, the loss of the entire earnings is not considered. It is only the net earnings less expenses necessary in the creation of such earnings or income and less living and other incidental expenses. In the case at bar, the earnings after computing was P904.96 a year and deduction of P200.00 a month as necessary expenses to the creation of such income is reasonable. The amount of P704.96 net yearly income multiplied by 14 years, or P9,869.44 is the amount which should be awarded to appellants. (Davila v. Phil. Air Lines, 49 SCRA 497; People v. Henson, CA-G.R. No. 12521-CR, May 25, 1973). Then to, We believe that the award of damages for the death of Dra. Leus in the amount of P200,000.00 without interest is reasonable and We find no justification to modify.

In view thereof, appellee Melvida is hereby ordered to pay complainants — appellants additional sum of P9,869.44.

WHEREFORE, with the modification as to the award of damages, the decision appealed from is hereby AFFIRMED in all other respects." 4

Petitioner now comes before this Court raising the legal issue whether or not the trial court should be ordered to determine the civil liability of Rosas and subsidiary civil liability of the owners of the car and the bus to the heirs of Dra. Diaz-Leus in accordance with Article 29 of the Civil Code which provides —

"Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious.

If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the Absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground."cralaw virtua1aw library

Petitioner also invokes the ruling of this Court in Paman v. Seneris, 5 where it was held —

"‘Moreover, it has been invariably held that a judgment of convictions sentencing a defendant employer to pay an indemnity in the absence of any collusion between the defendant and the offended party, is conclusive upon the employer in an action for the enforcement of the latter’s subsidiary liability not only with regard to the civil liability, but also with regard to its amount.

‘This being the case, this Court stated in Rotea v. Halili, 109 Phil. 495 that the court has no other function than to render decision based upon the indemnity awarded in the criminal case and has no power to amend or modify it even if in its opinion an error has been committed in the decision. A separate and independent action is, therefore, unnecessary and would only unduly prolong the agony of the victim.’ (115 SCRA, p. 715)."cralaw virtua1aw library

The findings of the Court of Appeals were a complete exoneration of Rosas. Since petitioner’s appeal on the civil aspect is predicated upon Rosas’ alleged negligence which has been found not to exist, this Court must likewise uphold the Court of Appeals’ ruling that Rosas’ acquittal in the criminal case carries with it the extinction of his civil liability which bars herein petitioners from recovering damages from Rosas. Since Rosas is absolved from any act of negligence which in effect prevents further recovery of any damages, the same is likewise true with respect to his employer Victory Liner, Inc. which at most would have been only subsidiarily liable.

Nor can the spouses Jesus Gali and Leonisa Gali as employers of respondent Hernani Melvida be subsidiarily liable. Art. 103 of the Revised Penal Code provides:jgc:chanrobles.com.ph

"The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties."cralaw virtua1aw library

In order that employers may be held liable under the above quoted provision of law, the following requisites must exist:chanrob1es virtual 1aw library

(1) That an employee has committed a crime in the discharge of his duties;

(2) that said employee is insolvent and has not satisfied his civil liability; and

(3) that the employer is engaged in some kind of industry. 6

The preceding requisites are not present in the case of the Gali spouses. They are not engaged in any kind of industry. Industry has been defined as any department or branch of art, occupation or business, especially, one which employs much labor and capital and is a distinct branch of trade, as the sugar industry. 7

Thus, the Gali spouses cannot be held subsidiarily liable. As We stated in a previous case:" "Where the defendant is admittedly a private person who has no business or industry, and uses his automobile for private purposes, he is not also subsidiarily liable to the plaintiff for the damages to the latter’s car caused by the reckless imprudence of his insolvent driver." 8

WHEREFORE, the petition is DENIED. No costs.

SO ORDERED.

G.R. No. 82318 May 18, 1989
GILBERTO M. DUAVIT, petitioner, vs. THE HON. COURT OF APPEALS, Acting through the Third Division, as Public Respondent, and ANTONIO SARMIENTO, SR. & VIRGILIO CATUAR respondents.
Rodolfo d. Dela Cruz for petitioner.
Bito, Lozada, Ortega & Castillo for respondents. GUTIERREZ, JR., J.:
This petition raises the sole issue of whether or not the owner of a private vehicle which figured in an accident can be held liable under Article 2180 of the Civil Code when the said vehicle was neither driven by an employee of the owner nor taken with the consent of the latter.
The facts are summarized in the contested decision, as follows:
From the evidence adduced by the plaintiffs, consisting of the testimonies of witnesses Virgilio Catuar, Antonio Sarmiento, Jr., Ruperto Catuar, Jr. and Norberto Bernarte it appears that on July 28, 1971 plaintiffs Antonio Sarmiento, Sr. and Virgilio Catuar were aboard a jeep with plate number 77-99-F-I Manila, 1971, owned by plaintiff, Ruperto Catuar was driving the said jeep on Ortigas Avenue, San Juan, Rizal; that plaintiff's jeep, at the time, was running moderately at 20 to 35 kilometers per hour and while approaching Roosevelt Avenue, Virgilio Catuar slowed down; that suddenly, another jeep with plate number 99-97-F-J Manila 1971 driven by defendant Oscar Sabiniano hit and bumped plaintiff's jeep on the portion near the left rear wheel, and as a result of the impact plaintiff's jeep fell on its right and skidded by about 30 yards; that as a result plaintiffs jeep was damaged, particularly the windshield, the differential, the part near the left rear wheel and the top cover of the jeep; that plaintiff Virgilio Catuar was thrown to the middle of the road; his wrist was broken and he sustained contusions on the head; that likewise plaintiff Antonio Sarmiento, Sr. was trapped inside the fallen jeep, and one of his legs was fractured.
Evidence also shows that the plaintiff Virgilio Catuar spent a total of P2,464.00 for repairs of the jeep, as shown by the receipts of payment of labor and spare parts (Exhs. H to H-7 Plaintiffs likewise tried to prove that plaintiff Virgilio Catuar, immediately after the accident was taken to Immaculate Concepcion Hospital, and then was transferred to the National Orthopedic Hospital; that while plaintiff Catuar was not confined in the hospital, his wrist was in a plaster cast for a period of one month, and the contusions on his head were under treatment for about two (2) weeks; that for hospitalization, medicine and allied expenses, plaintiff Catuar spent P5,000.00.
Evidence also shows that as a result of the incident, plaintiff Antonio Sarmiento, Sr. sustained injuries on his leg; that at first, he was taken to the National Orthopedic Hospital (Exh. K but later he was confined at the Makati Medical Center from July 29, to August 29, 1971 and then from September 15 to 25, 1971; that his leg was in a plaster cast for a period of eight (8) months; and that for hospitalization and medical attendance, plaintiff Antonio Sarmiento, Sr. spent no less than P13,785.25 as evidenced by receipts in his possession. (Exhs. N to N-1).
Proofs were adduced also to show that plaintiff Antonio sarmiento Sr. is employed as Assistant Accountant of the Canlubang Sugar Estate with a salary of P1,200.00 a month; that as sideline he also works as accountant of United Haulers Inc. with a salary of P500.00 a month; and that as a result of this incident, plaintiff Sarmiento was unable to perform his normal work for a period of at least 8 months. On the other hand, evidence shows that the other plaintiff Virgilio Catuar is a Chief Clerk in Canlubang Sugar Estate with a salary of P500.00 a month, and as a result of the incident, he was incapacitated to work for a period of one (1) month.
The plaintiffs have filed this case both against Oscar Sabiniano as driver, and against Gualberto Duavit as owner of the jeep.
Defendant Gualberto Duavit, while admitting ownership of the other jeep (Plate No. 99-07-F-J Manila, 1971), denied that the other defendant (Oscar Sabiniano) was his employee. Duavit claimed that he has not been an employer of defendant Oscar Sabiniano at any time up to the present.
On the other hand documentary and testimonial evidence show that defendant Oscar Sabiniano was an employee of the Board of Liquidators from November 14, 1966 up to January 4, 1973 (Annex A of Answer).
Defendant Sabiniano, in his testimony, categorically admitted that he took the jeep from the garage of defendant Duavit without the consent or authority of the latter (TSN, September 7, 1978, p. 8). He testified further, that Duavit even filed charges against him for theft of the jeep, but which Duavit did not push through as his (Sabiniano's) parents apologized to Duavit on his behalf.
Defendant Oscar Sabiniano, on the other hand in an attempt to exculpate himself from liability, makes it appear that he was taking all necessary precaution while driving and the accident occurred due to the negligence of Virgilio Catuar. Sabiniano claims that it was plaintiffs vehicle which hit and bumped their jeep. (Reno, pp. 21-23)
The trial court found Oscar Sabiniano negligent in driving the vehicle but found no employer-employee relationship between him and the petitioner because the latter was then a government employee and he took the vehicle without the authority and consent of the owner. The petitioner was, thus, absolved from liability under Article 2180 of the Civil Code.
The private respondents appealed the case.
On January 7, 1988, the Court of Appeals rendered the questioned decision holding the petitioner jointly and severally liable with Sabiniano. The appellate court in part ruled:
We cannot go along with appellee's argument. It will be seen that in Vargas v. Langcay, supra, it was held that it is immaterial whether or not the driver was actually employed by the operator of record or registered owner, and it is even not necessary to prove who the actual owner of the vehicle and who the employer of the driver is. When the Supreme Court ruled, thus: 'We must hold and consider such owner-operator of record (registered owner) as the employer in contemplation of law, of the driver,' it cannot be construed other than that the registered owner is the employer of the driver in contemplation of law. It is a conclusive presumption of fact and law, and is not subject to rebuttal of proof to the contrary. Otherwise, as stated in the decision, we quote:
The purpose of the principles evolved by the decisions in these matters will be defeated and thwarted if we entertain the argument of petitioner that she is not liable because the actual owner and employer was established by the evidence. . . .
Along the same vein, the defendant-appellee Gualberto Duavit cannot be allowed to prove that the driver Sabiniano was not his employee at the time of the vehicular accident.
The ruling laid down in Amar V. Soberano (1966), 63 O.G. 6850, by this Court to the effect that the burden of proving the non-existence of an employer-employee relationship is upon the defendant and this he must do by a satisfactory preponderance of evidence, has to defer to the doctrines evolved by the Supreme Court in cases of damages arising from vehicular mishaps involving registered motor vehicle. (See Tugade v. Court of Appeals, 85 SCRA 226, 230). (Rollo, pp. 26-27)
The appellate court also denied the petitioner's motion for reconsideration. Hence, this petition.
The petitioner contends that the respondent appellate court committed grave abuse of discretion in holding him jointly and severally liable with Sabiniano in spite of the absence of an employer-employee relationship between them and despite the fact that the petitioner's jeep was taken out of his garage and was driven by Sabiniano without his consent.
As early as in 1939, we have ruled that an owner of a vehicle cannot be held liable for an accident involving the said vehicle if the same was driven without his consent or knowledge and by a person not employed by him. Thus, in Duquillo v. Bayot (67 Phil. 131-133-134) [1939] we said:
Under the facts established, the defendant cannot be held liable for anything. At the time of the accident, James McGurk was driving the truck, and he was not an employee of the defendant, nor did he have anything to do with the latter's business; neither the defendant nor Father Ayson, who was in charge of her business, consented to have any of her trucks driven on the day of the accident, as it was a holy day, and much less by a chauffeur who was not in charge of driving it; the use of the defendant's truck in the circumstances indicated was done without her consent or knowledge; it may, therefore, be said, that there was not the remotest contractual relation between the deceased Pio Duquillo and the defendant. It necessarily follows from all this that articles 1101 and following of the Civil Code, cited by the appellant, have no application in this case, and, therefore, the errors attributed to the inferior court are without basis.
The Court upholds the above ruling as still relevant and better applicable to present day circumstances.
The respondent court's misplaced reliance on the cases of Erezo v. Jepte (102 Phil. 103 [1957] and Vargas v. Langcay (6 SCRA 174 [1962]) cannot be sustained. In the Erezo case, Jepte, the registered owner of the truck which collided with a taxicab, and which resulted in the killing of Erezo, claimed that at the time of the accident, the truck belonged to the Port Brokerage in an arrangement with the corporation but the same was not known to the Motor Vehicles Office. This Court sustained the trial court's ruling that since Jepte represented himself to be the owner of the truck and the Motor Vehicles Office, relying on his representation, registered the vehicle in his name, the Government and all persons affected by the representation had the right to rely on his declaration of ownership and registration. Thus, even if Jepte were not the owner of the truck at the time of the accident, he was still held liable for the death of Erezo significantly, the driver of the truck was fully authorized to drive it.
Likewise, in the Vargas case, just before the accident occurred Vargas had sold her jeepney to a third person, so that at the time of the accident she was no longer the owner of the jeepney. This court, nevertheless, affirmed Vargas' liability since she failed to surrender to the Motor Vehicles Office the corresponding AC plates in violation of the Revised Motor Vehicle Law and Commonwealth Act No. 146. We further ruled that the operator of record continues to be the operator of the vehicle in contemplation of law, as regards the public and third persons, and as such is responsible for the consequences incident to its operator. The vehicle involved was a public utility jeepney for hire. In such cases, the law does not only require the surrender of the AC plates but orders the vendor operator to stop the operation of the jeepney as a form of public transportation until the matter is reported to the authorities.
As can be seen, the circumstances of the above cases are entirely different from those in the present case. Herein petitioner does not deny ownership of the vehicle involved in tire mishap but completely denies having employed the driver Sabiniano or even having authorized the latter to drive his jeep. The jeep was virtually stolen from the petitioner's garage. To hold, therefore, the petitioner liable for the accident caused by the negligence of Sabiniano who was neither his driver nor employee would be absurd as it would be like holding liable the owner of a stolen vehicle for an accident caused by the person who stole such vehicle. In this regard, we cannot ignore the many cases of vehicles forcibly taken from their owners at gunpoint or stolen from garages and parking areas and the instances of service station attendants or mechanics of auto repair shops using, without the owner's consent, vehicles entrusted to them for servicing or repair.
We cannot blindly apply absolute rules based on precedents whose facts do not jibe four square with pending cases. Every case must be determined on its own peculiar factual circumstances. Where, as in this case, the records of the petition fail to indicate the slightest indicia of an employer-employee relationship between the owner and the erring driver or any consent given by the owner for the vehicle's use, we cannot hold the owner liable.
We, therefore, find that the respondent appellate court committed reversible error in holding the petitioner jointly and severally liable with Sabiniano to the private respondent.
WHEREFORE, the petition is GRANTED and the decision and resolution appealed from are hereby ANNULLED and SET ASIDE. The decision of the then Court of First Instance (now Regional Trial Court) of Laguna, 8th Judicial District, Branch 6, dated July 30, 1981 is REINSTATED.
SO ORDERED.

G.R. No. 78911-25 December 11, 1987
CHARMINA B. BANAL, petitioner, vs. THE HON. TOMAS V. TADEO, JR., Presiding Judge, RTC-Quezon City, Branch 105 and Rosario Claudiarespondents. GUTIERREZ, JR., J.:
This is a petition for certiorari to review and set aside the orders of the respondent Regional Trial Court, Branch 105, Quezon City dated (1) 8 January 1987 which rejected the appearance of Atty. Nicolito L. Bustos as private prosecutor in Criminal Cases Nos. Q-40909 to Q-40913 where respondent Rosario Claudio is the accused for violation of Batas Pambansa Blg. 22; and (2) 31 March 1987 which denied the petitioner's motion for reconsideration of the order dated 8 January 1987; and for mandamus to allow Atty. Bustos to enter his appearance as private prosecutor in the aforestated criminal cases.
It appears that fifteen (15) separate informations for violation of Batas Pambansa Blg. 22 or the Bouncing Checks Law, docketed as Criminal Cases Nos. 40909-40913, were filed against respondent Claudio before the Regional Trial Court of Quezon City and originally assigned to Branch 84.
The presiding judge of Branch 84 inhibited himself when respondent Claudio, through counsel, filed a petition for recuse dated May 19,1986.
The cases were re-raffled and consequently assigned on June 25, 1986 to Branch 105 which was then presided over by Judge Johnico G. Serquina
During these proceedings, respondent Claudio was finally arraigned on November 20, 1986 where she pleaded not guilty to the charges. Pre-trial was then set on January 8, 1987.
In the meantime Judge Tomas V. Tadeo, Jr. replaced Judge Serquina as presiding judge of Branch 105.
On January 8, 1987, the respondent court issued an order rejecting the appearance of Atty. Nicolito L. Bustos as private prosecutor on the ground that the charge is for the violation of Batas Pambansa Blg. 22 which does not provide for any civil liability or indemnity and hence, "it is not a crime against property but public order."
The petitioner, through counsel filed a motion for reconsideration of the order dated 8 January 1987 on March 10, 1987.
Respondent Claudio filed her opposition to the motion for reconsideration on March 25, 1987.
In an order dated 31 March 1987, the respondent court denied petitioner's motion for reconsideration.
Hence, this petition questioning the orders of the respondent Court.
The issue to be resolved is whether or not the respondent Court acted with grave abuse of discretion or in excess of its jurisdiction in rejecting the appearance of a private prosecutor.
The respondents make capital of the fact that Batas Pambansa Blg. 22 punishes the act of knowingly issuing worthless checks as an offense against public order. As such, it is argued that it is the State and the public that are the principal complainants and, therefore, no civil indemnity is provided for by Batas Pambansa Blg. 22 for which a private party or prosecutor may intervene.
On the other hand, the petitioner, relying on the legal axiom that "Every man criminally liable is also civilly liable," contends that indemnity may be recovered from the offender regardless of whether or not Batas Pambansa Blg. 22 so provides.
A careful study of the concept of civil liability allows a solution to the issue in the case at bar.
Generally, the basis of civil liability arising from crime is the fundamental postulate of our law that "Every man criminally liable is also civilly liable" (Art. 100, The Revised Penal Code). Underlying this legal principle is the traditional theory that when a person commits a crime he offends two entities namely ( 1) the society in which he lives in or the political entity called the State whose law he had violated; and (2) the individual member of that society whose person, right, honor, chastity or property was actually or directly injured or damaged by the same punishable act or omission. However, this rather broad and general provision is among the most complex and controversial topics in criminal procedure. It can be misleading in its implications especially where the same act or omission may be treated as a crime in one instance and as a tort in another or where the law allows a separate civil action to proceed independently of the course of the criminal prosecution with which it is intimately intertwined. Many legal scholars treat as a misconception or fallacy the generally accepted notion that, the civil liability actually arises from the crime when, in the ultimate analysis, it does not. While an act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or not the same be punishable by law. In other words, criminal liability will give rise to civil liability only if the same felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof. Damage or injury to another is evidently the foundation of the civil action. Such is not the case in criminal actions for, to be criminally liable, it is enough that the act or omission complained of is punishable, regardless of whether or not it also causes material damage to another. (See Sangco, Philippine Law on Torts and Damages, 1978, Revised Edition, pp. 246-247).
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).
Indeed one cannot disregard the private party in the case at bar who suffered the offenses committed against her. Not only the State but the petitioner too is entitled to relief as a member of the public which the law seeks to protect. She was assured that the checks were good when she parted with money, property or services. She suffered with the State when the checks bounced.
In Lozano v. Hon. Martinez (G.R. No. 63419, December 18, 1986) and the cases consolidated therewith, we held that "The effects of a worthless check transcend the private interests of the parties directly involved in the transaction and touch the interests of the community at large." Yet, we too recognized the wrong done to the private party defrauded when we stated therein that "The mischief it creates is not only a wrong to the payee or the holder, but also an injury to the public."
Civil liability to the offended private 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 Big. 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.
The petitioner's intervention in the prosecution of Criminal Cases 40909 to 40913 is justified not only for the protection of her interests but also in the interest of the speedy and inexpensive administration of justice mandated by the Constitution (Section 16, Article III, Bill of Rights, Constitution of 1987). A separate civil action for the purpose would only prove to be costly, burdensome, and time-consuming for both parties and further delay the final disposition of the case. This multiplicity of suits must be avoided. Where petitioner's rights may be fulIy adjudicated in the proceedings before the trial court, resort t o a separate action to recover civil liability is clearly unwarranted.
WHEREFORE the petition is hereby GRANTED. The respondent court is ordered to permit the intervention of a private prosecutor in behalf of petitioner Charmina B. Banal, in the prosecution of the civil aspect of Criminasl Cases Nos. 40909 to 40913. The temporary restraining order issued by this court a quo for further proceedings. This decision is immediately executory.
SO ORDERED.

[G.R. No. 160286. July 30, 2004]
SPOUSES FRANCISCO M. HERNANDEZ and ANICETA ABEL-HERNANDEZ and JUAN GONZALES, petitioners, vs. SPOUSES LORENZO DOLOR and MARGARITA DOLOR, FRED PANOPIO, JOSEPH SANDOVAL, RENE CASTILLO, SPOUSES FRANCISCO VALMOCINA and VIRGINIA VALMOCINA, SPOUSES VICTOR PANOPIO and MARTINA PANOPIO, and HON. COURT OF APPEALS, respondents.
D E C I S I O N
YNARES-SANTIAGO, J.:
This is a petition for review under Rule 45 of the Rules of Court seeking the reversal of the decision[1] of the Court of Appeals, dated April 29, 2003, in CA-G.R. CV No. 60357, which affirmed with modification the amount of damages awarded in the November 24, 1997 decision[2] of the Regional Trial Court of Batangas City, Branch IV.
The undisputed facts are as follows:
At about 3:00 p.m. of December 19, 1986, Lorenzo Menard Boyet Dolor, Jr. was driving an owner-type jeepney with plate no. DEB 804 owned by her mother, Margarita, towards Anilao, Batangas. As he was traversing the road at Barangay Anilao East, Mabini, Batangas, his vehicle collided with a passenger jeepney bearing plate no. DEG 648, driven by petitioner Juan Gonzales and owned by his co-petitioner Francisco Hernandez, which was travelling towards Batangas City.
Boyet Dolor and his passenger, Oscar Valmocina, died as a result of the collision. Fred Panopio, Rene Castillo and Joseph Sandoval, who were also on board the owner-type jeep, which was totally wrecked, suffered physical injuries. The collision also damaged the passenger jeepney of Francisco Hernandez and caused physical injuries to its passengers, namely, Virgie Cadavida, Fiscal Artemio Reyes and Francisca Corona.[3]
Consequently, respondents commenced an action[4] for damages against petitioners before the Regional Trial Court of Batangas City, alleging that driver Juan Gonzales was guilty of negligence and lack of care and that the Hernandez spouses were guilty of negligence in the selection and supervision of their employees.[5]
Petitioners countered that the proximate cause of the death and injuries sustained by the passengers of both vehicles was the recklessness of Boyet Dolor, the driver of the owner-type jeepney, who was driving in a zigzagging manner under the influence of alcohol. Petitioners also alleged that Gonzales was not the driver-employee of the Hernandez spouses as the former only leased the passenger jeepney on a daily basis. The Hernandez spouses further claimed that even if an employer-employee relationship is found to exist between them, they cannot be held liable because as employers they exercised due care in the selection and supervision of their employee.
During the trial of the case, it was established that the drivers of the two vehicles were duly licensed to drive and that the road where the collision occurred was asphalted and in fairly good condition.[6] The owner-type jeep was travelling uphill while the passenger jeepney was going downhill. It was further established that the owner-type jeep was moderately moving and had just passed a road bend when its passengers, private respondents Joseph Sandoval and Rene Castillo, saw the passenger jeepney at a distance of three meters away. The passenger jeepney was traveling fast when it bumped the owner type jeep.[7] Moreover, the evidence presented by respondents before the trial court showed that petitioner Juan Gonzales obtained his professional drivers license only on September 24, 1986, or three months before the accident. Prior to this, he was holder of a student drivers permit issued on April 10, 1986.[8]
On November 24, 1997, the trial court rendered a decision in favor of respondents, the dispositive portion of which states:
Premises duly considered and the plaintiffs having satisfactorily convincingly and credibly presented evidence clearly satisfying the requirements of preponderance of evidence to sustain the complaint, this Court hereby declares judgment in favor of the plaintiffs and against the defendants. Defendants-spouses Francisco Hernandez and Aniceta Abel Hernandez and Juan Gonzales are therefore directed to pay jointly and severally, the following:
1) To spouses Lorenzo Dolor and Margarita Dolor:
a) P50,000.00 for the death of their son, Lorenzo Menard Boyet Dolor, Jr.;
b) P142,000.00 as actual and necessary funeral expenses;
c) P50,000.00 reasonable value of the totally wrecked owner-type jeep with plate no. DEB 804 Phil 85;
d) P20,000.00 as moral damages;
e) P20,000.00 as reasonable litigation expenses and attorneys fees.
2) To spouses Francisco Valmocina and Virginia Valmocina:
a) P50,000.00 for the death of their son, Oscar Balmocina (sic);
b) P20,000.00 as moral damages;
c) P18,400.00 for funeral expenses;
d) P10,000.00 for litigation expenses and attorneys fees.
3) To spouses Victor Panopio and Martina Panopio:
a) P10,450.00 for the cost of the artificial leg and crutches being used by their son Fred Panopio;
b) P25,000.00 for hospitalization and medical expenses they incurred for the treatment of their son, Fred Panopio.
4) To Fred Panopio:
a) P25,000.00 for the loss of his right leg;
b) P10,000.00 as moral damages.
5) To Joseph Sandoval:
a) P4,000.00 for medical treatment.
The defendants are further directed to pay the costs of this proceedings.
SO ORDERED.[9]
Petitioners appealed[10] the decision to the Court of Appeals, which affirmed the same with modifications as to the amount of damages, actual expenses and attorneys fees awarded to the private respondents. The decretal portion of the decision of the Court of Appeals reads:
WHEREFORE, the foregoing premises considered, the appealed decision is AFFIRMED. However, the award for damages, actual expenses and attorneys fees shall be MODIFIED as follows:
1) To spouses Lorenzo Dolor and Margarita Dolor:
a) P50,000.00 civil indemnity for their son Lorenzo Menard Dolor, Jr.;
b) P58,703.00 as actual and necessary funeral expenses;
c) P25,000,00 as temperate damages;
d) P100,000.00 as moral damages;
e) P20,000.00 as reasonable litigation expenses and attorneys fees.
2) To Spouses Francisco Valmocina and Virginia Valmocina:
a) P50,000.00 civil indemnity for the death of their son, Oscar Valmocina;
b) P100,000.00 as moral damages;
c) P10,000.00 as temperate damages;
d) P10,000.00 as reasonable litigation expenses and attorneys fees.
3) To Spouses Victor Panopio and Martina Panopio:
a) P10,352.59 as actual hospitalization and medical expenses;
b) P5,000.00 as temperate damages.
4) To Fred Panopio:
a) P50,000.00 as moral damages.
5) To Joseph Sandoval:
a) P3,000.00 as temperate damages.
SO ORDERED.[11]
Hence the present petition raising the following issues:
1. Whether the Court of Appeals was correct when it pronounced the Hernandez spouses as solidarily liable with Juan Gonzales, although it is of record that they were not in the passenger jeepney driven by latter when the accident occurred;
2. Whether the Court of Appeals was correct in awarding temperate damages to private respondents namely the Spouses Dolor, Spouses Valmocina and Spouses Panopio and to Joseph Sandoval, although the grant of temperate damages is not provided for in decision of the court a quo;
3. Whether the Court of Appeals was correct in increasing the award of moral damages to respondents, Spouses Dolor, Spouses Valmocina and Fred Panopio;
4. Whether the Court of Appeals was correct in affirming the grant of attorneys fees to Spouses Dolor and to Spouses Valmocina although the lower court did not specify the fact and the law on which it is based.
Petitioners contend that the absence of the Hernandez spouses inside the passenger jeepney at the time of the collision militates against holding them solidarily liable with their co-petitioner, Juan Gonzales, invoking Article 2184 of the Civil Code, which provides:
ARTICLE 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months.
If the owner was not in the motor vehicle, the provisions of article 2180 are applicable.
The Hernandez spouses argues that since they were not inside the jeepney at the time of the collision, the provisions of Article 2180 of the Civil Code, which does not provide for solidary liability between employers and employees, should be applied.
We are not persuaded.
Article 2180 provides:
ARTICLE 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.
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. (Underscoring supplied)
On the other hand, Article 2176 provides
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.
While the above provisions of law do not expressly provide for solidary liability, the same can be inferred from the wordings of the first paragraph of Article 2180 which states that the obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.
Moreover, Article 2180 should be read with Article 2194 of the same Code, which categorically states that the responsibility of two or more persons who are liable for quasi-delict is solidary. In other words, the liability of joint tortfeasors is solidary.[12] Verily, under Article 2180 of the Civil Code, an employer may be held solidarily liable for the negligent act of his employee.[13]
The solidary liability of employers with their employees for quasi-delicts having been established, the next question is whether Julian Gonzales is an employee of the Hernandez spouses. An affirmative answer will put to rest any issue on the solidary liability of the Hernandez spouses for the acts of Julian Gonzales. The Hernandez spouses maintained that Julian Gonzales is not their employee since their relationship relative to the use of the jeepney is that of a lessor and a lessee.They argue that Julian Gonzales pays them a daily rental of P150.00 for the use of the jeepney.[14] In essence, petitioners are practicing the boundary system of jeepney operation albeit disguised as a lease agreement between them for the use of the jeepney.
We hold that an employer-employee relationship exists between the Hernandez spouses and Julian Gonzales.
Indeed to exempt from liability the owner of a public vehicle who operates it under the boundary system on the ground that he is a mere lessor would be not only to abet flagrant violations of the Public Service Law, but also to place the riding public at the mercy of reckless and irresponsible drivers reckless because the measure of their earnings depends largely upon the number of trips they make and, hence, the speed at which they drive; and irresponsible because most if not all of them are in no position to pay the damages they might cause.[15]
Anent the award of temperate damages to the private respondents, we hold that the appellate court committed no reversible error in awarding the same to the respondents.
Temperate or moderate damages are damages which are more than nominal but less than compensatory which may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty.[16] Temperate damages are awarded for those cases where, from the nature of the case, definite proof of pecuniary loss cannot be offered, although the court is convinced that there has been such loss. A judge should be empowered to calculate moderate damages in such cases, rather than the plaintiff should suffer, without redress, from the defendants wrongful act.[17] The assessment of temperate damages is left to the sound discretion of the court provided that such an award is reasonable under the circumstances.[18]
We have gone through the records of this case and we find that, indeed, respondents suffered losses which cannot be quantified in monetary terms. These losses came in the form of the damage sustained by the owner type jeep of the Dolor spouses; the internment and burial of Oscar Valmocina; the hospitalization of Joseph Sandoval on account of the injuries he sustained from the collision and the artificial leg and crutches that respondent Fred Panopio had to use because of the amputation of his right leg. Further, we find that the amount of temperate damages awarded to the respondents were reasonable under the circumstances.
As to the amount of moral damages which was awarded to respondents, a review of the records of this case shows that there exists no cogent reason to overturn the action of the appellate court on this aspect.
Under Article 2206, the spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish for the death of the deceased. The reason for the grant of moral damages has been explained, thus:
. . . the award of moral damages is aimed at a restoration, within the limits possible, of the spiritual status quo ante; and therefore, it must be proportionate to the suffering inflicted. The intensity of the pain experienced by the relatives of the victim is proportionate to the intensity of affection for him and bears no relation whatsoever with the wealth or means of the offender.[19]
Moral damages are emphatically not intended to enrich a plaintiff at the expense of the defendant. They are awarded to allow the former to obtain means, diversion or amusements that will serve to alleviate the moral suffering he has undergone due to the defendants culpable action and must, perforce, be proportional to the suffering inflicted.[20]
Truly, the pain of the sudden loss of ones offspring, especially of a son who was in the prime of his youth, and who holds so much promise waiting to be fulfilled is indeed a wellspring of intense pain which no parent should be made to suffer.While it is true that there can be no exact or uniform rule for measuring the value of a human life and the measure of damages cannot be arrived at by a precise mathematical calculation,[21] we hold that the Court of Appeals award of moral damages of P100,000.00 each to the Spouses Dolor and Spouses Valmocina for the death of their respective sons, Boyet Dolor and Oscar Valmocina, is in full accord with prevailing jurisprudence.[22]
With respect to the award of attorneys fees to respondents, no sufficient basis was established for the grant thereof.
It is well settled that attorneys fees should not be awarded in the absence of stipulation except under the instances enumerated in Article 2208 of the Civil Code. As we have held in Rizal Surety and Insurance Company v. Court of Appeals:[23]
Article 2208 of the Civil Code allows attorneys fees to be awarded by a court when its claimant is compelled to litigate with third persons or to incur expenses to protect his interest by reason of an unjustified act or omission of the party from whom it is sought. While judicial discretion is here extant, an award thereof demands, nevertheless, a factual, legal or equitable justification. The matter cannot and should not be left to speculation and conjecture (Mirasol vs. De la Cruz, 84 SCRA 337; Stronghold Insurance Company, Inc. vs. Court of Appeals, 173 SCRA 619).
In the case at bench, the records do not show enough basis for sustaining the award for attorneys fees and to adjudge its payment by petitioner. x x x.
Likewise, this Court held in Stronghold Insurance Company, Inc. vs. Court of Appeals that:
In Abrogar v. Intermediate Appellate Court [G.R. No. 67970, January 15, 1988, 157 SCRA 57], the Court had occasion to state that [t]he reason for the award of attorneys fees must be stated in the text of the courts decision, otherwise, if it is stated only in the dispositive portion of the decision, the same must be disallowed on appeal. x x x.[24]
WHEREFORE, the petition is DENIED. The assailed decision of the Court of Appeals is AFFIRMED with the MODIFICATION that the grant of attorneys fees is DELETED for lack of basis.
Costs against petitioners.
SO ORDERED.

