G.R. No. 194320               February 1, 2012 front of it.

The Nissan Bus, on the other hand, sideswiped the

Fuzo Cargo Truck, causing damage to the latter in the amount of
MALAYAN INSURANCE CO., INC., Petitioner, PhP 20,000. Respondents also controverted the results of the
vs. Police Report, asserting that it was based solely on the biased
RODELIO ALBERTO and ENRICO ALBERTO narration of the Nissan Bus driver.8
REYES, Respondents.
After the termination of the pre-trial proceedings, trial ensued.
DECISION Malayan Insurance presented the testimony of its lone witness, a
motor car claim adjuster, who attested that he processed the
insurance claim of the assured and verified the documents
VELASCO, JR., J.: submitted to him. Respondents, on the other hand, failed to
present any evidence.
The Case
In its Decision dated February 2, 2009, the trial court, in Civil
Before Us is a Petition for Review on Certiorari under Rule 45, Case No. 99-95885, ruled in favor of Malayan Insurance and
seeking to reverse and set aside the July 28, 2010 Decision1 of declared respondents liable for damages. The dispositive portion
the Court of Appeals (CA) and its October 29, 2010 reads:
Resolution2 denying the motion for reconsideration filed by
petitioner Malayan Insurance Co., Inc. (Malayan Insurance). The WHEREFORE, judgment is hereby rendered in favor of the
July 28, 2010 CA Decision reversed and set aside the plaintiff against defendants jointly and severally to pay plaintiff
Decision3 dated February 2, 2009 of the Regional Trial Court, the following:
Branch 51 in Manila.
1. The amount of P700,000.00 with legal interest from
The Facts the time of the filing of the complaint;

At around 5 o’clock in the morning of December 17, 1995, an 2. Attorney’s fees of P10,000.00 and;
accident occurred at the corner of EDSA and Ayala Avenue,
Makati City, involving four (4) vehicles, to wit: (1) a Nissan Bus
operated by Aladdin Transit with plate number NYS 381; (2) an 3. Cost of suit.
Isuzu Tanker with plate number PLR 684; (3) a Fuzo Cargo
Truck with plate number PDL 297; and (4) a Mitsubishi Galant SO ORDERED.9
with plate number TLM 732.4
Dissatisfied, respondents filed an appeal with the CA, docketed
Based on the Police Report issued by the on-the-spot as CA-G.R. CV No. 93112. In its Decision dated July 28, 2010,
investigator, Senior Police Officer 1 Alfredo M. Dungga (SPO1 the CA reversed and set aside the Decision of the trial court and
Dungga), the Isuzu Tanker was in front of the Mitsubishi Galant ruled in favor of respondents, disposing:
with the Nissan Bus on their right side shortly before the
vehicular incident. All three (3) vehicles were at a halt along WHEREFORE, the foregoing considered, the instant appeal is
EDSA facing the south direction when the Fuzo Cargo Truck hereby GRANTED and the assailed Decision dated 2 February
simultaneously bumped the rear portion of the Mitsubishi Galant 2009 REVERSED and SET ASIDE. The Complaint dated 18
and the rear left portion of the Nissan Bus. Due to the strong October 1999 is hereby DISMISSED for lack of merit. No costs.
impact, these two vehicles were shoved forward and the front
left portion of the Mitsubishi Galant rammed into the rear right
portion of the Isuzu Tanker.5 SO ORDERED.10

Previously, particularly on December 15, 1994, Malayan The CA held that the evidence on record has failed to establish
Insurance issued Car Insurance Policy No. PV-025-00220 in not only negligence on the part of respondents, but also
favor of First Malayan Leasing and Finance Corporation (the compliance with the other requisites and the consequent right of
assured), insuring the aforementioned Mitsubishi Galant against Malayan Insurance to subrogation.11 It noted that the police
third party liability, own damage and theft, among others. Having report, which has been made part of the records of the trial
insured the vehicle against such risks, Malayan Insurance court, was not properly identified by the police officer who
claimed in its Complaint dated October 18, 1999 that it paid the conducted the on-the-spot investigation of the subject collision.
damages sustained by the assured amounting to PhP 700,000.6 It, thus, held that an appellate court, as a reviewing body, cannot
rightly appreciate firsthand the genuineness of an unverified and
unidentified document, much less accord it evidentiary value.12
Maintaining that it has been subrogated to the rights and
interests of the assured by operation of law upon its payment to
the latter, Malayan Insurance sent several demand letters to Subsequently, Malayan Insurance filed its Motion for
respondents Rodelio Alberto (Alberto) and Enrico Alberto Reyes Reconsideration, arguing that a police report is a prima facie
(Reyes), the registered owner and the driver, respectively, of the evidence of the facts stated in it. And inasmuch as they never
Fuzo Cargo Truck, requiring them to pay the amount it had paid questioned the presentation of the report in evidence,
to the assured. When respondents refused to settle their liability, respondents are deemed to have waived their right to question
Malayan Insurance was constrained to file a complaint for its authenticity and due execution.13
damages for gross negligence against respondents.7
In its Resolution dated October 29, 2010, the CA denied the
In their Answer, respondents asserted that they cannot be held motion for reconsideration. Hence, Malayan Insurance filed the
liable for the vehicular accident, since its proximate cause was instant petition.
the reckless driving of the Nissan Bus driver. They alleged that
the speeding bus, coming from the service road of EDSA, The Issues
maneuvered its way towards the middle lane without due regard
to Reyes’ right of way. When the Nissan Bus abruptly stopped,
Reyes stepped hard on the brakes but the braking action could In its Memorandum14 dated June 27, 2011, Malayan Insurance
not cope with the inertia and failed to gain sufficient traction. As raises the following issues for Our consideration:
a consequence, the Fuzo Cargo Truck hit the rear end of the
Mitsubishi Galant, which, in turn, hit the rear end of the vehicle in I
1
 WHETHER THE CA ERRED IN REFUSING There are several exceptions to the hearsay rule under the
ADMISSIBILITY OF THE POLICE REPORT SINCE Rules of Court, among which are entries in official
THE POLICE INVESTIGATOR WHO PREPARED THE records.22 Section 44, Rule 130 provides:
SAME DID NOT ACTUALLY TESTIFY IN COURT
THEREON. Entries in official records made in the performance of his duty by
a public officer of the Philippines, or by a person in the
II performance of a duty specially enjoined by law are prima facie
evidence of the facts therein stated.
WHETHER THE SUBROGATION OF MALAYAN
INSURANCE IS IMPAIRED AND/OR DEFICIENT. In Alvarez v. PICOP Resources,23 this Court reiterated the
requisites for the admissibility in evidence, as an exception to
On the other hand, respondents submit the following issues in its the hearsay rule of entries in official records, thus: (a) that the
Memorandum15 dated July 7, 2011: entry was made by a public officer or by another person
specially enjoined by law to do so; (b) that it was made by the
public officer in the performance of his or her duties, or by such
I other person in the performance of a duty specially enjoined by
law; and (c) that the public officer or other person had sufficient
WHETHER THE CA IS CORRECT IN DISMISSING knowledge of the facts by him or her stated, which must have
THE COMPLAINT FOR FAILURE OF MALAYAN been acquired by the public officer or other person personally or
INSURANCE TO OVERCOME THE BURDEN OF through official information.
PROOF REQUIRED TO ESTABLISH THE
NEGLIGENCE OF RESPONDENTS. Notably, the presentation of the police report itself is admissible
as an exception to the hearsay rule even if the police
II investigator who prepared it was not presented in court, as long
as the above requisites could be adequately proved.24
WHETHER THE PIECES OF EVIDENCE
PRESENTED BY MALAYAN INSURANCE ARE Here, there is no dispute that SPO1 Dungga, the on-the-spot
SUFFICIENT TO CLAIM FOR THE AMOUNT OF investigator, prepared the report, and he did so in the
DAMAGES. performance of his duty. However, what is not clear is whether
SPO1 Dungga had sufficient personal knowledge of the facts
contained in his report. Thus, the third requisite is lacking.
III
Respondents failed to make a timely objection to the police
WHETHER THE SUBROGATION OF MALAYAN report’s presentation in evidence; thus, they are deemed to have
INSURANCE HAS PASSED COMPLIANCE AND waived their right to do so.25 As a result, the police report is still
REQUISITES AS PROVIDED UNDER PERTINENT admissible in evidence.
LAWS.
Sufficiency of Evidence
Essentially, the issues boil down to the following: (1) the
admissibility of the police report; (2) the sufficiency of the
evidence to support a claim for gross negligence; and (3) the Malayan Insurance contends that since Reyes, the driver of the
validity of subrogation in the instant case. Fuzo Cargo truck, bumped the rear of the Mitsubishi Galant, he
is presumed to be negligent unless proved otherwise. It further
contends that respondents failed to present any evidence to
Our Ruling overturn the presumption of negligence.26 Contrarily,
respondents claim that since Malayan Insurance did not present
The petition has merit. any witness who shall affirm any negligent act of Reyes in
driving the Fuzo Cargo truck before and after the incident, there
is no evidence which would show negligence on the part of
Admissibility of the Police Report respondents.27

Malayan Insurance contends that, even without the presentation We agree with Malayan Insurance. Even if We consider the
of the police investigator who prepared the police report, said inadmissibility of the police report in evidence, still, respondents
report is still admissible in evidence, especially since cannot evade liability by virtue of the res ipsa loquitur doctrine.
respondents failed to make a timely objection to its presentation The D.M. Consunji, Inc. case is quite elucidating:
in evidence.16 Respondents counter that since the police report
was never confirmed by the investigating police officer, it cannot
be considered as part of the evidence on record.17 Petitioner’s contention, however, loses relevance in the face of
the application of res ipsa loquitur by the CA. The effect of the
doctrine is to warrant a presumption or inference that the mere
Indeed, under the rules of evidence, a witness can testify only to fall of the elevator was a result of the person having charge of
those facts which the witness knows of his or her personal the instrumentality was negligent. As a rule of evidence, the
knowledge, that is, which are derived from the witness’ own doctrine of res ipsa loquitur is peculiar to the law of negligence
perception.18 Concomitantly, a witness may not testify on matters which recognizes that prima facie negligence may be
which he or she merely learned from others either because said established without direct proof and furnishes a substitute for
witness was told or read or heard those matters.19 Such specific proof of negligence.
testimony is considered hearsay and may not be received as
proof of the truth of what the witness has learned. This is known
as the hearsay rule.20 The concept of res ipsa loquitur has been explained in this wise:

As discussed in D.M. Consunji, Inc. v. CA,21 "Hearsay is not While negligence is not ordinarily inferred or presumed, and
limited to oral testimony or statements; the general rule that while the mere happening of an accident or injury will not
excludes hearsay as evidence applies to written, as well as oral generally give rise to an inference or presumption that it was due
statements." to negligence on defendant’s part, under the doctrine of res ipsa
loquitur, which means, literally, the thing or transaction speaks
for itself, or in one jurisdiction, that the thing or instrumentality
2
speaks for itself, the facts or circumstances accompanying an of the rule of res ipsa loquitur is present. As explained earlier,
injury may be such as to raise a presumption, or at least permit the construction site with all its paraphernalia and human
an inference of negligence on the part of the defendant, or some resources that likely caused the injury is under the exclusive
other person who is charged with negligence. control and management of appellant[;] thus[,] the second
requisite is also present. No contributory negligence was
x x x where it is shown that the thing or instrumentality which attributed to the appellee’s deceased husband[;] thus[,] the last
caused the injury complained of was under the control or requisite is also present. All the requisites for the application of
management of the defendant, and that the occurrence resulting the rule of res ipsa loquitur are present, thus a reasonable
in the injury was such as in the ordinary course of things would presumption or inference of appellant’s negligence arises. x x x.
not happen if those who had its control or management used
proper care, there is sufficient evidence, or, as sometimes Petitioner does not dispute the existence of the requisites for the
stated, reasonable evidence, in the absence of explanation by application of res ipsa loquitur, but argues that the presumption
the defendant, that the injury arose from or was caused by the or inference that it was negligent did not arise since it "proved
defendant’s want of care. that it exercised due care to avoid the accident which befell
respondent’s husband."
One of the theoretical bases for the doctrine is its necessity, i.e.,
that necessary evidence is absent or not available. Petitioner apparently misapprehends the procedural effect of the
doctrine. As stated earlier, the defendant’s negligence is
The res ipsa loquitur doctrine is based in part upon the theory presumed or inferred when the plaintiff establishes the requisites
that the defendant in charge of the instrumentality which causes for the application of res ipsa loquitur. Once the plaintiff makes
the injury either knows the cause of the accident or has the best out a prima facie case of all the elements, the burden then shifts
opportunity of ascertaining it and that the plaintiff has no such to defendant to explain. The presumption or inference may be
knowledge, and therefore is compelled to allege negligence in rebutted or overcome by other evidence and, under appropriate
general terms and to rely upon the proof of the happening of the circumstances a disputable presumption, such as that of due
accident in order to establish negligence. The inference which care or innocence, may outweigh the inference. It is not for the
the doctrine permits is grounded upon the fact that the chief defendant to explain or prove its defense to prevent the
evidence of the true cause, whether culpable or innocent, is presumption or inference from arising. Evidence by the
practically accessible to the defendant but inaccessible to the defendant of say, due care, comes into play only after the
injured person. circumstances for the application of the doctrine has been
established.28

It has been said that the doctrine of res ipsa loquitur furnishes a
bridge by which a plaintiff, without knowledge of the cause, In the case at bar, aside from the statement in the police report,
reaches over to defendant who knows or should know the none of the parties disputes the fact that the Fuzo Cargo Truck
cause, for any explanation of care exercised by the defendant in hit the rear end of the Mitsubishi Galant, which, in turn, hit the
respect of the matter of which the plaintiff complains. The res rear end of the vehicle in front of it. Respondents, however, point
ipsa loquitur doctrine, another court has said, is a rule of to the reckless driving of the Nissan Bus driver as the proximate
necessity, in that it proceeds on the theory that under the cause of the collision, which allegation is totally unsupported by
peculiar circumstances in which the doctrine is applicable, it is any evidence on record. And assuming that this allegation is,
within the power of the defendant to show that there was no indeed, true, it is astonishing that respondents never even
negligence on his part, and direct proof of defendant’s bothered to file a cross-claim against the owner or driver of the
negligence is beyond plaintiff’s power. Accordingly, some courts Nissan Bus.
add to the three prerequisites for the application of the res ipsa
loquitur doctrine the further requirement that for the res ipsa What is at once evident from the instant case, however, is the
loquitur doctrine to apply, it must appear that the injured party presence of all the requisites for the application of the rule of res
had no knowledge or means of knowledge as to the cause of the ipsa loquitur. To reiterate, res ipsa loquitur is a rule of necessity
accident, or that the party to be charged with negligence has which applies where evidence is absent or not readily available.
superior knowledge or opportunity for explanation of the As explained in D.M. Consunji, Inc., it is partly based upon the
accident. theory that the defendant in charge of the instrumentality which
causes the injury either knows the cause of the accident or has
The CA held that all the requisites of res ipsa loquitur are the best opportunity of ascertaining it and that the plaintiff has no
present in the case at bar: such knowledge, and, therefore, is compelled to allege
negligence in general terms and to rely upon the proof of the
happening of the accident in order to establish negligence.
There is no dispute that appellee’s husband fell down from the
14th floor of a building to the basement while he was working
with appellant’s construction project, resulting to his death. The As mentioned above, the requisites for the application of the res
construction site is within the exclusive control and management ipsa loquitur rule are the following: (1) the accident was of a kind
of appellant. It has a safety engineer, a project superintendent, a which does not ordinarily occur unless someone is negligent; (2)
carpenter leadman and others who are in complete control of the the instrumentality or agency which caused the injury was under
situation therein. The circumstances of any accident that would the exclusive control of the person charged with negligence; and
occur therein are peculiarly within the knowledge of the appellant (3) the injury suffered must not have been due to any voluntary
or its employees. On the other hand, the appellee is not in a action or contribution on the part of the person injured.29
position to know what caused the accident. Res ipsa loquitur is a
rule of necessity and it applies where evidence is absent or not In the instant case, the Fuzo Cargo Truck would not have had hit
readily available, provided the following requisites are present: the rear end of the Mitsubishi Galant unless someone is
(1) the accident was of a kind which does not ordinarily occur negligent. Also, the Fuzo Cargo Truck was under the exclusive
unless someone is negligent; (2) the instrumentality or agency control of its driver, Reyes. Even if respondents avert liability by
which caused the injury was under the exclusive control of the putting the blame on the Nissan Bus driver, still, this allegation
person charged with negligence; and (3) the injury suffered must was self-serving and totally unfounded. Finally, no contributory
not have been due to any voluntary action or contribution on the negligence was attributed to the driver of the Mitsubishi Galant.
part of the person injured. x x x. Consequently, all the requisites for the application of the doctrine
of res ipsa loquitur are present, thereby creating a reasonable
No worker is going to fall from the 14th floor of a building to the presumption of negligence on the part of respondents.
basement while performing work in a construction site unless
someone is negligent[;] thus, the first requisite for the application
3
It is worth mentioning that just like any other disputable to accomplish justice; and is the mode that equity adopts to
presumptions or inferences, the presumption of negligence may compel the ultimate payment of a debt by one who, in justice,
be rebutted or overcome by other evidence to the contrary. It is equity, and good conscience, ought to pay.33
unfortunate, however, that respondents failed to present any
evidence before the trial court. Thus, the presumption of Considering the above ruling, it is only but proper that Malayan
negligence remains. Consequently, the CA erred in dismissing Insurance be subrogated to the rights of the assured.
the complaint for Malayan Insurance’s adverted failure to prove
negligence on the part of respondents.
WHEREFORE, the petition is hereby GRANTED. The CA’s July
28, 2010 Decision and October 29, 2010 Resolution in CA-G.R.
Validity of Subrogation CV No. 93112 are hereby REVERSED and SET ASIDE. The
Decision dated February 2, 2009 issued by the trial court in Civil
Malayan Insurance contends that there was a valid subrogation Case No. 99-95885 is hereby REINSTATED.
in the instant case, as evidenced by the claim check
voucher30 and the Release of Claim and Subrogation No pronouncement as to cost.
Receipt31 presented by it before the trial court. Respondents,
however, claim that the documents presented by Malayan
Insurance do not indicate certain important details that would SO ORDERED.
show proper subrogation.

As noted by Malayan Insurance, respondents had all the

opportunity, but failed to object to the presentation of its G.R. No. 137873       April 20, 2001
evidence. Thus, and as We have mentioned earlier, respondents
are deemed to have waived their right to make an objection. As
this Court held in Asian Construction and Development D. M. CONSUNJI, INC., petitioner,
Corporation v. COMFAC Corporation: vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
The rule is that failure to object to the offered evidence
renders it admissible, and the court cannot, on its own, KAPUNAN, J.:
disregard such evidence. We note that ASIAKONSTRUCT’s
counsel of record before the trial court, Atty. Bernard Dy, who At around 1:30 p.m., November 2, 1990, Jose Juego, a
actively participated in the initial stages of the case stopped construction worker of D. M. Consunji, Inc., fell 14 floors from the
attending the hearings when COMFAC was about to end its Renaissance Tower, Pasig City to his death.
presentation. Thus, ASIAKONSTRUCT could not object to
COMFAC’s offer of evidence nor present evidence in its
defense; ASIAKONSTRUCT was deemed by the trial court to PO3 Rogelio Villanueva of the Eastern Police District
have waived its chance to do so. investigated the tragedy and filed a report dated November 25,
1990, stating that:

Note also that when a party desires the court to reject the
evidence offered, it must so state in the form of a timely x x x. [The] [v]ictim was rushed to [the] Rizal Medical
objection and it cannot raise the objection to the evidence Center in Pasig, Metro Manila where he was
for the first time on appeal. Because of a party’s failure to pronounced dead on arrival (DOA) by the attending
timely object, the evidence becomes part of the evidence in physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of the
the case. Thereafter, all the parties are considered bound by same date.
any outcome arising from the offer of evidence properly
presented.32 (Emphasis supplied.) Investigation disclosed that at the given time, date and
place, while victim Jose A. Juego together with Jessie
Bearing in mind that the claim check voucher and the Release of Jaluag and Delso Destajo [were] performing their work
Claim and Subrogation Receipt presented by Malayan Insurance as carpenter[s] at the elevator core of the 14th floor of
are already part of the evidence on record, and since it is not the Tower D, Renaissance Tower Building on board a
disputed that the insurance company, indeed, paid PhP 700,000 [p]latform made of channel beam (steel) measuring 4.8
to the assured, then there is a valid subrogation in the case at meters by 2 meters wide with pinulid plywood flooring
bar. As explained in Keppel Cebu Shipyard, Inc. v. Pioneer and cable wires attached to its four corners and
Insurance and Surety Corporation: hooked at the 5 ton chain block, when suddenly, the
bolt or pin which was merely inserted to connect the
chain block with the [p]latform, got loose xxx causing
Subrogation is the substitution of one person by another with the whole [p]latform assembly and the victim to fall
reference to a lawful claim or right, so that he who is substituted down to the basement of the elevator core, Tower D of
succeeds to the rights of the other in relation to a debt or claim, the building under construction thereby crushing the
including its remedies or securities. The principle covers a victim of death, save his two (2) companions who
situation wherein an insurer has paid a loss under an insurance luckily jumped out for safety.
policy is entitled to all the rights and remedies belonging to the
insured against a third party with respect to any loss covered by
the policy. It contemplates full substitution such that it places the It is thus manifest that Jose A. Juego was crushed to
party subrogated in the shoes of the creditor, and he may use all death when the [p]latform he was then on board and
means that the creditor could employ to enforce performing work, fell. And the falling of the [p]latform
payment.1âwphi1 was due to the removal or getting loose of the pin
which was merely inserted to the connecting points of
the chain block and [p]latform but without a safety
We have held that payment by the insurer to the insured lock.1
operates as an equitable assignment to the insurer of all the
remedies that the insured may have against the third party
whose negligence or wrongful act caused the loss. The right of On May 9, 1991, Jose Juego’s widow, Maria, filed in the
subrogation is not dependent upon, nor does it grow out of, any Regional Trial Court (RTC) of Pasig a complaint for damages
privity of contract. It accrues simply upon payment by the against the deceased’s employer, D.M. Consunji, Inc. The
insurance company of the insurance claim. The doctrine of employer raised, among other defenses, the widow’s prior
subrogation has its roots in equity. It is designed to promote and availment of the benefits from the State Insurance Fund.
4
After trial, the RTC rendered a decision in favor of the widow by the test of cross-examiantion.7 The hearsay rule, therefore,
Maria Juego. The dispositive portion of the RTC decision reads: excludes evidence that cannot be tested by cross-examination.8

WHEREFORE, judgment is hereby rendered ordering The Rules of Court allow several exceptions to the rule,9 among
defendant to pay plaintiff, as follows: which are entries in official records. Section 44, Rule 130
provides:
1. P50,000.00 for the death of Jose A. Juego.
Entries in official records made in the performance of
2. P10,000.00 as actual and compensatory his duty made in the performance of his duty by a
damages. public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law
are prima facie evidence of the facts therein stated.
3. P464,000.00 for the loss of Jose A.
Juego’s earning capacity.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing
the work of Chief Justice Moran, enumerated the requisites for
4. P100,000.00 as moral damages. admissibility under the above rule:

5. P20,000.00 as attorney’s fees, plus the (a) that the entry was made by a public officer or by
costs of suit. another person specially enjoined by law to do so;

SO ORDERED.2 (b) that it was made by the public officer in the

performance of his duties, or by such other person in
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the performance of a duty specially enjoined by law;
the decision of the RTC in toto. and

D. M. Consunji now seeks the reversal of the CA decision on the (c) that the public officer or other person had sufficient
following grounds: knowledge of the facts by him stated, which must have
been acquired by him personally or through official
information.
 THE APPELLATE COURT ERRED IN
HOLDING THAT THE POLICE REPORT
WAS ADMISSIBLE EVIDENCE OF THE The CA held that the police report meets all these requisites.
ALLEGED NEGLIGENCE OF PETITIONER. Petitioner contends that the last requisite is not present.

 THE APPELLATE COURT ERRED IN The Court notes that PO3 Villanueva, who signed the report in
HOLDING THAT THE DOCTRINE OF RES question, also testified before the trial court. In Rodriguez vs.
IPSA LOQUITOR [sic] IS APPLICABLE TO Court of Appeals,11 which involved a Fire Investigation Report,
PROVE NEGLIGENCE ON THE PART OF the officer who signed the fire report also testified before the trial
PETITIONER. court. This Court held that the report was inadmissible for the
purpose of proving the truth of the statements contained in the
report but admissible insofar as it constitutes part of the
 THE APPELLATE COURT ERRED IN testimony of the officer who executed the report.
HOLDING THAT PETITIONER IS
PRESUMED NEGLIGENT UNDER ARTICLE
x x x. Since Major Enriquez himself took the witness
2180 OF THE CIVIL CODE, AND
stand and was available for cross-examination, the
portions of the report which were of his personal
 THE APPELLATE COURT ERRED IN knowledge or which consisted of his perceptions and
HOLDING THAT RESPONDENT IS NOT conclusions were not hearsay. The rest of the report,
PRECLUDED FROM RECOVERING such as the summary of the statements of the parties
DAMAGES UNDER THE CIVIL CODE.3 based on their sworn statements (which were annexed
to the Report) as well as the latter, having been
Petitioner maintains that the police report reproduced above is included in the first purpose of the offer [as part of the
hearsay and, therefore, inadmissible. The CA ruled otherwise. It testimony of Major Enriquez], may then be considered
held that said report, being an entry in official records, is an as independently relevant statements which were
exception to the hearsay rule. gathered in the course of the investigation and may
thus be admitted as such, but not necessarily to prove
the truth thereof. It has been said that:
The Rules of Court provide that a witness can testify only to
those facts which he knows of his personal knowledge, that is,
which are derived from his perception.4 A witness, therefore, may "Where regardless of the truth or falsity of a
not testify as what he merely learned from others either because statement, the fact that it has been made is
he was told or read or heard the same. Such testimony is relevant, the hearsay rule does not apply, but
considered hearsay and may not be received as proof of the the statement may be shown. Evidence as to
truth of what he has learned.5 This is known as the hearsay rule. the making of such statement is not
secondary but primary, for the statement
itself may constitute a fact in issue, or be
Hearsay is not limited to oral testimony or statements; the circumstantially relevant as to the existence
general rule that excludes hearsay as evidence applies to of such a fact."
written, as well as oral statements.6
When Major Enriquez took the witness stand, testified
The theory of the hearsay rule is that the many possible for petitioners on his Report and made himself
deficiencies, suppressions, sources of error and available for cross-examination by the adverse party,
untrustworthiness, which lie underneath the bare untested the Report, insofar as it proved that certain utterances
assertion of a witness, may be best brought to light and exposed were made (but not their truth), was effectively
removed from the ambit of the aforementioned Section
5
 44 of Rule 130. Properly understood, this section does exceptions,18 the opinion of a witness is generally not
away with the testimony in open court of the officer admissible.19
who made the official record, considers the matter as
an exception to the hearsay rule and makes the entries Petitioner’s contention, however, loses relevance in the face of
in said official record admissible in evidence as prima the application of res ipsa loquitur by the CA. The effect of the
facie evidence of the facts therein stated. The doctrine is to warrant a presumption or inference that the mere
underlying reasons for this exceptionary rule are fall of the elevator was a result of the person having charge of
necessity and trustworthiness, as explained in Antillon the instrumentality was negligent. As a rule of evidence, the
v. Barcelon. doctrine of res ipsa loquitur is peculiar to the law of negligence
which recognizes that prima facie negligence may be
The litigation is unlimited in which testimony established without direct proof and furnishes a substitute for
by officials is daily needed; the occasions in specific proof of negligence.20
which the officials would be summoned from
his ordinary duties to declare as a witness The concept of res ipsa loquitur has been explained in this wise:
are numberless. The public officers are few in
whose daily work something is not done in
which testimony is not needed from official While negligence is not ordinarily inferred or presumed,
sources. Were there no exception for official and while the mere happening of an accident or injury
statements, hosts of officials would be found will not generally give rise to an inference or
devoting the greater part of their time to presumption that it was due to negligence on
attending as witnesses in court or delivering defendant’s part, under the doctrine of res ipsa
deposition before an officer. The work of loquitur, which means, literally, the thing or transaction
administration of government and the interest speaks for itself, or in one jurisdiction, that the thing or
of the public having business with officials instrumentality speaks for itself, the facts or
would alike suffer in consequence. For these circumstances accompanying an injury may be such as
reasons, and for many others, a certain verity to raise a presumption, or at least permit an inference
is accorded such documents, which is not of negligence on the part of the defendant, or some
extended to private documents. (3 Wigmore other person who is charged with negligence.
on Evidence, Sec. 1631).
x x x where it is shown that the thing or instrumentality
The law reposes a particular confidence in which caused the injury complained of was under the
public officers that it presumes they will control or management of the defendant, and that the
discharge their several trusts with accuracy occurrence resulting in the injury was such as in the
and fidelity; and, therefore, whatever acts ordinary course of things would not happen if those
they do in discharge of their duty may be who had its control or management used proper care,
given in evidence and shall be taken to be there is sufficient evidence, or, as sometimes stated,
true under such a degree of caution as to the reasonable evidence, in the absence of explanation by
nature and circumstances of each case may the defendant, that the injury arose from or was caused
appear to require. by the defendant’s want of care.21

It would have been an entirely different matter if Major One of the theoretical based for the doctrine is its necessity, i.e.,
Enriquez was not presented to testify on his report. In that necessary evidence is absent or not available.22
that case the applicability of Section 44 of Rule 143
would have been ripe for determination, and this Court The res ipsa loquitur doctrine is based in part upon the
would have agreed with the Court of Appeals that said theory that the defendant in charge of the
report was inadmissible since the aforementioned third instrumentality which causes the injury either knows
requisite was not satisfied. The statements given by the cause of the accident or has the best opportunity of
the sources of information of Major Enriquez failed to ascertaining it and that the plaintiff has no such
qualify as "official information," there being no showing knowledge, and therefore is compelled to allege
that, at the very least, they were under a duty to give negligence in general terms and to rely upon the proof
the statements for record. of the happening of the accident in order to establish
negligence. The inference which the doctrine permits is
Similarly, the police report in this case is inadmissible for the grounded upon the fact that the chief evidence of the
purpose of proving the truth of the statements contained therein true cause, whether culpable or innocent, is practically
but is admissible insofar as it constitutes part of the testimony of accessible to the defendant but inaccessible to the
PO3 Villanueva. injured person.

In any case, the Court holds that portions of PO3 Villanueva’s It has been said that the doctrine of res ipsa loquitur
testimony which were of his personal knowledge suffice to prove furnishes a bridge by which a plaintiff, without
that Jose Juego indeed died as a result of the elevator crash. knowledge of the cause, reaches over to defendant
PO3 Villanueva had seen Juego’s remains at the who knows or should know the cause, for any
morgue,12 making the latter’s death beyond dispute. PO3 explanation of care exercised by the defendant in
Villanueva also conducted an ocular inspection of the premises respect of the matter of which the plaintiff complains.
of the building the day after the incident13 and saw the platform The res ipsa loquitur doctrine, another court has said,
for himself.14 He observed that the platform was crushed15 and is a rule of necessity, in that it proceeds on the theory
that it was totally damaged.16 PO3 Villanueva also required that under the peculiar circumstances in which the
Garcia and Fabro to bring the chain block to the police doctrine is applicable, it is within the power of the
headquarters. Upon inspection, he noticed that the chain was defendant to show that there was no negligence on his
detached from the lifting machine, without any pin or bolt.17 part, and direct proof of defendant’s negligence is
beyond plaintiff’s power. Accordingly, some court add
to the three prerequisites for the application of the res
What petitioner takes particular exception to is PO3 Villanueva’s ipsa loquitur doctrine the further requirement that for
testimony that the cause of the fall of the platform was the the res ipsa loquitur doctrine to apply, it must appear
loosening of the bolt from the chain block. It is claimed that such that the injured party had no knowledge or means of
portion of the testimony is mere opinion. Subject to certain knowledge as to the cause of the accident, or that the
6
 party to be charged with negligence has superior It is ironic that petitioner relies on Fabro’s sworn statement as
knowledge or opportunity for explanation of the proof of its due care but, in arguing that private respondent failed
accident.23 to prove negligence on the part of petitioner’s employees, also
assails the same statement for being hearsay.
The CA held that all the requisites of res ipsa loquitur are
present in the case at bar: Petitioner is correct. Fabro’s sworn statement is hearsay and
inadmissible. Affidavits are inadmissible as evidence under the
There is no dispute that appellee’s husband fell down hearsay rule, unless the affiant is placed on the witness stand to
from the 14th floor of a building to the basement while testify thereon.28 The inadmissibility of this sort of evidence is
he was working with appellant’s construction project, based not only on the lack of opportunity on the part of the
resulting to his death. The construction site is within adverse party to cross-examine the affiant, but also on the
the exclusive control and management of appellant. It commonly known fact that, generally, an affidavit is not prepared
has a safety engineer, a project superintendent, a by the affiant himself but by another who uses his own language
carpenter leadman and others who are in complete in writing the affiant’s statements which may either be omitted or
control of the situation therein. The circumstances of misunderstood by the one writing them.29 Petitioner, therefore,
any accident that would occur therein are peculiarly cannot use said statement as proof of its due care any more
within the knowledge of the appellant or its employees. than private respondent can use it to prove the cause of her
On the other hand, the appellee is not in a position to husband’s death. Regrettably, petitioner does not cite any other
know what caused the accident. Res ipsa loquitur is a evidence to rebut the inference or presumption of negligence
rule of necessity and it applies where evidence is arising from the application of res ipsa loquitur, or to establish
absent or not readily available, provided the following any defense relating to the incident.
requisites are present: (1) the accident was of a kind
which does not ordinarily occur unless someone is Next, petitioner argues that private respondent had previously
negligent; (2) the instrumentality or agency which availed of the death benefits provided under the Labor Code and
caused the injury was under the exclusive control of is, therefore, precluded from claiming from the deceased’s
the person charged with negligence; and (3) the injury employer damages under the Civil Code.
suffered must not have been due to any voluntary
action or contribution on the part of the person injured. Article 173 of the Labor Code states:
x x x.