G.R. No. 149149 October 23, 2003
ERNESTO SYKI, petitioner, vs. SALVADOR BEGASA, respondent.
D E C I S I O N
CORONA, J.:
Assailed in the instantthis petition for review under Rule 45 of the Rules of Court is the decision1 dated January 31, 2001 of the Court of Appeals, affirming the decision dated May 5, 1998 of the Regional Trial Court of Negros Occidental, Branch 48, Bacolod City, in Civil Case No. 7458 for damages. The trial court awarded actual and moral damages to herein respondent Salvador Begasa who suffered injuries in an accident due to the negligence of Elizalde Sablayan, the truck driver of petitioner Ernesto Syki.
The facts follow.
On June 22, 1992, around 11:20 a.m., near the corner of Araneta and Magsaysay Streets, Bacolod City, respondent Salvador Begasa and his three companions flagged down a passenger jeepney driven by Joaquin Espina and owned by Aurora Pisuena. While respondent was boarding the passenger jeepney (his right foot already inside while his left foot still on the boarding step of the passenger jeepney), a truck driven by Elizalde Sablayan and owned by petitioner Ernesto Syki bumped the rear end of the passenger jeepney. Respondent fell and fractured his left thigh bone (femur). He also suffered lacerations and abrasions in his left leg, thusas follows:
1. Fracture left femur, junction of middle and distal third, comminuted.
2. Lacerated wounds, left poplitial 10 cm. left leg anterior 2.5 cm.
3. Abrasion left knee.2
On October 29, 1992, respondent filed a complaint for damages for breach of common carrier’s contractual obligations and quasi-delict against Aurora Pisuena, the owner of the passenger jeepney;, herein petitioner Ernesto Syki, the owner of the truck;, and Elizalde Sablayan, the driver of the truck.
After hearing, the trial court dismissed the complaint against Aurora Pisuena, the owner and operator of the passenger jeepney, but ordered petitioner Ernesto Syki and his truck driver, Elizalde Sablayan, to pay respondent Salvador Begasa, jointly and severally, actual and moral damages plus attorney’s fees as follows:
1. Actual damages of P48,308.20 less the financial assistance given by defendant Ernesto Syki to plaintiff Salvador Begasa in the amount of P4,152.55 or a total amount of P44,155.65;
2. The amount of P30,000.00 as moral damages;
3. The amount of P20,000.00 as reasonable attorney’s fees.3
Petitioner Syki and his driver appealed to the Court of Appeals. However, the appellate court found no reversible error in the decision of the trial court and affirmed the same in toto.4 The appellate court also denied their motion for reconsideration.5
Aggrieved, petitioner Ernesto Syki filed the instant petition for review, arguing that the Court of Appeals erred in not finding respondent Begasa guilty of contributory negligence. Hence, the damages awarded to him (respondent) should have been decreased or mitigated. Petitioner also contends that the appellate court erred in ruling that he failed to observe the diligence of a good father of a family in the selection and supervision of his driver. He asserts that he presented sufficient evidence to prove that he observed the diligence of a good father of a family in selecting and supervising the said employee, thus he should not be held liable for the injuries sustained by respondent.
The petition has no merit.
Article 2180 of the Civil Code provides:
. . . . . . . . .x x x x x x x x x
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 x x x
. . . . . . . . .
The responsibility treated in this article shall cease when the persons herein mentioned prove they observed all the diligence of a good father of a family to prevent damage.
From the above provision, when an injury is caused by the negligence of an employee, a legal presumption instantly arises that the employer was negligent, either or both, in the selection and/or supervision of his said employeeduties. The said presumption may be rebutted only by a clear showing on the part of the employer that he had exercised the diligence of a good father of a family in the selection and supervision of his employee. If the employer successfully overcomes the legal presumption of negligence, he is relieved of liability.6 In other words, the burden of proof is on the employer.
The question is: how does an employer prove that he had indeed exercised the diligence of a good father of a family in the selection and supervision of his employee? The case of Metro Manila Transit Corporation vs. Court of Appeals7 is instructive:
In fine, the party, whether plaintiff or defendant, who asserts the affirmative of the issue has the burden of presenting at the trial such amount of evidence required by law to obtain a favorable judgment. . .In making proof in its or his case, it is paramount that the best and most complete evidence is formally entered.1ªvvphi1.nét
Coming now to the case at bar, while there is no rule which requires that testimonial evidence, to hold sway, must be corroborated by documentary evidence, inasmuch as the witnesses’ testimonies dwelt on mere generalities, we cannot consider the same as sufficiently persuasive proof that there was observance of due diligence in the selection and supervision of employees. Petitioner’s attempt to prove its "deligentissimi patris familias" in the selection and supervision of employees through oral evidence must fail as it was unable to buttress the same with any other evidence, object or documentary, which might obviate the apparent biased nature of the testimony.
Our view that the evidence for petitioner MMTC falls short of the required evidentiary quantum as would convincingly and undoubtedly prove its observance of the diligence of a good father of a family has its precursor in the underlying rationale pronounced in the earlier case of Central Taxicab Corp. vs. Ex-Meralco Employees Transportation Co., et. al., set amidst an almost identical factual setting, where we held that:
The failure of the defendant company to produce in court any ‘record’ or other documentary proof tending to establish that it had exercised all the diligence of a good father of a family in the selection and supervision of its drivers and buses, notwithstanding the calls therefore by both the trial court and the opposing counsel, argues strongly against its pretensions.
We are fully aware that there is no hard-and-fast rule on the quantum of evidence needed to prove due observance of all the diligence of a good father of a family as would constitute a valid defense to the legal presumption of negligence on the part of an employer or master whose employee has by his negligence, caused damage to another. x x x (R)educing the testimony of Albert to its proper proportion, we do not have enough trustworthy evidence left to go by. We are of the considerable opinion, therefore, that the believable evidence on the degree of care and diligence that has been exercised in the selection and supervision of Roberto Leon y Salazar, is not legally sufficient to overcome the presumption of negligence against the defendant company. (emphasis ours)
The above 1993 ruling in Metro Manila Transit Corporation vs. Court of Appeals was reiterated in a recent case again involving the Metro Manila Transit Corporation,8 thus:
In the selection of prospective employees, employers are required to examine them as to their qualifications, experience, and service records. On the other hand, with respect to the supervision of employees, employers should formulate standard operating procedures, monitor their implementation, and impose disciplinary measures for breaches thereof. To establish these factors in a trial involving the issue of vicarious liability, employers must submit concrete proof, including documentary evidence.
In this case, MMTC sought to prove that it exercised the diligence of a good father of a family with respect to the selection of employees by presenting mainly testimonial evidence on its hiring procedure. According to MMTC, applicants are required to submit professional driving licenses, certifications of work experience, and clearances from the National Bureau of Investigation; to undergo tests of their driving skills, concentration, reflexes, and vision; and, to complete training programs on traffic rules, vehicle maintenance, and standard operating procedures during emergency cases.
. . . . . . . . .x x x x x x x x x
Although testimonies were offered that in the case of Pedro Musa all these precautions were followed, the records of his interview, of the results of his examinations, and of his service were not presented. . . [T]here is no record that Musa attended such training programs and passed the said examinations before he was employed. No proof was presented that Musa did not have any record of traffic violations. Nor were records of daily inspections, allegedly conducted by supervisors, ever presented. . . The failure of MMTC to present such documentary proof puts in doubt the credibility of its witnesses. x x x x x x x x x. . . . . . . . .
It is noteworthy that, in another case involving MMTC, testimonial evidence of identical content, which MMTC presented to show that it exercised the diligence of a good father of a family in the selection and supervision of employees and thus avoid vicarious liability for the negligent acts of its employees, was held to be insufficient to overcome the presumption of negligence against it. (emphasis ours)
Based therefore on jurisprudential law, the employer must not merely present testimonial evidence to prove that he had observed the diligence of a good father of a family in the selection and supervision of his employee, but he must also support such testimonial evidence with concrete or documentary evidence.1awphi1.nét The reason for this is to obviate the biased nature of the employer’s testimony or that of his witnesses.9
In this case, petitioner’s evidence consisted entirely of testimonial evidence. He testified that before he hired Elizalde Sablayan, he required him to submit a police clearance in order to determine if he was ever involved in any vehicular accident. He also required Sablayan to undergo a driving test with conducted by his mechanic, Esteban Jaca. Petitioner claimed that he, in fact, accompanied Sablayan during the driving test and that during the test, Sablayan was taught to read and understand traffic signs like "Do Not Enter," "One Way," "Left Turn," and "Right Turn."
Petitioner’s mechanic, Esteban Jaca, on the other hand, testified that Sablayan passed the driving test and had never figured in any vehicular accident except the one in question. He also testified that he maintained in good condition all the trucks of petitioner by checking the brakes, horns and tires thereof before leaving forproviding hauling services.10
Petitioner, however, never presented the alleged police clearance given to him by Sablayan, nor the results of Sablayan’s driving test. Petitioner also did not present records of the regular inspections that his mechanic allegedly conducted. The unsubstantiated and self-serving testimonies of petitioner and his mechanic arewere, without doubt, insufficient to overcome the legal presumption that petitioner was negligent in the selection and supervision of his driver. Accordingly, we affirm the ruling of the Court of Appeals that petitioner is liable for the injuries suffered by respondent.
It should be emphasized that the legal obligation of employers to observe due diligence in the selection and supervision of their employees provided under in Article 2180 of the Civil Code is not an empty provision or a mere formalism since the non-observance thereof actually becomes the basis of the employers’ vicarious liability.11 Employers should thus seriously observe such a degree of diligence (and must presentprove it in court by sufficient and concrete evidence) in court showing such observance in order to be freethat would exculpate them from liability.
Petitioner next contends that, even if he is liable, the award of damages given to respondent should be decreased or mitigated because respondent was guilty of contributory negligence. Petitioner claims that his driver was allegedly caught unaware when the passenger jeepney hailed by respondent suddenly stopped at the intersection of a national highway. Petitioner argues that, had respondent flagged down the passenger jeepney at the proper place, the accident could have been avoided.12
Petitioner’s contention has no merit.
Article 2179 provides:
When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.
The underlying precept of the above article on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be and is not entitled to recover damages in full but must bear the consequences of his own negligence. Inferrably, tThe defendant must thus be held liable only for the damages actually caused by his negligence.13
In the present case, was respondent partly negligent and thus, should not recover the full amount of the damages awarded by the trial court? We rule in the negative.
There was no evidence that respondent Begasa and his three companions flagged down the passenger jeepney at in a prohibited area. All Tthe facts only showed was that the passenger jeepney was near the corner of Araneta and Magsaysay Streets, Bacolod City when petitioner’s driver bumped it from the rear. No city resolution, traffic regulation or DPWH memorandum were was presented to show that the passenger jeepney picked up respondent and his three companions at in a prohibited area. In fact, the trial court dismissed the case against the driver and/or owner of the passenger jeepney on the ground that they were not liable, which meansing, that no negligence could be attributed to them. The trial court also found no negligence on the part of respondent Begasa. This factual finding was affirmed in toto by the Court of Appeals.14
It must be emphasized that petitions for review under Rule 45 of the Rules of Court should deals only with questions of law. The factual conclusions of the Court of Appeals are given great weight and even finality by the Supreme Court, especially when, as in the present case, the appellate court upholds the findings of fact of the trial court. The factual findings of the Court of Appeals can only be overturned if it is shown that such findings are obviously whimsical, capricious and arbitrary, or are contrary with to the factual findings of the trial court.15 In this case, we find no reason to overturn the factual findings of the Court of Appeals. Thus, we affirm the appellate court’s finding that there was no contributory negligence on the part of respondent.
In sum, the sole and proximate cause of the accident was the negligence of petitioner’s driver who, as found by the lower courts, did not slow down even when he was already approaching a busy intersection within the city proper.16 The passenger jeepney had long stopped to pick up respondent and his three companions and, in fact, respondent was already partly inside the jeepney, when petitioner’s driver bumped the rear end ofrear-ended it. The impact was so strong such that respondent fell and fractured his left thigh bone (femur), and suffered severely woundeds in his left knee and leg. No doubt that respondentpetitioner’s driver was reckless speeding.
Since the negligence of petitioner’s driver was the sole and proximate cause of the accident, in the present case, petitioner is liable, under Article 2180 of the Civil Code, to pay damages to respondent Begasa for the injuries sustained by latterhim.
WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals is AFFIRMED.
SO ORDERED.

[G.R. No. 116100. February 9, 1996]
SPOUSES CRISTINO and BRIGIDA CUSTODIO and SPOUSES LITO and MARIA CRISTINA SANTOS, petitioners, vs. COURT OF APPEALS, HEIRS OF PACIFICO C. MABASA and REGIONAL TRIAL COURT OF PASIG, METRO MANILA, BRANCH 181, respondents.
D E C I S I O N
REGALADO, J.:
This petition for review on certiorari assails the decision of respondent Court of Appeals in CA-G.R. CV No. 29115, promulgated on November 10, 1993, which affirmed with modification the decision of the trial court, as well as its resolution dated July 8, 1994 denying petitioners motion for reconsideration.[1]
On August 26, 1982, Civil Case No. 47466 for the grant of an easement of right of way was filed by Pacifico Mabasa against Cristino Custodio, Brigida R. Custodio, Rosalina R. Morato, Lito Santos and Maria Cristina C. Santos before the Regional Trial Court of Pasig and assigned to Branch 22 thereof.[2]
The generative facts of the case, as synthesized by the trial court and adopted by the Court of Appeals, are as follows:
Perusing the record, this Court finds that the original plaintiff Pacifico Mabasa died during the pendency of this case and was substituted by Ofelia Mabasa, his surviving spouse [and children].
The plaintiff owns a parcel of land with a two-door apartment erected thereon situated at Interior P. Burgos St., Palingon, Tipas, Taguig, Metro Manila. The plaintiff was able to acquire said property through a contract of sale with spouses Mamerto Rayos and Teodora Quintero as vendors last September 1981. Said property may be described to be surrounded by other immovables pertaining to defendants herein. Taking P. Burgos Street as the point of reference, on the left side, going to plaintiffs property, the row of houses will be as follows: That of defendants Cristino and Brigido Custodio, then that of Lito and Maria Cristina Santos and then that of Ofelia Mabasa. On the right side (is) that of defendant Rosalina Morato and then a Septic Tank (Exhibit D). As an access to P. Burgos Street from plaintiffs property, there are two possible passageways. The first passageway is approximately one meter wide and is about 20 meters distan(t) from Mabasas residence to P. Burgos Street. Such path is passing in between the previously mentioned row of houses. The second passageway is about 3 meters in width and length from plaintiff Mabasas residence to P. Burgos Street; it is about 26 meters. In passing thru said passageway, a less than a meter wide path through the septic tank and with 5-6 meters in length has to be traversed.
When said property was purchased by Mabasa, there were tenants occupying the premises and who were acknowledged by plaintiff Mabasa as tenants. However, sometime in February, 1982. one of said tenants vacated the apartment and when plaintiff Mabasa went to see the premises, he saw that there had been built an adobe fence in the first passageway making it narrower in width. Said adobe fence was first constructed by defendants Santoses along their property which is also along the first passageway. Defendant Morato constructed her adobe fence and even extended said fence in such a way that the entire passageway was enclosed (Exhibit 1-Santoses and Custodios, Exh. D for plaintiff, Exhs. 1-C, 1-D and I -E) And it was then that the remaining tenants of said apartment vacated the area. Defendant Ma. Cristina Santos testified that she constructed said fence because there was an incident when her daughter was dragged by a bicycle pedalled by a son of one of the tenants in said apartment along the first passageway. She also mentioned some other inconveniences of having (at) the front of her house a pathway such as when some of the tenants were drunk and would bang their doors and windows. Some of their footwear were even lost. x x x[3] (Italics in original text; corrections in parentheses supplied)
On February 27, 1990, a decision was rendered by the trial court, with this dispositive part:
Accordingly, judgment is hereby rendered as follows:
1) Ordering defendants Custodios and Santoses to give plaintiff permanent access - ingress and egress, to the public street;
2) Ordering the plaintiff to pay defendants Custodios and Santoses the sum of Eight Thousand Pesos (P8,000) as indemnity for the permanent use of the passageway.
The parties to shoulder their respective litigation expenses.[4]
Not satisfied therewith, therein plaintiff represented by his heirs, herein private respondents, went to the Court of Appeals raising the sole issue of whether or not the lower court erred in not awarding damages in their favor. On November 10, 1993, as earlier stated, the Court of Appeals rendered its decision affirming the judgment of the trial court with modification, the decretal portion of which disposes as follows:
WHEREFORE, the appealed decision of the lower court is hereby AFFIRMED WITH MODIFICATION only insofar as the herein grant of damages to plaintiffs-appellants. The Court hereby orders defendants-appellees to pay plaintiffs-appellants the sum of Sixty Five Thousand (P65,000) Pesos as Actual Damages, Thirty Thousand (P30,000) Pesos as Moral Damages, and Ten Thousand (P10,000) Pesos as Exemplary Damages. The rest of the appealed decision is affirmed to all respects.[5]
On July 8, 1994, the Court of Appeals denied petitioners motion for reconsideration.[6] Petitioners then took the present recourse to us, raising two issues, namely, whether or not the grant of right of way to herein private respondents is proper, and whether or not the award of damages is in order.
With respect to the first issue, herein petitioners are already barred from raising the same. Petitioners did not appeal from the decision of the court a quo granting private respondents the right of way, hence they are presumed to be satisfied with the adjudication therein. With the finality of the judgment of the trial court as to petitioners, the issue of propriety of the grant of right of way has already been laid to rest.
For failure to appeal the decision of the trial court to the Court of Appeals, petitioners cannot obtain any affirmative relief other than those granted in the decision of the trial court. That decision of the court below has become final as against them and can no longer be reviewed, much less reversed, by this Court. The rule in this jurisdiction is that whenever an appeal is taken in a civil case, an appellee who has not himself appealed may not obtain from the appellate court any affirmative relief other than what was granted in the decision of the lower court. The appellee can only advance any argument that he may deem necessary to defeat the appellants claim or to uphold the decision that is being disputed, and he can assign errors in his brief if such is required to strengthen the views expressed by the court a quo. These assigned errors, in turn, may be considered by the appellate court solely to maintain the appealed decision on other grounds, but not for the purpose of reversing or modifying the judgment in the appellees favor and giving him other affirmative reliefs.[7]
However, with respect to the second issue, we agree with petitioners that the Court of Appeals erred in awarding damages in favor of private respondents. The award of damages has no substantial legal basis. A reading of the decision of the Court of Appeals will show that the award of damages was based solely on the fact that the original plaintiff, Pacifico Mabasa, incurred losses in the form of unrealized rentals when the tenants vacated the leased premises by reason of the closure of the passageway.
However, the mere fact that the plaintiff suffered losses does not give rise to a right to recover damages. To warrant the recovery of damages, there must be both a right of action for a legal wrong inflicted by the defendant, and damage resulting to the plaintiff therefrom. Wrong without damage, or damage without wrong, does not constitute a cause of action, since damages are merely part of the remedy allowed for the injury caused by a breach or wrong.[8]
There is a material distinction between damages and injury. Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered. Thus, there can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. These situations are often called damnum absque injuria.[9] in order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff - a concurrence of injury to the plaintiff and legal responsibility by the person causing it.[10] The underlying basis for the award of tort damages is the premise that an individual was injured in contemplation of law. Thus, there must first be the breach of some duty and the imposition of liability for that breach before damages may be awarded; it is not sufficient to state that there should be tort liability merely because the plaintiff suffered some pain and suffering)[11]
Many accidents occur and many injuries are inflicted by acts or omissions which cause damage or loss to another but which violate no legal duty to such other person, and consequently create no cause of action in his favor. In such cases, the consequences must be borne by the injured person alone. The law affords no remedy for damages resulting from an act which does not amount to a legal injury or wrong. [12]
In other words, in order that the law will give redress for an act causing damage, that act must be not only hurtful, but wrongful. There must be damnum et injuria.[13] If, as may happen in many cases, a person sustains actual damage, that is, harm or loss to his person or property, without sustaining any legal injury, that is, an act or omission which the law does not deem an injury, the damage is regarded as damnum absque injuria.[14]
In the case at bar, although there was damage, there was no legal injury. Contrary to the claim of private respondents, petitioners could not be said to have violated the principle of abuse of right. In order that the principle of abuse of right provided in Article 21 of the Civil Code can be applied, it is essential that the following requisites concur: (1) The defendant should have acted in a manner that is contrary to morals, good customs or public policy; (2) The acts should be willful; and (3) There was damage or injury to the plaintiff.[15]
The act of petitioners in constructing a fence within their lot is a valid exercise of their right as owners, hence not contrary to morals, good customs or public policy. The law recognizes in the owner the right to enjoy and dispose of a thing, without other limitations than those established by law.[16] It is within the right of petitioners, as owners, to enclose and fence their property. Article 430 of the Civil Code provides that (e)very owner may enclose or fence his land or tenements by means of walls, ditches, live or dead hedges, or by any other means without detriment to servitudes constituted thereon.
At the time of the construction of the fence, the lot was not subject to any servitudes. There was no easement of way existing in favor of private respondents, either by law or by contract. The fact that private respondents had no existing right over the said passageway is confirmed by the very decision of the trial court granting a compulsory right of way in their favor after payment of just compensation. It was only that decision which gave private respondents the right to use the said passageway after payment of the compensation and imposed a corresponding duty on petitioners not to interfere in the exercise of said right.
Hence, prior to said decision, petitioners had an absolute right over their property and their act of fencing and enclosing the same was an act which they may lawfully perform in the employment and exercise of said right. To repeat, whatever injury or damage may have been sustained by private respondents by reason of the rightful use of the said land by petitioners is damnum absque injuria.[17]
A person has a right to the natural use and enjoyment of his own property, according to his pleasure, for all the purposes to which such property is usually applied. As a general rule, therefore, there is no cause of action for acts done by one person upon his own property in a lawful and proper manner, although such acts incidentally cause damage or an unavoidable loss to another, as such damage or loss is damnum absque injuria.[18] When the owner of property makes use thereof in the general and ordinary manner in which the property is used, such as fencing or enclosing the same as in this case, nobody can complain of having been injured, because the inconvenience arising from said use can be considered as a mere consequence of community life.[19]
The proper exercise of a lawful right cannot constitute a legal wrong for which an action will lie,[20] although the act may result in damage to another, for no legal right has been invaded[21] One may use any lawful means to accomplish a lawful purpose and though the means adopted may cause damage to another, no cause of action arises in the latters favor. Any injury or damage occasioned thereby is damnum absque injuria. The courts can give no redress for hardship to an individual resulting from action reasonably calculated to achieve a lawful end by lawful means.[22]
WHEREFORE, under the compulsion of the foregoing premises, the appealed decision of respondent Court of Appeals is hereby REVERSED and SET ASIDE and the judgment of the trial court is correspondingly REINSTATED.
SO ORDERED. MARITER MENDOZA, G.R. No. 197987
Petitioner,
Present:
VELASCO, JR., J., Chairperson,
- versus - PERALTA,
ABAD,
MENDOZA, and
PERLAS-BERNABE, JJ.
ADRIANO CASUMPANG,
JENNIFER ADRIANE and
JOHN ANDRE, all surnamed Promulgated:
CASUMPANG,
Respondents. March 19, 2012

Josephine Casumpang, substituted by her respondent husband Adriano and their children Jennifer Adriane and John Andre, filed an action for damages against petitioner Dr. Mariter Mendoza in 1993 before the Regional Trial Court (RTC) of Iloilo City. On February 13, 1993 Josephine underwent hysterectomy and myomectomy that Dr. Mendoza performed on her at the Iloilo Doctors Hospital. After her operation, Josephine experienced recurring fever, nausea, and vomiting. Three months after the operation, she noticed while taking a bath something protruding from her genital. She tried calling Dr. Mendoza to report it but the latter was unavailable. Josephine instead went to see another physician, Dr. Edna Jamandre-Gumban, who extracted a foul smelling, partially expelled rolled gauze from her cervix.
The discovery of the gauze and the illness she went through prompted Josephine to file a damage suit against Dr. Mendoza before the RTC of Iloilo City. Because Josephine died before trial could end, her husband and their children substituted her in the case. She was a housewife and 40 years old when she died. On March 7, 2005 the RTC rendered judgment, finding Dr. Mendoza guilty of neglect that caused Josephines illness and eventual death and ordering her to pay plaintiffs heirs actual damages of P50,000.00, moral damages ofP200,000.00, and attorneys fees of P20,000.00 plus costs of suit. On motion for reconsideration, however, the RTC reversed itself and dismissed the complaint in an order dated June 23, 2005. On appeal, the Court of Appeals (CA) rendered a decision on March 18, 2011,[1] reinstating the RTCs original decision. The CA held that Dr. Mendoza committed a breach of her duty as a physician when a gauze remained in her patients body after surgery. The CA denied her motion for reconsideration on July 18, 2011, prompting her to file the present petition. Petitioner claims that no gauze or surgical material was left in Josephines body after her surgery as evidenced by the surgical sponge count in the hospital record. But she raises at this Courts level a question of fact when parties may raise only questions of law before it in petitions for review on certiorari from the CA. With few exceptions, the factual findings of the latter court are generally binding. None of those exceptions applies to this case.[2] As the RTC pointed out, Josephine did not undergo any other surgical operation. And it would be much unlikely for her or for any woman to inject a roll of gauze into her cervix. As the Court held in Professional Services, Inc. v. Agana:[3] 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. 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. The Court notes, however, that neither the CA nor the RTC awarded exemplary damages against Dr. Mendoza when, under Article 2229 of the Civil Code, exemplary damages are imposed by way of example or correction for the public good, in addition to moral damages. Exemplary damages may also be awarded in cases of gross negligence.[4] A surgical operation is the responsibility of the surgeon performing it. He must personally ascertain that the counts of instruments and materials used before the surgery and prior to sewing the patient up have been correctly done. To provide an example to the medical profession and to stress the need for constant vigilance in attending to a patients health, the award of exemplary damages in this case is in order. Further, in view of Josephines death resulting from petitioners negligence, civil indemnity under Article 2206[5] of the Civil Code should be given to respondents as heirs. The amount of P50,000.00 is fixed by prevailing jurisprudence for this kind.[6] The Court also deems it just and equitable under Article 2208 of the Civil Code to increase the award of attorneys fees from P20,000.00 to P50,000.00. WHEREFORE, the Court entirely AFFIRMS the decision of the Court of Appeals dated March 18, 2011 with the MODIFICATION ordering petitioner Mariter Mendoza to pay respondents Adriano, Jennifer Adriane and John Andre, all surnamed Casumpang, an additional P50,000.00 as exemplary damages, additional P30,000.00 as attorneys fees and civil indemnity arising from death in the amount of P50,000.00. SO ORDERED.

G.R. No. 175172 September 29, 2009
CRESENCIA ACHEVARA, ALFREDO ACHEVARA, and BENIGNO VALDEZ, Petitioners, vs. ELVIRA RAMOS, JOHN ARNEL RAMOS, and KHRISTINE CAMILLE RAMOS, Respondents.

This is a petition for review on certiorari1 of the Decision dated April 25, 2006 of the Court of Appeals in CA-G.R. CV No. 67027, and its Resolution dated October 23, 2006, denying petitioners’ motion for reconsideration. The Court of Appeals affirmed with modification the Decision of the Regional Trial Court (RTC) of Ilocos Sur, Branch 22, dated February 14, 2000, holding petitioners solidarily liable to respondents for damages incurred due to a vehicular accident, which resulted in the death of Arnulfo Ramos.
The facts are as follows:
On June 27, 1995, respondents Elvira Ramos and her two minor children, namely, John Arnel Ramos and Khristine Camille Ramos, filed with the RTC of Ilocos Sur a Complaint2 for damages under Article 21763 of the Civil Code against petitioners Cresencia Achevara, Alfredo Achevara and Benigno Valdez for the death of Arnulfo Ramos, husband of Elvira Ramos and father of her two children, in a vehicular accident that happened on April 22, 1995 at the national highway along Barangay Tablac, Candon, Ilocos Sur. Crescencia Achevara was sued as the operator of the passenger jeep with Plate No. DKK-995, which was involved in the vehicular accident. Alfredo Achevara was impleaded as the husband of the operator and as the administrator of the conjugal partnership properties of the Spouses Achevara.
In their Complaint,4 respondents alleged that in the morning of April 22, 1995, Benigno Valdez was driving a passenger jeep heading north on the national highway in Barangay Tablac, Candon, Ilocos Sur in a reckless, careless, and negligent manner. He tried to overtake a motorcycle, causing the passenger jeep to encroach on the opposite lane and bump the oncoming vehicle driven by Arnulfo Ramos. The injuries sustained by Arnulfo Ramos caused his death, notwithstanding prompt medical assistance. Respondents alleged that Crescencia Achevara failed to exercise due diligence in the selection and supervision of Benigno Valdez as driver of the passenger jeep. Respondents sought to recover actual damages for medical expenses in the sum of P33,513.00 and funeral expenses in the sum of P30,000.00, as well as moral and exemplary damages, lost earnings, attorney's fees and litigation expenses.
In their Answer,5 petitioners denied respondents’ allegation that Benigno Valdez overtook a motorcycle and bumped the vehicle driven by Arnulfo Ramos. They alleged that on April 22, 1995, Benigno Valdez was driving southward at a moderate speed when he saw an owner-type jeep coming from the south and heading north, running in a zigzag manner, and encroaching on the west lane of the road. To avoid a collision, Valdez drove the passenger jeep towards the shoulder of the road, west of his lane, but the owner-type jeep continued to move toward the western lane and bumped the left side of the passenger jeep. Petitioners alleged that it was Arnulfo Ramos who was careless and negligent in driving a motor vehicle, which he very well knew had a mechanical defect. Hence, respondents had no cause of action against petitioners.
During trial on the merits, respondents presented three witnesses: Alfredo Gamera, Dr. Emilio Joven and Elvira Ramos.
Alfredo Gamera testified that at about 10:00 a.m. of April 22, 1995, he and his wife were seated at the waiting shed along the national highway in Tablac, Candon, Ilocos Sur, waiting for a ride to the town proper of Candon. He saw a motorcycle, driven by Police Officer 3 (PO3) Baltazar de Peralta, coming from the interior part of Tablac and proceeding south toward the town proper. He also saw a southbound passenger jeep, driven by Benigno Valdez, that wanted to overtake the motorcycle of PO3 De Peralta. As it tried to overtake the motorcycle, the passenger jeep encroached on the lane of the northbound owner-type jeep driven by Arnulfo Ramos, which resulted in the collision. Gamera stated that the point of impact was on the lane of the vehicle of Arnulfo Ramos. Thereafter, the passenger jeep screeched to a halt at the fence of the Funtanilla family. The owner-type jeep was destroyed and the windshield was broken.6
Gamera testified that he was about 100 meters from the place where the vehicular accident occurred. The speed of the passenger jeep was about 70 kilometers per hour, while that of the owner-type jeep was about 30 kilometers per hour.7
On cross-examination, it was found that Gamera went to the Police Station in Candon, Ilocos Sur to execute his sworn statement only on May 30, 1992, one month after the incident and after respondent Elvira Ramos talked to him. Moreover, at the preliminary investigation, Gamera did not mention in his sworn statement that his wife was present during the incident, which fact was admitted by respondent’s counsel. Further, at that time, Gamera was working as a jueteng collector at the same joint where the deceased Arnulfo Ramos was also employed, and he had known Ramos for five years.8
Dr. Emilio Joven, a surgeon of the Lorma Medical Center, San Fernando, La Union, testified that Arnulfo Ramos was admitted at the Lorma Hospital at about 12:50 p.m. on April 22, 1995. The latter sustained external injuries, mostly on the left side of the body, which could have been caused by a vehicular accident. The CT scan result of Arnulfo Ramos showed blood clots inside the brain, scattered small hemorrhagic contusions, and swelling and blood clots on the base of the brain, which internal injuries caused his death.9 The immediate cause of death was "acute cranio-cerebral injury."10
Respondent Elvira Ramos testified on the damages she incurred due to the vehicular accident, which resulted in the death of her husband. She spent P33,513.00 for hospitalization and P30,000.00 for the funeral. She prayed for the award of lost earnings, moral damages, exemplary damages, attorney’s fees, appearance fees and other costs of litigation.11
She also testified that the owner-type jeep was registered in the name of Matilde Tacad12 of Sto. Domingo, Ilocos Sur.13a1f
Petitioners presented six witnesses, namely, PO3 Baltazar de Peralta, Special Police Officer 2 (SPO2) Marvin Valdez, Herminigildo Pagaduan, Benigno Valdez, Emilia Achevara and Alfredo Achevara.
PO3 Baltazar de Peralta stated that he was assigned to Santiago, Ilocos Sur. He testified that at about 9:00 a.m. of April 22, 1995, he was on board his motorcycle at the waiting shed erected on the eastern side of the national highway in Tablac, Ilocos Sur. He was about to go southward, but waited a while to let a southbound passenger jeep pass by. Then he followed behind the passenger jeep.
When the passenger jeep was about 75 meters away from him on the western lane of the national highway, PO3 De Peralta spotted an owner-type jeep coming from the south on the eastern lane of the road. He observed that the owner-type jeep was running in a zigzag manner as it went over the many holes on the road. It did not slacken speed, causing the jeep’s front wheels to wiggle, before it bumped the passenger jeep coming from the north. The collision occurred on the lane of the passenger jeep, about two feet away from the center line of the road, causing the owner-type jeep to turn around and return to its former position, with its right wheel removed; while the passenger jeep veered to the right lane.14
After the collision, PO3 De Peralta assisted the owner-type jeep’s driver, who fell to the ground, and helped load him into a tricycle that would take him to the hospital. Then he went to the driver of the passenger jeep and asked him what happened. The driver remarked, "Even if you do not like to meet an accident, if that is what happened, you cannot do anything." Thereafter, PO3 De Peralta proceeded on his way southward. He reported the incident at the Police Station of Candon, Ilocos Sur.15
PO3 De Peralta testified that the accident happened on a straight part of the highway, but there were many holes on the eastern lane. He stated that nothing impeded his view of the incident.16
PO3 De Peralta also testified that he had known respondents’ witness, Alfredo Gamera, who was his barangaymate for 20 years. He declared that he never saw Gamera at the waiting shed or at the scene of the incident on the morning of April 22, 1995.17
Investigator SPO2 Marvin Valdez of the Candon Police Station testified that at about 11:00 a.m. of April 22, 1995, he received a report of the vehicular accident that occurred at the national highway in Tablac, Candon, Ilocos Sur, which was three kilometers from the police station. He proceeded to the site with some companions. He saw a passenger jeep positioned diagonally on the western shoulder of the road facing southwest, while an owner-type jeep was on the right lane. The driver of the owner-type jeep was seriously injured and was brought to the hospital.18
SPO2 Valdez testified that the owner-type jeep’s right tire was detached, and its left front portion was damaged, while the passenger jeep’s left tire was detached, and its left side portion was damaged.19
Herminigildo Pagaduan testified that at 7:00 a.m. of April 22, 1995, he was at the house of Barangay Captain Victorino Gacusan of San Antonio, Candon, Ilocos Sur. Gacusan was then the overall monitor of the jueteng joint operation in Candon, Ilocos Sur. Pagaduan and Gacusan had earlier agreed to attend the wake of an army captain at Tamorong, Candon, Ilocos Sur that morning. While Pagaduan was waiting for Barangay Captain Gacusan, the latter made a phone call requesting for a vehicle to take them to Tamorong. Not long after, a yellow owner-type jeep arrived, which was driven by Arnulfo Ramos, an employee of the jueteng joint. All of them rode the jeep with Plate No. ACG 713. Barangay Captain Gacusan was on the driver’s seat, Pagaduan sat beside Gacusan, while Arnulfo Ramos and the others sat on the rear seat.20
Pagaduan further testified that the group headed west to Tamorong via Darapidap. When they reached a bridge,Barangay Captain Gacusan tried to increase the speed of the jeep, but it suddenly wiggled. Gacusan stopped the jeep, and they all alighted from it. Gacusan told Arnulfo Ramos to have the mechanical defect repaired at the auto shop. Hence, they did not proceed to Tamorong, but returned to the house of Gacusan by tricycle. The next day, he heard from Gacusan that the jeep they had used in their aborted trip to Tamorong met an accident.21
On cross-examination, Pagaduan testified that it was defense counsel Atty. Tudayan who requested him to testify, because Atty. Tudayan had heard him discuss the incident with some jueteng employees.22
Petitioner Benigno Valdez testified that on April 22, 1995, he was driving the passenger jeep of his aunt, Crescencia Achevara, on the national highway in Tablac, Candon, Ilocos Sur heading south, while the owner-type jeep of Arnulfo Ramos was heading north. Valdez stated that the owner-type jeep was wiggling and running fast in a zigzag manner, when its right front wheel got detached and the owner-type jeep bumped the left side of his passenger jeep. Valdez swerved the passenger jeep to the western edge of the road to avoid a collision, but to no avail, as it bumped a post. He passed out. When he regained consciousness, he saw the driver of the owner-type jeep being rescued.23
Valdez surrendered himself to the Police Station in Candon, Ilocos Sur. He informed the police that his vehicle was bumped by the owner-type jeep driven by Arnulfo Ramos, and he showed his driver’s license to the police.24
Valdez branded as false the testimony of respondents’ witness, Alfredo Gamera, that the former tried to overtake the motorcycle of PO3 Baltazar de Peralta and encroached on the lane of the owner-type jeep driven by Arnulfo Ramos. Valdez testified that before the vehicular accident, he saw a policeman following him, but there was a tricycle between them. He denied that he was driving fast and stated that his speed at that time registered only 20 on the speedometer.25
Petitioner Alfredo Achevara testified that Crescencia Achevara was his wife, while Benigno Valdez was the nephew of his wife. He and his wife owned the passenger jeep with Plate No. DKK-995 that was involved in the vehicular accident. Valdez had been the driver of the vehicle since 1992, although he drove it only during daytime.26
Alfredo Achevara declared that before they employed Benigno Valdez to drive the passenger jeep, the former exercised the diligence of a good father of a family in selecting, training and supervising the latter.27 They required Valdez to show them his professional driver’s license, and investigated his personal background and training/experience as a driver. For his apprenticeship, they required him to drive from Metro Manila to Tagaytay City, and then back to Metro Manila for a day.
Achevara stated that he knew Benigno Valdez since 1988. As their driver since 1992, Valdez never committed any traffic violation. On April 22, 1995, he handed the key of the jeep to Valdez at about 7:30 a.m. at theirbarangay in Padaoil, Sta. Cruz, Ilocos Sur to fetch the sound system in Santiago, Ilocos Sur for their fiesta. He told Valdez to avoid an accident, bring his license and avoid being hot-tempered.28
On February 14, 2000, the RTC of Narvacan, Ilocos Sur, Branch 22, rendered a Decision in Civil Case No. 1431-N in favor of respondents.
The trial court found that the testimony of respondents’ witness, Alfredo Gamera, was controverted by the testimony of PO3 Baltazar de Peralta and the finding of police investigator SPO2 Marvin Valdez. Gamera testified that the vehicular accident occurred because the passenger jeep tried to overtake the motorcycle driven by PO3 Baltazar de Peralta and encroached on the lane of the owner-type jeep driven by Arnulfo Ramos. Gamera’s testimony was, however, refuted by PO3 Baltazar de Peralta, who testified that the passenger jeep did not overtake his motorcycle since he was the one following behind the passenger jeep. Hence, the trial court concluded that the passenger jeep did not encroach on the lane of the owner-type jeep on the left side of the road to allegedly overtake the motorcycle.
Moreover, Gamera testified that the collision occurred on the lane of the owner-type jeep, and one of the wheels of the owner-type jeep was detached, so that it stayed immobile at the place of collision, about two meters east from the center line of the national highway. However, SPO2 Marvin Valdez, who investigated the incident, found both vehicles on the western lane of the national highway. Thus, the trial court stated that it was undeniable that the collision took place on the western lane of the national highway, which was the passenger jeep’s lane.
The trial court held that, as contended by respondents, the doctrine of last clear chance was applicable to this case. It cited Picart v. Smith,29 which applied the said doctrine, thus, where both parties are guilty of negligence, but the negligent act of one succeeds that of the other by an appreciable interval of time, the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.
The trial court held that the driver of the passenger jeep, Benigno Valdez, having seen the risk exhibited by the wiggling of the front wheels of the owner-type jeep, causing it to run in a zigzag manner, should have parked his vehicle on the right shoulder of the road so that the mishap could have been prevented. Since he ignored to take this reasonable precaution, the omission and/or breach of this duty on his part was the constitutive legal cause of the mishap.30
The trial court stated that the doctrine of last clear chance, as applied to this case, implied a contributory negligence on the part of the late Arnulfo Ramos, who knew of the mechanical defect of his vehicle.
Further, the trial court held that the evidence of the Spouses Achevara failed to show that they exercised due diligence in the selection and supervision of Benigno Valdez as driver of their passenger jeep.31
The dispositive portion of the trial court’s Decision reads:
WHEREFORE, a decision is hereby rendered in favor of the plaintiffs and against the defendants, the latter to account for and to pay jointly and solidarily to the plaintiffs, because of the contributory negligence on the part of the late Arnulfo Ramos, the reduced amount itemized as follows to wit:
1) Thirty Thousand Pesos (P30,000.00) - part of the total receipted expenses at the hospitals;
2) Twenty Thousand Pesos (P20,000.00) - for funeral expenses;
3) Sixty Thousand Pesos (P60,000.00) - for moral damages;
4) Fifty Thousand Pesos (P50,000.00) - for exemplary damages;
5) Thirty Thousand Pesos (P30,000.00) - for attorney's fees, and
6) Ten Thousand Pesos (P10,000.00) - for actual and other costs of litigation.32
The Spouses Achevara and Benigno Valdez appealed the trial court’s Decision to the Court of Appeals.
In a Decision dated April 25, 2009, the Court of Appeals affirmed with modification the Decision of the trial court, the dispositive portion of which reads:
WHEREFORE, premises considered, the appeal is hereby DISMISSED and the assailed February 14, 2000 Decision of the RTC of Narvacan, Ilocos Sur, Branch 22, in Civil Case No. 1431-N, is hereby AFFIRMED with MODIFICATION, that in addition to other awards made by the trial court, defendants-appellants are hereby ordered to pay, jointly and severally, the plaintiffs-appellees the sum of P50,000.00 as indemnity for the death of Arnulfo Ramos and the moral damages and attorney's fees awarded by the trial court are hereby REDUCED toP50,000.00 and P10,000.00, respectively, while the awards made by the trial court for exemplary damages and "for actual and other costs of litigation" are hereby DELETED.33
The motion for reconsideration of the Spouses Achevara and Benigno Valdez was denied for lack of merit by the Court of Appeals in a Resolution34 dated October 23, 2006.
Hence, the Spouses Achevara and Benigno Valdez filed this petition.
The main issue is whether or not petitioners are liable to respondents for damages incurred as a result of the vehicular accident.
Petitioners contend that the doctrine of last clear chance is not applicable to this case, because the proximate cause of the accident was the negligence of the late Arnulfo Ramos in knowingly driving the defective owner-type jeep. When the front wheel of the owner-type jeep was removed, the said jeep suddenly encroached on the western lane and bumped the left side of the passenger jeep driven by Benigno Valdez. Considering that the interval between the time the owner-type jeep encroached on the lane of Valdez to the time of impact was only a matter of seconds, Valdez no longer had the opportunity to avoid the collision. Pantranco North Express Inc. v. Besa35 held that the doctrine of last clear chance "can never apply where the party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered."
Petitioners assert that Arnulfo Ramos’ negligence in driving the owner-type jeep − despite knowledge of its mechanical defect, and his failure to have it repaired first before driving, to prevent damage to life and property − did not only constitute contributory negligence. Ramos’ negligence was the immediate and proximate cause of the accident, which resulted in his untimely demise. Benigno Valdez should not be made to suffer the unlawful and negligent acts of Ramos. Since forseeability is the fundamental basis of negligence, Valdez could not have foreseen that an accident might happen due to the mechanical defect in the vehicle of Ramos. It was Ramos alone who fully knew and could foresee that an accident was likely to occur if he drove his defective jeep, which indeed happened. Hence, the proximate cause of the vehicular accident was the negligence of Ramos in driving a mechanically defective vehicle.
In short, petitioners contend that Arnulfo Ramos’ own negligence in knowingly driving a mechanically defective vehicle was the immediate and proximate cause of his death, and that the doctrine of last clear chance does not apply to this case.
Petitioners’ arguments are meritorious.
The Court notes that respondents’ version of the vehicular accident was rebutted by petitioners. The testimony of respondents’ witness, Alfredo Gamera, that the vehicular accident occurred because the passenger jeep driven by Benigno Valdez tried to overtake the motorcycle driven by PO3 Baltazar de Peralta and encroached on the lane of the owner-type jeep, which resulted in the collision, was refuted by PO3 Baltazar de Peralta, who testified that the passenger jeep did not overtake his motorcycle since he was the one following behind the passenger jeep. Hence, the trial court correctly concluded that the passenger jeep did not encroach on the lane of the owner-type jeep on the left side of the road to allegedly overtake the motorcycle.
Gamera also testified that the collision took place on the lane of the owner-type jeep, and one of its wheels was detached and stayed immobile at the place of collision, about two meters east the center line of the national highway. However, SPO2 Marvin Valdez, who investigated the incident, found both vehicles on the western lane of the national highway. The owner-type jeep was diagonally positioned on the right, western lane; while the passenger jeep was on the western shoulder of the road, diagonally facing southwest. The trial court, therefore, correctly held that it was undeniable that the collision took place on the western lane of the national highway or the lane of the passenger jeep driven by Benigno Valdez. It was the owner-type jeep driven by Arnulfo Ramos that encroached on the lane of the passenger jeep.
It must be pointed out that Herminigildo Pagaduan testified that in the early morning of April 22, 1995, he andBarangay Captain Gacusan, along with Arnulfo Ramos, aborted their trip to Tamorong, Candon, Ilocos Sur, using the same owner-type jeep because it was wiggling. Ramos was advised to have the mechanical defect repaired. Yet, later in the morning, Ramos was driving the owner-type jeep on the national highway in Candon. Benigno Valdez testified that the owner-type jeep was wiggling and running fast in a zigzag manner when its right front wheel got detached, and the owner-type jeep suddenly bumped the passenger jeep he was driving, hitting the left side of the passenger jeep opposite his seat. Although Valdez swerved the passenger jeep to the western edge of the road, it was still hit by the owner-type jeep.
Foreseeability is the fundamental test of negligence. To be negligent, a defendant must have acted or failed to act in such a way that an ordinary reasonable man would have realized that certain interests of certain persons were unreasonably subjected to a general but definite class of risks.36
Seeing that the owner-type jeep was wiggling and running fast in a zigzag manner as it travelled on the opposite side of the highway, Benigno Valdez was made aware of the danger ahead if he met the owner-type jeep on the road. Yet he failed to take precaution by immediately veering to the rightmost portion of the road or by stopping the passenger jeep at the right shoulder of the road and letting the owner-type jeep pass before proceeding southward; hence, the collision occurred. The Court of Appeals correctly held that Benigno Valdez was guilty of inexcusable negligence by neglecting to take such precaution, which a reasonable and prudent man would ordinarily have done under the circumstances and which proximately caused injury to another.
On the other hand, the Court also finds Arnulfo Ramos guilty of gross negligence for knowingly driving a defective jeep on the highway. An ordinarily prudent man would know that he would be putting himself and other vehicles he would encounter on the road at risk for driving a mechanically defective vehicle. Under the circumstances, a prudent man would have had the owner-type jeep repaired or would have stopped using it until it was repaired. Ramos was, therefore, grossly negligent in continuing to drive on the highway the mechanically defective jeep, which later encroached on the opposite lane and bumped the passenger jeep driven by Benigno Valdez. Gross negligence is the absence of care or diligence as to amount to a reckless disregard of the safety of persons or property.37 It evinces a thoughtless disregard of consequences without exerting any effort to avoid them.381avvphi1
The acts of negligence of Arnulfo Ramos and Benigno Valdez were contemporaneous when Ramos continued to drive a wiggling vehicle on the highway despite knowledge of its mechanical defect, while Valdez did not immediately veer to the rightmost side of the road upon seeing the wiggling vehicle of Ramos − perhaps because it still kept to its lane and Valdez did not know the extent of its mechanical defect. However, when the owner-type jeep encroached on the lane of the passenger jeep, Valdez realized the peril at hand and steered the passenger jeep toward the western shoulder of the road to avoid a collision. It was at this point that it was perceivable that Ramos must have lost control of his vehicle, and that it was Valdez who had the last opportunity to avoid the collision by swerving the passenger jeep towards the right shoulder of the road.1avvphi1
The doctrine of last clear chance applies to a situation where the plaintiff was guilty of prior or antecedent negligence, but the defendant − who had the last fair chance to avoid the impending harm and failed to do so − is made liable for all the consequences of the accident, notwithstanding the prior negligence of the plaintiff.39However, the doctrine does not apply where the party charged is required to act instantaneously, and the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered.40
The doctrine of last clear chance does not apply to this case, because even if it can be said that it was Benigno Valdez who had the last chance to avoid the mishap when the owner-type jeep encroached on the western lane of the passenger jeep, Valdez no longer had the opportunity to avoid the collision. The Answer of petitioners stated that when the owner-type jeep encroached on the lane of the passenger jeep, Benigno Valdez maneuvered his vehicle towards the western shoulder of the road to avoid a collision, but the owner-type jeep driven by Ramos continued to move to the western lane and bumped the left side of the passenger jeep. Thus, petitioners assert in their Petition that considering that the time the owner-type jeep encroached on the lane of Valdez to the time of impact was only a matter of seconds, he no longer had the opportunity to avoid the collision. Although the records are bereft of evidence showing the exact distance between the two vehicles when the owner-type jeep encroached on the lane of the passenger jeep, it must have been near enough, because the passenger jeep driven by Valdez was unable to avoid the collision. Hence, the doctrine of last clear chance does not apply to this case.
Article 2179 of the Civil Code provides:
When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.41
In this case, both Arnulfo Ramos and Benigno Valdez failed to exercise reasonable care and caution that an ordinarily prudent man would have taken to prevent the vehicular accident. Since the gross negligence of Arnulfo Ramos and the inexcusable negligence of Benigno Valdez were the proximate cause of the vehicular accident, respondents cannot recover damages pursuant to Article 2179 of the Civil Code.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 67027, dated April 25, 2006, and its Resolution dated October 23, 2006, are hereby REVERSED and SET ASIDE.
No costs.
SO ORDERED.
SECOND DIVISION

SPOUSES FREDELICTO FLORES (deceased) and FELICISIMA FLORES,
Petitioners,- versus -
SPOUSES DOMINADOR PINEDA and VIRGINIA SACLOLO, and FLORENCIO, CANDIDA, MARTA, GODOFREDO, BALTAZAR and LUCENA, all surnamed PINEDA, as heirs of the deceased TERESITA S. PINEDA, and UNITED DOCTORS MEDICAL CENTER, INC.,
Respondents.
G.R. No. 158996 November 14, 2008 This petition involves a medical negligence case that was elevated to this Court through an appeal by certiorari under Rule 45 of the Rules of Court. The petition assails the Decision[1] of the Court of Appeals (CA) in CA G.R. CV No. 63234, which affirmed with modification the Decision[2] of the Regional Trial Court (RTC) of Nueva Ecija, Branch 37 in Civil Case No. SD-1233. The dispositive portion of the assailed CA decision states: WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court of Baloc, Sto. Domingo, Nueva Ecija, Branch 37 is hereby AFFIRMED but with modifications as follows: 1) Ordering defendant-appellants Dr. and Dra. Fredelicto A. Flores and the United Doctors Medical Center, Inc. to jointly and severally pay the plaintiff-appellees heirs of Teresita Pineda, namely, Spouses Dominador Pineda and Virginia Saclolo and Florencio, Candida, Marta, Godofredo, Baltazar and Lucena, all surnamed Pineda, the sum of P400,000.00 by way of moral damages; 2) Ordering the above-named defendant-appellants to jointly and severally pay the above-named plaintiff-appellees the sum of P100,000.00 by way of exemplary damages; 3) Ordering the above-named defendant-appellants to jointly and severally pay the above-named plaintiff-appellees the sum of P36,000.00 by way of actual and compensatory damages; and 4) Deleting the award of attorneys fees and costs of suit. SO ORDERED. While this case essentially involves questions of facts, we opted for the requested review in light of questions we have on the findings of negligence below, on the awarded damages and costs, and on the importance of this type of ruling on medical practice.[3] BACKGROUND FACTS Teresita Pineda (Teresita) was a 51-year old unmarried woman living in Sto. Domingo, Nueva Ecija. She consulted on April 17, 1987 her townmate, Dr. Fredelicto Flores, regarding her medical condition. She complained of general body weakness, loss of appetite, frequent urination and thirst, and on-and-off vaginal bleeding. Dr. Fredelicto initially interviewed the patient and asked for the history of her monthly period to analyze the probable cause of the vaginal bleeding. He advised her to return the following week or to go to the United Doctors Medical Center (UDMC) in Quezon City for a general check-up. As for her other symptoms, he suspected that Teresita might be suffering from diabetes and told her to continue her medications.[4] Teresita did not return the next week as advised. However, when her condition persisted, she went to further consult Dr. Flores at his UDMC clinic on April 28, 1987, travelling for at least two hours from Nueva Ecija to Quezon Citywith her sister, Lucena Pineda. They arrived at UDMC at around 11:15 a.m.. Lucena later testified that her sister was then so weak that she had to lie down on the couch of the clinic while they waited for the doctor. When Dr. Fredelicto arrived, he did a routine check-up and ordered Teresitas admission to the hospital. In the admission slip, he directed the hospital staff to prepare the patient for an on call D&C[5] operation to be performed by his wife, Dr. Felicisima Flores (Dr. Felicisima). Teresita was brought to her hospital room at around 12 noon; the hospital staff forthwith took her blood and urine samples for the laboratory tests[6] which Dr. Fredelicto ordered. At 2:40 p.m. of that same day, Teresita was taken to the operating room. It was only then that she met Dr. Felicisima, an obstetrician and gynecologist. The two doctors Dr. Felicisima and Dr. Fredelicto, conferred on the patients medical condition, while the resident physician and the medical intern gave Dr. Felicisima their own briefings. She also interviewed and conducted an internal vaginal examination of the patient which lasted for about 15 minutes. Dr. Felicisima thereafter called up the laboratory for the results of the tests. At that time, only the results for the blood sugar (BS), uric acid determination, cholesterol determination, and complete blood count (CBC) were available. Teresitas BS count was 10.67mmol/l[7] and her CBC was 109g/l.[8] Based on these preparations, Dr. Felicisima proceeded with the D&C operation with Dr. Fredelicto administering the general anesthesia. The D&C operation lasted for about 10 to 15 minutes. By 3:40 p.m., Teresita was wheeled back to her room. A day after the operation (or on April 29, 1987), Teresita was subjected to an ultrasound examination as a confirmatory procedure. The results showed that she had an enlarged uterus and myoma uteri.[9] Dr. Felicisima, however, advised Teresita that she could spend her recovery period at home. Still feeling weak, Teresita opted for hospital confinement. Teresitas complete laboratory examination results came only on that day (April 29, 1987). Teresitas urinalysis showed a three plus sign (+++) indicating that the sugar in her urine was very high. She was then placed under the care of Dr. Amado Jorge, an internist. By April 30, 1987, Teresitas condition had worsened. She experienced difficulty in breathing and was rushed to the intensive care unit. Further tests confirmed that she was suffering from Diabetes Mellitus Type II.[10]Insulin was administered on the patient, but the medication might have arrived too late. Due to complications induced by diabetes, Teresita died in the morning of May 6, 1987.[11] Believing that Teresitas death resulted from the negligent handling of her medical needs, her family (respondents) instituted an action for damages against Dr. Fredelicto Flores and Dr. Felicisima Flores (collectively referred to as the petitioner spouses) before the RTC of Nueva Ecija. The RTC ruled in favor of Teresitas family and awarded actual, moral, and exemplary damages, plus attorneys fees and costs.[12] The CA affirmed the judgment, but modified the amount of damages awarded and deleted the award for attorneys fees and costs of suit.[13] Through this petition for review on certiorari, the petitioner spouses Dr. Fredelicto (now deceased) and Dr. Felicisima Flores allege that the RTC and CA committed a reversible error in finding them liable through negligence for the death of Teresita Pineda. ASSIGNMENT OF ERRORS The petitioner spouses contend that they exercised due care and prudence in the performance of their duties as medical professionals. They had attended to the patient to the best of their abilities and undertook the management of her case based on her complaint of an on-and-off vaginal bleeding. In addition, they claim that nothing on record shows that the death of Teresita could have been averted had they employed means other than what they had adopted in the ministration of the patient.

THE COURTS RULING We do not find the petition meritorious. The respondents claim for damages is predicated on their allegation that the decision of the petitioner spouses to proceed with the D&C operation, notwithstanding Teresitas condition and the laboratory test results, amounted to negligence. On the other hand, the petitioner spouses contend that a D&C operation is the proper and accepted procedure to address vaginal bleeding the medical problem presented to them. Given that the patient died after the D&C, the core issue is whether the decision to proceed with the D&C operation was an honest mistake of judgment or one amounting to negligence. Elements of a Medical Negligence Case A medical negligence case is a type of claim to redress a wrong committed by a medical professional, that has caused bodily harm to or the death of a patient. There are four elements involved in a medical negligence case, namely:duty, breach, injury, and proximate causation.[14] Duty refers to the standard of behavior which imposes restrictions on ones conduct.[15] The standard in turn refers to the amount of competence associated with the proper discharge of the profession. A physician is expected to use at least the same level of care that any other reasonably competent doctor would use under the same circumstances. Breach of duty occurs when the physician fails to comply with these professional standards. If injury results to the patient as a result of this breach, the physician is answerable for negligence.[16] As in any civil action, the burden to prove the existence of the necessary elements rests with the plaintiff.[17] To successfully pursue a claim, the plaintiff must prove by preponderance of evidence that, one, the physician 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 two, the failure or action caused injury to the patient.[18] Expert testimony is therefore essential since the factual issue of whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is generally a matter of expert opinion.[19] Standard of Care and Breach of Duty D&C is the classic gynecologic procedure for the evaluation and possible therapeutic treatment for abnormal vaginal bleeding.[20] That this is the recognized procedure is confirmed by Drs. Salvador Nieto (Dr. Nieto) and Joselito Mercado (Dr. Mercado), the expert witnesses presented by the respondents: DR. NIETO: [W]hat I know among obstetricians, if there is bleeding, they perform what we call D&C for diagnostic purposes. xxx xxx xxx Q: So are you trying to tell the Court that D&C can be a diagnostic treatment? A: Yes, sir. Any doctor knows this.[21] Dr. Mercado, however, objected with respect to the time the D&C operation should have been conducted in Teresitas case. He opined that given the blood sugar level of Teresita, her diabetic condition should have been addressed first:
Q: Why do you consider the time of performance of the D&C not appropriate? A: Because I have read the record and I have seen the urinalysis, [there is] spillage in the urine, and blood sugar was 10.67 Q: What is the significance of the spillage in the urine? A: It is a sign that the blood sugar is very high. Q: Does it indicate sickness? A: 80 to 95% it means diabetes mellitus. The blood sugar was 10.67. xxx xxx xxx COURT: In other words, the operation conducted on the patient, your opinion, that it is inappropriate? A: The timing of [when] the D&C [was] done, based on the record, in my personal opinion, that D&C should be postponed a day or two.[22] The petitioner spouses countered that, at the time of the operation, there was nothing to indicate that Teresita was afflicted with diabetes: a blood sugar level of 10.67mmol/l did not necessarily mean that she was a diabetic considering that this was random blood sugar;[23] there were other factors that might have caused Teresitas blood sugar to rise such as the taking of blood samples during lunchtime and while patient was being given intra-venous dextrose.[24] Furthermore, they claim that their principal concern was to determine the cause of and to stop the vaginal bleeding. The petitioner spouses contentions, in our view, miss several points. First, as early as April 17, 1987, Teresita was already suspected to be suffering from diabetes.[25] This suspicion again arose right before the D&C operation on April 28, 1987 when the laboratory result revealed Teresitas increased blood sugar level.[26] Unfortunately, the petitioner spouses did not wait for the full medical laboratory results before proceeding with the D&C, a fact that was never considered in the courts below. Second, the petitioner spouses were duly advised that the patient was experiencing general body weakness, loss of appetite, frequent urination, and thirst all of which are classic symptoms of diabetes.[27] When a patient exhibits symptoms typical of a particular disease, these symptoms should, at the very least, alert the physician of the possibility that the patient may be afflicted with the suspected disease: [Expert testimony for the plaintiff showed that] tests should have been ordered immediately on admission to the hospital in view of the symptoms presented, and that failure to recognize the existence of diabetes constitutes negligence.[28] Third, the petitioner spouses cannot claim that their principal concern was the vaginal bleeding and should not therefore be held accountable for complications coming from other sources. This is a very narrow and self-serving view that even reflects on their competence. Taken together, we find that reasonable prudence would have shown that diabetes and its complications were foreseeable harm that should have been taken into consideration by the petitioner spouses. If a patient suffers from some disability that increases the magnitude of risk to him, that disability must be taken into account so long as it is or should have been known to the physician.[29] And when the patient is exposed to an increased risk, it is incumbent upon the physician to take commensurate and adequate precautions. Taking into account Teresitas high blood sugar,[30] Dr. Mendoza opined that the attending physician should have postponed the D&C operation in order to conduct a confirmatory test to make a conclusive diagnosis of diabetes and to refer the case to an internist or diabetologist. This was corroborated by Dr. Delfin Tan (Dr. Tan), an obstetrician and gynecologist, who stated that the patients diabetes should have been managed by an internist prior to, during, and after the operation.[31] Apart from bleeding as a complication of pregnancy, vaginal bleeding is only rarely so heavy and life-threatening that urgent first-aid measures are required.[32] Indeed, the expert witnesses declared that a D&C operation on a hyperglycemic patient may be justified only when it is an emergency case when there is profuse vaginal bleeding. In this case, we choose not to rely on the assertions of the petitioner spouses that there was profuse bleeding, not only because the statements were self-serving, but also because the petitioner spouses were inconsistent in their testimonies. Dr. Fredelicto testified earlier that on April 28, he personally saw the bleeding,[33] but later on said that he did not see it and relied only on Teresitas statement that she was bleeding.[34] He went on to state that he scheduled the D&C operation without conducting any physical examination on the patient. The likely story is that although Teresita experienced vaginal bleeding on April 28, it was not sufficiently profuse to necessitate an immediate emergency D&C operation. Dr. Tan[35] and Dr. Mendoza[36] both testified that the medical records of Teresita failed to indicate that there was profuse vaginal bleeding. The claim that there was profuse vaginal bleeding although this was not reflected in the medical records strikes us as odd since the main complaint is vaginal bleeding. A medical record is the only document that maintains a long-term transcription of patient care and as such, its maintenance is considered a priority in hospital practice. Optimal record-keeping includes all patient inter-actions. The records should always be clear, objective, and up-to-date.[37] Thus, a medical record that does not indicate profuse medical bleeding speaks loudly and clearly of what it does not contain. That the D&C operation was conducted principally to diagnose the cause of the vaginal bleeding further leads us to conclude that it was merely an elective procedure, not an emergency case. In an elective procedure, the physician must conduct a thorough pre-operative evaluation of the patient in order to adequately prepare her for the operation and minimize possible risks and complications. The internist is responsible for generating a comprehensive evaluation of all medical problems during the pre-operative evaluation.[38] The aim of pre-operative evaluation is not to screen broadly for undiagnosed disease, but rather to identify and quantify comorbidity that may impact on the operative outcome. This evaluation is driven by findings on history and physical examination suggestive of organ system dysfunctionThe goal is to uncover problem areas that may require further investigation or be amenable to preoperative optimization. If the preoperative evaluation uncovers significant comorbidity or evidence of poor control of an underlying disease process, consultation with an internist or medical specialist may be required to facilitate the work-up and direct management. In this process, communication between the surgeons and the consultants is essential to define realistic goals for this optimization process and to expedite surgical management.[39] [Emphasis supplied.] Significantly, the evidence strongly suggests that the pre-operative evaluation was less than complete as the laboratory results were fully reported only on the day following the D&C operation. Dr. Felicisima only secured a telephone report of the preliminary laboratory result prior to the D&C. This preliminary report did not include the 3+ status of sugar in the patients urine[40] a result highly confirmatory of diabetes. Because the D&C was merely an elective procedure, the patients uncontrolled hyperglycemia presented a far greater risk than her on-and-off vaginal bleeding. The presence of hyperglycemia in a surgical patient is associated with poor clinical outcomes, and aggressive glycemic control positively impacts on morbidity and mortality.[41] Elective surgery in people with uncontrolled diabetes should preferably be scheduled after acceptable glycemic controlhas been achieved.[42] According to Dr. Mercado, this is done by administering insulin on the patient.[43] The management approach in this kind of patients always includes insulin therapy in combination with dextrose and potassium infusion. Insulin xxx promotes glucose uptake by the muscle and fat cells while decreasing glucose production by the liver xxx. The net effect is to lower blood glucose levels.[44] The prudent move is to address the patients hyperglycemic state immediately and promptly before any other procedure is undertaken. In this case, there was no evidence that insulin was administered on Teresita prior to or during the D&C operation. Insulin was only administered two days after the operation. As Dr. Tan testified, the patients hyperglycemic condition should have been managed not only before and during the operation, but also immediately after. Despite the possibility that Teresita was afflicted with diabetes, the possibility was casually ignored even in the post-operative evaluation of the patient; the concern, as the petitioner spouses expressly admitted, was limited to the complaint of vaginal bleeding. Interestingly, while the ultrasound test confirmed that Teresita had a myoma in her uterus, she was advised that she could be discharged a day after the operation and that her recovery could take place at home. This advice implied that a day after the operation and even after the complete laboratory results were submitted, the petitioner spouses still did not recognize any post-operative concern that would require the monitoring of Teresitas condition in the hospital. The above facts, point only to one conclusion that the petitioner spouses failed, as medical professionals, to comply with their duty to observe the standard of care to be given to hyperglycemic/diabetic patients undergoing surgery. Whether this breach of duty was the proximate cause of Teresitas death is a matter we shall next determine. Injury and Causation As previously mentioned, the critical and clinching factor in a medical negligence case is proof of the causal connection between the negligence which the evidence established and the plaintiffs injuries;[45] the plaintiff must plead and prove not only that he had been injured and defendant has been at fault, but also that the defendants fault caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based upon competent expert testimony.[46] The respondents contend that unnecessarily subjecting Teresita to a D&C operation without adequately preparing her, aggravated her hyperglycemic state and caused her untimely demise. The death certificate of Teresita lists down the following causes of death: Immediate cause: Cardiorespiratory arrest
Antecedent cause: Septicemic shock, ketoacidocis
Underlying cause: Diabetes Mellitus II
Other significant conditions contributing to death: Renal Failure Acute[47]