Article 173. Extent of liability. – Unless otherwise

No worker is going to fall from the 14th floor of a provided, the liability of the State Insurance Fund
building to the basement while performing work in a under this Title shall be exclusive and in place of all
construction site unless someone is negligent[;] thus, other liabilities of the employer to the employee, his
the first requisite for the application of the rule of res dependents or anyone otherwise entitled to receive
ipsa loquitur is present. As explained earlier, the damages on behalf of the employee or his dependents.
construction site with all its paraphernalia and human The payment of compensation under this Title shall not
resources that likely caused the injury is under the bar the recovery of benefits as provided for in Section
exclusive control and management of appellant[;] 699 of the Revised Administrative Code, Republic Act
thus[,] the second requisite is also present. No Numbered Eleven hundred sixty-one, as amended,
contributory negligence was attributed to the appellee’s Republic Act Numbered Six hundred ten, as amended,
deceased husband[;] thus[,] the last requisite is also Republic Act Numbered Forty-eight hundred sixty-four
present. All the requisites for the application of the rule as amended, and other laws whose benefits are
of res ipsa loquitur are present, thus a reasonable administered by the System or by other agencies of the
presumption or inference of appellant’s negligence government.
arises. x x x.24

The precursor of Article 173 of the Labor Code, Section 5 of the

Petitioner does not dispute the existence of the requisites for the Workmen’s Compensation Act, provided that:
application of res ipsa loquitur, but argues that the presumption
or inference that it was negligent did not arise since it "proved
that it exercised due care to avoid the accident which befell Section 5. Exclusive right to compensation. – The
respondent’s husband." rights and remedies granted by this Act to an employee
by reason of a personal injury entitling him to
compensation shall exclude all other rights and
Petitioner apparently misapprehends the procedural effect of the remedies accruing to the employee, his personal
doctrine. As stated earlier, the defendant’s negligence is representatives, dependents or nearest of kin against
presumed or inferred25 when the plaintiff establishes the the employer under the Civil Code and other laws
requisites for the application of res ipsa loquitur. Once the because of said injury x x x.
plaintiff makes out a prima facie case of all the elements, the
burden then shifts to defendant to explain.26 The presumption or
inference may be rebutted or overcome by other evidence and, Whether Section 5 of the Workmen’s Compensation Act allowed
under appropriate circumstances disputable presumption, such recovery under said Act as well as under the Civil Code used to
as that of due care or innocence, may outweigh the inference.27 It be the subject of conflicting decisions. The Court finally settled
is not for the defendant to explain or prove its defense to prevent the matter in Floresca vs.Philex Mining Corporation,30 which
the presumption or inference from arising. Evidence by the involved a cave-in resulting in the death of the employees of the
defendant of say, due care, comes into play only after the Philex Mining Corporation. Alleging that the mining corporation,
circumstances for the application of the doctrine has been in violation of government rules and regulations, failed to take
established.1âwphi1.nêt the required precautions for the protection of the employees, the
heirs of the deceased employees filed a complaint against Philex
Mining in the Court of First Instance (CFI). Upon motion of Philex
In any case, petitioner cites the sworn statement of its leadman Mining, the CFI dismissed the complaint for lack of jurisdiction.
Ferdinand Fabro executed before the police investigator as The heirs sought relief from this Court.
evidence of its due care. According to Fabro’s sworn statement,
the company enacted rules and regulations for the safety and
security of its workers. Moreover, the leadman and Addressing the issue of whether the heirs had a choice of
the bodegero inspect the chain block before allowing its use. remedies, majority of the Court En Banc,31 following the rule
in Pacaña vs. Cebu Autobus Company, held in the affirmative.

7
 WE now come to the query as to whether or not the recognized that a claimant who had been paid under the Act
injured employee or his heirs in case of death have a could still sue under the Civil Code. The Court said:
right of selection or choice of action between availing
themselves of the worker’s right under the Workmen’s In the Robles case, it was held that claims for damages
Compensation Act and suing in the regular courts sustained by workers in the course of their employment
under the Civil Code for higher damages (actual, moral could be filed only under the Workmen’s
and exemplary) from the employers by virtue of the Compensation Law, to the exclusion of all further
negligence or fault of the employers or whether they claims under other laws. In Floresca, this doctrine was
may avail themselves cumulatively of both actions, i.e., abrogated in favor of the new rule that the claimants
collect the limited compensation under the Workmen’s may invoke either the Workmen’s Compensation Act or
Compensation Act and sue in addition for damages in the provisions of the Civil Code, subject to the
the regular courts. consequence that the choice of one remedy will
exclude the other and that the acceptance of
In disposing of a similar issue, this Court in Pacaña vs. compensation under the remedy chosen will preclude a
Cebu Autobus Company, 32 SCRA 442, ruled that an claim for additional benefits under the other
injured worker has a choice of either to recover from remedy. The exception is where a claimant who has
the employer the fixed amounts set by the Workmen’s already been paid under the Workmen’s Compensation
Compensation Act or to prosecute an ordinary civil Act may still sue for damages under the Civil Code on
action against the tortfeasor for higher damages but he the basis of supervening facts or developments
cannot pursue both courses of action simultaneously. occurring after he opted for the first remedy.
[Underscoring supplied.] (Underscoring supplied.)

Nevertheless, the Court allowed some of the petitioners in said Here, the CA held that private respondent’s case came under
case to proceed with their suit under the Civil Code despite the exception because private respondent was unaware of
having availed of the benefits provided under the Workmen’s petitioner’s negligence when she filed her claim for death
Compensation Act. The Court reasoned: benefits from the State Insurance Fund. Private respondent filed
the civil complaint for damages after she received a copy of the
With regard to the other petitioners, it was alleged by police investigation report and the Prosecutor’s Memorandum
Philex in its motion to dismiss dated May 14, 1968 dismissing the criminal complaint against petitioner’s personnel.
before the court a quo, that the heirs of the deceased While stating that there was no negligence attributable to the
employees, namely Emerito Obra, Larry Villar, Jr., respondents in the complaint, the prosecutor nevertheless noted
Aurelio Lanuza, Lorenzo Isla and Saturnino submitted in the Memorandum that, "if at all," the "case is civil in nature."
notices and claims for compensation to the Regional The CA thus applied the exception in Floresca:
Office No. 1 of the then Department of Labor and all of
them have been paid in full as of August 25, 1967, x x x We do not agree that appellee has knowledge of
except Saturnino Martinez whose heirs decided that the alleged negligence of appellant as early as
they be paid in installments x x x. Such allegation was November 25, 1990, the date of the police
admitted by herein petitioners in their opposition to the investigator’s report. The appellee merely executed her
motion to dismiss dated may 27, 1968 x x x in the sworn statement before the police investigator
lower court, but they set up the defense that the claims concerning her personal circumstances, her relation to
were filed under the Workmen’s Compensation Act the victim, and her knowledge of the accident. She did
before they learned of the official report of the not file the complaint for "Simple Negligence Resulting
committee created to investigate the accident which to Homicide" against appellant’s employees. It was the
established the criminal negligence and violation of law investigator who recommended the filing of said case
by Philex, and which report was forwarded by the and his supervisor referred the same to the
Director of Mines to then Executive Secretary Rafael prosecutor’s office. This is a standard operating
Salas in a letter dated October 19, 1967 only x x x. procedure for police investigators which appellee may
not have even known. This may explain why no
WE hold that although the other petitioners had complainant is mentioned in the preliminary statement
received the benefits under the Workmen’s of the public prosecutor in her memorandum dated
Compensation Act, such my not preclude them from February 6, 1991, to wit: "Respondent Ferdinand
bringing an action before the regular court because Fabro x x x are being charged by complainant of
they became cognizant of the fact that Philex has been "Simple Negligence Resulting to Homicide." It is also
remiss in its contractual obligations with the deceased possible that the appellee did not have a chance to
miners only after receiving compensation under the appear before the public prosecutor as can be inferred
Act. Had petitioners been aware of said violation of from the following statement in said memorandum:
government rules and regulations by Philex, and of its "Respondents who were notified pursuant to Law
negligence, they would not have sought redress under waived their rights to present controverting evidence,"
the Workmen’s Compensation Commission which thus there was no reason for the public prosecutor to
awarded a lesser amount for compensation. The summon the appellee. Hence, notice of appellant’s
choice of the first remedy was based on ignorance or a negligence cannot be imputed on appellee before she
mistake of fact, which nullifies the choice as it was not applied for death benefits under ECC or before she
an intelligent choice. The case should therefore be received the first payment therefrom. Her using the
remanded to the lower court for further proceedings. police investigation report to support her complaint filed
However, should the petitioners be successful in their on May 9, 1991 may just be an afterthought after
bid before the lower court, the payments made under receiving a copy of the February 6, 1991 Memorandum
the Workmen’s Compensation Act should be deducted of the Prosecutor’s Office dismissing the criminal
from the damages that may be decreed in their favor. complaint for insufficiency of evidence, stating therein
[Underscoring supplied.] that: "The death of the victim is not attributable to any
negligence on the part of the respondents. If at all and
as shown by the records this case is civil in nature."
The ruling in Floresca providing the claimant a choice of (Underscoring supplied.) Considering the foregoing,
remedies was reiterated in Ysmael Maritime Corporation vs. We are more inclined to believe appellee’s allegation
Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper that she learned about appellant’s negligence only
Mining Corp. vs. Abeleda.34 In the last case, the Court again after she applied for and received the benefits under