Stress, whether physical or emotional, is a factor that can aggravate diabetes; a D&C operation is a form of physical stress. Dr. Mendoza explained how surgical stress can aggravate the patients hyperglycemia: when stress occurs, the diabetics body, especially the autonomic system, reacts by secreting hormones which are counter-regulatory; she can have prolonged hyperglycemia which, if unchecked, could lead to death.[48] Medical literature further explains that if the blood sugar has become very high, the patient becomes comatose (diabetic coma). When this happens over several days, the body uses its own fat to produce energy, and the result is high levels of waste products (called ketones) in the blood and urine (called diabetic ketoacidiosis, a medical emergency with a significant mortality).[49] This was apparently what happened in Teresitas case; in fact, after she had been referred to the internist Dr. Jorge, laboratory test showed that her blood sugar level shot up to 14.0mmol/l, way above the normal blood sugar range. Thus, between the D&C and death was the diabetic complication that could have been prevented with the observance of standard medical precautions. The D&C operation and Teresitas death due to aggravated diabetic condition is therefore sufficiently established. The trial court and the appellate court pinned the liability for Teresitas death on both the petitioner spouses and this Court finds no reason to rule otherwise. However, we clarify that Dr. Fredelictos negligence is not solely the act of ordering an on call D&C operation when he was mainly an anaesthesiologist who had made a very cursory examination of the patients vaginal bleeding complaint. Rather, it was his failure from the very start to identify and confirm, despite the patients complaints and his own suspicions, that diabetes was a risk factor that should be guarded against, and his participation in the imprudent decision to proceed with the D&C operation despite his early suspicion and the confirmatory early laboratory results. The latter point comes out clearly from the following exchange during the trial: Q: On what aspect did you and your wife consult [with] each other? A: We discussed on the finding of the laboratory [results] because the hemoglobin was below normal, the blood sugar was elevated, so that we have to evaluate these laboratory results what it means. Q: So it was you and your wife who made the evaluation when it was phoned in? A: Yes, sir. Q: Did your wife, before performing D&C ask your opinion whether or not she can proceed? A: Yes, anyway, she asked me whether we can do D&C based on my experience. Q: And your answer was in the positive notwithstanding the elevation of blood sugar? A: Yes, sir, it was both our disposition to do the D&C. [Emphasis supplied.][50] If Dr. Fredelicto believed himself to be incompetent to treat the diabetes, not being an internist or a diabetologist (for which reason he referred Teresita to Dr. Jorge),[51] he should have likewise refrained from making a decision to proceed with the D&C operation since he was niether an obstetrician nor a gynecologist. These findings lead us to the conclusion that the decision to proceed with the D&C operation, notwithstanding Teresitas hyperglycemia and without adequately preparing her for the procedure, was contrary to the standards observed by the medical profession. Deviation from this standard amounted to a breach of duty which resulted in the patients death. Due to this negligent conduct, liability must attach to the petitioner spouses. Liability of the Hospital In the proceedings below, UDMC was the spouses Flores co-defendant. The RTC found the hospital jointly and severally liable with the petitioner spouses, which decision the CA affirmed. In a Resolution dated August 28, 2006, this Court however denied UDMCs petition for review on certiorari. Since UDMCs appeal has been denied and they are not parties to this case, we find it unnecessary to delve on the matter. Consequently, the RTCs decision, as affirmed by the CA, stands. Award of Damages Both the trial and the appellate court awarded actual damages as compensation for the pecuniary loss the respondents suffered. The loss was presented in terms of the hospital bills and expenses the respondents incurred on account of Teresitas confinement and death. The settled rule is that a plaintiff is entitled to be compensated for proven pecuniary loss.[52] This proof the respondents successfully presented. Thus, we affirm the award of actual damages ofP36,000.00 representing the hospital expenses the patient incurred. In addition to the award for actual damages, the respondent heirs of Teresita are likewise entitled to P50,000.00 as death indemnity pursuant to Article 2206 of the Civil Code, which states that the amount of damages for death caused by a xxx quasi-delict shall be at least three thousand pesos,[53] even though there may have been mitigating circumstances xxx. This is a question of law that the CA missed in its decision and which we now decide in the respondents favor. The same article allows the recovery of moral damages in case of death caused by a quasi-delict and enumerates the spouse, legitimate or illegitimate ascendants or descendants as the persons entitled thereto. Moral damages are designed to compensate the claimant for the injury suffered, that is, for the mental anguish, serious anxiety, wounded feelings which the respondents herein must have surely felt with the unexpected loss of their daughter. We affirm the appellate courts award of P400,000.00 by way of moral damages to the respondents. We similarly affirm the grant of exemplary damages. Exemplary damages are imposed by way of example or correction for the public good.[54] Because of the petitioner spouses negligence in subjecting Teresita to an operation without first recognizing and addressing her diabetic condition, the appellate court awarded exemplary damages to the respondents in the amount of P100,000.00. Public policy requires such imposition to suppress the wanton acts of an offender.[55] We therefore affirm the CAs award as an example to the medical profession and to stress that the public good requires stricter measures to avoid the repetition of the type of medical malpractice that happened in this case. With the award of exemplary damages, the grant of attorneys fees is legally in order.[56] We therefore reverse the CA decision deleting these awards, and grant the respondents the amount of P100,000.00 as attorneys feestaking into consideration the legal route this case has taken. WHEREFORE, we AFFIRM the Decision of the CA dated June 20, 2003 in CA G.R. CV No. 63234 finding petitioner spouses liable for negligent medical practice. We likewise AFFIRM the awards of actual and compensatory damages of P36,000.00; moral damages of P400,000.00; and exemplary damages of P100,000.00. We MODIFY the CA Decision by additionally granting an award of P50,000.00 as death indemnity and by reversing the deletion of the award of attorneys fees and costs and restoring the award of P100,000.00 as attorneys fees. Costs of litigation are adjudged against petitioner spouses. To summarize, the following awards shall be paid to the family of the late Teresita Pineda: 1. The sum of P36,000.00 by way of actual and compensatory damages;
2. The sum of P50,000.00 by way of death indemnity;
3. The sum of P400,000.00 by way of moral damages;
4. The sum of P100,000.00 by way of exemplary damages;
5. The sum of P100,000.00 by way of attorneys fees; and
6. Costs.
SO ORDERED. BANK OF AMERICA NT & SA,Petitioner,-versus-PHILIPPINE RACING CLUB, Respondent. G.R. No. 150228 July 30, 2009 This is a petition for review on certiorari under Rule 45 of the Rules of Court from the Decision[1] promulgated on July 16, 2001 by the former Second Division of the Court of Appeals (CA), in CA-G.R. CV No. 45371 entitledPhilippine Racing Club, Inc. v. Bank of America NT & SA, affirming the Decision[2] dated March 17, 1994 of the Regional Trial Court (RTC) of Makati, Branch 135 in Civil Case No. 89-5650, in favor of the respondent. Likewise, the present petition assails the Resolution[3] promulgated on September 28, 2001, denying the Motion for Reconsideration of the CA Decision. The facts of this case as narrated in the assailed CA Decision are as follows: Plaintiff-appellee PRCI is a domestic corporation which maintains several accounts with different banks in the Metro Manila area. Among the accounts maintained was Current Account No. 58891-012 with defendant-appellant BA (Paseo de Roxas Branch). The authorized joint signatories with respect to said Current Account were plaintiff-appellees President (Antonia Reyes) and Vice President for Finance (Gregorio Reyes). On or about the 2nd week of December 1988, the President and Vice President of plaintiff-appellee corporation were scheduled to go out of the country in connection with the corporations business. In order not to disrupt operations in their absence, they pre-signed several checks relating to Current Account No. 58891-012. The intention was to insure continuity of plaintiff-appellees operations by making available cash/money especially to settle obligations that might become due. These checks were entrusted to the accountant with instruction to make use of the same as the need arose. The internal arrangement was, in the event there was need to make use of the checks, the accountant would prepare the corresponding voucher and thereafter complete the entries on the pre-signed checks. It turned out that on December 16, 1988, a John Doe presented to defendant-appellant bank for encashment a couple of plaintiff-appellee corporations checks (Nos. 401116 and 401117) with the indicated value of P110,000.00 each. It is admitted that these 2 checks were among those presigned by plaintiff-appellee corporations authorized signatories. The two (2) checks had similar entries with similar infirmities and irregularities. On the space where the name of the payee should be indicated (Pay To The Order Of) the following 2-line entries were instead typewritten: on the upper line was the word CASH while the lower line had the following typewritten words, viz: ONE HUNDRED TEN THOUSAND PESOS ONLY. Despite the highly irregular entries on the face of the checks, defendant-appellant bank, without as much as verifying and/or confirming the legitimacy of the checks considering the substantial amount involved and the obvious infirmity/defect of the checks on their faces, encashed said checks. A verification process, even by was of a telephone call to PRCI office, would have taken less than ten (10) minutes. But this was not done by BA. Investigation conducted by plaintiff-appellee corporation yielded the fact that there was no transaction involving PRCI that call for the payment of P220,000.00 to anyone. The checks appeared to have come into the hands of an employee of PRCI (one Clarita Mesina who was subsequently criminally charged for qualified theft) who eventually completed without authority the entries on the pre-signed checks. PRCIs demand for defendant-appellant to pay fell on deaf ears. Hence, the complaint.[4] After due proceedings, the trial court rendered a Decision in favor of respondent, the dispositive portion of which reads: PREMISES CONSIDERED, judgment is hereby rendered in favor of plaintiff and against the defendant, and the latter is ordered to pay plaintiff:
(1) The sum of Two Hundred Twenty Thousand (P220,000.00) Pesos, with legal interest to be computed from date of the filing of the herein complaint;
(2) The sum of Twenty Thousand (P20,000.00) Pesos by way of attorneys fees;
(3) The sum of Ten Thousand (P10,000.00) Pesos for litigation expenses, and
(4) To pay the costs of suit. SO ORDERED.[5] Petitioner appealed the aforesaid trial court Decision to the CA which, however, affirmed said decision in toto in its July 16, 2001 Decision. Petitioners Motion for Reconsideration of the CA Decision was subsequently denied on September 28, 2001. Petitioner now comes before this Court arguing that: I. The Court of Appeals gravely erred in holding that the proximate cause of respondents loss was petitioners encashment of the checks. A. The Court of Appeals gravely erred in holding that petitioner was liable for the amount of the checks despite the fact that petitioner was merely fulfilling its obligation under law and contract.
B. The Court of Appeals gravely erred in holding that petitioner had a duty to verify the encashment, despite the absence of any obligation to do so.
C. The Court of Appeals gravely erred in not applying Section 14 of the Negotiable Instruments Law, despite its clear applicability to this case; II. The Court of Appeals gravely erred in not holding that the proximate cause of respondents loss was its own grossly negligent practice of pre-signing checks without payees and amounts and delivering these pre-signed checks to its employees (other than their signatories). III. The Court of Appeals gravely erred in affirming the trial courts award of attorneys fees despite the absence of any applicable ground under Article 2208 of the Civil Code. IV. The Court of Appeals gravely erred in not awarding attorneys fees, moral and exemplary damages, and costs of suit in favor of petitioner, who clearly deserves them.[6] From the discussions of both parties in their pleadings, the key issue to be resolved in the present case is whether the proximate cause of the wrongful encashment of the checks in question was due to (a) petitioners failure to make a verification regarding the said checks with the respondent in view of the misplacement of entries on the face of the checks or (b) the practice of the respondent of pre-signing blank checks and leaving the same with its employees. Petitioner insists that it merely fulfilled its obligation under law and contract when it encashed the aforesaid checks. Invoking Sections 126[7] and 185[8] of the Negotiable Instruments Law (NIL), petitioner claims that its duty as a drawee bank to a drawer-client maintaining a checking account with it is to pay orders for checks bearing the drawer-clients genuine signatures. The genuine signatures of the clients duly authorized signatories affixed on the checks signify the order for payment. Thus, pursuant to the said obligation, the drawee bank has the duty to determine whether the signatures appearing on the check are the drawer-clients or its duly authorized signatories. If the signatures are genuine, the bank has the unavoidable legal and contractual duty to pay. If the signatures are forged and falsified, the drawee bank has the corollary, but equally unavoidable legal and contractual, duty not to pay.[9] Furthermore, petitioner maintains that there exists a duty on the drawee bank to inquire from the drawer before encashing a check only when the check bears a material alteration. A material alteration is defined in Section 125 of the NIL to be one which changes the date, the sum payable, the time or place of payment, the number or relations of the parties, the currency in which payment is to be made or one which adds a place of payment where no place of payment is specified, or any other change or addition which alters the effect of the instrument in any respect. With respect to the checks at issue, petitioner points out that they do not contain any material alteration.[10] This is a fact which was affirmed by the trial court itself.[11] There is no dispute that the signatures appearing on the subject checks were genuine signatures of the respondents authorized joint signatories; namely, Antonia Reyes and Gregorio Reyes who were respondents President and Vice-President for Finance, respectively. Both pre-signed the said checks since they were both scheduled to go abroad and it was apparently their practice to leave with the company accountant checks signed in black to answer for company obligations that might fall due during the signatories absence. It is likewise admitted that neither of the subject checks contains any material alteration or erasure.
However, on the blank space of each check reserved for the payee, the following typewritten words appear: ONE HUNDRED TEN THOUSAND PESOS ONLY. Above the same is the typewritten word, CASH. On the blank reserved for the amount, the same amount of One Hundred Ten Thousand Pesos was indicated with the use of a check writer. The presence of these irregularities in each check should have alerted the petitioner to be cautious before proceeding to encash them which it did not do. It is well-settled that banks are engaged in a business impressed with public interest, and it is their duty to protect in return their many clients and depositors who transact business with them. They have the obligation to treat their clients account meticulously and with the highest degree of care, considering the fiduciary nature of their relationship. The diligence required of banks, therefore, is more than that of a good father of a family.[12] Petitioner asserts that it was not duty-bound to verify with the respondent since the amount below the typewritten word CASH, expressed in words, is the very same amount indicated in figures by means of a check writer on the amount portion of the check. The amount stated in words is, therefore, a mere reiteration of the amount stated in figures. Petitioner emphasizes that a reiteration of the amount in words is merely a repetition and that a repetition is not an alteration which if present and material would have enjoined it to commence verification with respondent.[13] We do not agree with petitioners myopic view and carefully crafted defense. Although not in the strict sense material alterations, the misplacement of the typewritten entries for the payee and the amount on the same blank and the repetition of the amount using a check writer were glaringly obvious irregularities on the face of the check. Clearly, someone made a mistake in filling up the checks and the repetition of the entries was possibly an attempt to rectify the mistake. Also, if the check had been filled up by the person who customarily accomplishes the checks of respondent, it should have occurred to petitioners employees that it would be unlikely such mistakes would be made. All these circumstances should have alerted the bank to the possibility that the holder or the person who is attempting to encash the checks did not have proper title to the checks or did not have authority to fill up and encash the same. As noted by the CA, petitioner could have made a simple phone call to its client to clarify the irregularities and the loss to respondent due to the encashment of the stolen checks would have been prevented. In the case at bar, extraordinary diligence demands that petitioner should have ascertained from respondent the authenticity of the subject checks or the accuracy of the entries therein not only because of the presence of highly irregular entries on the face of the checks but also of the decidedly unusual circumstances surrounding their encashment. Respondents witness testified that for checks in amounts greater than Twenty Thousand Pesos (P20,000.00) it is the companys practice to ensure that the payee is indicated by name in the check.[14] This was not rebutted by petitioner. Indeed, it is highly uncommon for a corporation to make out checks payable to CASH for substantial amounts such as in this case. If each irregular circumstance in this case were taken singly or isolated, the banks employees might have been justified in ignoring them. However, the confluence of the irregularities on the face of the checks and circumstances that depart from the usual banking practice of respondent should have put petitioners employees on guard that the checks were possibly not issued by the respondent in due course of its business. Petitioners subtle sophistry cannot exculpate it from behavior that fell extremely short of the highest degree of care and diligence required of it as a banking institution. Indeed, taking this with the testimony of petitioners operations manager that in case of an irregularity on the face of the check (such as when blanks were not properly filled out) the bank may or may not call the client depending on how busy the bank is on a particular day,[15] we are even more convinced that petitioners safeguards to protect clients from check fraud are arbitrary and subjective. Every client should be treated equally by a banking institution regardless of the amount of his deposits and each client has the right to expect that every centavo he entrusts to a bank would be handled with the same degree of care as the accounts of other clients. Perforce, we find that petitioner plainly failed to adhere to the high standard of diligence expected of it as a banking institution. In defense of its cashier/tellers questionable action, petitioner insists that pursuant to Sections 14[16] and 16[17] of the NIL, it could validly presume, upon presentation of the checks, that the party who filled up the blanks had authority and that a valid and intentional delivery to the party presenting the checks had taken place. Thus, in petitioners view, the sole blame for this debacle should be shifted to respondent for having its signatories pre-sign and deliver the subject checks.[18] Petitioner argues that there was indeed delivery in this case because, following American jurisprudence, the gross negligence of respondents accountant in safekeeping the subject checks which resulted in their theft should be treated as a voluntary delivery by the maker who is estopped from claiming non-delivery of the instrument.[19] Petitioners contention would have been correct if the subject checks were correctly and properly filled out by the thief and presented to the bank in good order. In that instance, there would be nothing to give notice to the bank of any infirmity in the title of the holder of the checks and it could validly presume that there was proper delivery to the holder. The bank could not be faulted if it encashed the checks under those circumstances. However, the undisputed facts plainly show that there were circumstances that should have alerted the bank to the likelihood that the checks were not properly delivered to the person who encashed the same. In all, we see no reason to depart from the finding in the assailed CA Decision that the subject checks are properly characterized as incomplete and undelivered instruments thus making Section 15[20] of the NIL applicable in this case. However, we do agree with petitioner that respondents officers practice of pre-signing of blank checks should be deemed seriously negligent behavior and a highly risky means of purportedly ensuring the efficient operation of businesses. It should have occurred to respondents officers and managers that the pre-signed blank checks could fall into the wrong hands as they did in this case where the said checks were stolen from the company accountant to whom the checks were entrusted. Nevertheless, even if we assume that both parties were guilty of negligent acts that led to the loss, petitioner will still emerge as the party foremost liable in this case. In instances where both parties are at fault, this Court has consistently applied the doctrine of last clear chance in order to assign liability. In Westmont Bank v. Ong,[21] we ruled: [I]t is petitioner [bank] which had the last clear chance to stop the fraudulent encashment of the subject checks had it exercised due diligence and followed the proper and regular banking procedures in clearing checks. As we had earlier ruled, the one who had a last clear opportunity to avoid the impending harm but failed to do so is chargeable with the consequences thereof.[22] (emphasis ours) In the case at bar, petitioner cannot evade responsibility for the loss by attributing negligence on the part of respondent because, even if we concur that the latter was indeed negligent in pre-signing blank checks, the former had the last clear chance to avoid the loss. To reiterate, petitioners own operations manager admitted that they could have called up the client for verification or confirmation before honoring the dubious checks. Verily, petitioner had the final opportunity to avert the injury that befell the respondent. Failing to make the necessary verification due to the volume of banking transactions on that particular day is a flimsy and unacceptable excuse, considering that the banking business is so impressed with public interest where the trust and confidence of the public in general is of paramount importance such that the appropriate standard of diligence must be a high degree of diligence, if not the utmost diligence.[23] Petitioners negligence has been undoubtedly established and, thus, pursuant to Art. 1170 of the NCC,[24] it must suffer the consequence of said negligence. In the interest of fairness, however, we believe it is proper to consider respondents own negligence to mitigate petitioners liability. Article 2179 of the Civil Code provides: Art. 2179. When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. Explaining this provision in Lambert v. Heirs of Ray Castillon,[25] the Court held: The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover damages in full but must bear the consequences of his own negligence. The defendant must thus be held liable only for the damages actually caused by his negligence. xxx xxx xxx As we previously stated, respondents practice of signing checks in blank whenever its authorized bank signatories would travel abroad was a dangerous policy, especially considering the lack of evidence on record that respondent had appropriate safeguards or internal controls to prevent the pre-signed blank checks from falling into the hands of unscrupulous individuals and being used to commit a fraud against the company. We cannot believe that there was no other secure and reasonable way to guarantee the non-disruption of respondents business. As testified to by petitioners expert witness, other corporations would ordinarily have another set of authorized bank signatories who would be able to sign checks in the absence of the preferred signatories.[26] Indeed, if not for the fortunate happenstance that the thief failed to properly fill up the subject checks, respondent would expectedly take the blame for the entire loss since the defense of forgery of a drawers signature(s) would be unavailable to it. Considering that respondent knowingly took the risk that the pre-signed blank checks might fall into the hands of wrongdoers, it is but just that respondent shares in the responsibility for the loss. We also cannot ignore the fact that the person who stole the pre-signed checks subject of this case from respondents accountant turned out to be another employee, purportedly a clerk in respondents accounting department. As the employer of the thief, respondent supposedly had control and supervision over its own employee. This gives the Court more reason to allocate part of the loss to respondent. Following established jurisprudential precedents,[27] we believe the allocation of sixty percent (60%) of the actual damages involved in this case (represented by the amount of the checks with legal interest) to petitioner is proper under the premises. Respondent should, in light of its contributory negligence, bear forty percent (40%) of its own loss. Finally, we find that the awards of attorneys fees and litigation expenses in favor of respondent are not justified under the circumstances and, thus, must be deleted. The power of the court to award attorneys fees and litigation expenses under Article 2208 of the NCC[28] demands factual, legal, and equitable justification. An adverse decision does not ipso facto justify an award of attorneys fees to the winning party.[29] Even when a claimant is compelled to litigate with third persons or to incur expenses to protect his rights, still attorneys fees may not be awarded where no sufficient showing of bad faith could be reflected in a partys persistence in a case other than an erroneous conviction of the righteousness of his cause.[30] WHEREFORE, the Decision of the Court of Appeals dated July 16, 2001 and its Resolution dated September 28, 2001 are AFFIRMED with the following MODIFICATIONS: (a) petitioner Bank of America NT & SA shall pay to respondent Philippine Racing Club sixty percent (60%) of the sum of Two Hundred Twenty Thousand Pesos (P220,000.00) with legal interest as awarded by the trial court and (b) the awards of attorneys fees and litigation expenses in favor of respondent are deleted. Proportionate costs. SO ORDERED.

G.R. No. 160795 June 27, 2008
CORINTHIAN GARDENS ASSOCIATION, INC., petitioner, vs. SPOUSES REYNALDO and MARIA LUISA TANJANGCO, and SPOUSES FRANK and TERESITA CUASO,respondent.

Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Civil Procedure seeking the reversal of the Court of Appeals (CA) Decision2 dated January 31, 2003 in CA-G.R. CV No. 43217, which reversed and set aside the Decision3 of the Regional Trial Court (RTC) of Quezon City, dated March 30, 1993.
The Antecedents:
Respondents-spouses Reynaldo and Maria Luisa Tanjangco (the Tanjangcos) own Lots 68 and 69 covered by Transfer Certificates of Title (TCT) No. 2422454 and 2829615 respectively, located at Corinthian Gardens Subdivision, Quezon City, which is managed by petitioner Corinthian Gardens Association, Inc. (Corinthian). On the other hand, respondents-spouses Frank and Teresita Cuaso (the Cuasos) own Lot 65 which is adjacent to the Tanjangcos’ lots.
Before the Cuasos constructed their house on Lot 65, a relocation survey was necessary. As Geodetic Engineer Democrito De Dios (Engr. De Dios), operating under the business name D.M. De Dios Realty and Surveying, conducted all the previous surveys for the subdivision's developer, Corinthian referred Engr. De Dios to the Cuasos. Before, during and after the construction of the said house, Corinthian conducted periodic ocular inspections in order to determine compliance with the approved plans pursuant to the Manual of Rules and Regulations of Corinthian.6 Unfortunately, after the Cuasos constructed their house employing the services of C.B. Paraz & Construction Co., Inc. (C.B. Paraz) as builder, their perimeter fence encroached on the Tanjangcos’ Lot 69 by 87 square meters.
No amicable settlement was reached between the parties. Thus, the Tanjangcos demanded that the Cuasos demolish the perimeter fence but the latter failed and refused, prompting the Tanjangcos to file with the RTC a suit against the Cuasos for Recovery of Possession with Damages.7
Eventually, the Cuasos filed a Third-Party Complaint8 against Corinthian, C.B. Paraz and Engr. De Dios. The Cuasos ascribed negligence to C.B. Paraz for its failure to ascertain the proper specifications of their house, and to Engr. De Dios for his failure to undertake an accurate relocation survey, thereby, exposing them to litigation. The Cuasos also faulted Corinthian for approving their relocation survey and building plans without verifying their accuracy and in making representations as to Engr. De Dios' integrity and competence. The Cuasos alleged that had Corinthian exercised diligence in performing its duty, they would not have been involved in a boundary dispute with the Tanjangcos. Thus, the Cuasos opined that Corinthian should also be held answerable for any damages that they might incur as a result of such construction.
On March 30, 1993, the RTC rendered a Decision in favor of the Tanjangcos. It ruled that the Cuasos’ perimeter wall encroached on the land of the Tanjangos by 87 square meters. It, however, ruled that the Cuasos were builders in good faith, and gave the Tanjangcos the option to sell and the Cuasos the option to buy the encroaching portion of the land, at a price to be agreed upon by the parties within sixty (60) days from receipt of the said Decision. In the event that the Cuasos were unable and unwilling to purchase the said portion, the perimeter wall should be demolished at the latter’s expense. The RTC also ordered the Cuasos to pay monthly rentals of P2,000.00 commencing from the time of the filing of the complaint. The RTC likewise held that C.B. Paraz was grossly negligent in not taking into account the correct boundaries of Cuasos’ lot when it constructed the house. It, thus, ordered C.B. Paraz to pay moral and exemplary damages as well as attorney’s fees to the Tanjangcos and the Cuasos. The third-party complaint against Corinthian and Engr. De Dios, on the other hand, was dismissed for lack of cause of action.
The Tanjangcos filed a Motion for Reconsideration9 of the said RTC Decision which the RTC, however, denied in its Order10 dated June 28, 1993.
Dissatisfied with the RTC ruling, the Tanjangcos, the Cuasos, and C.B. Paraz all appealed to the CA.
On appeal, the CA reversed and set aside the RTC Decision. It held that the Cuasos acted in bad faith in land-grabbing the 87 square meter-portion of Lot 69 as of April 5, 1989. Correlatively, the CA allowed the Tanjangcos to exercise the rights granted under Articles 449, 450, 451 and 549 of the New Civil Code, which include the right to demand the demolition of the offending perimeter wall after reimbursing the Cuasos the necessary expenses for the preservation of the encroached area. The Cuasos were ordered to pay monthly rentals of P10,000.00 for the use, enjoyment and occupancy of the lot from 1989 up to the time they vacate the property considering the location and category of the same. They were, likewise, ordered to pay the Tanjangcos P100,000.00, as moral damages, P50,000.00 as exemplary damages, and P150,000.00 as attorney’s fees. The CA also imposed six percent (6%) interest per annum on all the awards. The Cuasos’ appeal against the Tanjangcos, on the other hand, was dismissed for lack of merit. On the third-party complaints, Corinthian, C.B. Paraz and Engr. De Dios were all found negligent in performing their respective duties and so they were ordered to contribute five percent (5%) each, or a total of fifteen percent (15%) to all judgment sums and amounts that the Cuasos shall eventually pay under the decision, also with interest of six percent (6%) per annum.
Only Corinthian filed a Motion for Reconsideration11 of the CA Decision within the 15-day reglementary period. No motion for reconsideration was filed by the Cuasos, C.B. Paraz and/or Engr. De Dios.
About six (6) months later, or on August 12, 2003, the Cuasos filed a Comment/Manifestation12 praying that they be allowed to adopt Corinthian’s Motion for Reconsideration.
In its Resolution13 dated November 14, 2003, the CA denied Corinthian’s Motion for Reconsideration.
Hence, Corinthian filed the instant Petition for Review on Certiorari assailing the CA Decision and Resolution, and impleading the Cuasos as one of the respondents being the third-party plaintiffs in the RTC.
This Court gave due course to Corinthian’s petition and required the parties to submit their respective memorandum.14 In compliance, the Cuasos submitted their Memorandum15 and Supplement to Memorandum,16which were both noted by this Court in its Resolutions dated January 10, 200517 and February 2, 2005, 18respectively.
In the meantime, the Tanjangcos moved for partial entry of judgment of the CA Decision which was granted by the CA in its Resolution19 dated May 26, 2006, directing the issuance of an Entry of Judgment and a Certification that its Decision dated January 31 2003 has become final and executory with respect to the Cuasos, C.B. Paraz and Engr. De Dios for their failure to file an appeal assailing the said Decision before this Court.
The Tanjangcos then moved for the execution of the judgment against the Cuasos, specifically the demolition of the perimeter fence,20 which was also granted by the RTC in its Order21 dated December 18, 2006.
Other than the filing of an Opposition22 and a Motion for Reconsideration23 before the RTC, the Cuasos prayed for the issuance of a temporary restraining order (TRO) and/or preliminary injunction before this Court to enjoin the demolition of the perimeter fence. They averred that the premature demolition of the alleged encroaching perimeter wall and other improvements will cause grave and irreparable damage to them, because what is sought to be demolished is part of their residence. They claimed that no amount of money will compensate for the damage they stand to suffer should any demolition subsequently prove to be wrongful. They argued that before any execution can be carried out, it is necessary to first determine whether or not Corinthian was negligent in approving the building plan and whether or not it acted in good faith in doing so. Such determination, according to the Cuasos, will in turn determine whether or not they were in good faith in constructing the house.24
The Tanjangcos opposed the Cuasos' application for TRO. They countered that the only pending matter with this Court is the appeal by Corinthian; hence, the implementation of the January 31, 2003 Decision of the CA against the Cuasos will not preempt the outcome of the said pending incidents. Also, any action taken by this Court on Corinthian’s petition would not benefit the Cuasos for they did not appeal the adverse decision against them. Accordingly, they cannot obtain affirmative relief from this Court by reason or on account of the appeal taken by Corinthian. The appeal, they added, is personal to Corinthian. Finally, they argued that the Cuasos are now estopped from questioning the enforcement of the CA Decision since they issued a manager’s check to pay the money judgment.25
In this Court's Resolution dated July 18, 2007, we denied the Cuasos' application for TRO and/or writ of preliminary injunction for lack of merit.
The denial was based on sound legal principles. It is axiomatic that to be entitled to the injunctive writ, one must show that there exists a right to be protected which is directly threatened by the act sought to be enjoined. Furthermore, there must be a showing that the invasion of the right is material and substantial, that the right of complainant is clear and unmistakable, and that there is an urgent and paramount necessity for the writ to issue in order to prevent serious damage.26
In the Cuasos’ case, their right to injunctive relief had not been clearly and unmistakably demonstrated. They failed to show proof that there is material and substantial invasion of their right to warrant the issuance of an injunctive writ. Indeed, the enforcement of the writ of execution, which would demolish the Cuasos’ perimeter fence, is manifestly prejudicial to their interest. However, they possess no clear and unmistakable legal right that merits protection through the writ of preliminary injunction.27 Their right to maintain the said fence had been declared inferior to the Tanjangcos’ right to the demolition of the fence, after the CA judgment had become final and executory as to the Cuasos.
It bears stressing that the Cuasos failed to appeal the ruling of the CA. This failure to contest the CA decision before this Court was fatal to their cause. It had the effect of an admission that they indeed acted in bad faith, as they accepted the CA ruling. The decision of the CA, therefore, became binding and final as to them.28 As a matter of fact, the CA already issued a partial entry of judgment against the Cuasos.
An injunction to stay a final and executory decision is unavailing except only after a showing that facts and circumstances exist which would render execution unjust or inequitable, or that a change in the situation of the parties occurred. Here, no such exception exists as shown by the facts earlier narrated.29
While it is true that this Court noted the Memorandum and Supplemental Memorandum filed by the Cuasos, such notation was made only insofar as Corinthian made them respondents in this petition. This Court cannot grant to the Cuasos any affirmative relief as they did not file a petition questioning the CA ruling. Consequently, the Decision of the CA holding that the Cuasos acted in bad faith and that the perimeter fence may now be demolished cannot be put in issue by the Cuasos. It is a fundamental principle that a party who does not appeal, or file a petition for certiorari, is not entitled to any affirmative relief.30 An appellee who is not an appellant may assign errors in his brief where his purpose is to maintain the judgment, but he cannot seek modification or reversal of the judgment or claim affirmative relief unless he has also appealed.31 This applies to C.B. Paraz and Engr. De Dios who likewise failed to assail the aforementioned CA Decision.
With this matter put to rest, we now go to the main issues raised by Corinthian, the sole petitioner in this case, to wit:
a) Whether or not there is legal basis for the Court of Appeals to hold petitioner Corinthian Gardens Association, Inc. liable to pay 5% of the judgment money to Sps. Tanjangco on account of the encroachment made by Sps. Cuaso[; and]
b) Whether or not the Court of Appeals has legal basis to increase unilaterally and without proof the amount prayed for in the Complaint, i.e., P2,000.00, as reasonable compensation for the use and enjoyment of the portion of the lot encroached upon, to P10,000.00.32
Corinthian claims that the approval of the building plan of the Cuasos was not tainted with negligence as it did not approve the survey relocation plan but merely the architectural, structural and sanitary plans for Cuasos' house; that the purpose of the said approval is not to ensure that the house to be erected on a particular lot is constructed within its boundaries but only to ensure compliance with the Manual of Rules and Regulations; that while Corinthian conducts actual site inspections, the inspection and approval of the building plans are limited to "table inspection" only; that the survey relocation plan was never submitted for Corinthian's approval; that the acceptance of the builder's bond did not make Corinthian automatically liable for the encroachment and for damages; and that Corinthian approved the building plan with the good faith and due diligence required under the circumstances. It, thus, concludes that it cannot be held liable to pay five percent (5%) of the money judgment to the Tanjangcos on account of the encroachment made by the Cuasos. Likewise, it finds no legal basis for the CA to unilaterally increase the amount of the adjudged rent from P2,000.00 to P10,000.00 which was not prayed for by the Tanjangcos in their complaint and in the absence of evidence adduced by the parties.33
On the other hand, the Tanjangcos stand by the ruling of the CA and opine that Corinthian was negligent in approving the building plan of the Cuasos. They submit that Corinthian's claim that it merely conducts "table inspections" of buildings further bolsters their argument that Corinthian was negligent in conveniently and unilaterally restricting and limiting the coverage of its approval, contrary to its own Manual of Rules and Regulations; that the acceptance of a builder's bond does not automatically make Corinthian liable but the same affirms the fact that a homeowner can hold it liable for the consequences of the approval of a building plan; and that Corinthian, by regularly demanding and accepting membership dues, must be wary of its responsibility to protect the rights and interests of its members. Lastly, the Tanjangcos contend that a court can take judicial notice of the general increase in the rentals of real estate, as in this case, where the CA considered the value of their lot in the "posh-and-swank" Corinthian Gardens Subdivision and the fact that they were deprived of it for almost two decades. The Tanjangcos pray that this Court sustain the ruling of the CA.34
The instant case is obviously one for tort, as governed by Article 2176 of the Civil Code, which provides:
ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
In every tort case filed under this provision, plaintiff has to prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person for whose act he must respond; and (3) the connection of cause and effect between the fault or negligence and the damages incurred.35
Undeniably, the perimeter fence of the Cuasos encroached on Lot 69 owned by the Tanjangcos by 87 square meters as duly found by both the RTC and the CA in accordance with the evidence on record. As a result, the Tanjangcos suffered damage in having been deprived of the use of that portion of their lot encroached upon. Thus, the primordial issue to be resolved in this case is whether Corinthian was negligent under the circumstances and, if so, whether such negligence contributed to the injury suffered by the Tanjangcos.
A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary prudence and may be one which creates a situation involving an unreasonable risk to another because of the expectable action of the other, a third person, an animal, or a force of nature. A negligent act is one from which an ordinary prudent person in the actor's position, in the same or similar circumstances, would foresee such an appreciable risk of harm to others as to cause him not to do the act or to do it in a more careful manner.36
The test to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in committing the alleged negligent act use that reasonable care and caution which an ordinary person would have used in the same situation? If not, then he is guilty of negligence. The law, in effect, adopts the standard supplied by the imaginary conduct of the discreet paterfamilias in 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 a man of ordinary intelligence and prudence, and determines liability according to that standard.37
By this test, we find Corinthian negligent.
While the issue of Corinthian's alleged negligence is factual in character,38 a review by this Court is proper because the CA's factual findings differ from those of the RTC's.39 Thus, after a meticulous review of the evidence on record, we hold that the CA committed no reversible error when it deviated from the findings of fact of the RTC. The CA's findings and conclusions are substantiated by the evidence on record and are more in accord with law and reason. Indeed, it is clear that Corinthian failed to exercise the requisite diligence in insuring that the Cuasos abide by its Manual of Rules and Regulations, thereby resulting in the encroachment on the Tanjangcos’ property.
We agree with the CA when it aptly held:
Corinthian cannot and should not be allowed to justify or excuse its negligence by claiming that its approval of the Cuasos’ building plans was only limited to a so-called "table inspection;" and not actual site measurement. To accept some such postulate is to put a premium on negligence. Corinthian was not organized solely for the defendants Cuasos. It is also the subdivision of the plaintiffs-spouses Tanjangcos - and of all others who have their dwelling units or abodes therein. Pertinently, its Manual of Rules and Regulations stipulates in Section 3 thereof (under the heading Construction), thus:
A. Rules and Regulations
No new construction can be started unless the building plans are approved by the Associationand the appropriate Builder’s cash bond and pre-construction fees are paid. The Association will not allow the entry of construction materials and process identification cards for workers if the above conditions are not complied with. Likewise, all renovations, repairs, additions and improvements to a finished house except electrical wiring, will have to be approved by the Association. Water service connection of a homeowner who undertakes construction work without prior approval of the Association will be cut-off in addition to the sanctions previously mentioned.
It goes without saying that this Manual of Rules and Regulations applies to all - or it does not apply at all. To borrow a popular expression, what is sauce for the gander is sauce for the goose - or ought to be. To put it matter-of-factly and bluntly, thus, its so-called "table inspection" approval of the Cuasos’ building plans is no less of an approval, as approvals come and go. And since it is an approval tainted with negligence, the necessary and inevitable consequences which law and justice attach to such negligence must, as a matter of law and justice, also necessarily attach to Corinthian.
And then again third party defendant-appellee Corinthian Garden required the posting of a builder’s cash bond (Exh. 5-Corinthian) from the defendants-appellants Cuasos and the third-party defendant C.B. Paraz Construction to secure the performance of their undertaking. Surely, Corinthian does not imply that while it may take the benefits from the Builder’s cash bond, it may, Pilate-like, wash its hands of any responsibility or liability that would or might arise from the construction or building of the structure for which the cash bond was in the first place posted. That is not only unjust and immoral, but downright unchristian and iniquitous.
Under the same parity of reasoning, the payment by the appellants-Cuasos to the appellee Corinthian of pre-construction and membership fees in the Association must necessarily entail the creation of certain obligations on the part of Corinthian. For duties and responsibilities always go hand in hand with rights and privileges. That is the law of life - and that is the law of every civilized society. It is an axiom of equity that he who receives the benefits must share the burdens.40
By its Manual of Rules and Regulations, it is reasonable to assume that Corinthian, through its representative, in the approval of building plans, and in the conduct of periodic inspections of on-going construction projects within the subdivision, is responsible in insuring compliance with the approved plans, inclusive of the construction of perimeter walls, which in this case is the subject of dispute between the Tanjangcos and the Cuasos.41 It is not just or equitable to relieve Corinthian of any liability when, by its very own rules, it imposes its authority over all its members to the end that "no new construction can be started unless the plans are approved by the Association and the appropriate cash bond and pre-construction fees are paid." Moreover, Corinthian can impose sanctions for violating these rules. Thus, the proposition that the inspection is merely a "table inspection" and, therefore, should exempt Corinthian from liability, is unacceptable. After all, if the supposed inspection is merely a "table inspection" and the approval granted to every member is a mere formality, then the purpose of the rules would be defeated. Compliance therewith would not be mandatory, and sanctions imposed for violations could be disregarded. Corinthian's imprimatur on the construction of the Cuasos' perimeter wall over the property of the Tanjangcos assured the Cuasos that everything was in order.
In sum, Corinthian’s failure to prevent the encroachment of the Cuasos’ perimeter wall into Tanjangcos’ property – despite the inspection conducted – constitutes negligence and, at the very least, contributed to the injury suffered by the Tanjangcos.
On the second issue, our ruling in Spouses Badillo v. Tayag42 is instructive:
Citing Sia v. Court of Appeals [272 SCRA 141, May 5, 1997], petitioners argue that the MTC may take judicial notice of the reasonable rental or the general price increase of land in order to determine the amount of rent that may be awarded to them. In that case, however, this Court relied on the CA's factual findings, which were based on the evidence presented before the trial court. In determining reasonable rent, the RTC therein took account of the following factors: 1) the realty assessment of the land, 2) the increase in realty taxes, and 3) the prevailing rate of rentals in the vicinity. Clearly, the trial court relied, not on mere judicial notice, but on the evidence presented before it.
Indeed, courts may fix the reasonable amount of rent for the use and occupation of a disputed property. However, petitioners herein erred in assuming that courts, in determining the amount of rent, could simply rely on their own appreciation of land values without considering any evidence. As we have said earlier, a court may fix the reasonable amount of rent, but it must still base its action on the evidence adduced by the parties.
In Herrera v. Bollos [G.R. No. 138258, January 18, 2002], the trial court awarded rent to the defendants in a forcible entry case. Reversing the RTC, this Court declared that the reasonable amount of rent could be determined not by mere judicial notice, but by supporting evidence: x x x A court cannot take judicial notice of a factual matter in controversy. The court may take judicial notice of matters of public knowledge, or which are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. Before taking such judicial notice, the court must "allow the parties to be heard thereon." Hence, there can be no judicial notice on the rental value of the premises in question without supporting evidence.
Truly, mere judicial notice is inadequate, because evidence is required for a court to determine the proper rental value. But contrary to Corinthian's arguments, both the RTC and the CA found that indeed rent was due the Tanjangcos because they were deprived of possession and use of their property. This uniform factual finding of the RTC and the CA was based on the evidence presented below. Moreover, in Spouses Catungal v. Hao,43 we considered the increase in the award of rentals as reasonable given the particular circumstances of each case. We noted therein that the respondent denied the petitioners the benefits, including rightful possession, of their property for almost a decade.
Similarly, in the instant case, the Tanjangcos were deprived of possession and use of their property for more than two decades through no fault of their own. Thus, we find no cogent reason to disturb the monthly rental fixed by the CA.
All told, the CA committed no reversible error.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.

G.R. No. 145804 February 6, 2003
LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners, vs. MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT SECURITY AGENCY, respondents.

The case before the Court is an appeal from the decision and resolution of the Court of Appeals, promulgated on 27 April 2000 and 10 October 2000, respectively, in CA-G.R. CV No. 60720, entitled "Marjorie Navidad and Heirs of the Late Nicanor Navidad vs. Rodolfo Roman, et. al.," which has modified the decision of 11 August 1998 of the Regional Trial Court, Branch 266, Pasig City, exonerating Prudent Security Agency (Prudent) from liability and finding Light Rail Transit Authority (LRTA) and Rodolfo Roman liable for damages on account of the death of Nicanor Navidad.
On 14 October 1993, about half an hour past seven o’clock in the evening, Nicanor Navidad, then drunk, entered the EDSA LRT station after purchasing a "token" (representing payment of the fare). While Navidad was standing on the platform near the LRT tracks, Junelito Escartin, the security guard assigned to the area approached Navidad. A misunderstanding or an altercation between the two apparently ensued that led to a fist fight. No evidence, however, was adduced to indicate how the fight started or who, between the two, delivered the first blow or how Navidad later fell on the LRT tracks. At the exact moment that Navidad fell, an LRT train, operated by petitioner Rodolfo Roman, was coming in. Navidad was struck by the moving train, and he was killed instantaneously.
On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad, along with her children, filed a complaint for damages against Junelito Escartin, Rodolfo Roman, the LRTA, the Metro Transit Organization, Inc. (Metro Transit), and Prudent for the death of her husband. LRTA and Roman filed a counterclaim against Navidad and a cross-claim against Escartin and Prudent. Prudent, in its answer, denied liability and averred that it had exercised due diligence in the selection and supervision of its security guards.
The LRTA and Roman presented their evidence while Prudent and Escartin, instead of presenting evidence, filed a demurrer contending that Navidad had failed to prove that Escartin was negligent in his assigned task. On 11 August 1998, the trial court rendered its decision; it adjudged:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants Prudent Security and Junelito Escartin ordering the latter to pay jointly and severally the plaintiffs the following:
"a) 1) Actual damages of P44,830.00;
2) Compensatory damages of P443,520.00;
3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;
"b) Moral damages of P50,000.00;
"c) Attorney’s fees of P20,000;
"d) Costs of suit.
"The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit.
"The compulsory counterclaim of LRTA and Roman are likewise dismissed."1
Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court promulgated its now assailed decision exonerating Prudent from any liability for the death of Nicanor Navidad and, instead, holding the LRTA and Roman jointly and severally liable thusly:
"WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the appellants from any liability for the death of Nicanor Navidad, Jr. Instead, appellees Rodolfo Roman and the Light Rail Transit Authority (LRTA) are held liable for his death and are hereby directed to pay jointly and severally to the plaintiffs-appellees, the following amounts:
a) P44,830.00 as actual damages;
b) P50,000.00 as nominal damages;
c) P50,000.00 as moral damages;
d) P50,000.00 as indemnity for the death of the deceased; and
e) P20,000.00 as and for attorney’s fees."2
The appellate court ratiocinated that while the deceased might not have then as yet boarded the train, a contract of carriage theretofore had already existed when the victim entered the place where passengers were supposed to be after paying the fare and getting the corresponding token therefor. In exempting Prudent from liability, the court stressed that there was nothing to link the security agency to the death of Navidad. It said that Navidad failed to show that Escartin inflicted fist blows upon the victim and the evidence merely established the fact of death of Navidad by reason of his having been hit by the train owned and managed by the LRTA and operated at the time by Roman. The appellate court faulted petitioners for their failure to present expert evidence to establish the fact that the application of emergency brakes could not have stopped the train.
The appellate court denied petitioners’ motion for reconsideration in its resolution of 10 October 2000.
In their present recourse, petitioners recite alleged errors on the part of the appellate court; viz:
"I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE FINDINGS OF FACTS BY THE TRIAL COURT
"II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS ARE LIABLE FOR THE DEATH OF NICANOR NAVIDAD, JR.
"III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO ROMAN IS AN EMPLOYEE OF LRTA."3
Petitioners would contend that the appellate court ignored the evidence and the factual findings of the trial court by holding them liable on the basis of a sweeping conclusion that the presumption of negligence on the part of a common carrier was not overcome. Petitioners would insist that Escartin’s assault upon Navidad, which caused the latter to fall on the tracks, was an act of a stranger that could not have been foreseen or prevented. The LRTA would add that the appellate court’s conclusion on the existence of an employer-employee relationship between Roman and LRTA lacked basis because Roman himself had testified being an employee of Metro Transit and not of the LRTA.
Respondents, supporting the decision of the appellate court, contended that a contract of carriage was deemed created from the moment Navidad paid the fare at the LRT station and entered the premises of the latter, entitling Navidad to all the rights and protection under a contractual relation, and that the appellate court had correctly held LRTA and Roman liable for the death of Navidad in failing to exercise extraordinary diligence imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier, both from the nature of its business and for reasons of public policy, is burdened with the duty of exercising utmost diligence in ensuring the safety of passengers.4 The Civil Code, governing the liability of a common carrier for death of or injury to its passengers, provides:
"Article 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.
"Article 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755."
"Article 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former’s employees, although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers.
"This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees."
"Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the willful acts or negligence of other passengers or of strangers, if the common carrier’s employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission."
The law requires common carriers to carry passengers safely using the utmost diligence of very cautious persons with due regard for all circumstances.5 Such duty of a common carrier to provide safety to its passengers so obligates it not only during the course of the trip but for so long as the passengers are within its premises and where they ought to be in pursuance to the contract of carriage.6 The statutory provisions render a common carrier liable for death of or injury to passengers (a) through the negligence or wilful acts of its employees or b) on account of wilful acts or negligence of other passengers or of strangers if the common carrier’s employees through the exercise of due diligence could have prevented or stopped the act or omission.7 In case of such death or injury, a carrier is presumed to have been at fault or been negligent, and8 by simple proof of injury, the passenger is relieved of the duty to still establish the fault or negligence of the carrier or of its employees and the burden shifts upon the carrier to prove that the injury is due to an unforeseen event or to force majeure.9 In the absence of satisfactory explanation by the carrier on how the accident occurred, which petitioners, according to the appellate court, have failed to show, the presumption would be that it has been at fault,10 an exception from the general rule that negligence must be proved.11
The foundation of LRTA’s liability is the contract of carriage and its obligation to indemnify the victim arises from the breach of that contract by reason of its failure to exercise the high diligence required of the common carrier. In the discharge of its commitment to ensure the safety of passengers, a carrier may choose to hire its own employees or avail itself of the services of an outsider or an independent firm to undertake the task. In either case, the common carrier is not relieved of its responsibilities under the contract of carriage.
Should Prudent be made likewise liable? If at all, that liability could only be for tort under the provisions of Article 217612 and related provisions, in conjunction with Article 2180,13 of the Civil Code. The premise, however, for the employer’s liability is negligence or fault on the part of the employee. Once such fault is established, the employer can then be made liable on the basis of the presumption juris tantum that the employer failed to exercise diligentissimi patris families in the selection and supervision of its employees. The liability is primary and can only be negated by showing due diligence in the selection and supervision of the employee, a factual matter that has not been shown. Absent such a showing, one might ask further, how then must the liability of the common carrier, on the one hand, and an independent contractor, on the other hand, be described? It would be solidary. A contractual obligation can be breached by tort and when the same act or omission causes the injury, one resulting in culpa contractual and the other in culpa aquiliana, Article 219414 of the Civil Code can well apply.15 In fine, a liability for tort may arise even under a contract, where tort is that which breaches the contract.16 Stated differently, when an act which constitutes a breach of contract would have itself constituted the source of a quasi-delictual liability had no contract existed between the parties, the contract can be said to have been breached by tort, thereby allowing the rules on tort to apply.17
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late Nicanor Navidad, this Court is concluded by the factual finding of the Court of Appeals that "there is nothing to link (Prudent) to the death of Nicanor (Navidad), for the reason that the negligence of its employee, Escartin, has not been duly proven x x x." This finding of the appellate court is not without substantial justification in our own review of the records of the case.
There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of any culpable act or omission, he must also be absolved from liability. Needless to say, the contractual tie between the LRT and Navidad is not itself a juridical relation between the latter and Roman; thus, Roman can be made liable only for his own fault or negligence.
The award of nominal damages in addition to actual damages is untenable. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.18 It is an established rule that nominal damages cannot co-exist with compensatory damages.19
WHEREFORE, the assailed decision of the appellate court is AFFIRMED with MODIFICATION but only in that (a) the award of nominal damages is DELETED and (b) petitioner Rodolfo Roman is absolved from liability. No costs.
SO ORDERED.

OSCAR DEL CARMEN, JR., v. GERONIMO BACOY, MARY MARJORIE B. MONSALUD, ERIC B. MONSALUD, METZIE ANN B. MONSALUD, KAREEN B. MONSALUD, LEONARDO B.
MONSALUD, JR., and CRISTINA B. MONSALUD, G.R. No. 173870 April 25, 2012 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. P73,112.00 for their funeral and burial expenses;
b. P1,000,000.00 moral damages for the death of the late Emilia Monsalud;
c. P250,000.00 moral damages for the death of the late Leonardo Monsalud, Sr.;
d. P250,000.00 moral damages for the death of the late Glenda Monsalud;
e. P40, 000.00, for exemplary damages;
f. P20,000.00 attorneys fees; and
g. The cost of this proceedings. 2. 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]
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 co-accused 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 co-accused, 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 facie negligence 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,[45] 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: 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 for quasi-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 AFFIRMED with 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.

[G.R. No. 176675 : September 15, 2010]

SPS. ALFREDO BONTILAO AND SHERLINA BONTILAO, PETITIONERS, VS. DR. CARLOS GERONA, RESPONDENT.
Before us is a petition for review on certiorari[1] under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the June 28, 2006 Decision[2] and January 19, 2007 Resolution[3] of the Court of Appeals (CA) in CA-G.R. CV No, 00201. The CA had reversed the March 23, 2004 Decision[4] of the Regional Trial Court (RTC) of Cebu City, Branch 6 and dismissed petitioners' complaint in Civil Case No. CEB-17822.

The facts are as follows:

On December 28, 1991, respondent Dr. Carlos Gerona, an orthopedic surgeon at the Vicente Gullas Memorial Hospital, treated petitioners' son, eight (8)-year-old Allen Key Bontilao (Allen), for a fractured right wrist. Respondent administered a "U-splint" and immobilized Allen's wrist with a cast, then sent Allen home. On June 4, 1992, Allen re-fractured the same wrist and was brought back to the hospital. The x-ray examination showed a complete fracture and displacement of the bone, with the fragments overlapping each other. Respondent performed a closed reduction procedure, with Dr. Vicente Jabagat (Dr. Jabagat) as the anesthesiologist. Then he placed Allen's arm in a plaster cast to immobilize it. He allowed Allen to go home after the post reduction x-ray showed that the bones were properly aligned, but advised Allen's mother, petitioner Sherlina Bontilao (Sherlina), to bring Allen back for re-tightening of the cast not later than June 15, 1992.

Allen, however, was brought back to the hospital only on June 1992. By then, because the cast had not been re-tightened, a rotational deformity had developed in Allen's arm. The x-ray examination showed that the deformity was caused by a re-displacement of the bone fragments, so it was agreed that an open reduction surgery will be conducted on June 24, 1992 by respondent, again with Dr. Jabagat as the anesthesiologist.

On the said date, Sherlina was allowed to observe the operation behind a glass panel. Dr. Jabagat failed to intubate the patient after five (5) attempts so anesthesia was administered through a gas mask. Respondent asked Dr. Jabagat if the operation should be postponed given the failure to intubate, but Dr. Jabagat said that it was alright to proceed. Respondent verified that Allen was breathing properly before proceeding with the surgery.[5] As respondent was about to finish the suturing, Sherlina decided to go out of the operating

room to make a telephone call and wait for her son. Later, she was informed that her son had died on the operating table. The cause of death was "asphyxia due to congestion and edema of the epiglottis."[6]

Aside from criminal and administrative cases, petitioners filed a complaint for damages against both respondent and Dr. Jabagat in the RTC of Cebu City alleging negligence and incompetence on the part of the doctors. The documentary evidence and testimonies of several witnesses presented in the criminal proceedings were offered and admitted in evidence at the RTC.

On March 23, 2004, the RTC decided in favor of the petitioners. It held that the doctrine of res ipsa loquitur was applicable in establishing respondent's liability. According to the RTC, asphyxia or cardiac arrest does not normally occur in an operation on a fractured bone in the absence of negligence in the administration of anesthesia and the use of an endotracheal tube. Also, the instruments used in the administration of anesthesia were all under the exclusive control of respondent and Dr. Jabagat, and neither Allen nor his mother could be said to be guilty of contributory negligence. Thus, the trial court held that respondent and Dr. Jabagat were solidarity liable for they failed to prove that they were not negligent. The trial court likewise said that respondent cannot shift the blame solely to Dr. Jabagat as the fault of the latter is also the fault of the former, respondent being the attending physician and being equally in care, custody and control of Allen.[7]

Aggrieved, respondent appealed the trial court's decision to the CA. Dr. Jabagat, for his part, no longer appealed the decision.

On June 28, 2006, the CA reversed the RTC's ruling. It held that the doctrine of res ipsa loquitur does not apply for it must be satisfactorily shown that (1) the accident is of a kind which ordinarily does not occur in the absence of someone's negligence; (2) the plaintiff was not guilty of contributory conduct; and (3) the instrumentality which caused the accident was within the control of the defendant.

The CA held that while it may be true that an Open Reduction and Internal Fixation or ORIF could not possibly lead to a patient's death unless somebody was negligent, still what was involved in this case was a surgical procedure with all risks attendant, including death. As explained by the expert testimony, unexplained death and mal-occurrence is a possibility in surgical procedures especially those involving the administration of general anesthesia. It had also been established in both the criminal and administrative cases against respondent that Allen's death was the result of the anesthesiologist's negligence and not his.[8]

The CA added that the trial court erred in applying the "captain of the ship" doctrine to make respondent liable even though he was the lead surgeon. The CA noted that unlike in Ramos v. Court of Appeals,[9] relied upon by the trial court, the anesthesiologist was chosen by petitioners and no specific act of negligence was attributable to respondent. The alleged failure to perform a skin test and a tracheotomy does not constitute negligence. Tracheotomy is an emergency procedure, and its performance is a judgment call of the attending physician as it is another surgical procedure done during instances of failure of intubation. On the other hand, a skin test for a patient's possible adverse reaction to the anesthesia to be administered is the anesthesiologist's decision. The CA also noted that the same anesthesia was previously administered to Allen and he did not manifest any allergic reaction to it. Finally, unlike in the Ramos case, respondent arrived only a few minutes late for the surgery and he was able to complete the procedure within the estimated time frame of less than an hour.

Petitioners filed the present petition on the following grounds:
[1] THE COURT OF APPEALS ERRED IN REVERSING THE DECISION OF THE REGIONAL TRIAL COURT BY DISMISSING THE COMPLAINT IN SO FAR AS THE

SURGEON, DR. CARLOS GERONA IS CONCERNED [AFTER] CONCLUDING THAT HE IS NOT SOLIDARILY LIABLE WITH HIS CO-DEFENDANT, DR. VICENTE JABAGAT, THE ANESTHESIOLOGIST, IN THE ABSENCE OF ANY NEGLIGENT ACT ON HIS PART.

[2] THE COURT OF APPEALS ERRED WHEN IT MISAPPRECIATED ESSENTIAL FACTS OF THE CASE THAT LED TO ITS FINDINGS THAT DOCTRINE OF RES IPSA LOQUITfUJR AS APPLIED IN THE RAMOS CASE IS NOT APPLICABLE IN THE INSTANT CASE.[10]

Essentially, the issue before us is whether respondent is liable for damages for Allen's death.

Petitioners argued that the doctrine of res ipsa loquitur applies to the present case because Allen was healthy, fully conscious, coherent, and ambulant when he went to the hospital to correct a deformed arm. Yet, he did not survive the operation, which was not even an emergency surgery but a corrective one. They contend that respondent, being the lead surgeon, should be held liable for the negligence of the physicians and nurses working with him during the operation.

On the other hand, respondent posited that he should not be held solidarity liable with Dr. Jabagat as they were employed independently from each other and their services were divided as their best judgment dictated. He insisted that the captain-of-the-ship doctrine had long been abandoned especially in this age of specialization. An anesthesiologist and a surgeon are specialists in their own field and neither one (1) could dictate upon the other. The CA was correct in finding that the Ramoscase does not apply to respondent. Dr. Jabagat was contracted separately from respondent and was chosen by petitioner Sherlina. Respondent was only a few minutes late from the operation and he waited for the signal of the anesthesiologist to start the procedure. He also determined the condition of Allen before and after the operation.

We affirm the assailed CA decision.

The trial court erred in applying the doctrine of res ipsa loquitur to pin liability on respondent for Allen's death. Res ipsa loquitur is a rebuttable presumption or inference that the defendant was negligent. The presumption only arises upon proof that the instrumentality causing injury was in the defendant's exclusive control, and that the accident was one (1) which ordinarily does not happen in the absence of negligence. It is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided that the character of the accident and circumstances attending it lead reasonably to the belief that in the absence of negligence it would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer.[11]

Under this doctrine, the happening of an injury permits an inference of negligence where the plaintiff produces substantial evidence that the injury was caused by an agency or instrumentality under the exclusive control and management of the defendant, and that the injury was such that in the ordinary course of things would not happen if reasonable care had been used.[12]

However, res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case.[13] In malpractice cases, the doctrine is generally restricted to situations where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. In other words, as held in Ramos v. Court of Appeals,[14] the real question is whether or not in the process of the operation, any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of professional activity in such operations, and which, if unexplained, would themselvesreasonably speak to the average man as the negligent cause or causes of the untoward consequence.

Here, we find that the CA correctly found that petitioners failed to present substantial evidence of any specific act of negligence on respondent's part or of the surrounding facts and circumstances which would lead to the reasonable inference that the untoward consequence was caused by respondent's negligence. In fact, under the established facts, respondent appears to have observed the proper amount of care required under the circumstances. Having seen that Dr. Jabagat failed in the intubation, respondent inquired from the latter, who was the expert on the matter of administering anesthesia, whether the surgery should be postponed considering the failure to intubate. Respondent testified, WITNESS: | A - | Actually sir, if I may cut short, I'm sorry. I don't know what is the term of this sir. But what actually, what we had was that Dr. Jabagat failed in the intubation. He was not able to insert the tube. | ATTY. PADILLA: | Q - | And you noticed that he failed? | A - | Yes, sir. | | x x x x | ATTY. PADILLA: | Q - | And you noticed that he failed and still you continued the surgery, Dr. Gerona? | A - | Yes, I continued the surgery. | | x x x x | COURT: | Q - | Did not Dr. Jabagat advise you not to proceed with the operation because the tube cannot be inserted? | A - | No, sir. In fact, I was the one who asked him, sir, the tube is not inserted, shall we postpone this for another date? He said, it's alright.[15] |

Respondent further verified that Allen was still breathing by looking at his chest to check that there was excursion before proceeding with the surgery.[16] That respondent decided to continue with the surgery even though there was a failure to intubate also does not tend to establish liability, contrary to the trial court's ruling. Petitioners failed to present substantial proof that intubation was an indispensable prerequisite for the operation and that it would be grave error for any surgeon to continue with the operation under such circumstances. In fact, the testimony of the expert witness presented by the prosecution in the criminal proceedings and admitted into evidence at the RTC, was even to the effect that the anesthesia could be administered by alternative means such as a mask and that the operation could proceed even without intubation.[17]

There was also no indication in the records that respondent saw or should have seen that something was wrong as to prompt him to act differently than he did in this case. The anesthesia used in the operation was the same anesthesia used in the previous closed reduction procedure, and Allen did not register any adverse reaction to it. In fact, respondent knows the anesthesia Ketalar to be safe for children. Dr. Jabagat was also a specialist and more competent than respondent to determine whether the patient has been properly anesthetized for the operation, all things considered. Lastly, it appears that Allen started experiencing difficulty in breathing only after the operation, when respondent was already about to jot down his post-operation notes in the adjacent room. Respondent was called back to the operating room after Dr. Jabagat failed to appreciate a heartbeat on the patient.[18] He acted promptly and called for other doctors to assist and revive Allen, but to no avail.

Moreover, we note that in the instant case, the instrument which caused the damage or injury was not even within respondent's exclusive management and control as Dr. Jabagat was exclusively in control and management of the anesthesia and the endotracheal tube. 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 someone's negligence:

2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.[19]

Here, the respondent could only supervise Dr. Jabagat to make sure that he was performing his duties. But respondent could not dictate upon Dr. Jabagat the particular anesthesia to administer, the dosage thereof, or that it be administered in any particular way not deemed appropriate by Dr. Jabagat. Respondent's specialization not being in the field of anesthesiology, it would be dangerous for him to substitute his judgment for Dr. Jabagat's decisions in matters that fall appropriately within the scope of Dr. Jabagat's expertise.

Under the above circumstances, although the Court commiserates with the petitioners on their infinitely sorrowful loss, the Court cannot properly declare that respondent failed to exercise the required standard of care as lead surgeon as to hold him liable for damages for Allen's death.

In civil cases, the burden of proof to be established by preponderance of evidence is on the plaintiff who is asserting the affirmative of an issue.20 Unless the party asserting the affirmative of an issue sustains the burden of proof, his or her cause will not succeed.

WHEREFORE, the petition is DENIED. The Decision dated June 28, 2006 and Resolution dated January 19, 2007 of the Court of Appeals in CA-G.R. CV No. 00201 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 70458 October 5, 1988
BENJAMIN SALVOSA and BAGUIO COLLEGES FOUNDATION, petitioners, vs. THE INTERMEDIATE APPELLATE COURT, EDUARDO B. CASTRO, DIOMEDES B. CASTRO, VIRGINIA B. CASTRO and RODOLFO B. CASTRO., respondents.
Edilberto B. Tenefrancia for petitioners.
Leonardo L. Cocjin Jr. for respondents. PADILLA, J.:
In this petition for review on certiorari, petitioners seek the reversal of the decision 1 of respondent Intermediate Appellate Court, dated 7 December 1984, in AC-G.R. No. CV 69876, in so far as it affirmed the decision 2 of the Court of First Instance of Tarlac (hereinafter referred to as the Trial Court), which held, among others, petitioners solidarily hable with Jimmy B. Abon, under Art. 2180 of the Civil Code.
The relevant facts, as found by the Trial Court and adopted by reference by the respondent Court, are:
... Baguio Colleges Foundation (BCF, hereafter) is an academic institution ... [However], it is also an institution of arts and trade. It has so advertised itself, as its own evidence shows. Its brochure (Exh. 2) shows that BCF has a full-fledged technical-vocational department offer Communication, Broadcast and Teletype Technician courses as well as Electronics Serviceman and Automotive Mechanics courses... these courses divest BCF of the nature or character of being purely or exclusively an academic institution. 3
Within the premises of the BCF is an ROTC Unit, the Baguio Colleges Foundation Reserve Officers Training Corps (ROTC) Unit, which is under the fifth control of the Armed Forces of the Philippines. 4 The ROTC Unit, by way of accommodation to the Armed Forces of the Philippines (AFP), pursuant to Department Order No. 14, Series of 1975 of the Department of Education and Culture, 5 is provided by the BCF an office and an armory located at the basement of its main building. 6
The Baguio Colleges Foundation ROTC Unit had Jimmy B. Abon as its duly appointed armorer. 7 As armorer of the ROTC Unit, Jimmy B. Abon received his appointment from the AFP. Not being an employee of the BCF, he also received his salary from the AFP, 8 as well as orders from Captain Roberto C. Ungos, the Commandant of the Baguio Colleges Foundation ROTC Unit, concurrent Commandant of other ROTC units in Baguio and an employee (officer) of the AFP. 9Jimmy B. Abon was also a commerce student of the BCF. 10
On 3 March 1977, at around 8:00 p.m., in the parking space of BCF, Jimmy B. Abon shot Napoleon Castro a student of the University of Baguio with an unlicensed firearm which the former took from the armory of the ROTC Unit of the BCF. 11 As a result, Napoleon Castro died and Jimmy B. Abon was prosecuted for, and convicted of the crime of Homicide by Military Commission No. 30, AFP. 12
Subsequently, the heirs of Napoleon Castro sued for damages, impleading Jimmy B. Abon, Roberto C. Ungos (ROTC Commandant Benjamin Salvosa (President and Chairman of the Board of BCF), Jesus Salvosa (Executive Vice President of BCF), Libertad D. Quetolio (Dean of the College of Education and Executive Trustee of BCF) and the Baguio Colleges Foundation Inc. as party defendants. After hearing, the Trial Court rendered a decision, (1) sentencing defendants Jimmy B. Abon, Benjamin Salvosa and Baguio Colleges Foundation, Inc., jointly and severally, to pay private respondents, as heirs of Napoleon Castro: a) P12,000.00 for the death of Napoleon Castro, (b) P316,000.00 as indemnity for the loss of earning capacity of the deceased, (c) P5,000.00 as moral damages, (d) P6,000.00 as actual damages, and (e) P5,000.00 as attorney's fees, plus costs; (2) absolving the other defendants; and (3) dismissing the defendants' counterclaim for lack of merit. 13 On appeal by petitioners, the respondent Court affirmed with modification the decision of the Trial Court. The modification consisted in reducing the award for loss of earning capacity of the deceased from P316,000.00 to P30,000.00 by way of temperate damages, and increasing the indemnity for the death of Napoleon Castro from P12,000.00 to P30,000.00.
Hence, this petition.
The central issue in this case is whether or not petitioners can be held solidarity hable with Jimmy B. Abon for damages under Article 2180 of the Civil Code, as a consequence of the tortious act of Jimmy B. Abon.
Under the penultimate paragraph of Art. 2180 of the Civil Code, teachers or heads of establishments of arts and trades are hable for "damages caused by their pupils and students or apprentices, so long as they remain in their custody." The rationale of such liability is that so long as the student remains in the custody of a teacher, the latter "stands, to a certain extent, in loco parentis [as to the student] and [is] called upon to exercise reasonable supervision over the conduct of the [student]." 14 Likewise, "the phrase used in [Art. 2180 — 'so long as (the students) remain in their custody means the protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, including recess time." 15
In the case at bar, in holding that Jimmy B. Abon was stin in the protective and supervisory custody of the Baguio Colleges Foundation when he shot Napoleon Castro, the respondent Court ruled that: it is true that Abon was not attending any class or school function at the time of the shooting incident, which was at about 8 o'clock in the evening; but considering that Abon was employed as an armorer and property custodian of the BCF ROTC unit, he must have been attending night classes and therefore that hour in the evening was just about dismissal time for him or soon thereafter. The time interval is safely within the "recess time" that the trial court spoke of and envisioned by the Palisoc case, supra. 16 (Emphasis supplied)
In line with the case of Palisoc, 17 a student not "at attendance in the school" cannot be in "recess" thereat. A "recess," as the concept is embraced in the phrase "at attendance in the school," contemplates a situation of temporary adjournment of school activities where the student still remains within call of his mentor and is not permitted to leave the school premises, or the area within which the school activity is conducted. Recess by its nature does not include dismissal. 18Likewise, the mere fact of being enrolled or being in the premises of a school without more does not constitute "attending school" or being in the "protective and supervisory custody' of the school, as contemplated in the law.
Upon the foregoing considerations, we hold that Jimmy B. Abon cannot be considered to have been "at attendance in the school," or in the custody of BCF, when he shot Napoleon Castro. Logically, therefore, petitioners cannot under Art. 2180 of the Civil Code be held solidarity liable with Jimmy B. Abon for damages resulting from his acts.
Besides, the record shows that before the shooting incident, Roberto B. Ungos ROTC Unit Commandant, AFP, had instructed Jimmy B. Abon "not to leave the office and [to keep the armory] well guarded." 19 Apart from negating a finding that Jimmy B. Abon was under the custody of the school when he committed the act for which the petitioners are sought to be held liable, this circumstance shows that Jimmy B. Abon was supposed to be working in the armory with definite instructions from his superior, the ROTC Commandant, when he shot Napoleon Castro.
Petitioners also raise the issue that, under Art. 2180 of the Civil Code, a school which offers both academic and technical/vocational courses cannot be held liable for a tort committed by a student enrolled only in its academic program; however, considering that Jimmy B. Abon was not in the custody of BCF when he shot Napoleon Castro, the Court deems it unnecessary to pass upon such other issue. 20
WHEREFORE, the decision appealed from is hereby REVERSED in so far as it holds petitioners solidarily liable with Jimmy B. Abon for his tortious act in the killing of Napoleon Castro. No costs.
SO ORDERED. JOSEPH SALUDAGA, G.R. No. 179337
Petitioner,
Present:
Ynares-Santiago, J. (Chairperson),
- versus - Austria-Martinez,
Chico-Nazario,
Nachura, and
Reyes, JJ.
FAR EASTERN UNIVERSITY and
EDILBERTO C. DE JESUS in his Promulgated: capacity as President of FEU,
Respondents. April 30, 2008

This Petition for Review on Certiorari[1] under Rule 45 of the Rules of Court assails the June 29, 2007 Decision[2] of the Court of Appeals in CA-G.R. CV No. 87050, nullifying and setting aside the November 10, 2004 Decision[3] 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 Resolution[4] 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 Complaint[7] 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), Galaxys President, to indemnify them for whatever would be adjudged in favor of petitioner, if any; and to pay attorneys 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, attorneys 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 petitioners Complaint read: 6.0. At the time of plaintiffs 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 plaintiffs miserable condition. x x x x 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 Universitys 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 FEUs 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 petitioners 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. Ones 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 persons 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 defendants 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 incident[23] 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, attorneys 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 school-student 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 ones own acts or omissions, but also for those of persons for whom one is responsible.
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 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.
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 plaintiffs claim. The third-party complaint is actually independent of and separate and distinct from the plaintiffs 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 plaintiffs 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 petitioners 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 petitioners 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 petitioners medical expenses. For these acts of negligence and for having supplied respondent FEU with an unqualified security guard, which resulted to the latters 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 attorneys 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. THE HEIRS OF REDENTOR COMPLETO and ELPIDIO ABIAD, Petitioners, v. SGT. AMANDO C. ALBAYDA, JR.,
Respondent. G.R. No. 172200 July 6, 2010

The Facts The facts of the case are as follows: Respondent Amando C. Albayda, Jr. (Albayda) is a Master Sergeant of the Philippine Air Force, 527th Base Security Squadron, 520th Airbase, Philippine Air Force, located at Villamor Air Base (VAB), Pasay City. Petitioner Redentor Completo (Completo), now represented by his heirs, was the taxi driver of a Toyota Corolla, bearing Plate No. PYD-128, owned and operated by co-petitioner Elpidio Abiad (Abiad).[3] Albayda and Completo figured in an accident along the intersection of 8th and 11th Streets, VAB. Albayda filed a complaint for damages before the Regional Trial Court (RTC) of Pasay City. The case was docketed as Civil Case No. 98-1333.[4] The amended complaint alleged that, on August 27, 1997, while Albayda was on his way to the office to report for duty, riding a bicycle along 11th Street, the taxi driven by Completo bumped and sideswiped him, causing serious physical injuries. Albayda was brought to the Philippine Air Force General Hospital (PAFGH) inside VAB. However, he was immediately transferred to the Armed Forces of the Philippines Medical Center (AFPMC) on V. Luna Road, Quezon City, because there was a fracture in his left knee and there was no orthopedic doctor available at PAFGH. From August 27, 1997 until February 11, 1998, he was confined therein. He was again hospitalized at PAFGH from February 23, 1998 until March 22, 1998.[5]
Conciliation between the parties before the barangay failed. Thus, Albayda filed a complaint for physical injuries through reckless imprudence against Completo before the Office of the City Prosecutor of Pasay City. On the other hand, Completo filed a counter-charge of damage to property through reckless imprudence against Albayda. On January 13, 1998, the Office of the City Prosecutor issued a resolution,[6] recommending the filing of an information for reckless imprudence resulting in physical injuries against Completo. The counter-charge of damage to property was recommended dismissed.[7] The case was raffled to the Metropolitan Trial Court of Pasay City, Branch 45, where Albayda manifested his reservation to file a separate civil action for damages against petitioners Completo and Abiad.[8] Albayda alleged that the proximate cause of the incident which necessitated his stay in the hospital for approximately seven (7) months was the negligence of Completo who, at the time of the accident, was in the employ of Abiad. The pain he suffered required him to undergo medical physiotherapy for a number of years to regain normality of his left knee joint, and he claimed that he incurred actual damages totaling Two Hundred Seventy-Six Thousand Five Hundred Fifty Pesos (P276,550.00), inclusive of his anticipated operations.[9] He further stated that aggravating the physical sufferings, mental anguish, frights, serious anxiety, besmirched reputation, wounded feelings, moral shock, and social humiliation resulting from his injuries, his wife abandoned him in May 1998, and left their children in his custody. He thus demanded the amount of Six Hundred Thousand Pesos (P600,000.00) as moral damages. He likewise asked for exemplary damages in the amount of Two Hundred Thousand Pesos (P200,000.00) and attorneys fees of Twenty-Five Thousand Pesos (P25,000.00), plus One Thousand Pesos (P1,000.00) per court appearance.[10] In his answer to the amended complaint, Completo alleged that, on August 27, 1997, he was carefully driving the taxicab along 8th Street, VAB, when suddenly he heard a strange sound from the rear right side of the taxicab. When he stopped to investigate, he found Albayda lying on the road and holding his left leg. He immediately rendered assistance and brought Albayda to PAFGH for emergency treatment.[11] Completo also asserted that he was an experienced driver who, in accordance with traffic rules and regulations and common courtesy to his fellow motorists, had already reduced his speed to twenty (20) kilometers per hour even before reaching the intersection of 8th and 11th Streets. In contrast, Albayda rode his bicycle at a very high speed, causing him to suddenly lose control of the bicycle and hit the rear door on the right side of the taxicab.[12] The deep indentation on the rear right door of the taxicab was caused by the impact of Albaydas body that hit the taxicab after he had lost control of the bicycle; while the slight indentation on the right front door of the taxicab was caused by the impact of the bike that hit the taxicab after Albayda let go of its handles when he had lost control of it.[13] Completo maintained that Albayda had no cause of action. The accident and the physical injuries suffered by Albayda were caused by his own negligence, and his purpose in filing the complaint was to harass petitioners and unjustly enrich himself at their expense.[14]
After submission of the parties respective pleadings, a pretrial conference was held. On December 8, 1998, the RTC issued a pretrial order. Thereafter, trial on the merits ensued.[15] Albayda presented himself, Michael Navarro (Navarro), Dr. Rito Barrosa, Jr. (Dr. Barrosa), Dr. Armando Sta. Ana, Jr., Dr. Ranny Santiago, (Dr. Santiago), and Dr. Manuel Fidel Magtira (Dr. Magtira) as witnesses in open court.[16]
On direct examination, Navarro testified that, on August 27, 1997, at around 1:45 p.m., he saw a taxicab, with Plate No. PYD-128, coming from 11th Street, running at an unusual speed. The normal speed should have been twenty-five (25) kilometers per hour. He was at the corner of 9th and 8th Streets when the taxicab passed by him. The side of the bicycle was hit by the taxicab at the intersection of 11th and 8th Streets. He saw Albayda fall to the ground, grimacing in pain. The taxicab at that moment was about ten (10) meters away from Albayda. On cross-examination, Navarro reiterated that the taxicab was running quite fast. The bicycle ridden by Albayda reached the intersection of 8th and 11th Streets before the taxicab hit it.[17]