8
 ECC. This is a mistake of fact that will make this case consequences. That a waiver is made knowingly and
fall under the exception held in the Floresca ruling.35 intelligently must be illustrated on the record or by the
evidence.40
The CA further held that not only was private respondent
ignorant of the facts, but of her rights as well: That lack of knowledge of a fact that nullifies the election of a
remedy is the basis for the exception in Floresca.
x x x. Appellee [Maria Juego] testified that she has
reached only elementary school for her educational It is in light of the foregoing principles that we address
attainment; that she did not know what damages could petitioner’s contentions.
be recovered from the death of her husband; and that
she did not know that she may also recover more from Waiver is a defense, and it was not incumbent upon private
the Civil Code than from the ECC. x x x.36 respondent, as plaintiff, to allege in her complaint that she had
availed of benefits from the ECC. It is, thus, erroneous for
Petitioner impugns the foregoing rulings. It contends that private petitioner to burden private respondent with raising waiver as an
respondent "failed to allege in her complaint that her application issue. On the contrary, it is the defendant who ought to plead
and receipt of benefits from the ECC were attended by waiver, as petitioner did in pages 2-3 of its Answer;41 otherwise,
ignorance or mistake of fact. Not being an issue submitted the defense is waived. It is, therefore, perplexing for petitioner to
during the trial, the trial court had no authority to hear or now contend that the trial court had no jurisdiction over the issue
adjudicate that issue." when petitioner itself pleaded waiver in the proceedings before
the trial court.
Petitioner also claims that private respondent could not have
been ignorant of the facts because as early as November 28, Does the evidence show that private respondent knew of the
1990, private respondent was the complainant in a criminal facts that led to her husband’s death and the rights pertaining to
complaint for "Simple Negligence Resulting to Homicide" against a choice of remedies?
petitioner’s employees. On February 6, 1991, two months before
the filing of the action in the lower court, Prosecutor Lorna Lee It bears stressing that what negates waiver is lack of knowledge
issued a resolution finding that, although there was insufficient or a mistake of fact. In this case, the "fact" that served as a basis
evidence against petitioner’s employees, the case was "civil in for nullifying the waiver is the negligence of petitioner’s
nature." These purportedly show that prior to her receipt of death employees, of which private respondent purportedly learned only
benefits from the ECC on January 2, 1991 and every month after the prosecutor issued a resolution stating that there may be
thereafter, private respondent also knew of the two choices of civil liability. In Floresca, it was the negligence of the mining
remedies available to her and yet she chose to claim and corporation and its violation of government rules and regulations.
receive the benefits from the ECC. Negligence, or violation of government rules and regulations, for
that matter, however, is not a fact, but a conclusion of law, over
When a party having knowledge of the facts makes an election which only the courts have the final say. Such a conclusion
between inconsistent remedies, the election is final and bars any binds no one until the courts have decreed so. It appears,
action, suit, or proceeding inconsistent with the elected remedy, therefore, that the principle that ignorance or mistake of fact
in the absence of fraud by the other party. The first act of nullifies a waiver has been misapplied in Floresca and in the
election acts as a bar.37 Equitable in nature, the doctrine of case at bar.
election of remedies is designed to mitigate possible unfairness
to both parties. It rests on the moral premise that it is fair to hold In any event, there is no proof that private respondent knew that
people responsible for their choices. The purpose of the doctrine her husband died in the elevator crash when on November 15,
is not to prevent any recourse to any remedy, but to prevent a 1990 she accomplished her application for benefits from the
double redress for a single wrong.38 ECC. The police investigation report is dated November 25,
1990, 10 days after the accomplishment of the form. Petitioner
The choice of a party between inconsistent remedies results in filed the application in her behalf on November 27, 1990.
a waiver by election. Hence, the rule in Floresca that a claimant
cannot simultaneously pursue recovery under the Labor Code There is also no showing that private respondent knew of the
and prosecute an ordinary course of action under the Civil Code. remedies available to her when the claim before the ECC was
The claimant, by his choice of one remedy, is deemed to have filed. On the contrary, private respondent testified that she was
waived the other. not aware of her rights.

Waiver is the intentional relinquishment of a known right.39 Petitioner, though, argues that under Article 3 of the Civil Code,
ignorance of the law excuses no one from compliance therewith.
[It] is an act of understanding that presupposes that a As judicial decisions applying or interpreting the laws or the
party has knowledge of its rights, but chooses not to Constitution form part of the Philippine legal system (Article 8,
assert them. It must be generally shown by the party Civil Code), private respondent cannot claim ignorance of this
claiming a waiver that the person against whom the Court’s ruling in Floresca allowing a choice of remedies.
waiver is asserted had at the time knowledge, actual or
constructive, of the existence of the party’s rights or of The argument has no merit. The application of Article 3 is limited
all material facts upon which they depended. Where to mandatory and prohibitory laws.42 This may be deduced from
one lacks knowledge of a right, there is no basis upon the language of the provision, which, notwithstanding a person’s
which waiver of it can rest. Ignorance of a material fact ignorance, does not excuse his or her compliance with the laws.
negates waiver, and waiver cannot be established by a The rule in Floresca allowing private respondent a choice of
consent given under a mistake or misapprehension of remedies is neither mandatory nor prohibitory. Accordingly, her
fact. ignorance thereof cannot be held against her.

A person makes a knowing and intelligent waiver when Finally, the Court modifies the affirmance of the award of
that person knows that a right exists and has adequate damages. The records do not indicate the total amount private
knowledge upon which to make an intelligent decision. respondent ought to receive from the ECC, although it appears
from Exhibit "K"43 that she received P3,581.85 as initial payment
Waiver requires a knowledge of the facts basic to the representing the accrued pension from November 1990 to March
exercise of the right waived, with an awareness of its 1991. Her initial monthly pension, according to the same Exhibit
9
"K," was P596.97 and present total monthly pension was X-ray revealed a right mid-tibial fracture and a linear hairline
P716.40. Whether the total amount she will eventually receive fracture in the shaft of the bone.
from the ECC is less than the sum of P644,000.00 in total
damages awarded by the trial court is subject to speculation, The NBI indorsed the matter to the Office of the City Prosecutor
and the case is remanded to the trial court for such of Manila for preliminary investigation. Probable cause was
determination. Should the trial court find that its award is greater found and a criminal case for reckless imprudence resulting to
than that of the ECC, payments already received by private serious physical injuries, was filed against Dr. Jarcia, Dr. Bastan
respondent under the Labor Code shall be deducted from the and Dr. Pamittan,5 before the RTC, docketed as Criminal Case
trial court'’ award of damages. Consistent with our ruling No. 01-196646.
in Floresca, this adjudication aims to prevent double
compensation.
On June 14, 2005, the RTC found the petitioners guilty beyond
reasonable doubt of the crime of Simple Imprudence Resulting
WHEREFORE, the case is REMANDED to the Regional Trial to Serious Physical Injuries. The decretal portion of the RTC
Court of Pasig City to determine whether the award decreed in decision reads:
its decision is more than that of the ECC. Should the award
decreed by the trial court be greater than that awarded by the
ECC, payments already made to private respondent pursuant to WHEREFORE, premises considered, the Court finds accused
the Labor Code shall be deducted therefrom. In all other DR. EMMANUEL JARCIA, JR. and DR. MARILOU BASTAN
respects, the Decision of the Court of Appeals is AFFIRMED. GUILTY beyond reasonable doubt of the crime of SIMPLE
IMPRUDENCE RESULTING TO SERIOUS PHYSICAL
INJURIES and are hereby sentenced to suffer the penalty of
SO ORDERED. ONE (1) MONTH and ONE (1) DAY to TWO (2) MONTHS and
to indemnify MRS. BELINDA SANTIAGO the amount of ₱
3,850.00 representing medical expenses without subsidiary
imprisonment in case of insolvency and to pay the costs.

It appearing that Dr. Pamittan has not been apprehended nor

G.R. No. 187926               February 15, 2012 voluntarily surrendered despite warrant issued for her arrest, let
warrant be issued for her arrest and the case against her be
ARCHIVED, to be reinstated upon her apprehension.
Dr. EMMANUEL JARCIA, Jr. and Dr. MARILOU
BASTAN, Petitioners,
vs. SO ORDERED.6
PEOPLE OF THE PHILIPPINES, Respondent.
The RTC explained:
DECISION
After a thorough and in depth evaluation of the evidence
MENDOZA, J.: adduced by the prosecution and the defense, this court finds that
the evidence of the prosecution is the more credible, concrete
and sufficient to create that moral certainty in the mind of the
Even early on, patients have consigned their lives to the skill of Court that accused herein [are] criminally responsible. The Court
their doctors. Time and again, it can be said that the most believes that accused are negligent when both failed to exercise
important goal of the medical profession is the preservation of the necessary and reasonable prudence in ascertaining the
life and health of the people. Corollarily, when a physician extent of injury of Alfonso Santiago, Jr.
departs from his sacred duty and endangers instead the life of
his patient, he must be made liable for the resulting injury. This
Court, as this case would show, cannot and will not let the act go However, the negligence exhibited by the two doctors does not
unpunished.1 approximate negligence of a reckless nature but merely amounts
to simple imprudence. Simple imprudence consists in the lack of
precaution displayed in those cases in which the damage
This is a petition for review under Rule 45 of the Rules of Court impending to be caused is not the immediate nor the danger
challenging the August 29, 2008 Decision2 of the Court of clearly manifest. The elements of simple imprudence are as
Appeals (CA), and its May 19, 2009 Resolution3 in CA-G.R. CR follows.
No. 29559, dismissing the appeal and affirming in toto the June
14, 2005 Decision4 of the Regional Trial Court, Branch 43,
Manila (RTC), finding the accused guilty beyond reasonable 1. that there is lack of precaution on the part of the
doubt of simple imprudence resulting to serious physical injuries. offender; and

THE FACTS 2. that the damage impending to be caused is not

immediate of the danger is not clearly manifest.

Belinda Santiago (Mrs. Santiago) lodged a complaint with the

National Bureau of Investigation (NBI) against the petitioners, Considering all the evidence on record, The Court finds the
Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou accused guilty for simple imprudence resulting to physical
Bastan (Dr. Bastan), for their alleged neglect of professional duty injuries. Under Article 365 of the Revised Penal Code, the
which caused her son, Roy Alfonso Santiago (Roy Jr.), to suffer penalty provided for is arresto mayor in its minimum period.7
serious physical injuries. Upon investigation, the NBI found that
Roy Jr. was hit by a taxicab; that he was rushed to the Manila Dissatisfied, the petitioners appealed to the CA.
Doctors Hospital for an emergency medical treatment; that an X-
ray of the victim’s ankle was ordered; that the X-ray result As earlier stated, the CA affirmed the RTC decision in toto. The
showed no fracture as read by Dr. Jarcia; that Dr. Bastan August 29, 2008 Decision of the CA pertinently reads:
entered the emergency room (ER) and, after conducting her own
examination of the victim, informed Mrs. Santiago that since it
was only the ankle that was hit, there was no need to examine This Court holds concurrently and finds the foregoing
the upper leg; that eleven (11) days later, Roy Jr. developed circumstances sufficient to sustain a judgment of conviction
fever, swelling of the right leg and misalignment of the right foot; against the accused-appellants for the crime of simple
that Mrs. Santiago brought him back to the hospital; and that the imprudence resulting in serious physical injuries. The elements
10
of imprudence are: (1) that the offender does or fails to do an Q: Now, he is an intern did you not consult the doctors, Dr.
act; (2) that the doing or the failure to do that act is voluntary; (3) Jarcia or Dra. Pamittan to confirm whether you should go home
that it be without malice; (4) that material damage results from or not?
the imprudence; and (5) that there is inexcusable lack of
precaution on the part of the offender, taking into consideration A: Dra. Pamittan was inside the cubicle of the nurses and I
his employment or occupation, degree of intelligence, physical asked her, you let us go home and you don’t even clean the
condition, and other circumstances regarding persons, time and wounds of my son.
place.

Q: And what did she [tell] you?

Whether or not Dr. Jarcia and Dr. Bastan had committed an
"inexcusable lack of precaution" in the treatment of their patient
is to be determined according to the standard of care observed A: They told me they will call a resident doctor, sir.
by other members of the profession in good standing under
similar circumstances, bearing in mind the advanced state of the x x x           x x x          x x x
profession at the time of treatment or the present state of
medical science. In the case of Leonila Garcia-Rueda v.
Pascasio, the Supreme Court stated that, in accepting a case, a Q: Was there a resident doctor [who] came?
doctor in effect represents that, having the needed training and
skill possessed by physicians and surgeons practicing in the A: Yes, Sir. Dra. Bastan arrived.
same field, he will employ such training, care and skill in the
treatment of his patients. He therefore has a duty to use at least
the same level of care that any other reasonably competent Q: Did you tell her what you want on you to be done?
doctor would use to treat a condition under the same
circumstances. A: Yes, sir.