Dr. Santiago, the orthopedic surgeon who treated Albayda when the latter was admitted at AFPMC, testified that the cause of the injury was hard impact, and recommended an operation to alleviate the suffering. On cross-examination, he said that there was a separation of the fragments of the proximal leg, the injured extremity, called levia. They placed the victim on knee traction or calcaneal traction,[18] in order to avoid further swelling. They bore the calcanean bone with a stainless steel pin so that they could put five percent (5%) of the body weight of the patient to cool down the leg. He treated Albayda for three (3) months. He recommended surgery, but the victim had other medical problems, like an increase in sugar level, and they were waiting for the availability of the implant. The implant was supposed to be placed on the lateral aspect of the proximal leg or the levia, the part with the separation. It was a long implant with screws.[19] Dr. Magtira testified that Albayda was readmitted at AFPMC on January 25, 1999 because of complaints of pain and limitation of motion on the knee joint. Upon evaluation, the pain was caused by traumatic arthritis brought about by malunion of the lateral trivial condial. An operation of the soft tissue release was conducted for him to mobilize his knee joint and attain proper range of motion. After the operation, Albayda attained functional range of motion, but because of subsisting pain, they had to do osteoplasty[20] of the malunion, which was another operation. On cross-examination, Dr. Magtira testified that he rendered free medical service at AFPMC.[21] Albayda testified that he was thirty-six (36) years old and a soldier of the Armed Forces of the Philippines. On August 27, 1997, at around 1:40 p.m., he was riding his bike on his way to the office, located on 916 Street, VAB. He had to stop at the corner of 11th and 8th Streets because an oncoming taxicab was moving fast. However, the taxicab still bumped the front tire of his bike, hit his left knee and threw him off until he fell down on the road. The taxicab stopped about ten meters away, and then moved backwards. Its driver, Completo, just stared at him. When somebody shouted to bring him to the hospital, two (2) persons, one of whom was Dr. Barrosa, helped him and carried him into the taxicab driven by Completo, who brought him to PAFGH.[22] Upon examination, it was found that Albayda suffered fracture in his left knee and that it required an operation. No orthopedic doctor was available at PAFGH. Thus, he was transferred that same afternoon to AFPMC, where he was confined until February 11, 1998.[23] At AFPMC, Albaydas left leg was drilled on and attached to traction. When his leg was drilled, it was so painful that he had to shout. After his release from the hospital, he continued to suffer pain in his leg. He underwent reflexology and therapy which offered temporary relief from pain. But after some time, he had to undergo therapy and reflexology again.[24]

On January 25, 1999, Albayda was readmitted at AFPMC and operated on. On June 24, 1999, he was operated on again. Wire and screw were installed so that he could bend his knee. Nonetheless, he continued to suffer pain. As of the date of his testimony in court, he was scheduled for another operation in January 2000, when the steel that would be installed in his leg arrives.[25] For his food, Albayda spent Thirty Pesos (P30.00) each day during his six (6) months of confinement; for his bed pan, One Thousand Pesos (P1,000.00); for his twice weekly reflexology, Three Hundred Pesos (P300.00) every session since April 1997; for his caretaker, P300.00 per day for six months. He also asked for P600,000.00 in moral damages because Completo did not lend him a helping hand, and he would be suffering deformity for the rest of his life. He demanded P25,000.00 as attorneys fees and P1,000.00 for every court appearance of his lawyer.[26] On cross-examination, Albayda testified that, on the date of the incident, he was the base guard at VAB, and his duty was from 2 p.m. to 8 p.m. That afternoon, he was not in a hurry to go to his place of work because it was only about 1:45 p.m., and his place of work was only six (6) meters away. After the accident, he was brought to PAFGH, and at 3:00 p.m., he was brought to the AFPMC. When he was discharged from the hospital, he could no longer walk.[27]

Dr. Barrosas testimony during cross-examination emphasized that he was with 2 other persons when he carried Albayda into the taxicab driven by Completo. He was certain that it was not Completo who carried the victim into the taxicab. It was only a matter of seconds when he rushed to the scene of the accident. The taxicab backed up fifteen (15) seconds later. Albayda lay 2 meters away from the corner of 8th and 11th Streets.[28] Completo, Abiad, and Benjamin Panican (Panican) testified for the defense.[29] Completo alleged that he had been employed as taxi driver of FOJS Transport, owned by Abiad, since February 1997. On August 27, 1997, he was driving the taxicab, with Plate No. PYD-128, from 10:00 a.m. At around 1:45 p.m., he was on his way home when a bicycle bumped his taxicab at the intersection of 8th and 11th Streets, VAB. The bicycle was travelling from south to north, and he was going east coming from the west. The bicycle was coming from11th Street, while he was travelling along 8th Street.[30] On cross-examination, Completo testified that when Albayda hit the rear right door of the taxicab, the latter fell to the ground. When he heard a noise, he immediately alighted from the taxicab. He denied that he stopped about 10 meters away from the place where Albayda fell. He carried Albayda and drove him to the hospital.[31]

Panican testified that he worked as an airconditioner technician in a shop located on 8th Street corner 11th Street. On the date and time of the incident, he was working in front of the shop near the roadside. He saw a bicycle bump the rear right side of the taxicab. Then, the driver of the taxicab alighted, carried Albayda, and brought him to the hospital.[32] When questioned by the trial court, Panican testified that the bicycle was running fast and that he saw it bump the taxicab. The taxicab already passed the intersection of 11th and 8th Streets when the bicycle arrived.[33] Abiad testified that, aside from being a soldier, he was also a franchise holder of taxicabs and passenger jeepneys. When Completo applied as a driver of the taxicab, Abiad required the former to show his bio-data, NBI clearance, and drivers license. Completo never figured in a vehicular accident since the time he was employed in February 1997. Abiad averred that Completo was a good driver and a good man. Being the operator of taxicab, Abiad would wake up early and personally check all the taxicabs.[34] On July 31, 2000, the trial court rendered a decision,[35] the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiff [Albayda] and against the defendants [Completo and Abiad]. Accordingly, the defendants [Completo and Abiad] are hereby ordered to pay the plaintiff [Albayda] the following sum: 1. P46,000.00 as actual damages; 2. P400,000.00 as moral damages; [and] 3. P25,000.00 as attorneys fees. Costs against the defendants [Completo and Abiad]. SO ORDERED.[36] Completo and Abiad filed an appeal. The CA affirmed the trial court with modification in a Decision[37] dated January 2, 2006, viz.: WHEREFORE, premises considered, the appeal is DENIED for lack of merit. The assailed Decision dated 31 July 2000 rendered by the Regional Trial Court of Pasay City, Branch 117, in Civil Case No. 98-1333 is hereby AFFIRMED with the following MODIFICATIONS: 1. the award of Php 46,000.00 as actual damages is DELETED; 2. temperate damages in the amount of Php 40,000.00 is awarded in favor of appellee; 3. moral damages in favor of appellee is REDUCED to Php 200,000.00; 4. appellants Redentor Completo and Elpidio Abiad are solidarily liable to pay appellee Amando C. Albayda, Jr. said temperate and moral damages, as well as the attorneys fees in the amount of Php 25,000.00 awarded by the trial court; 5. the temperate and moral damages shall earn legal interest at 6% per annum computed from the date of promulgation of Our Decision; 6. upon finality of Our Decision, said moral and temperate damages shall earn legal interest at the rate of 12% per annum, in lieu of 6% per annum, until full payment. Costs against appellants. SO ORDERED.[38] Hence, this petition. The Issues Petitioners presented the following issues for resolution: (1) whether the CA erred in finding that Completo was the one who caused the collision;
(2) whether Abiad failed to prove that he observed the diligence of a good father of the family; and (3) whether the award of moral and temperate damages and attorneys fees to Albayda had no basis.[39] The Ruling of the Court The petition is bereft of merit. I. On Negligence The issues raised by petitioners essentially delve into factual matters which were already passed upon by the RTC and the CA. Conclusions and findings of fact of the trial court are entitled to great weight on appeal and should not be disturbed unless for strong and cogent reasons, because the trial court is in a better position to examine real evidence, as well as to observe the demeanor of the witnesses while testifying in the case. The fact that the CA adopted the findings of fact of the trial court makes the same binding upon this Court. Well-settled is the rule that the Supreme Court is not a trier of facts.[40] To be sure, findings of fact of lower courts are deemed conclusive and binding upon the Supreme Court, save only for clear and exceptional reasons,[41] none of which is present in the case at bar. The instant case involved a collision between a taxicab and a bicycle which resulted in serious physical injuries to the bicycle rider, Albayda. It is a rule in negligence suits that the plaintiff has the burden of proving by a preponderance of evidence the motorists breach in his duty of care owed to the plaintiff, that the motorist was negligent in failing to exercise the diligence required to avoid injury to the plaintiff, and that such negligence was the proximate cause of the injury suffered.[42] 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 preexisting contractual relation between the parties, is called a quasi-delict. In this regard, the question of the motorist's negligence is a question of fact.
It was proven by a preponderance of evidence that Completo failed to exercise reasonable diligence in driving the taxicab because he was over-speeding at the time he hit the bicycle ridden by Albayda. Such negligence was the sole and proximate cause of the serious physical injuries sustained by Albayda. Completo did not slow down even when he approached the intersection of 8th and 11th Streets of VAB. It was also proven that Albayda had the right of way, considering that he reached the intersection ahead of Completo. The bicycle occupies a legal position that is at least equal to that of other vehicles lawfully on the highway, and it is fortified by the fact that usually more will be required of a motorist than a bicyclist in discharging his duty of care to the other because of the physical advantages the automobile has over the bicycle.[43] At the slow speed of ten miles per hour, a bicyclist travels almost fifteen feet per second, while a car traveling at only twenty-five miles per hour covers almost thirty-seven feet per second, and split-second action may be insufficient to avoid an accident. It is obvious that a motor vehicle poses a greater danger of harm to a bicyclist than vice versa. Accordingly, while the duty of using reasonable care falls alike on a motorist and a bicyclist, due to the inherent differences in the two vehicles, more care is required from the motorist to fully discharge the duty than from the bicyclist.[44] Simply stated, the physical advantages that the motor vehicle has over the bicycle make it more dangerous to the bicyclist than vice versa.[45] Under Article 2180 of the Civil Code, the obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those persons for whom one is responsible. Employers shall be liable for the damages caused by their employees, but the employers responsibility shall cease upon proof that they observed all the diligence of a good father of the family in the selection and supervision of their employees. When an injury is caused by the negligence of an employee, a legal presumption instantly arises that the employer was negligent. This presumption may be rebutted only by a clear showing on the part of the employer that he exercised the diligence of a good father of a family in the selection and supervision of his employee. If the employer successfully overcomes the legal presumption of negligence, he is relieved of liability. In other words, the burden of proof is on the employer.[46] The trial courts finding that Completo failed to exercise reasonable care to avoid collision with Albayda at the intersection of 11th and 8th Streets of VAB gives rise to liability on the part of Completo, as driver, and his employer Abiad. The responsibility of two or more persons who are liable for quasi-delict is solidary.[47] The civil liability of the employer for the negligent acts of his employee is also primary and direct, owing to his own negligence in selecting and supervising his employee.[48] The civil liability of the employer attaches even if the employer is not inside the vehicle at the time of the collision.[49] In the selection of prospective employees, employers are required to examine them as to their qualifications, experience, and service records. On the other hand, with respect to the supervision of employees, employers should formulate standard operating procedures, monitor their implementation, and impose disciplinary measures for breaches thereof. To establish these factors in a trial involving the issue of vicarious liability, employers must submit concrete proof, including documentary evidence.[50]
Abiad testified that before he hired Completo, he required the latter to show his bio-data, NBI clearance, and drivers license. Abiad likewise stressed that Completo was never involved in a vehicular accident prior to the instant case, and that, as operator of the taxicab, he would wake up early to personally check the condition of the vehicle before it is used. The protestation of Abiad to escape liability is short of the diligence required under the law. Abiads evidence consisted entirely of testimonial evidence, and the unsubstantiated and self-serving testimony of Abiad was insufficient to overcome the legal presumption that he was negligent in the selection and supervision of his driver. II. On Damages The CA rightfully deleted the award of actual damages by the RTC because Albayda failed to present documentary evidence to establish with certainty the amount that he incurred during his hospitalization and treatment for the injuries he suffered. In the absence of stipulation, actual damages are awarded only for such pecuniary loss suffered that was duly proved.[51] While the amount of actual damages was not duly established with certainty, the Court recognizes the fact that, indeed, Albayda incurred a considerable amount for the necessary and reasonable medical expenses, loss of salary and wages, loss of capacity to earn increased wages, cost of occupational therapy, and harm from conditions caused by prolonged immobilization. Temperate damages, more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty.[52] Temperate damages must be reasonable under the circumstances.[53] Thus, the Court finds the award of One Hundred Thousand Pesos (P100,000.00) as temperate damages reasonable under the circumstances. Doubtless, Albayda suffered immeasurable pain because of the incident caused by petitioners negligence. The CA explained: The court vicariously feels the pain the plaintiff [Albayda] suffered a number of times. After he was bumped by defendants cab, he cried in pain. When the doctors bore holes into his left knee, he cried in pain. When he was tractioned, when he was subjected to an operation after operation he suffered pain. When he took the witness stand to testify, he walked with crutches, his left knee in bandage, stiff and unfuctional. Pain was written [on] his face. He does deserve moral damages.[54] Moral damages are awarded in quasi-delicts causing physical injuries. The permanent deformity and the scar left by the wounds suffered by Albayba will forever be a reminder of the pain and suffering that he had endured and continues to endure because of petitioners negligence. Thus, the award of moral damages in the amount of Five Hundred Thousand Pesos (P500,000.00) is proper. Finally, an interest rate of six percent (6%) per annum is due on the amount of P100,000.00, as temperate damages, and P500,000.00, as moral damages, which we have awarded. The 6% per annum interest rate on the temperate and moral damages shall commence to run from the date of the promulgation of this Decision. Upon finality of the Decision, an interest rate of twelve percent (12%) per annum shall be imposed on the amount of the temperate and moral damages until full payment thereof.[55] The award of attorneys fees is hereby deleted for failure to prove that petitioners acted in bad faith in refusing to satisfy respondents just and valid claim. WHEREFORE, in view of the foregoing, the Decision dated January 2, 2006 and the Resolution dated March 30, 2006 of the Court of Appeals in CA-G.R. CV No. 68405 are hereby AFFIRMED with MODIFICATION, viz.: (1) The estate of the late Redentor Completo and Elpidio Abiad are solidarily liable to pay One Hundred Thousand Pesos (P100,000.00), as temperate damages, and Five Hundred Thousand Pesos (P500,000.00), as moral damages; (2) The temperate and moral damages hereby awarded shall earn legal interest at the rate of six percent (6%) per annum from the date of the promulgation of this Decision. Upon finality of this Decision, an interest rate of twelve percent (12%) per annum shall be imposed on the amount of the temperate and moral damages until full payment thereof. Costs against petitioners. SO ORDERED.

G.R. No. 75112 October 16, 1990
FILAMER CHRISTIAN INSTITUTE, petitioner, vs. HONORABLE COURT OF APPEALS, HONORABLE ENRIQUE P. SUPLICO, in his capacity as Judge of the Regional Trial Court,. Branch XIV, Roxas City and the late POTENCIANO KAPUNAN, SR., as substituted by his heirs, namely: LEONA KAPUNAN TIANGCO, CICERO KAPUNAN, JESUS KAPUNAN, SANTIAGO KAPUNAN, POTENCIANO KAPUNAN, JR., PAZ KAPUNAN PUBLICO, SUSA KAPUNAN GENUINO and ERLINDA KAPUNAN TESORO, respondents.
Aquilina B. Brotarlo for petitioner.
Rhodora G. Kapunan for the Substituted Heirs of the late respondent.

This is a petition for review of the decision 1 of the Court of Appeals affirming the judgment of the Regional Trial Court (RTC) of Roxas City, Branch 14 in Civil Case No. V-4222 which found petitioner Filamer Christian Institute and Daniel Funtecha negligent and therefore answerable for the resulting injuries caused to private respondent Potenciano Kapunan, Sr.
Private respondent Potenciano Kapunan, Sr., an eighty-two-year old retired schoolteacher (now deceased), was struck by the Pinoy jeep owned by petitioner Filamer and driven by its alleged employee, Funtecha, as Kapunan, Sr. was walking along Roxas Avenue, Roxas City at 6:30 in the evening of October 20, 1977. As a result of the accident, Kapunan, Sr. suffered multiple injuries for which he was hospitalized for a total of twenty (20) days.
Evidence showed that at the precise time of the vehicular accident, only one headlight of the jeep was functioning. Funtecha, who only had a student driver’s permit, was driving after having persuaded Allan Masa, the authorized driver, to turn over the wheels to him. The two fled from the scene after the incident. A tricycle driver brought the unconscious victim to the hospital.
Thereafter, Kapunan, Sr. instituted a criminal case against Funtecha alone in the City Court of Roxas City for serious physical injuries through reckless imprudence. Kapunan, Sr. reserved his right to file an independent civil action. The inferior court found Funtecha guilty as charged and on appeal, his conviction was affirmed by the then Court of First Instance of Capiz. 2
Pursuant to his reservation, Kapunan, Sr. commenced a civil case for damages 3 before the RTC of Roxas City. Named defendants in the complaint were petitioner Filamer and Funtecha. Also included was Agustin Masa, the director and president of Filamer Christian Institute, in his personal capacity in that he personally authorized and allowed said Daniel Funtecha who was his houseboy at the time of the incident, to drive the vehicle in question despite his knowledge and awareness that the latter did not have the necessary license or permit to drive said vehicle. His son, Allan Masa, who was with Funtecha at the time of the accident, was not impleaded as a co-defendant. 4
On December 14, 1983, the trial court rendered judgment finding not only petitioner Filamer and Funtecha to be at fault but also Allan Masa, a non-party. Thus:
WHEREFORE, finding the averments in the complaint as supported by preponderance of evidence to be reasonable and justified, and that defendants Daniel Funtecha, Filamer Christian Institute and Allan Masa are at fault and negligent of the acts complained of which causes (sic) injury to plaintiff, judgment is hereby rendered in favor of the plaintiff and against the defendants, namely: Daniel Funtecha and Filamer Christian Institute, the employer whose liability is primary and direct, jointly and severally, to pay plaintiff the following:
(1) to pay the sum of TWO THOUSAND NINE HUNDRED FIFTY PESOS AND FIFTY CENTAVOS (P2,950.50) as medical expenses (Exh. “A”);
(2) to pay TWO HUNDRED FORTY ONE PESOS (P241.00) as doctor’s fee (Exh. “C”);
(3) to pay THREE HUNDRED NINETY PESOS (P390.00) as additional expenses incurred for thirty-nine days at P10.00 a day, for remuneration of plaintiff’s helper while recuperating;
(4) to pay FOUR THOUSAND PESOS (P4,000.00) as Court litigation expenses;
(5) to pay THREE THOUSAND PESOS (P3,000.00) as loss of earnings capacity;
(6) to pay TWENTY THOUSAND (P20,000.00) pesos as moral damages;
(7) to pay FOUR THOUSAND FIVE HUNDRED PESOS (P4,500.00) as attorney’s fees;
(8) to pay TWENTY THOUSAND PESOS (P20,000.00)as insurance indemnity on the policy contract; and without prejudice to the right of defendant Filamer Christian Institute to demand from co-defendant Daniel Funtecha part-time employee and/or Allan Masa a full time employee reimbursement of the damages paid to herein plaintiff.
The defendant Agustin Masa as director of defendant Filamer Christian Institute has also failed to exercise the diligence required of a good father of a family in the supervision of his employee Allan Masa, being his son. However, the court absolved defendant Agustin Masa from any personal liability with respect to the complaint filed against him in his personal and private capacity, cause he was not in the vehicle during the alleged incident.
For failure to prove their respective counterclaims filed by the defendant Daniel Funtecha, Dr. Agustin Masa, and Filamer Christian Institute, as against the herein plaintiff, same are hereby dismissed.
The Zenith Insurance Corporation as third party defendant has failed to prove that there was a policy violation made by the defendant Filamer Christian Institute which absolves them from liability under the aforesaid insurance policy. The record shows that the defendant Daniel Funtecha while driving the said vehicle was having a student drivers license marked Exh. “1” and accompanied by Allan Masa who is the authorized driver of said vehicle with a professional drivers license as shown by Exh. “3”.
This Court finds that defendant Daniel Funtecha while driving the said vehicle is considered as authorized driver in accordance with the policy in question marked Exh. “2-Masa and FCI”.
Finding the averments in the third party complaint filed by defendant Filamer Christian Institute as supported by preponderance of evidence as shown by their exhibits to be reasonable and justified, judgment is hereby rendered in favor of the said defendant and third party plaintiff Filamer Christian Institute as against third party defendant Zenith Insurance Corporation.
The Zenith Insurance Corporation as third party defendant is hereby ordered to pay in favor of the defendant and third party plaintiff, Filamer Christian Institute, the following:
(1) to pay TWENTY THOUSAND PESOS (P20,000.00) as third party liability as provided in the Zenith Insurance Corporation policy (Exh. “2”);
(2) to pay TEN THOUSAND PESOS (P10,000.00)as moral damages;
(3) to pay FOUR THOUSAND PESOS (P4,000.00) as Court litigation and actual expenses;
(4) to pay THREE THOUSAND PESOS (P3,000.00) as attorney’s fees;
The defendants Daniel Funtecha, Filamer Christian Institute and third party defendant Zenith Insurance Corporation are hereby ordered jointly and severally, to pay the costs of the suit. 5
Only petitioner Filamer and third-party defendant Zenith Insurance Corporation appealed the lower court’s judgment to the Court of Appeals and as a consequence, said lower court’s decision became final as to Funtecha. For failure of the insurance firm to pay the docket fees, its appeal was dismissed on September 18, 1984. On December 17, 1985, the Appellate Court rendered the assailed judgment affirming the trial court’s decision in toto.6 Hence the present recourse by petitioner Filamer.
It is petitioner Filamer’s basic contention that it cannot be held responsible for the tortious act of Funtecha on the ground that there is no existing employer-employee relationship between them. We agree.
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. 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.
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. xxx xxx xxx
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxx xxx xxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observe all the diligence of a good father of a family to prevent damage. (Emphasis supplied).
The legal issue in this appeal is whether or not the term “employer” as used in Article 2180 is applicable to petitioner Filamer with reference to Funtecha.
In disclaiming liability, petitioner Filamer has invoked the provisions of the Labor Code, 7 specifically Section 14, Rule X of Book III which reads:
Sec. 14. Working scholars. — There is no employer-employee relationship between students on the one hand, and schools, colleges or universities on the other, where students work for the latter in exchange for the privilege to study free of charge; provided the students are given real opportunity, including such facilities as may be reasonable, necessary to finish their chosen court under such arrangement. (Emphasis supplied).
It is manifest that under the just-quoted provision of law, petitioner Filamer cannot be considered as Funtecha’s employer. Funtecha belongs to that special category of students who render service to the school in exchange for free tuition Funtecha worked for petitioner for two hours daily for five days a week. He was assigned to clean the school passageways from 4:00 a.m. to 6:00 a.m. with sufficient time to prepare for his 7:30 a.m. classes. As admitted by Agustin Masa in open court, Funtecha was not included in the company payroll. 8
The wording of Section 14 is clear and explicit and leaves no room for equivocation. To dismiss the implementing rule as one which governs only the “personal relationship” between the school and its students and not where there is already a third person involved, as espoused by private respondents, is to read into the law something that was not legislated there in the first place. The provision of Section 14 is obviously intended to eliminate an erstwhile gray area in labor relations and seeks to define in categorical terms the precise status of working scholars in relation to the learning institutions in which they work for the privilege of a free education.
But even if we were to concede the status of an employee on Funtecha, still the primary responsibility for his wrongdoing cannot be imputed to petitioner Filamer for the plain reason that at the time of the accident, it has been satisfactorily shown that Funtecha was not acting within the scope of his supposed employment. His duty was to sweep the school passages for two hours every morning before his regular classes. Taking the wheels of the Pinoy jeep from the authorized driver at 6:30 in the evening and then driving the vehicle in a reckless manner resulting in multiple injuries to a third person were certainly not within the ambit of his assigned tasks. In other words, at the time of the injury, Funtecha was not engaged in the execution of the janitorial services for which he was employed, but for some purpose of his own. It is but fair therefore that Funtecha should bear the full brunt of his tortious negligence. Petitioner Filamer cannot be made liable for the damages he had caused.
Private respondents’ attempt to hold petitioner Filamer directly and primarily answerable to the injured party under Article 2180 of the Civil Code would have prospered had they proceeded against Allan Masa, the authorized driver of the Pinoy jeep and undisputably an employee of petitioner. It was Allan’s irresponsible act of entrusting the wheels of the vehicle to the inexperienced Funtecha which set into motion the chain of events leading to the accident resulting in injuries to Kapunan, Sr. But under the present set of circumstances, even if the trial court did find Allan guilty of negligence, such conclusion would not be binding on Allan. It must be recalled that Allan was never impleaded in the complaint for damages and should be considered as a stranger as far as the trial court’s judgment is concerned. It is axiomatic that no man shall be affected by a proceeding to which he is a stranger. 9
WHEREFORE, in view of the foregoing, the decision under review of the Court of Appeals is hereby SET ASIDE. The complaint for damages 10 is ordered DISMISSED as against petitioner Filamer Christian Institute for lack of cause of action. No costs.
SO ORDERED.

G.R. No. 75112 August 17, 1992
FILAMER CHRISTIAN INSTITUTE, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT, HON. ENRIQUE P. SUPLICO, in his capacity as Judge of the Regional Trial Court, Branch XIV, Roxas City and POTENCIANO KAPUNAN, SR., respondents.
Bedona & Bedona Law Office for petitioner.
Rhodora G. Kapunan for private respondents. GUTIERREZ, JR., J.:
The private respondents, heirs of the late Potenciano Kapunan, seek reconsideration of the decision rendered by this Court on October 16, 1990 (Filamer Christian Institute v. Court of Appeals, 190 SCRA 477) reviewing the appellate court's conclusion that there exists an employer-employee relationship between the petitioner and its co-defendant Funtecha. The Court ruled that the petitioner is not liable for the injuries caused by Funtecha on the grounds that the latter was not an authorized driver for whose acts the petitioner shall be directly and primarily answerable, and that Funtecha was merely a working scholar who, under Section 14, Rule X, Book III of the Rules and Regulations Implementing the Labor Code is not considered an employee of the petitioner.
The private respondents assert that the circumstances obtaining in the present case call for the application of Article 2180 of the Civil Code since Funtecha is no doubt an employee of the petitioner. The private respondents maintain that under Article 2180 an injured party shall have recourse against the servant as well as the petitioner for whom, at the time of the incident, the servant was performing an act in furtherance of the interest and for the benefit of the petitioner. Funtecha allegedly did not steal the school jeep nor use it for a joy ride without the knowledge of the school authorities.
After a re-examination of the laws relevant to the facts found by the trial court and the appellate court, the Court reconsiders its decision. We reinstate the Court of Appeals' decision penned by the late Justice Desiderio Jurado and concurred in by Justices Jose C. Campos, Jr. and Serafin E. Camilon. Applying Civil Code provisions, the appellate court affirmed the trial court decision which ordered the payment of the P20,000.00 liability in the Zenith Insurance Corporation policy, P10,000.00 moral damages, P4,000.00 litigation and actual expenses, and P3,000.00 attorney's fees.
It is undisputed that Funtecha was a working student, being a part-time janitor and a scholar of petitioner Filamer. He was, in relation to the school, an employee even if he was assigned to clean the school premises for only two (2) hours in the morning of each school day.
Having a student driver's license, Funtecha requested the driver, Allan Masa, and was allowed, to take over the vehicle while the latter was on his way home one late afternoon. It is significant to note that the place where Allan lives is also the house of his father, the school president, Agustin Masa. Moreover, it is also the house where Funtecha was allowed free board while he was a student of Filamer Christian Institute.
Allan Masa turned over the vehicle to Funtecha only after driving down a road, negotiating a sharp dangerous curb, and viewing that the road was clear. (TSN, April 4, 1983, pp. 78-79) According to Allan's testimony, a fast moving truck with glaring lights nearly hit them so that they had to swerve to the right to avoid a collision. Upon swerving, they heard a sound as if something had bumped against the vehicle, but they did not stop to check. Actually, the Pinoy jeep swerved towards the pedestrian, Potenciano Kapunan who was walking in his lane in the direction against vehicular traffic, and hit him. Allan affirmed that Funtecha followed his advise to swerve to the right. (Ibid., p. 79) At the time of the incident (6:30 P.M.) in Roxas City, the jeep had only one functioning headlight.
Allan testified that he was the driver and at the same time a security guard of the petitioner-school. He further said that there was no specific time for him to be off-duty and that after driving the students home at 5:00 in the afternoon, he still had to go back to school and then drive home using the same vehicle.
Driving the vehicle to and from the house of the school president where both Allan and Funtecha reside is an act in furtherance of the interest of the petitioner-school. Allan's job demands that he drive home the school jeep so he can use it to fetch students in the morning of the next school day.
It is indubitable under the circumstances that the school president had knowledge that the jeep was routinely driven home for the said purpose. Moreover, it is not improbable that the school president also had knowledge of Funtecha's possession of a student driver's license and his desire to undergo driving lessons during the time that he was not in his classrooms.
In learning how to drive while taking the vehicle home in the direction of Allan's house, Funtecha definitely was not having a joy ride. Funtecha was not driving for the purpose of his enjoyment or for a "frolic of his own" but ultimately, for the service for which the jeep was intended by the petitioner school. (See L. Battistoni v. Thomas, Can SC 144, 1 D.L.R. 577, 80 ALR 722 [1932]; See also Association of Baptists for World Evangelism, Inc. v. Fieldmen's Insurance Co., Inc. 124 SCRA 618 [1983]). Therefore, the Court is constrained to conclude that the act of Funtecha in taking over the steering wheel was one done for and in behalf of his employer for which act the petitioner-school cannot deny any responsibility by arguing that it was done beyond the scope of his janitorial duties. The clause "within the scope of their assigned tasks" for purposes of raising the presumption of liability of an employer, includes any act done by an employee, in furtherance of the interests of the employer or for the account of the employer at the time of the infliction of the injury or damage. (Manuel Casada, 190 Va 906, 59 SE 2d 47 [1950]) Even if somehow, the employee driving the vehicle derived some benefit from the act, the existence of a presumptive liability of the employer is determined by answering the question of whether or not the servant was at the time of the accident performing any act in furtherance of his master's business. (Kohlman v. Hyland, 210 NW 643, 50 ALR 1437 [1926]; Jameson v. Gavett, 71 P 2d 937 [1937])
Section 14, Rule X, Book III of the Rules implementing the Labor Code, on which the petitioner anchors its defense, was promulgated by the Secretary of Labor and Employment only for the purpose of administering and enforcing the provisions of the Labor Code on conditions of employment. Particularly, Rule X of Book III provides guidelines on the manner by which the powers of the Labor Secretary shall be exercised; on what records should be kept; maintained and preserved; on payroll; and on the exclusion of working scholars from, and inclusion of resident physicians in the employment coverage as far as compliance with the substantive labor provisions on working conditions, rest periods, and wages, is concerned.
In other words, Rule X is merely a guide to the enforcement of the substantive law on labor. The Court, thus, makes the distinction and so holds that Section 14, Rule X, Book III of the Rules is not the decisive law in a civil suit for damages instituted by an injured person during a vehicular accident against a working student of a school and against the school itself.
The present case does not deal with a labor dispute on conditions of employment between an alleged employee and an alleged employer. It invokes a claim brought by one for damages for injury caused by the patently negligent acts of a person, against both doer-employee and his employer. Hence, the reliance on the implementing rule on labor to disregard the primary liability of an employer under Article 2180 of the Civil Code is misplaced. An implementing rule on labor cannot be used by an employer as a shield to avoid liability under the substantive provisions of the Civil Code.
There is evidence to show that there exists in the present case an extra-contractual obligation arising from the negligence or reckless imprudence of a person "whose acts or omissions are imputable, by a legal fiction, to other(s) who are in a position to exercise an absolute or limited control over (him)." (Bahia v. Litonjua and Leynes, 30 Phil. 624 [1915])
Funtecha is an employee of petitioner Filamer. He need not have an official appointment for a driver's position in order that the petitioner may be held responsible for his grossly negligent act, it being sufficient that the act of driving at the time of the incident was for the benefit of the petitioner. Hence, the fact that Funtecha was not the school driver or was not acting within the scope of his janitorial duties does not relieve the petitioner of the burden of rebutting the presumption juris tantum that there was negligence on its part either in the selection of a servant or employee, or in the supervision over him. The petitioner has failed to show proof of its having exercised the required diligence of a good father of a family over its employees Funtecha and Allan.
The Court reiterates that supervision includes the formulation of suitable rules and regulations for the guidance of its employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his employees. (Bahia v. Litonjua and Leynes, supra, at p. 628; Phoenix Construction, v. Intermediate Appellate Court, 148 SCRA 353 [1987])
An employer is expected to impose upon its employees the necessary discipline called for in the performance of any act indispensable to the business and beneficial to their employer.
In the present case, the petitioner has not shown that it has set forth such rules and guidelines as would prohibit any one of its employees from taking control over its vehicles if one is not the official driver or prohibiting the driver and son of the Filamer president from authorizing another employee to drive the school vehicle. Furthermore, the petitioner has failed to prove that it had imposed sanctions or warned its employees against the use of its vehicles by persons other than the driver.
The petitioner, thus, has an obligation to pay damages for injury arising from the unskilled manner by which Funtecha drove the vehicle. (Cangco v. Manila Railroad Co., 38 Phil. 768, 772 [1918]). In the absence of evidence that the petitioner had exercised the diligence of a good father of a family in the supervision of its employees, the law imposes upon it the vicarious liability for acts or omissions of its employees. (Umali v. Bacani, 69 SCRA 263 [1976]; Poblete v. Fabros, 93 SCRA 200 [1979]; Kapalaran Bus Liner v. Coronado, 176 SCRA 792 [1989]; Franco v. Intermediate Appellate Court, 178 SCRA 331 [1989]; Pantranco North Express, Inc. v. Baesa, 179 SCRA 384 [1989]) The liability of the employer is, under Article 2180, primary and solidary. However, the employer shall have recourse against the negligent employee for whatever damages are paid to the heirs of the plaintiff.
It is an admitted fact that the actual driver of the school jeep, Allan Masa, was not made a party defendant in the civil case for damages. This is quite understandable considering that as far as the injured pedestrian, plaintiff Potenciano Kapunan, was concerned, it was Funtecha who was the one driving the vehicle and presumably was one authorized by the school to drive. The plaintiff and his heirs should not now be left to suffer without simultaneous recourse against the petitioner for the consequent injury caused by a janitor doing a driving chore for the petitioner even for a short while. For the purpose of recovering damages under the prevailing circumstances, it is enough that the plaintiff and the private respondent heirs were able to establish the existence of employer-employee relationship between Funtecha and petitioner Filamer and the fact that Funtecha was engaged in an act not for an independent purpose of his own but in furtherance of the business of his employer. A position of responsibility on the part of the petitioner has thus been satisfactorily demonstrated.
WHEREFORE, the motion for reconsideration of the decision dated October 16, 1990 is hereby GRANTED. The decision of the respondent appellate court affirming the trial court decision is REINSTATED.
SO ORDERED.