In litigations involving medical negligence, the plaintiff has the Q: What did you [tell] her?
burden of establishing accused-appellants’ negligence, and for a
reasonable conclusion of negligence, there must be proof of A: I told her, sir, while she was cleaning the wounds of my son,
breach of duty on the part of the physician as well as a causal are you not going to x-ray up to the knee because my son was
connection of such breach and the resulting injury of his patient. complaining pain from his ankle up to the middle part of the right
The connection between the negligence and the injury must be a leg.
direct and natural sequence of events, unbroken by intervening
efficient causes. In other words, the negligence must be the
proximate cause of the injury. Negligence, no matter in what it Q: And what did she tell you?
consists, cannot create a right of action unless it is the proximate
cause of the injury complained of. The proximate cause of an A: According to Dra. Bastan, there is no need to x-ray because it
injury is that cause which, in natural and continuous sequence, was the ankle part that was run over.
unbroken by any efficient intervening cause, produces the injury
and without which the result would not have occurred.
Q: What did you do or tell her?
In the case at bench, the accused-appellants questioned the
imputation against them and argued that there is no causal A: I told her, sir, why is it that they did not examine[x] the whole
connection between their failure to diagnose the fracture and the leg. They just lifted the pants of my son.
injury sustained by Roy.
Q: So you mean to say there was no treatment made at all?
We are not convinced.
A: None, sir.
The prosecution is however after the cause which prolonged the
pain and suffering of Roy and not on the failure of the accused- x x x           x x x          x x x
appellants to correctly diagnose the extent of the injury
sustained by Roy.
x x x           x x x          x x x

For a more logical presentation of the discussion, we shall first

consider the applicability of the doctrine of res ipsa loquitur to A: I just listened to them, sir. And I just asked if I will still return
the instant case. Res ipsa loquitur is a Latin phrase which my son.
literally means "the thing or the transaction speaks for itself. The
doctrine of res ipsa loquitur is simply a recognition of the x x x           x x x          x x x
postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences may x x x           x x x          x x x
justify an inference of negligence on the part of the person who
controls the instrumentality causing the injury in the absence of
some explanation by the accused-appellant who is charged with Q: And you were present when they were called?
negligence. It is grounded in the superior logic of ordinary
human experience and, on the basis of such experience or A: Yes, sir.
common knowledge, negligence may be deduced from the mere
occurrence of the accident itself. Hence, res ipsa loquitur is
applied in conjunction with the doctrine of common knowledge. Q: And what was discussed then by Sis. Retoria?

The specific acts of negligence was narrated by Mrs. Santiago A: When they were there they admitted that they have mistakes,
who accompanied her son during the latter’s ordeal at the sir.
hospital. She testified as follows:
Still, before resort to the doctrine may be allowed, the following
Fiscal Formoso: requisites must be satisfactorily shown:

11
 1. The accident is of a kind which ordinarily does not to the patient if due care had been exercised, an inference of
occur in the absence of someone’s negligence; negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical evidence, which is
2. It is caused by an instrumentality within the ordinarily required to show not only what occurred but how and
exclusive control of the defendant or defendants; and why it occurred. In the case at bench, we give credence to the
testimony of Mrs. Santiago by applying the doctrine of res ipsa
loquitur.
3. The possibility of contributing conduct which would
make the plaintiff responsible is eliminated.
Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending
In the above requisites, the fundamental element is the "control upon the circumstances of each case. It is generally restricted to
of the instrumentality" which caused the damage. Such element situations in malpractice cases where a layman is able to say, as
of control must be shown to be within the dominion of the a matter of common knowledge and observation, that the
accused-appellants. In order to have the benefit of the rule, a consequences of professional care were not as such as would
plaintiff, in addition to proving injury or damage, must show a ordinarily have followed if due care had been exercised. A
situation where it is applicable and must establish that the distinction must be made between the failure to secure results
essential elements of the doctrine were present in a particular and the occurrence of something more unusual and not
incident. The early treatment of the leg of Roy would have ordinarily found if the service or treatment rendered followed the
lessen his suffering if not entirely relieve him from the fracture. A usual procedure of those skilled in that particular practice. The
boy of tender age whose leg was hit by a vehicle would latter circumstance is the primordial issue that confronted this
engender a well-founded belief that his condition may worsen Court and we find application of the doctrine of res ipsa
without proper medical attention. As junior residents who only loquitur to be in order.
practice general surgery and without specialization with the case
consulted before them, they should have referred the matter to a
specialist. This omission alone constitutes simple imprudence on WHEREFORE, in view of the foregoing, the appeal in this case
their part. When Mrs. Santiago insisted on having another x-ray is hereby DISMISSED and the assailed decision of the trial court
of her child on the upper part of his leg, they refused to do so. finding accused-appellants guilty beyond reasonable doubt of
The mother would not have asked them if they had no exclusive simple imprudence resulting in serious physical injuries is
control or prerogative to request an x-ray test. Such is a fact hereby AFFIRMED in toto.
because a radiologist would only conduct the x-ray test upon
request of a physician. SO ORDERED.8

The testimony of Mrs. Santiago was corroborated by a bone The petitioners filed a motion for reconsideration, but it was
specialist Dr. Tacata. He further testified based on his personal denied by the CA in its May 19, 2009 Resolution.
knowledge, and not as an expert, as he examined himself the
child Roy. He testified as follows: Hence, this petition.

Fiscal Macapagal: The petitioners pray for the reversal of the decision of both the
RTC and the CA anchored on the following
Q: And was that the correct respon[se] to the medical problem
that was presented to Dr. Jarcia and Dra. Bastan? GROUNDS-

A: I would say at that stage, yes. Because they have presented 1. IN AFFIRMING ACCUSED-PETITIONERS’
the patient and the history. "At sabi nila, nadaanan lang po ito." CONVICTION, THE COURT OF APPEALS ERRED IN
And then, considering their year of residency they are still junior NOT HOLDING THAT THE ACTUAL, DIRECT,
residents, and they are not also orthopedic residents but general IMMEDIATE, AND PROXIMATE CAUSE OF THE
surgery residents, it’s entirely different thing. Because if you are PHYSICAL INJURY OF THE PATIENT (FRACTURE
an orthopedic resident, I am not trying to say…but if I were an OF THE LEG BONE OR TIBIA), WHICH REQUIRED
orthopedic resident, there would be more precise and accurate MEDICAL ATTENDANCE FOR MORE THAN THIRTY
decision compare to a general surgery resident in so far as (30) DAYS AND INCAPACITATED HIM FROM
involved. PERFORMING HIS CUSTOMARY DUTY DURING
THE SAME PERIOD OF TIME, WAS THE
Q: You mean to say there is no supervisor attending the VEHICULAR ACCIDENT WHERE THE PATIENT’S
emergency room? RIGHT LEG WAS HIT BY A TAXI, NOT THE
FAILURE OF THE ACCUSED-PETITIONERS TO
A: At the emergency room, at the Manila Doctor’s Hospital, the SUBJECT THE PATIENT’S WHOLE LEG TO AN X-
supervisor there is a consultant that usually comes from a family RAY EXAMINATION.
medicine. They see where a certain patient have to go and then
if they cannot manage it, they refer it to the consultant on duty. 2. THE COURT OF APPEALS ERRED IN
Now at that time, I don’t [know] why they don’t….Because at that DISREGARDING ESTABLISHED FACTS CLEARLY
time, I think, it is the decision. Since the x-rays…. NEGATING PETITIONERS’ ALLEGED NEGLIGENCE
OR IMPRUDENCE. SIGNIFICANTLY, THE COURT
Ordinarily, only physicians and surgeons of skill and experience OF APPEALS UNJUSTIFIABLY DISREGARDED
are competent to testify as to whether a patient has been treated THE OPINION OF THE PROSECUTION’S EXPERT
or operated upon with a reasonable degree of skill and care. WITNESS, DR. CIRILO TACATA, THAT
However, testimony as to the statements and acts of physicians, PETITIONERS WERE NOT GUILTY OF
external appearances, and manifest conditions which are NEGLIGENCE OR IMPRUDENCE COMPLAINED OF.
observable by any one may be given by non-expert witnesses.
Hence, in cases where the res ipsa loquitur is applicable, the
court is permitted to find a physician negligent upon proper proof
of injury to the patient, without the aid of expert testimony, where
the court from its fund of common knowledge can determine the
proper standard of care. Where common knowledge and
experience teach that a resulting injury would not have occurred
12
 3. THE COURT OF APPEALS ERRED IN HOLDING have been under the management and control of the alleged
THAT THE FAILURE OF PETITIONERS TO wrongdoer. Under this doctrine, the happening of an injury
SUBJECT THE PATIENT’S WHOLE LEG TO AN X- permits an inference of negligence where plaintiff produces
RAY EXAMINATION PROLONGED THE PAIN AND substantial evidence that the injury was caused by an agency or
SUFFERING OF THE PATIENT, SUCH instrumentality under the exclusive control and management of
CONCLUSION BEING UNSUPPORTED BY, AND defendant, and that the occurrence was such that in the ordinary
EVEN CONTRARY TO, THE EVIDENCE ON course of things would not happen if reasonable care had been
RECORD. used.10