Sps. Mamaril vs. Boy Scout of the Philippines (2013) (Civil Law)
Sps. Mamaril vs. Boy Scout of the Philippines | G.R. No. 179382 | January 14, 2013

Facts: PUJ operators Sps. Mamaril would park their 6 passenger jeepneys every night at BSP’s compound in Malate, Manila for a fee of P300.00 per month for each unit. One day, one of the vehicles was missing and was never recovered. According to the security guards Peña and Gaddi of AIB Security Agency with whom BSP had contracted for its security and protection, a male person who looked familiar to them took the subject vehicle out of the compound. Sps. Mamaril prayed that Peña and Gaddi, together with AIB and BSP, be held liable for: (a) the value of the subject vehicle; (b) amount representing daily loss of income/boundary reckoned from the day the vehicle was lost; (c) exemplary damages; (d) moral damages; (e) attorney's fees; and (f) cost of suit.

BSP denied any liability contending that not only did Sps. Mamaril directly deal with AIB with respect to the manner by which the parked vehicles would be handled, but the parking ticket itself expressly stated that the "Management shall not be responsible for loss of vehicle or any of its accessories or article left therein." It also claimed that Sps. Mamaril erroneously relied on the Guard Service Contract. Apart from not being parties thereto, its provisions cover only the protection of BSP's properties, its officers, and employees.

Issue: Whether or not BSP may be held liable for the loss of the vehicle caused by the negligence of its security guards.

Held: The proximate cause of the loss of Sps. Mamaril's vehicle was the negligent act of security guards Peña and Gaddi in allowing an unidentified person to drive out the subject vehicle. The records are bereft of any finding of negligence on the part of BSP. Neither will the vicarious liability of an employer under Article 2180 of the Civil Code apply in this case. Peña and Gaddi were assigned as security guards by AIB to BSP pursuant to the Guard Service Contract. No employer-employee relationship existed between BSP and the security guards assigned in its premises. Sps. Mamaril are not parties to the Guard Service Contract. Guard Service Contract between defendant-appellant BSP and defendant AIB Security Agency is purely between the parties therein.

Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent. If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and deliberately conferred a favor upon a third person.

Thus, in order that a third person benefited by the second paragraph of Article 1311, referred to as a stipulation pour autrui, may demand its fulfillment, the following requisites must concur: (1) There is a stipulation in favor of a third person; (2) The stipulation is a part, not the whole, of the contract; (3) The contracting parties clearly and deliberately conferred a favor to the third person - the favor is not merely incidental; (4) The favor is unconditional and uncompensated; (5) The third person communicated his or her acceptance of the favor before its revocation; and (6) The contracting parties do not represent, or are not authorized, by the third party. However, none of the foregoing elements obtains in this case.There is absolutely nothing in the said contract that would indicate any obligation and/or liability on the part of the parties therein in favor of third persons such as herein plaintiffs-appellees.

Moreover, the Court concurs with the finding of the CA that the contract between the parties herein was one of lease as defined under Article 1643 of the Civil Code. It has been held that the act of parking a vehicle in a garage, upon payment of a fixed amount, is a lease. The agreement with respect to the ingress and egress of Sps. Mamaril's vehicles were coordinated only with AIB and its security guards, without the knowledge and consent of BSP. Accordingly, the mishandling of the parked vehicles that resulted in herein complained loss should be recovered only from the tort feasors (Peña and Gaddi) and their employer, AIB; and not against the lessor, BSP.

SPOUSES BENJAMIN C. MAMARIL AND SONIA P. MAMARIL VS. THE BOY SCOUT OF THE PHILIPPINES, AIB SECURITY AGENCY, INC., CESARIO PEÑA,* AND VICENTE GADDI, G.R. No. 179382, January 14, 2013

In this case, it is undisputed that the proximate cause of the loss of Sps. Mamaril’s vehicle was the negligent act of security guards Peña and Gaddi in allowing an unidentified person to drive out the subject vehicle. Proximate cause has been defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury or loss, and without which the result would not have occurred.⁠1 Moreover, Peña and Gaddi failed to refute Sps. Mamaril’s contention⁠2 that they readily admitted being at fault during the investigation that ensued.

On the other hand, the records are bereft of any finding of negligence on the part of BSP. Hence, no reversible error was committed by the CA in absolving it from any liability for the loss of the subject vehicle based on fault or negligence.

Neither will the vicarious liability of an employer under Article 2180⁠3 of the Civil Code apply in this case. It is uncontested that Peña and Gaddi were assigned as security guards by AIB to BSP pursuant to the Guard Service Contract. Clearly, therefore, no employer-employee relationship existed between BSP and the security guards assigned in its premises. Consequently, the latter’s negligence cannot be imputed against BSP but should be attributed to AIB, the true employer of Peña and Gaddi.⁠4

In the case of Soliman, Jr. v. Tuazon,⁠5 the Court enunciated thus:

It is settled 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 and 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. 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. Those instructions or directions are ordinarily no more than requests commonly envisaged in the contract for services entered into with the security agency.⁠6

Nor can it be said that a principal-agent relationship existed between BSP and the security guards Peña and Gaddi as to make the former liable for the latter’s complained act. Article 1868 of the Civil Code states that “[b]y the contract of agency, a person binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of the latter.”

The basis for agency therefore is representation,⁠7 which element is absent in the instant case. Records show that BSP merely hired the services of AIB, which, in turn, assigned security guards, solely for the protection of its properties and premises. Nowhere can it be inferred in the Guard Service Contract that AIB was appointed as an agent of BSP. Instead, what the parties intended was a pure principal-client relationship whereby for a consideration, AIB rendered its security services to BSP.

PROFESSIONAL SERVICES, G.R. No. 126297
INC., - v e r s u s THE COURT OF APPEALS and NATIVIDAD and ENRIQUE
AGANA, NATIVIDAD [substituted by her G.R. No. 126467 children Marcelino Agana III,
Enrique Agana, Jr.,
Emma Agana-Andaya,
Jesus Agana and Raymund
Agana] and ENRIQUE AGANA,
Petitioners,- v e r s u s - THE COURT OF APPEALS and JUAN FUENTES,
Respondents.
x - - - - - - - - - - - - - - - - - - - x
MIGUEL AMPIL, G.R. No. 127590- v e r s u s -NATIVIDAD and ENRIQUE AGANA, February 2, 2010 With prior leave of court,[1] petitioner Professional Services, Inc. (PSI) filed a second motion for reconsideration[2] urging 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 referral[8] 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 complaint[10] 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 gauzes[11]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 decision[12] 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] On petition for review, this Court, in its January 31, 2007 decision, affirmed the CA decision.[15] PSI filed a motion for reconsideration[16] 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 theDecember 29, 1999 decision in Ramos v. Court of Appeals[18] that for purposes of allocating responsibility in medical negligence cases, an employer-employee relationship exists between hospitals and their consultants.[19]Although the Court in Ramos later issued a Resolution dated April 11, 2002[20] 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 employer-employee 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 2176[34] in relation to Article 2180[35] 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 1431[36] and Article 1869[37] 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. 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 decision[41] and April 11, 2002 resolution[42] 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 itsMarch 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 appealed[44] 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 employer-employee 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 patients 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 toMedical 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. 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 tobe 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 reviewof 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 prominence[57]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.[62]Furthermore, 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 Natividads 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 Natividads 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 doctor-consultant 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 PSIs 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 doctors-consultants 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 areNOTED. 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. ROGELIO P. NOGALES, G.R. No. 142625 for himself and on behalf of the minors,
ROGER ANTHONY, Present:
ANGELICA, NANCY, and
MICHAEL CHRISTOPHER, QUISUMBING, J., all surnamed NOGALES, Chairperson,
Petitioners - versus - CAPITOL MEDICAL CENTER,
DR. OSCAR ESTRADA,
DR. ELY VILLAFLOR,
DR. ROSA UY,
DR. JOEL ENRIQUEZ,
DR. PERPETUA LACSON,
DR. NOE ESPINOLA, and Promulgated:
NURSE J. DUMLAO,
Respondents. December 19, 2006 This petition for review[1] assails the 6 February 1998 Decision[2] and 21 March 2000 Resolution[3] of the Court of Appeals in CA-G.R. CV No. 45641. The Court of Appeals affirmed in toto the 22 November 1993 Decision[4] of the Regional Trial Court of Manila, Branch 33, finding Dr. Oscar Estrada solely liable for damages for the death of his patient, Corazon Nogales, while absolving the remaining respondents of any liability. The Court of Appeals denied petitioners motion for reconsideration. The Facts Pregnant with her fourth child, Corazon Nogales (Corazon), who was then 37 years old, was under the exclusive prenatal care of Dr. Oscar Estrada (Dr. Estrada) beginning on her fourth month of pregnancy or as early as December 1975. While Corazon was on her last trimester of pregnancy, Dr. Estrada noted an increase in her blood pressure and development of leg edema[5] indicating preeclampsia,[6] which is a dangerous complication of pregnancy.[7] Around midnight of 25 May 1976, Corazon started to experience mild labor pains prompting Corazon and Rogelio Nogales (Spouses Nogales) to see Dr. Estrada at his home. After examining Corazon, Dr. Estrada advised her immediate admission to the Capitol Medical Center (CMC). On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the staff nurse noted the written admission request[8] of Dr. Estrada. Upon Corazons admission at the CMC, Rogelio Nogales (Rogelio) executed and signed the Consent on Admission and Agreement[9] and Admission Agreement.[10] Corazon was then brought to the labor room of the CMC. Dr. Rosa Uy (Dr. Uy), who was then a resident physician of CMC, conducted an internal examination of Corazon. Dr. Uy then called up Dr. Estrada to notify him of her findings. Based on the Doctors Order Sheet,[11] around 3:00 a.m., Dr. Estrada ordered for 10 mg. of valium to be administered immediately by intramuscular injection. Dr. Estrada later ordered the start of intravenous administration of syntocinon admixed with dextrose, 5%, in lactated Ringers solution, at the rate of eight to ten micro-drops per minute. According to the Nurses Observation Notes,[12] Dr. Joel Enriquez (Dr. Enriquez), an anesthesiologist at CMC, was notified at 4:15 a.m. of Corazons admission. Subsequently, when asked if he needed the services of an anesthesiologist, Dr. Estrada refused. Despite Dr. Estradas refusal, Dr. Enriquez stayed to observe Corazons condition. At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of the CMC. At 6:10 a.m., Corazons bag of water ruptured spontaneously. At 6:12 a.m., Corazons cervix was fully dilated. At 6:13 a.m., Corazon started to experience convulsions. At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of magnesium sulfate. However, Dr. Ely Villaflor (Dr. Villaflor), who was assisting Dr. Estrada, administered only 2.5 grams of magnesium sulfate. At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low forceps to extract Corazons baby. In the process, a 1.0 x 2.5 cm. piece of cervical tissue was allegedly torn. The baby came out in an apnic, cyanotic, weak and injured condition. Consequently, the baby had to be intubated and resuscitated by Dr. Enriquez and Dr. Payumo. At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding which rapidly became profuse. Corazons blood pressure dropped from 130/80 to 60/40 within five minutes. There was continuous profuse vaginal bleeding. The assisting nurse administered hemacel through a gauge 19 needle as a side drip to the ongoing intravenous injection of dextrose. At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching with bottled blood. It took approximately 30 minutes for the CMC laboratory, headed by Dr. Perpetua Lacson (Dr. Lacson), to comply with Dr. Estradas order and deliver the blood. At 8:00 a.m., Dr. Noe Espinola (Dr. Espinola), head of the Obstetrics-Gynecology Department of the CMC, was apprised of Corazons condition by telephone. Upon being informed that Corazon was bleeding profusely, Dr. Espinola ordered immediate hysterectomy. Rogelio was made to sign a Consent to Operation.[13] Due to the inclement weather then, Dr. Espinola, who was fetched from his residence by an ambulance, arrived at the CMC about an hour later or at 9:00 a.m. He examined the patient and ordered some resuscitative measures to be administered. Despite Dr. Espinolas efforts, Corazon died at 9:15 a.m. The cause of death was hemorrhage, post partum.[14] On 14 May 1980, petitioners filed a complaint for damages[15] with the Regional Trial Court[16] of Manila against CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr. Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for the death of Corazon. Petitioners mainly contended that defendant physicians and CMC personnel were negligent in the treatment and management of Corazons condition. Petitioners charged CMC with negligence in the selection and supervision of defendant physicians and hospital staff. For failing to file their answer to the complaint despite service of summons, the trial court declared Dr. Estrada, Dr. Enriquez, and Nurse Dumlao in default.[17] CMC, Dr. Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed their respective answers denying and opposing the allegations in the complaint. Subsequently, trial ensued. After more than 11 years of trial, the trial court rendered judgment on 22 November 1993 finding Dr. Estrada solely liable for damages. The trial court ruled as follows: The victim was under his pre-natal care, apparently, his fault began from his incorrect and inadequate management and lack of treatment of the pre-eclamptic condition of his patient. It is not disputed that he misapplied the forceps in causing the delivery because it resulted in a large cervical tear which had caused the profuse bleeding which he also failed to control with the application of inadequate injection of magnesium sulfate by his assistant Dra. Ely Villaflor. Dr. Estrada even failed to notice the erroneous administration by nurse Dumlao of hemacel by way of side drip, instead of direct intravenous injection, and his failure to consult a senior obstetrician at an early stage of the problem. On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr. Joel Enriquez, Dr. Lacson, Dr. Espinola, nurse J. Dumlao and CMC, the Court finds no legal justification to find them civilly liable. On the part of Dra. Ely Villaflor, she was only taking orders from Dr. Estrada, the principal physician of Corazon Nogales. She can only make suggestions in the manner the patient maybe treated but she cannot impose her will as to do so would be to substitute her good judgment to that of Dr. Estrada. If she failed to correctly diagnose the true cause of the bleeding which in this case appears to be a cervical laceration, it cannot be safely concluded by the Court that Dra. Villaflor had the correct diagnosis and she failed to inform Dr. Estrada. No evidence was introduced to show that indeed Dra. Villaflor had discovered that there was laceration at the cervical area of the patients internal organ. On the part of nurse Dumlao, there is no showing that when she administered the hemacel as a side drip, she did it on her own. If the correct procedure was directly thru the veins, it could only be because this was what was probably the orders of Dr. Estrada. While the evidence of the plaintiffs shows that Dr. Noe Espinola, who was the Chief of the Department of Obstetrics and Gynecology who attended to the patient Mrs. Nogales, it was only at 9:00 a.m. That he was able to reach the hospital because of typhoon Didang (Exhibit 2). While he was able to give prescription in the manner Corazon Nogales may be treated, the prescription was based on the information given to him by phone and he acted on the basis of facts as presented to him, believing in good faith that such is the correct remedy. He was not with Dr. Estrada when the patient was brought to the hospital at 2:30 oclock a.m. So, whatever errors that Dr. Estrada committed on the patient before 9:00 oclock a.m. are certainly the errors of Dr. Estrada and cannot be the mistake of Dr. Noe Espinola. His failure to come to the hospital on time was due to fortuitous event. On the part of Dr. Joel Enriquez, while he was present in the delivery room, it is not incumbent upon him to call the attention of Dr. Estrada, Dra. Villaflor and also of Nurse Dumlao on the alleged errors committed by them. Besides, as anesthesiologist, he has no authority to control the actuations of Dr. Estrada and Dra. Villaflor. For the Court to assume that there were errors being committed in the presence of Dr. Enriquez would be to dwell on conjectures and speculations. On the civil liability of Dr. Perpetua Lacson, [s]he is a hematologist and in-charge of the blood bank of the CMC. The Court cannot accept the theory of the plaintiffs that there was delay in delivering the blood needed by the patient. It was testified, that in order that this blood will be made available, a laboratory test has to be conducted to determine the type of blood, cross matching and other matters consistent with medical science so, the lapse of 30 minutes maybe considered a reasonable time to do all of these things, and not a delay as the plaintiffs would want the Court to believe. Admittedly, Dra. Rosa Uy is a resident physician of the Capitol Medical Center. She was sued because of her alleged failure to notice the incompetence and negligence of Dr. Estrada. However, there is no evidence to support such theory. No evidence was adduced to show that Dra. Rosa Uy as a resident physician of Capitol Medical Center, had knowledge of the mismanagement of the patient Corazon Nogales, and that notwithstanding such knowledge, she tolerated the same to happen.

In the pre-trial order, plaintiffs and CMC agreed that defendant CMC did not have any hand or participation in the selection or hiring of Dr. Estrada or his assistant Dra. Ely Villaflor as attending physician[s] of the deceased. In other words, the two (2) doctors were not employees of the hospital and therefore the hospital did not have control over their professional conduct. When Mrs. Nogales was brought to the hospital, it was an emergency case and defendant CMC had no choice but to admit her. Such being the case, there is therefore no legal ground to apply the provisions of Article 2176 and 2180 of the New Civil Code referring to the vicarious liability of an employer for the negligence of its employees. If ever in this case there is fault or negligence in the treatment of the deceased on the part of the attending physicians who were employed by the family of the deceased, such civil liability should be borne by the attending physicians under the principle of respondeat superior. WHEREFORE, premises considered, judgment is hereby rendered finding defendant Dr. Estrada of Number 13 Pitimini St. San Francisco del Monte, Quezon City civilly liable to pay plaintiffs: 1) By way of actual damages in the amount of P105,000.00; 2) By way of moral damages in the amount of P700,000.00; 3) Attorneys fees in the amount of P100,000.00 and to pay the costs of suit. For failure of the plaintiffs to adduce evidence to support its [sic] allegations against the other defendants, the complaint is hereby ordered dismissed. While the Court looks with disfavor the filing of the present complaint against the other defendants by the herein plaintiffs, as in a way it has caused them personal inconvenience and slight damage on their name and reputation, the Court cannot accepts [sic] however, the theory of the remaining defendants that plaintiffs were motivated in bad faith in the filing of this complaint. For this reason defendants counterclaims are hereby ordered dismissed. SO ORDERED.[18]

Petitioners appealed the trial courts decision. Petitioners claimed that aside from Dr. Estrada, the remaining respondents should be held equally liable for negligence. Petitioners pointed out the extent of each respondents alleged liability. On 6 February 1998, the Court of Appeals affirmed the decision of the trial court.[19] Petitioners filed a motion for reconsideration which the Court of Appeals denied in its Resolution of 21 March 2000.[20]
Hence, this petition. Meanwhile, petitioners filed a Manifestation dated 12 April 2002[21] stating that respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao need no longer be notified of the petition because they are absolutely not involved in the issue raised before the [Court], regarding the liability of [CMC].[22] Petitioners stressed that the subject matter of this petition is the liability of CMC for the negligence of Dr. Estrada.[23] The Court issued a Resolution dated 9 September 2002[24] dispensing with the requirement to submit the correct and present addresses of respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court stated that with the filing of petitioners Manifestation, it should be understood that they are claiming only against respondents CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy who have filed their respective comments. Petitioners are foregoing further claims against respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court noted that Dr. Estrada did not appeal the decision of the Court of Appeals affirming the decision of the Regional Trial Court. Accordingly, the decision of the Court of Appeals, affirming the trial courts judgment, is already final as against Dr. Oscar Estrada. Petitioners filed a motion for reconsideration[25] of the Courts 9 September 2002 Resolution claiming that Dr. Enriquez, Dr. Villaflor and Nurse Dumlao were notified of the petition at their counsels last known addresses.Petitioners reiterated their imputation of negligence on these respondents. The Court denied petitioners Motion for Reconsideration in its 18 February 2004 Resolution.[26]

The Court of Appeals Ruling In its Decision of 6 February 1998, the Court of Appeals upheld the trial courts ruling. The Court of Appeals rejected petitioners view that the doctrine in Darling v. Charleston Community Memorial Hospital[27] applies to this case.According to the Court of Appeals, the present case differs from the Darling case since Dr. Estrada is an independent contractor-physician whereas the Darling case involved a physician and a nurse who were employees of the hospital. Citing other American cases, the Court of Appeals further held that the mere fact that a hospital permitted a physician to practice medicine and use its facilities is not sufficient to render the hospital liable for the physicians negligence.[28] A hospital is not responsible for the negligence of a physician who is an independent contractor.[29] The Court of Appeals found the cases of Davidson v. Conole[30] and Campbell v. Emma Laing Stevens Hospital[31] applicable to this case. Quoting Campbell, the Court of Appeals stated that where there is no proof that defendant physician was an employee of defendant hospital or that defendant hospital had reason to know that any acts of malpractice would take place, defendant hospital could not be held liable for its failure to intervene in the relationship of physician-patient between defendant physician and plaintiff. On the liability of the other respondents, the Court of Appeals applied the borrowed servant doctrine considering that Dr. Estrada was an independent contractor who was merely exercising hospital privileges. This doctrine provides that once the surgeon enters the operating room and takes charge of the proceedings, the acts or omissions of operating room personnel, and any negligence associated with such acts or omissions, are imputable to the surgeon.[32]While the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon the surgeon for their negligent acts under the doctrine of respondeat superior.[33] The Court of Appeals concluded that since Rogelio engaged Dr. Estrada as the attending physician of his wife, any liability for malpractice must be Dr. Estradas sole responsibility. While it found the amount of damages fair and reasonable, the Court of Appeals held that no interest could be imposed on unliquidated claims or damages. The Issue Basically, the issue in this case is whether CMC is vicariously liable for the negligence of Dr. Estrada. The resolution of this issue rests, on the other hand, on the ascertainment of the relationship between Dr. Estrada and CMC. The Court also believes that a determination of the extent of liability of the other respondents is inevitable to finally and completely dispose of the present controversy. The Ruling of the Court The petition is partly meritorious. On the Liability of CMC

Dr. Estradas negligence in handling the treatment and management of Corazons condition which ultimately resulted in Corazons death is no longer in issue. Dr. Estrada did not appeal the decision of the Court of Appeals which affirmed the ruling of the trial court finding Dr. Estrada solely liable for damages. Accordingly, the finding of the trial court on Dr. Estradas negligence is already final. Petitioners maintain that CMC is vicariously liable for Dr. Estradas negligence based on Article 2180 in relation to Article 2176 of the Civil Code. These provisions pertinently state: Art. 2180. The obligation imposed by article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible.
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 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. 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. Similarly, in the United States, a hospital which is the employer, master, or principal of a physician employee, servant, or agent, may be held liable for the physicians negligence under the doctrine of respondeat superior.[34] In the present case, petitioners maintain that CMC, in allowing Dr. Estrada to practice and admit patients at CMC, should be liable for Dr. Estradas malpractice. Rogelio claims that he knew Dr. Estrada as an accredited physician of CMC, though he discovered later that Dr. Estrada was not a salaried employee of the CMC.[35] Rogelio further claims that he was dealing with CMC, whose primary concern was the treatment and management of his wifes condition. Dr. Estrada just happened to be the specific person he talked to representing CMC.[36] Moreover, the fact that CMC made Rogelio sign a Consent on Admission and Admission Agreement[37] and a Consent to Operation printed on the letterhead of CMC indicates that CMC considered Dr. Estrada as a member of its medical staff. On the other hand, CMC disclaims liability by asserting that Dr. Estrada was a mere visiting physician and that it admitted Corazon because her physical condition then was classified an emergency obstetrics case.[38] CMC alleges that Dr. Estrada is an independent contractor for whose actuations CMC would be a total stranger. CMC maintains that it had no control or supervision over Dr. Estrada in the exercise of his medical profession. The Court had the occasion to determine the relationship between a hospital and a consultant or visiting physician and the liability of such hospital for that physicians negligence in Ramos v. Court of Appeals,[39] to wit: 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. This is particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physicians performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patients condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This being the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioners condition.
The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the formers responsibility under a relationship of patria potestas. x x x[40] (Emphasis supplied) While the Court in Ramos did not expound on the control test, such test essentially determines whether an employment relationship exists between a physician and a hospital based on the exercise of control over the physician as to details. Specifically, the employer (or the hospital) must have the right to control both the means and the details of the process by which the employee (or the physician) is to accomplish his task.[41] After a thorough examination of the voluminous records of this case, the Court finds no single evidence pointing to CMCs exercise of control over Dr. Estradas treatment and management of Corazons condition. It is undisputed that throughout Corazons pregnancy, she was under the exclusive prenatal care of Dr. Estrada. At the time of Corazons admission at CMC and during her delivery, it was Dr. Estrada, assisted by Dr. Villaflor, who attended to Corazon.There was no showing that CMC had a part in diagnosing Corazons condition. While Dr. Estrada enjoyed staff privileges at CMC, such fact alone did not make him an employee of CMC.[42] CMC merely allowed Dr. Estrada to use its facilities[43] when Corazon was about to give birth, which CMC considered an emergency. Considering these circumstances, Dr. Estrada is not an employee of CMC, but an independent contractor.
The question now is whether CMC is automatically exempt from liability considering that Dr. Estrada is an independent contractor-physician.
In general, a hospital is not liable for the negligence of an independent contractor-physician. There is, however, an exception to this principle. The hospital may be liable if the physician is the ostensible agent of the hospital.[44] This exception is also known as the doctrine of apparent authority.[45] In Gilbert v. Sycamore Municipal Hospital,[46] the Illinois Supreme Court explained the doctrine of apparent authority in this wise: [U]nder the doctrine of apparent authority a hospital can be held vicariously liable for the negligent acts of a physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless the patient knows, or should have known, that the physician is an independent contractor. The elements of the action have been set out as follows:

For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. The element of holding out on the part of the hospital does not require an express representation by the hospital that the person alleged to be negligent is an employee. Rather, the element is satisfied if the hospital holds itself out as a provider of emergency room care without informing the patient that the care is provided by independent contractors. The element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff relies upon the hospital to provide complete emergency room care, rather than upon a specific physician.

The doctrine of apparent authority essentially involves two factors to determine the liability of an independent-contractor physician. The first factor focuses on the hospitals manifestations and is sometimes described as an inquiry whether the hospital acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital.[47] In this regard, the hospital need not make express representations to the patient that the treating physician is an employee of the hospital; rather a representation may be general and implied.[48] The doctrine of apparent authority is a species of the doctrine of estoppel. Article 1431 of the Civil Code provides that [t]hrough estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. Estoppel rests on this rule: Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it.[49] In the instant case, CMC impliedly held out Dr. Estrada as a member of its medical staff. Through CMCs acts, CMC clothed Dr. Estrada with apparent authority thereby leading the Spouses Nogales to believe that Dr. Estrada was an employee or agent of CMC. CMC cannot now repudiate such authority. First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical staff and facilities to Dr. Estrada. Upon Dr. Estradas request for Corazons admission, CMC, through its personnel, readily accommodated Corazon and updated Dr. Estrada of her condition. Second, CMC made Rogelio sign consent forms printed on CMC letterhead. Prior to Corazons admission and supposed hysterectomy, CMC asked Rogelio to sign release forms, the contents of which reinforced Rogelios belief that Dr. Estrada was a member of CMCs medical staff.[50] The Consent on Admission and Agreement explicitly provides: KNOW ALL MEN BY THESE PRESENTS: I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del Pilar St., Malate Mla., being the father/mother/brother/sister/spouse/relative/ guardian/or person in custody of Ma. Corazon, and representing his/her family, of my own volition and free will, do consent and submit said Ma. Corazon to Dr. Oscar Estrada (hereinafter referred to as Physician) for cure, treatment, retreatment, or emergency measures, that the Physician, personally or by and through the Capitol Medical Center and/or its staff, may use, adapt, or employ such means, forms or methods of cure, treatment, retreatment, or emergency measures as he may see best and most expedient; that Ma. Corazon and I will comply with any and all rules, regulations, directions, and instructions of the Physician, the Capitol Medical Center and/or its staff; and, that I will not hold liable or responsible and hereby waive and forever discharge and hold free the Physician, the Capitol Medical Center and/or its staff, from any and all claims of whatever kind of nature, arising from directly or indirectly, or by reason of said cure, treatment, or retreatment, or emergency measures or intervention of said physician, the Capitol Medical Center and/or its staff. x x x x[51] (Emphasis supplied)

While the Consent to Operation pertinently reads, thus: I, ROGELIO NOGALES, x x x, of my own volition and free will, do consent and submit said CORAZON NOGALES to Hysterectomy, by the Surgical Staff and Anesthesiologists of Capitol Medical Center and/or whatever succeeding operations, treatment, or emergency measures as may be necessary and most expedient; and, that I will not hold liable or responsible and hereby waive and forever discharge and hold free the Surgeon, his assistants, anesthesiologists, the Capitol Medical Center and/or its staff, from any and all claims of whatever kind of nature, arising from directly or indirectly, or by reason of said operation or operations, treatment, or emergency measures, or intervention of the Surgeon, his assistants, anesthesiologists, the Capitol Medical Center and/or its staff.[52] (Emphasis supplied) Without any indication in these consent forms that Dr. Estrada was an independent contractor-physician, the Spouses Nogales could not have known that Dr. Estrada was an independent contractor. Significantly, no one from CMC informed the Spouses Nogales that Dr. Estrada was an independent contractor. On the contrary, Dr. Atencio, who was then a member of CMC Board of Directors, testified that Dr. Estrada was part of CMCs surgical staff.[53] Third, Dr. Estradas referral of Corazons profuse vaginal bleeding to Dr. Espinola, who was then the Head of the Obstetrics and Gynecology Department of CMC, gave the impression that Dr. Estrada as a member of CMCs medical staff was collaborating with other CMC-employed specialists in treating Corazon. The second factor focuses on the patients reliance. It is sometimes characterized as an inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.[54] The records show that the Spouses Nogales relied upon a perceived employment relationship with CMC in accepting Dr. Estradas services. Rogelio testified that he and his wife specifically chose Dr. Estrada to handle Corazons delivery not only because of their friends recommendation, but more importantly because of Dr. Estradas connection with a reputable hospital, the [CMC].[55] In other words, Dr. Estradas relationship with CMC played a significant role in the Spouses Nogales decision in accepting Dr. Estradas services as the obstetrician-gynecologist for Corazons delivery. Moreover, as earlier stated, there is no showing that before and during Corazons confinement at CMC, the Spouses Nogales knew or should have known that Dr. Estrada was not an employee of CMC. Further, the Spouses Nogales looked to CMC to provide the best medical care and support services for Corazons delivery. The Court notes that prior to Corazons fourth pregnancy, she used to give birth inside a clinic. Considering Corazons age then, the Spouses Nogales decided to have their fourth child delivered at CMC, which Rogelio regarded one of the best hospitals at the time.[56] This is precisely because the Spouses Nogales feared that Corazon might experience complications during her delivery which would be better addressed and treated in a modern and big hospital such as CMC. Moreover, Rogelios consent in Corazons hysterectomy to be performed by a different physician, namely Dr. Espinola, is a clear indication of Rogelios confidence in CMCs surgical staff. CMCs defense that all it did was to extend to [Corazon] its facilities is untenable. The Court cannot close its eyes to the reality that hospitals, such as CMC, are in the business of treatment. In this regard, the Court agrees with the observation made by the Court of Appeals of North Carolina in Diggs v. Novant Health, Inc.,[57] to wit: The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes [sic], as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of hospital facilities expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility. x x x (Emphasis supplied)

Likewise unconvincing is CMCs argument that petitioners are estopped from claiming damages based on the Consent on Admission and Consent to Operation. Both release forms consist of two parts. The first part gave CMC permission to administer to Corazon any form of recognized medical treatment which the CMC medical staff deemed advisable. The second part of the documents, which may properly be described as the releasing part, releases CMC and its employees from any and all claims arising from or by reason of the treatment and operation. The documents do not expressly release CMC from liability for injury to Corazon due to negligence during her treatment or operation. Neither do the consent forms expressly exempt CMC from liability for Corazons death due to negligence during such treatment or operation. Such release forms, being in the nature of contracts of adhesion, are construed strictly against hospitals. Besides, a blanket release in favor of hospitals from any and all claims, which includes claims due to bad faith or gross negligence, would be contrary to public policy and thus void. Even simple negligence is not subject to blanket release in favor of establishments like hospitals but may only mitigate liability depending on the circumstances.[58] When a person needing urgent medical attention rushes to a hospital, he cannot bargain on equal footing with the hospital on the terms of admission and operation. Such a person is literally at the mercy of the hospital. There can be no clearer example of a contract of adhesion than one arising from such a dire situation. Thus, the release forms of CMC cannot relieve CMC from liability for the negligent medical treatment of Corazon. On the Liability of the Other Respondents Despite this Courts pronouncement in its 9 September 2002[59] Resolution that the filing of petitioners Manifestation confined petitioners claim only against CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy, who have filed their comments, the Court deems it proper to resolve the individual liability of the remaining respondents to put an end finally to this more than two-decade old controversy. a) Dr. Ely Villaflor Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause of Corazons bleeding and to suggest the correct remedy to Dr. Estrada.[60] Petitioners assert that it was Dr. Villaflors duty to correct the error of Nurse Dumlao in the administration of hemacel.