4. ASSUMING ARGUENDO THAT THE PATIENT The doctrine of res ipsa loquitur as a rule of evidence is unusual
EXPERIENCED PROLONGED PAIN AND to the law of negligence which recognizes that prima
SUFFERING, THE COURT OF APPEALS ERRED IN facie negligence may be established without direct proof and
NOT HOLDING THAT THE ALLEGED PAIN AND furnishes a substitute for specific proof of negligence. The
SUFFERING WERE DUE TO THE UNJUSTIFIED doctrine, however, is not a rule of substantive law, but merely a
FAILURE OF THE PATIENT’S MOTHER, A NURSE mode of proof or a mere procedural convenience. The rule,
HERSELF, TO IMMEDIATELY BRING THE PATIENT when applicable to the facts and circumstances of a given case,
BACK TO THE HOSPITAL, AS ADVISED BY THE is not meant to and does not dispense with the requirement of
PETITIONERS, AFTER HE COMPLAINED OF proof of culpable negligence on the party charged. It merely
SEVERE PAIN IN HIS RIGHT LEG WHEN HE determines and regulates what shall be prima facie evidence
REACHED HOME AFTER HE WAS SEEN BY thereof and helps the plaintiff in proving a breach of the duty.
PETITIONERS AT THE HOSPITAL. THUS, THE The doctrine can be invoked when and only when, under the
PATIENT’S ALLEGED INJURY (PROLONGED PAIN circumstances involved, direct evidence is absent and not
AND SUFFERING) WAS DUE TO HIS OWN readily available.11
MOTHER’S ACT OR OMISSION.
The requisites for the application of the doctrine of res ipsa
5. THE COURT OF APPEALS ERRED IN NOT loquitur are: (1) the accident was of a kind which does not
HOLDING THAT NO PHYSICIAN-PATIENT ordinarily occur unless someone is negligent; (2) the
RELATIONSHIP EXISTED BETWEEN PETITIONERS instrumentality or agency which caused the injury was under the
AND PATIENT ALFONSO SANTIAGO, JR., exclusive control of the person in charge; and (3) the injury
PETITIONERS NOT BEING THE LATTER’S suffered must not have been due to any voluntary action or
ATTENDING PHYSICIAN AS THEY WERE MERELY contribution of the person injured.12
REQUESTED BY THE EMERGENCY ROOM (ER)
NURSE TO SEE THE PATIENT WHILE THEY WERE In this case, the circumstances that caused patient Roy Jr.’s
PASSING BY THE ER FOR THEIR LUNCH. injury and the series of tests that were supposed to be
undergone by him to determine the extent of the injury suffered
6. THE COURT OF APPEALS GRAVELY ERRED IN were not under the exclusive control of Drs. Jarcia and Bastan. It
NOT ACQUITTING ACCUSED-PETITIONERS OF was established that they are mere residents of the Manila
THE CRIME CHARGED."9 Doctors Hospital at that time who attended to the victim at the
emergency room.13 While it may be true that the circumstances
The foregoing can be synthesized into two basic issues: [1] pointed out by the courts below seem doubtless to constitute
whether or not the doctrine of res ipsa loquitur is applicable in reckless imprudence on the part of the petitioners, this
this case; and [2] whether or not the petitioners are liable for conclusion is still best achieved, not through the scholarly
criminal negligence. assumptions of a layman like the patient’s mother, but by the
unquestionable knowledge of expert witness/es. As to whether
the petitioners have exercised the requisite degree of skill and
THE COURT’S RULING care in treating patient Roy, Jr. is generally a matter of expert
opinion.
The CA is correct in finding that there was negligence on the
part of the petitioners. After a perusal of the records, however, As to Dr. Jarcia and Dr. Bastan’s negligence
the Court is not convinced that the petitioners are guilty of
criminal negligence complained of. The Court is also of the view
that the CA erred in applying the doctrine of res ipsa loquitur in The totality of the evidence on record clearly points to the
this particular case. negligence of the petitioners. At the risk of being repetitious, the
Court, however, is not satisfied that Dr. Jarcia and Dr. Bastan
are criminally negligent in this case.
As to the Application of The Doctrine of Res Ipsa Loquitur
Negligence is defined as the failure to observe for the protection
This doctrine of res ipsa loquitur means "Where the thing which of the interests of another person that degree of care,
causes injury is shown to be under the management of the precaution, and vigilance which the circumstances justly
defendant, and the accident is such as in the ordinary course of demand, whereby such other person suffers injury.14
things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose from want Reckless imprudence consists of voluntarily doing or failing to
of care." The Black's Law Dictionary defines the said doctrine. do, without malice, an act from which material damage results by
Thus: reason of an inexcusable lack of precaution on the part of the
person performing or failing to perform such act.15

The thing speaks for itself. Rebuttable presumption or inference

that defendant was negligent, which arises upon proof that the The elements of simple negligence are: (1) that there is lack of
instrumentality causing injury was in defendant's exclusive precaution on the part of the offender, and (2) that the damage
control, and that the accident was one which ordinarily does not impending to be caused is not immediate or the danger is not
happen in absence of negligence. Res ipsa loquitur is a rule of clearly manifest.16
evidence whereby negligence of the alleged wrongdoer may be
inferred from the mere fact that the accident happened provided In this case, the Court is not convinced with moral certainty that
the character of the accident and circumstances attending it lead the petitioners are guilty of reckless imprudence or simple
reasonably to belief that in the absence of negligence it would negligence. The elements thereof were not proved by the
not have occurred and that thing which caused injury is shown to prosecution beyond reasonable doubt.
13
The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in A: The patient was sideswiped, I don’t know if it is a car, but it is
pediatric orthopedic, although pointing to some medical a vehicular accident.
procedures that could have been done by Dr. Jarcia and Dr.
Bastan, as physicians on duty, was not clear as to whether the Q: Who did you interview?
injuries suffered by patient Roy Jr. were indeed aggravated by
the petitioners’ judgment call and their diagnosis or appreciation
of the condition of the victim at the time they assessed him. A: The mother.
Thus:
Q: How about the child himself, Alfonso Santiago, Jr.?
Q: Will you please tell us, for the record, doctor, what is your
specialization? A: Normally, we do not interview the child because, usually, at
his age, the answers are not accurate. So, it was the mother that
A: At present I am the chairman department of orthopedic in UP- I interviewed.
PGH and I had special training in pediatric orthopedic for two (2)
years. Q: And were you informed also of his early medication that was
administered on Alfonso Santiago, Jr.?
Q: In June 1998, doctor, what was your position and what was
your specialization at that time? A: No, not actually medication. I was informed that this patient
was seen initially at the emergency room by the two (2)
A: Since 1980, I have been specialist in pediatric orthopedic. physicians that you just mentioned, Dr. Jarcia and Dra. Bastan,
that time who happened to be my residents who were [on] duty
at the emergency room.
Q: When Alfonso Santiago, Jr. was brought to you by his
mother, what did you do by way of physicians as first step?
xxxx
A: As usual, I examined the patient physically and, at that time
as I have said, the patient could not walk so I [began] to suspect A: At the emergency room, at the Manila Doctor’s Hospital, the
that probably he sustained a fracture as a result of a vehicular supervisor there is a consultant that usually comes from a family
accident. So I examined the patient at that time, the involved leg, medicine. They see where a certain patient have to go and then
I don’t know if that is left or right, the involved leg then was if they cannot manage it, they refer it to the consultant on duty.
swollen and the patient could not walk, so I requested for the x- Now at that time, I don’t why they don’t … Because at that time, I
ray of [the] lower leg. think, it is the decision. Since the x-rays…

Q: What part of the leg, doctor, did you request to be examined? xxx

A: If we refer for an x-ray, usually, we suspect a fracture whether Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not
in approximal, middle or lebistal tinial, we usually x-ray the entire even an orthopedic specialist.
extremity.
A: They are general surgeon residents. You have to man[x]
Q: And what was the result? the emergency room, including neurology, orthopedic,
general surgery, they see everything at the emergency
room.
A: Well, I can say that it was a spiral fracture of the mid-tibial, it
is the bigger bone of the leg.
xxxx
Q: And when you say spiral, doctor, how long was this fracture?
Q: But if initially, Alfonso Santiago, Jr. and his case was
presented to you at the emergency room, you would have
A: When we say spiral, it is a sort of letter S, the length was subjected the entire foot to x-ray even if the history that was
about six (6) to eight (8) centimeters. given to Dr. Jarcia and Dra. Bastan is the same?

Q: Mid-tibial, will you please point to us, doctor, where the tibial A: I could not directly say yes, because it would still depend on
is? my examination, we cannot subject the whole body for x-ray if
we think that the damaged was only the leg.
(Witness pointing to his lower leg)
Q: Not the entire body but the entire leg?
A: The tibial is here, there are two bones here, the bigger one is
the tibial and the smaller one is the fibula. The bigger one is the A: I think, if my examination requires it, I would.
one that get fractured.

Q: So, you would conduct first an examination?

Q: And in the course of your examination of Alfonso Santiago,
Jr. did you ask for the history of such injury?
A: Yes, sir.
A: Yes, actually, that was a routine part of our examination that
once a patient comes in, before we actually examine the patient, Q: And do you think that with that examination that you would
we request for a detailed history. If it is an accident, then, we have conducted you would discover the necessity subjecting the
request for the exact mechanism of injuries. entire foot for x-ray?

Q: And as far as you can recall, Doctor, what was the history of A: It is also possible but according to them, the foot and the
that injury that was told to you? ankle were swollen and not the leg, which sometimes normally
happens that the actual fractured bone do not get swollen.

14
xxxx petitioners, therefore, raise the want of doctor-patient
relationship for the first time on appeal with this Court. It has
Q: Doctor, if you know that the patient sustained a fracture been settled that "issues raised for the first time on appeal
on the ankle and on the foot and the history that was told to cannot be considered because a party is not permitted to
you is the region that was hit is the region of the foot, will change his theory on appeal. To allow him to do so is unfair to
the doctor subject the entire leg for x-ray? the other party and offensive to the rules of fair play, justice and
due process."18 Stated differently, basic considerations of due
process dictate that theories, issues and arguments not brought
A: I am an orthopedic surgeon, you have to subject an x-ray to the attention of the trial court need not be, and ordinarily will
of the leg. Because you have to consider the kind of not be, considered by a reviewing court.19
fracture that the patient sustained would you say the exact
mechanism of injury. For example spiral, "paikot yung bale
nya," so it was possible that the leg was run over, the Assuming again for the sake of argument that the petitioners
patient fell, and it got twisted. That’s why the leg seems to may still raise this issue of "no physician–patient relationship,"
be fractured.17 [Emphases supplied] the Court finds and so holds that there was a "physician–patient"
relationship in this case.

It can be gleaned from the testimony of Dr. Tacata that a

thorough examination was not performed on Roy Jr. As In the case of Lucas v. Tuaño,20 the Court wrote that "[w]hen a
residents on duty at the emergency room, Dr. Jarcia and Dr. patient engages the services of a physician, a physician-patient
Bastan were expected to know the medical protocol in treating relationship is generated. And in accepting a case, the
leg fractures and in attending to victims of car accidents. There physician, for all intents and purposes, represents that he has
was, however, no precise evidence and scientific explanation the needed training and skill possessed by physicians and
pointing to the fact that the delay in the application of the cast to surgeons practicing in the same field; and that he will employ
the patient’s fractured leg because of failure to immediately such training, care, and skill in the treatment of the patient. Thus,
diagnose the specific injury of the patient, prolonged the pain of in treating his patient, a physician is under a duty to exercise that
the child or aggravated his condition or even caused further degree of care, skill and diligence which physicians in the same
complications. Any person may opine that had patient Roy Jr. general neighborhood and in the same general line of practice
been treated properly and given the extensive X-ray ordinarily possess and exercise in like cases. Stated otherwise,
examination, the extent and severity of the injury, spiral fracture the physician has the obligation to use at least the same level of
of the mid-tibial part or the bigger bone of the leg, could have care that any other reasonably competent physician would use
been detected early on and the prolonged pain and suffering of to treat the condition under similar circumstances."
Roy Jr. could have been prevented. But still, that opinion, even
how logical it may seem would not, and could not, be enough Indubitably, a physician-patient relationship exists between the
basis to hold one criminally liable; thus, a reasonable doubt as to petitioners and patient Roy Jr. Notably, the latter and his mother
the petitioners’ guilt. went to the ER for an immediate medical attention. The
petitioners allegedly passed by and were requested to attend to
Although the Court sympathizes with the plight of the mother and the victim (contrary to the testimony of Dr. Tacata that they
the child in this case, the Court is bound by the dictates of justice were, at that time, residents on duty at the ER).21 They obliged
which hold inviolable the right of the accused to be presumed and examined the victim, and later assured the mother that
innocent until proven guilty beyond reasonable doubt. The Court, everything was fine and that they could go home. Clearly, a
nevertheless, finds the petitioners civilly liable for their failure to physician-patient relationship was established between the
sufficiently attend to Roy Jr.’s medical needs when the latter was petitioners and the patient Roy Jr.
rushed to the ER, for while a criminal conviction requires proof
beyond reasonable doubt, only a preponderance of evidence is To repeat for clarity and emphasis, if these doctors knew from
required to establish civil liability. Taken into account also was the start that they were not in the position to attend to Roy Jr., a
the fact that there was no bad faith on their part. vehicular accident victim, with the degree of diligence and
commitment expected of every doctor in a case like this, they
Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi should have not made a baseless assurance that everything was
driver who hit the victim. It may be true that the actual, direct, all right. By doing so, they deprived Roy Jr. of adequate medical
immediate, and proximate cause of the injury (fracture of the leg attention that placed him in a more dangerous situation than he
bone or tibia) of Roy Jr. was the vehicular accident when he was was already in. What petitioners should have done, and could
hit by a taxi. The petitioners, however, cannot simply invoke have done, was to refer Roy Jr. to another doctor who could
such fact alone to excuse themselves from any liability. If this competently and thoroughly examine his injuries.
would be so, doctors would have a ready defense should they
fail to do their job in attending to victims of hit-and-run, All told, the petitioners were, indeed, negligent but only civilly,
maltreatment, and other crimes of violence in which the actual, and not criminally, liable as the facts show.
direct, immediate, and proximate cause of the injury is
indubitably the act of the perpetrator/s. Article II, Section 1 of the Code of Medical Ethics of the Medical
Profession in the Philippines states:
In failing to perform an extensive medical examination to
determine the extent of Roy Jr.’s injuries, Dr. Jarcia and Dr. A physician should attend to his patients faithfully and
Bastan were remiss of their duties as members of the medical conscientiously. He should secure for them all possible benefits
profession. Assuming for the sake of argument that they did not that may depend upon his professional skill and care. As the
have the capacity to make such thorough evaluation at that sole tribunal to adjudge the physician’s failure to fulfill his
stage, they should have referred the patient to another doctor obligation to his patients is, in most cases, his own conscience,
with sufficient training and experience instead of assuring him violation of this rule on his part is discreditable and
and his mother that everything was all right. inexcusable.22