The Court is not persuaded. Dr. Villaflor admitted administering a lower dosage of magnesium sulfate. However, this was after informing Dr. Estrada that Corazon was no longer in convulsion and that her blood pressure went down to a dangerous level.[61] At that moment, Dr. Estrada instructed Dr. Villaflor to reduce the dosage of magnesium sulfate from 10 to 2.5 grams. Since petitioners did not dispute Dr. Villaflors allegation, Dr. Villaflors defense remains uncontroverted. Dr. Villaflors act of administering a lower dosage of magnesium sulfate was not out of her own volition or was in contravention of Dr. Estradas order. b) Dr. Rosa Uy Dr. Rosa Uys alleged negligence consisted of her failure (1) to call the attention of Dr. Estrada on the incorrect dosage of magnesium sulfate administered by Dr. Villaflor; (2) to take corrective measures; and (3) to correct Nurse Dumlaos wrong method of hemacel administration. The Court believes Dr. Uys claim that as a second year resident physician then at CMC, she was merely authorized to take the clinical history and physical examination of Corazon.[62] However, that routine internal examination did not ipso facto make Dr. Uy liable for the errors committed by Dr. Estrada. Further, petitioners imputation of negligence rests on their baseless assumption that Dr. Uy was present at the delivery room. Nothing shows that Dr. Uy participated in delivering Corazons baby. Further, it is unexpected from Dr. Uy, a mere resident physician at that time, to call the attention of a more experienced specialist, if ever she was present at the delivery room.

c) Dr. Joel Enriquez Petitioners fault Dr. Joel Enriquez also for not calling the attention of Dr. Estrada, Dr. Villaflor, and Nurse Dumlao about their errors.[63] Petitioners insist that Dr. Enriquez should have taken, or at least suggested, corrective measures to rectify such errors. The Court is not convinced. Dr. Enriquez is an anesthesiologist whose field of expertise is definitely not obstetrics and gynecology. As such, Dr. Enriquez was not expected to correct Dr. Estradas errors. Besides, there was no evidence of Dr. Enriquezs knowledge of any error committed by Dr. Estrada and his failure to act upon such observation. d) Dr. Perpetua Lacson Petitioners fault Dr. Perpetua Lacson for her purported delay in the delivery of blood Corazon needed.[64] Petitioners claim that Dr. Lacson was remiss in her duty of supervising the blood bank staff. As found by the trial court, there was no unreasonable delay in the delivery of blood from the time of the request until the transfusion to Corazon. Dr. Lacson competently explained the procedure before blood could be given to the patient.[65] Taking into account the bleeding time, clotting time and cross-matching, Dr. Lacson stated that it would take approximately 45-60 minutes before blood could be ready for transfusion.[66] Further, no evidence exists that Dr. Lacson neglected her duties as head of the blood bank. e) Dr. Noe Espinola Petitioners argue that Dr. Espinola should not have ordered immediate hysterectomy without determining the underlying cause of Corazons bleeding. Dr. Espinola should have first considered the possibility of cervical injury, and advised a thorough examination of the cervix, instead of believing outright Dr. Estradas diagnosis that the cause of bleeding was uterine atony. Dr. Espinolas order to do hysterectomy which was based on the information he received by phone is not negligence. The Court agrees with the trial courts observation that Dr. Espinola, upon hearing such information about Corazons condition, believed in good faith that hysterectomy was the correct remedy. At any rate, the hysterectomy did not push through because upon Dr. Espinolas arrival, it was already too late. At the time, Corazon was practically dead. f) Nurse J. Dumlao In Moore v. Guthrie Hospital Inc.,[67] the US Court of Appeals, Fourth Circuit, held that to recover, a patient complaining of injuries allegedly resulting when the nurse negligently injected medicine to him intravenously instead of intramuscularly had to show that (1) an intravenous injection constituted a lack of reasonable and ordinary care; (2) the nurse injected medicine intravenously; and (3) such injection was the proximate cause of his injury. In the present case, there is no evidence of Nurse Dumlaos alleged failure to follow Dr. Estradas specific instructions. Even assuming Nurse Dumlao defied Dr. Estradas order, there is no showing that side-drip administration of hemacel proximately caused Corazons death. No evidence linking Corazons death and the alleged wrongful hemacel administration was introduced. Therefore, there is no basis to hold Nurse Dumlao liable for negligence. On the Award of Interest on Damages The award of interest on damages is proper and allowed under Article 2211 of the Civil Code, which states that in crimes and quasi-delicts, interest as a part of the damages may, in a proper case, be adjudicated in the discretion of the court.[68] WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds respondent Capitol Medical Center vicariously liable for the negligence of Dr. Oscar Estrada. The amounts of P105,000 as actual damages and P700,000 as moral damages should each earn legal interest at the rate of six percent (6%) per annum computed from the date of the judgment of the trial court. The Court affirms the rest of the Decision dated 6 February 1998 and Resolution dated 21 March 2000 of the Court of Appeals in CA-G.R. CV No. 45641. SO ORDERED. FILCAR TRANSPORT SERVICES, - versus - JOSE A. ESPINAS, G.R. No. 174156 June 20, 2012 We resolve the present petition for review on certiorari[1] filed by petitioner Filcar Transport Services (Filcar), challenging the decision[2] and the resolution[3] of the Court of Appeals (CA) in CA-G.R. SP No. 86603. The facts of the case, gathered from the records, are briefly summarized below. On November 22, 1998, at around 6:30 p.m., respondent Jose A. Espinas was driving his car along Leon Guinto Street in Manila. Upon reaching the intersection of Leon Guinto and President Quirino Streets, Espinas stopped his car. When the signal light turned green, he proceeded to cross the intersection. He was already in the middle of the intersection when another car, traversing President Quirino Street and going to Roxas Boulevard, suddenly hit and bumped his car. As a result of the impact, Espinas car turned clockwise. The other car escaped from the scene of the incident, but Espinas was able to get its plate number. After verifying with the Land Transportation Office, Espinas learned that the owner of the other car, with plate number UCF-545, is Filcar. Espinas sent several letters to Filcar and to its President and General Manager Carmen Flor, demanding payment for the damages sustained by his car. On May 31, 2001, Espinas filed a complaint for damages against Filcar and Carmen Flor before the Metropolitan Trial Court (MeTC) of Manila, and the case was raffled to Branch 13. In the complaint, Espinas demanded that Filcar and Carmen Flor pay the amount of P97,910.00, representing actual damages sustained by his car. Filcar argued that while it is the registered owner of the car that hit and bumped Espinas car, the car was assigned to its Corporate Secretary Atty. Candido Flor, the husband of Carmen Flor. Filcar further stated that when the incident happened, the car was being driven by Atty. Flors personal driver, Timoteo Floresca. Atty. Flor, for his part, alleged that when the incident occurred, he was attending a birthday celebration at a nearby hotel, and it was only later that night when he noticed a small dent on and the cracked signal light of the car. On seeing the dent and the crack, Atty. Flor allegedly asked Floresca what happened, and the driver replied that it was a result of a hit and run while the car was parked in front of Bogota on Pedro Gil Avenue, Manila. Filcar denied any liability to Espinas and claimed that the incident was not due to its fault or negligence since Floresca was not its employee but that of Atty. Flor. Filcar and Carmen Flor both said that they always exercised the due diligence required of a good father of a family in leasing or assigning their vehicles to third parties. The MeTC Decision The MeTC, in its decision dated January 20, 2004,[4] ruled in favor of Espinas, and ordered Filcar and Carmen Flor, jointly and severally, to pay Espinas P97,910.00 as actual damages, representing the cost of repair, with interest at 6% per annum from the date the complaint was filed; P50,000.00 as moral damages; P20,000.00 as exemplary damages; and P20,000.00 as attorneys fees. The MeTC ruled that Filcar, as the registered owner of the vehicle, is primarily responsible for damages resulting from the vehicles operation. The RTC Decision The Regional Trial Court (RTC) of Manila, Branch 20, in the exercise of its appellate jurisdiction, affirmed the MeTC decision.[5] The RTC ruled that Filcar failed to prove that Floresca was not its employee as no proof was adduced that Floresca was personally hired by Atty. Flor. The RTC agreed with the MeTC that the registered owner of a vehicle is directly and primarily liable for the damages sustained by third persons as a consequence of the negligent or careless operation of a vehicle registered in its name. The RTC added that the victim of recklessness on the public highways is without means to discover or identify the person actually causing the injury or damage. Thus, the only recourse is to determine the owner, through the vehicles registration, and to hold him responsible for the damages. The CA Decision On appeal, the CA partly granted the petition in CA-G.R. SP No. 86603; it modified the RTC decision by ruling that Carmen Flor, President and General Manager of Filcar, is not personally liable to Espinas. The appellate court pointed out that, subject to recognized exceptions, the liability of a corporation is not the liability of its corporate officers because a corporate entity subject to well-recognized exceptions has a separate and distinct personality from its officers and shareholders. Since the circumstances in the case at bar do not fall under the exceptions recognized by law, the CA concluded that the liability for damages cannot attach to Carmen Flor. The CA, however, affirmed the liability of Filcar to pay Espinas damages. According to the CA, even assuming that there had been no employer-employee relationship between Filcar and the driver of the vehicle, Floresca, the former can be held liable under the registered owner rule. The CA relied on the rule that the registered owner of a vehicle is directly and primarily responsible to the public and to third persons while the vehicle is being operated. Citing Erezo, et al. v. Jepte,[6] the CA said that the rationale behind the rule is to avoid circumstances where vehicles running on public highways cause accidents or injuries to pedestrians or other vehicles without positive identification of the owner or drivers, or with very scant means of identification. In Erezo, the Court said that the main aim of motor vehicle registration is to identify the owner, so that if a vehicle causes damage or injury to pedestrians or other vehicles, responsibility can be traced to a definite individual and that individual is the registered owner of the vehicle.[7] The CA did not accept Filcars argument that it cannot be held liable for damages because the driver of the vehicle was not its employee. In so ruling, the CA cited the case of Villanueva v. Domingo[8] where the Court said that the question of whether the driver was authorized by the actual owner is irrelevant in determining the primary and direct responsibility of the registered owner of a vehicle for accidents, injuries and deaths caused by the operation of his vehicle. Filcar filed a motion for reconsideration which the CA denied in its Resolution dated July 6, 2006. Hence, the present petition.

The Issue
Simply stated, the issue for the consideration of this Court is: whether Filcar, as registered owner of the motor vehicle which figured in an accident, may be held liable for the damages caused to Espinas. Our Ruling The petition is without merit. Filcar, as registered owner, is deemed the employer of the driver, Floresca, and is thus vicariously liable under Article 2176 in relation with Article 2180 of the Civil Code It is undisputed that Filcar is the registered owner of the motor vehicle which hit and caused damage to Espinas car; and it is on the basis of this fact that we hold Filcar primarily and directly liable to Espinas for damages. As a general rule, one is only responsible for his own act or omission.[9] Thus, a person will generally be held liable only for the torts committed by himself and not by another. This general rule is laid down in Article 2176 of the Civil Code, which provides to wit:

Article 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.

Based on the above-cited article, the obligation to indemnify another for damage caused by ones act or omission is imposed upon the tortfeasor himself, i.e., the person who committed the negligent act or omission. The law, however, provides for exceptions when it makes certain persons liable for the act or omission of another. One exception is an employer who is made vicariously liable for the tort committed by his employee. Article 2180 of the Civil Code states: Article 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible. x x x x 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 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.

Under Article 2176, in relation with Article 2180, of the Civil Code, an action predicated on an employees act or omission may be instituted against the employer who is held liable for the negligent act or omission committed by his employee. Although the employer is not the actual tortfeasor, the law makes him vicariously liable on the basis of the civil law principle of pater familias for failure to exercise due care and vigilance over the acts of ones subordinates to prevent damage to another.[10] In the last paragraph of Article 2180 of the Civil Code, the employer may invoke the defense that he observed all the diligence of a good father of a family to prevent damage. As its core defense, Filcar contends that Article 2176, in relation with Article 2180, of the Civil Code is inapplicable because it presupposes the existence of an employer-employee relationship. According to Filcar, it cannot be held liable under the subject provisions because the driver of its vehicle at the time of the accident, Floresca, is not its employee but that of its Corporate Secretary, Atty. Flor. We cannot agree. It is well settled that in case of motor vehicle mishaps, the registered owner of the motor vehicle is considered as the employer of the tortfeasor-driver, and is made primarily liable for the tort committed by the latter under Article 2176, in relation with Article 2180, of the Civil Code. In Equitable Leasing Corporation v. Suyom,[11] we ruled that in so far as third persons are concerned, the registered owner of the motor vehicle is the employer of the negligent driver, and the actual employer is considered merely as an agent of such owner.
In that case, a tractor registered in the name of Equitable Leasing Corporation (Equitable) figured in an accident, killing and seriously injuring several persons. As part of its defense, Equitable claimed that the tractor was initially leased to Mr. Edwin Lim under a Lease Agreement, which agreement has been overtaken by a Deed of Sale entered into by Equitable and Ecatine Corporation (Ecatine). Equitable argued that it cannot be held liable for damages because the tractor had already been sold to Ecatine at the time of the accident and the negligent driver was not its employee but of Ecatine. In upholding the liability of Equitable, as registered owner of the tractor, this Court said that regardless of sales made of a motor vehicle, the registered owner is the lawful operator insofar as the public and third persons are concerned; consequently, it is directly and primarily responsible for the consequences of its operation.[12] The Court further stated that [i]n contemplation of law, the owner/operator of record is the employer of the driver, the actual operator and employer being considered as merely its agent.[13] Thus, Equitable, as the registered owner of the tractor, was considered under the law on quasi delict to be the employer of the driver, Raul Tutor; Ecatine, Tutors actual employer, was deemed merely as an agent of Equitable. Thus, it is clear that for the purpose of holding the registered owner of the motor vehicle primarily and directly liable for damages under Article 2176, in relation with Article 2180, of the Civil Code, the existence of an employer-employee relationship, as it is understood in labor relations law, is not required. It is sufficient to establish that Filcar is the registered owner of the motor vehicle causing damage in order that it may be held vicariously liable under Article 2180 of the Civil Code.

Rationale for holding the registered owner vicariously liable The rationale for the rule that a registered owner is vicariously liable for damages caused by the operation of his motor vehicle is explained by the principle behind motor vehicle registration, which has been discussed by this Court in Erezo, and cited by the CA in its decision: 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. [emphasis ours]

Thus, whether there is an employer-employee relationship between the registered owner and the driver is irrelevant in determining the liability of the registered owner who the law holds primarily and directly responsible for any accident, injury or death caused by the operation of the vehicle in the streets and highways. As explained by this Court in Erezo, the general public policy involved in motor vehicle registration is the protection of innocent third persons who may have no means of identifying public road malefactors and, therefore, would find it difficult if not impossible to seek redress for damages they may sustain in accidents resulting in deaths, injuries and other damages; by fixing the person held primarily and directly liable for the damages sustained by victims of road mishaps, the law ensures that relief will always be available to them. To identify the person primarily and directly responsible for the damages would also prevent a situation where a registered owner of a motor vehicle can easily escape liability by passing on the blame to another who may have no means to answer for the damages caused, thereby defeating the claims of victims of road accidents. We take note that some motor vehicles running on our roads are driven not by their registered owners, but by employed drivers who, in most instances, do not have the financial means to pay for the damages caused in case of accidents. These same principles apply by analogy to the case at bar. Filcar should not be permitted to evade its liability for damages by conveniently passing on the blame to another party; in this case, its Corporate Secretary, Atty. Flor and his alleged driver, Floresca. Following our reasoning in Equitable, the agreement between Filcar and Atty. Flor to assign the motor vehicle to the latter does not bind Espinas who was not a party to and has no knowledge of the agreement, and whose only recourse is to the motor vehicle registration. Neither can Filcar use the defenses available under Article 2180 of the Civil Code - that the employee acts beyond the scope of his assigned task or that it exercised the due diligence of a good father of a family to prevent damage - because the motor vehicle registration law, to a certain extent, modified Article 2180 of the Civil Code by making these defenses unavailable to the registered owner of the motor vehicle. Thus, for as long as Filcar is the registered owner of the car involved in the vehicular accident, it could not escape primary liability for the damages caused to Espinas. The public interest involved in this case must not be underestimated. Road safety is one of the most common problems that must be addressed in this country. We are not unaware of news of road accidents involving reckless drivers victimizing our citizens. Just recently, such pervasive recklessness among most drivers took the life of a professor of our state university.[14] What is most disturbing is that our existing laws do not seem to deter these road malefactors from committing acts of recklessness. We understand that the solution to the problem does not stop with legislation. An effective administration and enforcement of the laws must be ensured to reinforce discipline among drivers and to remind owners of motor vehicles to exercise due diligence and vigilance over the acts of their drivers to prevent damage to others.
Thus, whether the driver of the motor vehicle, Floresca, is an employee of Filcar is irrelevant in arriving at the conclusion that Filcar is primarily and directly liable for the damages sustained by Espinas. While Republic Act No. 4136 or the Land Transportation and Traffic Code does not contain any provision on the liability of registered owners in case of motor vehicle mishaps, Article 2176, in relation with Article 2180, of the Civil Code imposes an obligation upon Filcar, as registered owner, to answer for the damages caused to Espinas car. This interpretation is consistent with the strong public policy of maintaining road safety, thereby reinforcing the aim of the State to promote the responsible operation of motor vehicles by its citizens. This does not mean, however, that Filcar is left without any recourse against the actual employer of the driver and the driver himself. Under the civil law principle of unjust enrichment, the registered owner of the motor vehicle has a right to be indemnified by the actual employer of the driver of the amount that he may be required to pay as damages for the injury caused to another. The set-up may be inconvenient for the registered owner of the motor vehicle, but the inconvenience cannot outweigh the more important public policy being advanced by the law in this case which is the protection of innocent persons who may be victims of reckless drivers and irresponsible motor vehicle owners. WHEREFORE, the petition is DENIED. The decision dated February 16, 2006 and the resolution dated July 6, 2006 of the Court of Appeals are AFFIRMED. Costs against petitioner Filcar Transport Services. SO ORDERED.

[G.R. No. 119121. August 14, 1998]
NATIONAL POWER CORPORATION, petitioner, vs. COURT OF APPEALS, Fifteenth Division and PHESCO INCORPORATED, respondents.

On July 22, 1979, a convoy of four (4) dump trucks owned by the National Power Corporation (NPC) left Marawi city bound for Iligan city. Unfortunately, enroute to its destination, one of the trucks with plate no. RFT-9-6-673 driven by a certain Gavino Ilumba figured in a head-on-collision with a Toyota Tamaraw. The incident resulted in the death of three (3) persons riding in the Toyota Tamaraw, as well as physical injuries to seventeen other passengers.
On June 10, 1980, the heirs of the victims filed a complaint for damages against National Power Corporation (NPC) and PHESCO Incorporated (PHESCO) before the then Court of First Instance of Lanao del Norte, Marawi City. When defendant PHESCO filed its answer to the complaint it contended that it was not the owner of the dump truck which collided with the Toyota Tamaraw but NPC. Moreover, it asserted that it was merely a contractor of NPC with the main duty of supplying workers and technicians for the latters projects. On the other hand, NPC denied any liability and countered that the driver of the dump truck was the employee of PHESCO.
After trial on the merits, the trial court rendered a decision dated July 25, 1988 absolving NPC of any liability. The dispositive portion reads:
Consequently, in view of the foregoing consideration, judgment is hereby rendered ordering PHESCO, Inc. and Gavino Ilumba upon receipt hereof:
1. To pay jointly and severally the plaintiffs thru the Dansalan College the sum of P954,154.55 representing the actual or compensatory damages incurred by the plaintiffs; and
2. To pay the sum of P50,000.00 representing Attorneys fees.
SO ORDERED.
Dissatisfied, PHESCO appealed to the Court of Appeals, which on November 10, 1994 reversed the trial courts judgment. We quote the pertinent portion of the decision:
A labor only contractor is considered merely as an agent of the employer (Deferia vs. National Labor Relations Commission, 194 SCRA 525). A finding that a contractor is a labor only contractor is equivalent to a finding that there is an employer-employee relationship between the owner of the project and the employees of the labor only contractor (Industrial Timer Corporation vs. National Labor Relations Commission, 202 SCRA 465). So, even if Phesco hired driver Gavino Ilumba, as Phesco is admittedly a labor only contractor of Napocor, the statute itself establishes an employer-employee relationship between the employer (Napocor) and the employee (driver Ilumba) of the labor only contractor (Phesco). (Ecal vs. National Labor Relations Commission, 195 SCRA 224).
Consequently, we hold Phesco not liable for the tort of driver Gavino Ilumba, as there was no employment relationship between Phesco and driver Gavino Ilumba. Under Article 2180 of the Civil Code, to hold the employer liable for torts committed by his employees within the scope of their assigned task, there must exist an employer-employee relationship. (Martin vs. Court of Appeals, 205 SCRA 591).
WHEREFORE, we REVERSE the appealed decision. In lieu thereof, the Court renders judgment sentencing defendant National Power Corporation to pay plaintiffs the sum of P174,889.20 plus P20,000.00 as attorneys fees and costs.
SO ORDERED.
Chagrined by the sudden turnaround, NPC filed a motion for reconsideration of said decision which was, however, denied on February 9, 1995.[1] Hence, this petition.
The principal query to be resolved is, as between NPC and PHESCO, who is the employer of Ilumba, driver of the dumptruck which figured in the accident and which should, therefore, would be liable for damages to the victims. Specifically, NPC assigns the sole error that:
THE COURT OF APPEALS DECISION FINDING THAT PETITIONER NPC AS THE EMPLOYER OF THE DRIVER GAVINO ILUMBA, AND CONSEQUENTLY, SENTENCING IT TO PAY THE ACTUAL AND COMPENSATORY DAMAGES SUSTAINED BY COMPLAINANTS, IS NOT IN ACCORD WITH THE LAW OR WITH THE APPLICABLE RULINGS OF THIS HONORABLE COURT.[2]
As earlier stated, NPC denies that the driver of the dump truck was its employee. It alleges that it did not have the power of selection and dismissal nor the power of control over Ilumba.[3] PHESCO, meanwhile, argues that it merely acted as a recruiter of the necessary workers for and in behalf of NPC.[4]
Before we decide who is the employer of Ilumba, it is evidently necessary to ascertain the contractual relationship between NPC and PHESCO. Was the relationship one of employer and job (independent) contractor or one of employer and labor only contractor?
Job (independent) contracting is present if the following conditions are met: (a) the contractor carries on an independent business and undertakes the contract work on his own account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work except to the result thereof; and (b) the contractor has substantial capital or investments in the form of tools, equipment, machineries, work premises and other materials which are necessary in the conduct of his business.[5] Absent these requisites, what exists is a labor only contract under which the person acting as contractor is considered merely as an agent or intermediary of the principal who is responsible to the workers in the same manner and to the same extent as if they had been directly employed by him.[6] Taking into consideration the above distinction and the provisions of the Memorandum of Understanding entered into by PHESCO and NPC, we are convinced that PHESCO was engaged in labor only contracting.
It must be noted that under the Memorandum, NPC had mandate to approve the critical path network and rate of expenditure to be undertaken by PHESCO.[7] Likewise, the manning schedule and pay scale of the workers hired by PHESCO were subject to confirmation by NPC.[8] Then too, it cannot be ignored that if PHESCO enters into any sub-contract or lease, again NPCs concurrence is needed.[9] Another consideration is that even in the procurement of tools and equipment that will be used by PHESCO, NPCs favorable recommendation is still necessary before these tools and equipment can be purchased.[10] Notably, it is NPC that will provide the money or funding that will be used by PHESCO to undertake the project.[11] Furthermore, it must be emphasized that the project being undertaken by PHESCO, i.e., construction of power energy facilities, is related to NPCs principal business of power generation. In sum, NPCs control over PHESCO in matters concerning the performance of the latters work is evident. It is enough that NPC has the right to wield such power to be considered as the employer.[12]
Under this factual milieu, there is no doubt that PHESCO was engaged in labor-only contracting vis--vis NPC and as such, it is considered merely an agent of the latter. In labor-only contracting, an employer-employee relationship between the principal employer and the employees of the labor-only contractor is created. Accordingly, the principal employer is responsible to the employees of the labor-only contractor as if such employees had been directly employed by the principal employer.[13] Since PHESCO is only a labor-only contractor, the workers it supplied to NPC, including the driver of the ill-fated truck, should be considered as employees of NPC.[14] After all, it is axiomatic that any person (the principal employer) who enters into an agreement with a job contractor, either for the performance of a specified work or for the supply of manpower, assumes responsibility over the employees of the latter.[15]
However, NPC maintains that even assuming that a labor only contract exists between it and PHESCO, its liability will not extend to third persons who are injured due to the tortious acts of the employee of the labor-only contractor.[16] Stated otherwise, its liability shall only be limited to violations of the Labor Code and not quasi-delicts.
To bolster its position, NPC cites Section 9(b), Rule VII, Book III of the Omnibus Rules Implementing the Labor Code which reads:
(b) Labor only contracting as defined herein is hereby prohibited and the person acting as contractor shall be considered merely as an agent or intermediary of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him.
In other words, NPC posits the theory that its liability is limited only to compliance with the substantive labor provisions on working conditions, rest periods, and wages and shall not extend to liabilities suffered by third parties, viz.:
Consequently, the responsibilities of the employer contemplated in a labor only contract, should, consistent with the terms expressed in the rule, be restricted to the workers. The same can not be expanded to cover liabilities for damages to third persons resulting from the employees tortious acts under Article 2180 of the Civil Code.[17]
The reliance is misplaced. It bears stressing that the action was premised on the recovery of damages as a result of quasi-delict against both NPC and PHESCO, hence, it is the Civil Code and not the Labor Code which is the applicable law in resolving this case.
To be sure, the pronouncement of this Court in Filamer Christian Institute v. IAC,[18] is most instructive:
The present case does not deal with a labor dispute on conditions of employment between an alleged employee and an alleged employer. It invokes a claim brought by one for damages for injury caused by the patently negligent acts of a person, against both doer-employee and his employer. Hence, the reliance on the implementing rule on labor to disregard the primary liability of an employer under Article 2180 of the Civil Code is misplaced. An implementing rule on labor cannot be used by an employer as a shield to avoid liability under the substantive provisions of the Civil Code.
Corollarily from the above doctrine, the ruling in Cuison v. Norton & Harrison Co.,[19] finds applicability in the instant case, viz.:
It is well to repeat that under the civil law an employer is only liable for the negligence of his employees in the discharge of their respective duties. The defense of independent contractor would be a valid one in the Philippines just as it would be in the United States. Here Ora was a contractor, but it does not necessarily follow that he was an independent contractor. The reason for this distinction is that the employer retained the power of directing and controlling the work. The chauffeur and the two persons on the truck were the employees of Ora, the contractor, but Ora, the contractor, was an employee of Norton & Harrison Co., charged with the duty of directing the loading and transportation of the lumber. And it was the negligence in loading the lumber and the use of minors on the truck which caused the death of the unfortunate boy. On the facts and the law, Ora was not an independent contractor, but was the servant of the defendant, and for his negligence defendant was responsible.
Given the above considerations, it is apparent that Article 2180 of the Civil Code and not the Labor Code will determine the liability of NPC in a civil suit for damages instituted by an injured person for any negligent act of the employees of the labor only contractor. This is consistent with the ruling that a finding that a contractor was a labor-only contractor is equivalent to a finding that an employer-employee relationship existed between the owner (principal contractor) and the labor-only contractor, including the latters workers.[20]
With respect to the liability of NPC as the direct employer, Article 2180 of the Civil Code explicitly provides:
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.
In this regard, NPCs liability is direct, primary and solidary with PHESCO and the driver.[21] Of course, NPC, if the judgment for damages is satisfied by it, shall have recourse against PHESCO and the driver who committed the negligence which gave rise to the action.[22]
Finally, NPC, even if it truly believed that it was not the employer of the driver, could still have disclaimed any liability had it raised the defense of due diligence in the selection or supervision of PHESCO and Ilumba.[23] However, for some reason or another, NPC did not invoke said defense. Hence, by opting not to present any evidence that it exercised due diligence in the supervision of the activities of PHESCO and Ilumba, NPC has foreclosed its right to interpose the same on appeal in conformity with the rule that points of law, theories, issues of facts and arguments not raised in the proceedings below cannot be ventilated for the first time on appeal.[24] Consequently, its liability stands.
WHEREFORE, in view of the foregoing, the assailed decision of the Court of Appeals dated November 10, 1994 and its accompanying resolution dated February 9, 1995 are AFFIRMED without prejudice to the right of NPC to demand from PHESCO and Ilumba reimbursement of the damages it would be adjudged to pay to complainants. No costs.
SO ORDERED.

G.R. No. 110295 October 18, 1993
COCA-COLA BOTTLERS PHILIPPINES, INC., vs. THE HONORABLE COURT OF APPEALS (Fifth Division) and MS. LYDIA GERONIMO, respondents.
Angara, Abello, Concepcion, Regala & Cruz Law Offices for petitioner.
Alejandro M. Villamil for private respondent.
DAVIDE, JR., J.:
This case concerns the proprietress of a school canteen which had to close down as a consequence of the big drop in its sales of soft drinks triggered by the discovery of foreign substances in certain beverages sold by it. The interesting issue posed is whether the subsequent action for damages by the proprietress against the soft drinks manufacturer should be treated as one for breach of implied warranty against hidden defects or merchantability, as claimed by the manufacturer, the petitioner herein which must therefore be filed within six months from the delivery of the thing sold pursuant to Article 1571 of the Civil Code, or one for quasi-delict, as held by the public respondent, which can be filed within four years pursuant to Article 1146 of the same Code.
On 7 May 1990, Lydia L. Geronimo, the herein private respondent, filed a complaint for damages against petitioner with the Regional Trial Court (RTC) of Dagupan City. 1 The case was docketed as Civil Case No. D-9629. She alleges in her complaint that she was the proprietress of Kindergarten Wonderland Canteen docketed as located in Dagupan City, an enterprise engaged in the sale of soft drinks (including Coke and Sprite) and other goods to the students of Kindergarten Wonderland and to the public; on or about 12 August 1989, some parents of the students complained to her that the Coke and Sprite soft drinks sold by her contained fiber-like matter and other foreign substances or particles; he then went over her stock of softdrinks and discovered the presence of some fiber-like substances in the contents of some unopened Coke bottles and a plastic matter in the contents of an unopened Sprite bottle; she brought the said bottles to the Regional Health Office of the Department of Health at San Fernando, La Union, for examination; subsequently, she received a letter from the Department of Health informing her that the samples she submitted "are adulterated;" as a consequence of the discovery of the foreign substances in the beverages, her sales of soft drinks severely plummeted from the usual 10 cases per day to as low as 2 to 3 cases per day resulting in losses of from P200.00 to P300.00 per day, and not long after that she had to lose shop on 12 December 1989; she became jobless and destitute; she demanded from the petitioner the payment of damages but was rebuffed by it. She prayed for judgment ordering the petitioner to pay her P5,000.00 as actual damages, P72,000.00 as compensatory damages, P500,000.00 as moral damages, P10,000.00 as exemplary damages, the amount equal to 30% of the damages awarded as attorney's fees, and the costs. 2
The petitioner moved to dismiss 3 the complaint on the grounds of failure to exhaust administrative remedies and prescription. Anent the latter ground, the petitioner argued that since the complaint is for breach of warranty under Article 1561 of the said Code. In her Comment 4 thereto, private respondent alleged that the complaint is one for damages which does not involve an administrative action and that her cause of action is based on an injury to plaintiff's right which can be brought within four years pursuant to Article 1146 of the Civil Code; hence, the complaint was seasonably filed. Subsequent related pleadings were thereafter filed by the parties. 5
In its Order of 23 January 1991, 6 the trial court granted the motion to dismiss. It ruled that the doctrine of exhaustion of administrative remedies does not apply as the existing administrative remedy is not adequate. It also stated that the complaint is based on a contract, and not on quasi-delict, as there exists pre-existing contractual relation between the parties; thus, on the basis of Article 1571, in relation to Article 1562, the complaint should have been filed within six months from the delivery of the thing sold.
Her motion for the reconsideration of the order having been denied by the trial court in its Order of 17 April 1991,7 the private respondent came to this Court via a petition for review on certiorari which we referred to the public respondent "for proper determination and disposition. 8 The public respondent docketed the case as CA-G.R. SP No. 25391.
In a decision promulgated on 28 January 1992, 9 the public respondent annulled the questioned orders of the RTC and directed it to conduct further proceedings in Civil Case No. D-9629. In holding for the private respondent, it ruled that:
Petitioner's complaint being one for quasi-delict, and not for breach of warranty as respondent contends, the applicable prescriptive period is four years.
It should be stressed that the allegations in the complaint plainly show that it is an action or damages arising from respondent's act of "recklessly and negligently manufacturing adulterated food items intended to be sold or public consumption" (p. 25, rollo). It is truism in legal procedure that what determines the nature of an action are the facts alleged in the complaint and those averred as a defense in the defendant's answer (I Moran 126; Calo v. Roldan, 76 Phil. 445; Alger Electric, Inc. v. CA, 135 SCRA 340).
Secondly, despite the literal wording of Article 2176 of the Civil code, the existence of contractual relations between the parties does not absolutely preclude an action by one against the other forquasi-delict arising from negligence in the performance of a contract.
In Singson v. Court of Appeals (23 SCRA 1117), the Supreme Court ruled:
It has been repeatedly held: that the existence of a contract between the parties does not bar the commission of a tort by the one against the other and the consequent recovery of damages therefor
. . . . Thus in Air France vs. Carrascoso, . . . (it was held that) although the relation between a passenger and a carrier is "contractual both in origin and in nature the act that breaks the contract may also be a tort.
Significantly, in American jurisprudence, from which Our law on Sales was taken, the authorities are one in saying that he availability of an action or breach of warranty does not bar an action for torts in a sale of defective goods. 10
Its motion for the reconsideration of the decision having been denied by the public respondent in its Resolution of 14 May 1993, 11 the petitioner took his recourse under Rule 45 of the Revised Rules of Court. It alleges in its petition that:
I.
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR IN RULING THAT ARTICLE 2176, THE GENERAL PROVISION ON QUASI-DELICTS, IS APPLICABLE IN THIS CASE WHEN THE ALLEGATIONS OF THE COMPLAINT CLEARLY SHOW THAT PRIVATE RESPONDENT'S CAUSE OF ACTION IS BASEDON BREACH OF A SELLER'S IMPLIED WARRANTIES UNDER OUR LAW ON SALES.
II.
CORROLARILY, THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR IN OVERRULING PETITIONER'S ARGUMENT THAT PRIVATE RESPONDENT'S CAUSE OF ACTION HAD PRESCRIBED UNDER ARTICLE 1571 OF THE CIVIL CODE. 12
The petitioner insists that a cursory reading of the complaint will reveal that the primary legal basis for private respondent's cause of action is not Article 2176 of the Civil Code on quasi-delict — for the complaint does not ascribe any tortious or wrongful conduct on its part — but Articles 1561 and 1562 thereof on breach of a seller's implied warranties under the law on sales. It contends the existence of a contractual relation between the parties (arising from the contract of sale) bars the application of the law on quasi-delicts and that since private respondent's cause of action arose from the breach of implied warranties, the complaint should have been filed within six months room delivery of the soft drinks pursuant to Article 171 of the Civil Code.
In her Comment the private respondent argues that in case of breach of the seller's implied warranties, the vendee may, under Article 1567 of the Civil Code, elect between withdrawing from the contract or demanding a proportionate reduction of the price, with damages in either case. She asserts that Civil Case No. D-9629 is neither an action for rescission nor for proportionate reduction of the price, but for damages arising from a quasi-delict and that the public respondent was correct in ruling that the existence of a contract did not preclude the action for quasi-delict. As to the issue of prescription, the private respondent insists that since her cause of action is based on quasi-delict, the prescriptive period therefore is four (4) years in accordance with Article 1144 of the Civil Code and thus the filing of the complaint was well within the said period.
We find no merit in the petition. The public respondent's conclusion that the cause of action in Civil Case No. D-9629 is found on quasi-delict and that, therefore, pursuant to Article 1146 of the Civil Code, it prescribes in four (4) years is supported by the allegations in the complaint, more particularly paragraph 12 thereof, which makes reference to the reckless and negligent manufacture of "adulterated food items intended to be sold for public consumption."
The vendee's remedies against a vendor with respect to the warranties against hidden defects of or encumbrances upon the thing sold are not limited to those prescribed in Article 1567 of the Civil Code which provides:
Art. 1567. In the case of Articles 1561, 1562, 1564, 1565 and 1566, the vendee may elect between withdrawing from the contract and demanding a proportionate reduction of the price, with damages either case. 13
The vendee may also ask for the annulment of the contract upon proof of error or fraud, in which case the ordinary rule on obligations shall be applicable. 14 Under the law on obligations, responsibility arising from fraud is demandable in all obligations and any waiver of an action for future fraud is void. Responsibility arising from negligence is also demandable in any obligation, but such liability may be regulated by the courts, according to the circumstances. 15 Those guilty of fraud, negligence, or delay in the performance of their obligations and those who in any manner contravene the tenor thereof are liable for damages. 16
The vendor could likewise be liable for quasi-delict under Article 2176 of the Civil Code, and an action based thereon may be brought by the vendee. While it may be true that the pre-existing contract between the parties may, as a general rule, bar the applicability of the law on quasi-delict, the liability may itself be deemed to arise from quasi-delict, i.e., the acts which breaks the contract may also be a quasi-delict. Thus, in Singson vs. Bank of the Philippine Islands, 17 this Court stated:
We have repeatedly held, however, that the existence of a contract between the parties does not bar the commission of a tort by the one against the other and the consequent recovery of damages therefor. 18 Indeed, this view has been, in effect, reiterated in a comparatively recent case. Thus, inAir France vs. Carrascoso, 19 involving an airplane passenger who, despite hi first-class ticket, had been illegally ousted from his first-class accommodation and compelled to take a seat in the tourist compartment, was held entitled to recover damages from the air-carrier, upon the ground of tort on the latter's part, for, although the relation between the passenger and a carrier is "contractual both in origin and nature . . . the act that breaks the contract may also be a tort.
Otherwise put, liability for quasi-delict may still exist despite the presence of contractual relations. 20
Under American law, the liabilities of a manufacturer or seller of injury-causing products may be based on negligence, 21 breach of warranty, 22 tort, 23 or other grounds such as fraud, deceit, or misrepresentation.24 Quasi-delict, as defined in Article 2176 of the Civil Code, (which is known in Spanish legal treaties asculpa aquiliana, culpa extra-contractual or cuasi-delitos) 25 is homologous but not identical to tort under the common law, 26 which includes not only negligence, but also intentional criminal acts, such as assault and battery, false imprisonment and deceit. 27
It must be made clear that our affirmance of the decision of the public respondent should by no means be understood as suggesting that the private respondent's claims for moral damages have sufficient factual and legal basis.
IN VIEW OF ALL THE FOREGOING, the instant petition is hereby DENIED for lack of merit, with costs against the petitioner.
SO ORDERED.