This Court cannot also stamp its imprimatur on the petitioners’ Established medical procedures and practices, though in
contention that no physician-patient relationship existed between constant instability, are devised for the purpose of preventing
them and patient Roy Jr., since they were not his attending complications. In this case, the petitioners failed to observe the
physicians at that time. They claim that they were merely most prudent medical procedure under the circumstances to
requested by the ER nurse to see the patient while they were prevent the complications suffered by a child of tender age.
passing by the ER for their lunch. Firstly, this issue was never
raised during the trial at the RTC or even before the CA. The
As to the Award of Damages
15
While no criminal negligence was found in the petitioners’ failure This is an appeal by certiorari, from a decision of the Court of
to administer the necessary medical attention to Roy Jr., the Appeals requiring Hidalgo Enterprises, Inc. to pay Guillermo
Court holds them civilly liable for the resulting damages to their Balandan and his wife, damages in the sum of P2,000 for the
patient. While it was the taxi driver who ran over the foot or leg death of their son Mario.
of Roy Jr., their negligence was doubtless contributory.
It appears that the petitioner Hidalgo Enterprises, Inc. "was the
It appears undisputed that the amount of ₱ 3,850.00, as owner of an ice-plant factory in the City of San Pablo, Laguna, in
expenses incurred by patient Roy Jr., was adequately supported whose premises were installed two tanks full of water, nine feet
by receipts. The Court, therefore, finds the petitioners liable to deep, for cooling purposes of its engine. While the factory
pay this amount by way of actual damages. compound was surrounded with fence, the tanks themselves
were not provided with any kind of fence or top covers. The
The Court is aware that no amount of compassion can suffice to edges of the tanks were barely a foot high from the surface of
ease the sorrow felt by the family of the child at that time. the ground. Through the wide gate entrance, which is continually
Certainly, the award of moral and exemplary damages in favor of open, motor vehicles hauling ice and persons buying said
Roy Jr. in the amount of ₱ 100,000.00 and ₱ 50,000.00, commodity passed, and any one could easily enter the said
respectively, is proper in this case. factory, as he pleased. There was no guard assigned on the
gate. At about noon of April 16, 1948, plaintiff's son, Mario
Balandan, a boy barely 8 years old, while playing with and in
It is settled that moral damages are not punitive in nature, but company of other boys of his age entered the factory premises
are designed to compensate and alleviate in some way the through the gate, to take a bath in one of said tanks; and while
physical suffering, mental anguish, fright, serious anxiety, thus bathing, Mario sank to the bottom of the tank, only to be
besmirched reputation, wounded feelings, moral shock, social fished out later, already a cadaver, having been died of
humiliation, and similar injury unjustly inflicted on a person. "asphyxia secondary to drowning."
Intended for the restoration of the psychological or
emotional status quo ante, the award of moral damages is
designed to compensate emotional injury suffered, not to impose The Court of Appeals, and the Court of First Instance of Laguna,
a penalty on the wrongdoer.23 took the view that the petitioner maintained an attractive
nuisance (the tanks), and neglected to adopt the necessary
precautions to avoid accidents to persons entering its premises.
The Court, likewise, finds the petitioners also liable for It applied the doctrine of attractive nuisance, of American origin,
exemplary damages in the said amount.1âwphi1 Article 2229 of recognized in this Jurisdiction in Taylor vs. Manila Electric 16
the Civil Code provides that exemplary damages may be Phil., 8.
imposed by way of example or correction for the public good.
The doctrine may be stated, in short, as follows: One who
WHEREFORE, the petition is PARTLY GRANTED. The maintains on his premises dangerous instrumentalities or
Decision of the Court of Appeals dated August 29, 2008 appliances of a character likely to attract children in play, and
is REVERSED and SET ASIDE. A new judgment is who fails to exercise ordinary care to prevent children from
entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou playing therewith or resorting thereto, is liable to a child of tender
Bastan of the crime of reckless imprudence resulting to serious years who is injured thereby, even if the child is technically a
physical injuries but declaring them civilly liable in the amounts trespasser in the premises. (See 65 C.J.S., p. 455.)
of:
The principle reason for the doctrine is that the condition or
(1) ₱ 3,850.00 as actual damages; appliance in question although its danger is apparent to those of
age, is so enticing or alluring to children of tender years as to
(2) ₱ 100,000.00 as moral damages; induce them to approach, get on or use it, and this attractiveness
is an implied invitation to such children (65 C.J.S., p. 458).
(3) ₱ 50,000.00 as exemplary damages; and
Now, is a swimming pool or water tank an instrumentality or
appliance likely to attract the little children in play? In other
(4) Costs of the suit. words is the body of water an attractive nuisance?

with interest at the rate of 6% per annum from the date of the The great majority of American decisions say no.
filing of the Information. The rate shall be 12% interest per
annum from the finality of judgment until fully paid.
The attractive nuisance doctrine generally is not
applicable to bodies of water, artificial as well as
SO ORDERED. natural, in the absence of some unusual condition or
artificial feature other than the mere water and its
location.

There are numerous cases in which the attractive

nuisance doctrine has not been held not to be
applicable to ponds or reservoirs, pools of water,
G.R. No. L-3422             June 13, 1952 streams, canals, dams, ditches, culverts, drains,
cesspools or sewer pools, . . . (65 C.J.S., p. 476 et
HIDALGO ENTERPRISES, INC., petitioner, seg. citing decisions of California, Georgia, Idaho,
vs. Illinois, Kansas, Iowa, Louisiana, Miss., Missouri,
GUILLERMO BALANDAN, ANSELMA ANILA and THE Montana, Oklahoma, Pennsylvania, Tennessee,
COURT OF APPEALS, respondents. Texas, Nebraska, Wisconsin.)

Quisumbing, Sycip, Quisumbing and Salazar for petitioner. In fairness to the Court of Appeals it should be stated that the
Antonio M. Moncado for respondents. above volume of Corpus Juris Secundum was published in
1950, whereas its decision was promulgated on September 30,
BENGZON, J.: 1949.

16
The reason why a swimming pool or pond or reservoir of water is After the expiration of his contract with "MV Leopard," petitioner
not considered an attractive nuisance was lucidly explained by was lined up for another assignment to a different vessel, but he
the Indiana Appellate Court as follows: was later disqualified for employment and declared unfit for sea
duty after he was medically diagnosed to be suffering from
Nature has created streams, lakes and pools which "venous duplex scan (lower extremities) deep venous
attract children. Lurking in their waters is always the insufficiency, bilateral femoral and superficial femoral veins and
danger of drowning. Against this danger children are the (L) popliteal vein." In layman’s terms, he was medically found
early instructed so that they are sufficiently presumed to have varicose veins.
to know the danger; and if the owner of private
property creates an artificial pool on his own property, Subsequently, petitioner demanded from respondent company
merely duplicating the work of nature without adding the payment of disability benefits, separation pay and
any new danger, . . . (he) is not liable because of reimbursement of medical expenses. His demands, however,
having created an "attractive nuisance." Anderson vs. were denied. He then submitted his claim before the AMOSUP,
Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind. but it was likewise denied. Thereafter, he filed with the LA a
App., 170. complaint for payment of disability benefits, medical expenses,
separation pay, damages, and attorney’s fees.
Therefore, as petitioner's tanks are not classified as attractive
nuisance, the question whether the petitioner had taken On June 27, 2002, the LA, after due hearing, rendered a
reasonable precautions becomes immaterial. And the other decision dismissing petitioner’s complaint for lack of merit.
issue submitted by petitioner — that the parents of the boy were
guilty of contributory negligence precluding recovery, because On appeal, the NLRC issued its Resolution dated September 20,
they left for Manila on that unlucky day leaving their son under 2004 reversing the LA’s decision and ordering respondent
the care of no responsible individual — needs no further company to pay petitioner his disability compensation in the
discussion. amount of US$60,000.00.

The appealed decision is reversed and the Hidalgo Enterprises, Upon the denial of its motion for reconsideration in the NLRC
Inc. is absolved from liability. No costs. Resolution dated May 24, 2005, respondent company elevated
the case to the CA with the following arguments:

PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF
JURISDICTION IN RULING THAT PRIVATE RESPONDENT IS
G.R. No. 185412               November 16, 2011 ENTITLED TO DISABILITY BENEFITS OF $60,000.00
CONSIDERING THAT:

GILBERT QUIZORA, Petitioner,
vs. 1) PRIVATE RESPONDENT FAILED TO PROVE BY
DENHOLM CREW MANAGEMENT (PHILIPPINES), SUBSTANTIAL EVIDENCE THAT HIS ACQUISITION OF
INC., Respondent. VARICOSE VEINS WAS CAUSED BY HIS PREVIOUS
EMPLOYMENT WITH PETITIONER COMPANY.

DECISION
2) VARICOSE VEINS IS A COMMON DISEASE FOR THOSE
WHO ARE AT LEAST 30 YEARS OLD. IT CAN BE ACQUIRED
MENDOZA, J.: GENETICALLY OR CAN BE DUE TO LACK OF EXERCISE.
HENCE, TO BLAME THE PETITIONER COMPANY FOR
Before this Court is a petition for review challenging the PRIVATE RESPONDENT’S VARICOSE VEINS IS MOST
September 10, 2008 Decision1 of the Court of Appeals (CA), UNFAIR AND UNJUST.
which set aside the Resolutions2 of the National Labor Relations
Commission (NLRC) dated September 20, 2004 and May 24, 3) WHILE PRIVATE RESPONDENT MAY HAVE ACQUIRED A
2005, and reinstated the Decision of the Labor Arbiter (LA) dated DISABILITY, HE NEVER LOST HIS EARNING CAPACITY
June 27, 2002. PERMANENTLY SO AS TO ENTITLE HIM TO DISABILITY
BENEFITS UNDER THE CBA.
The Facts
Decision of the Court of Appeals
Records show that in 1992, Denholm Crew Management
(Philippines), Inc. (respondent company), a domestic manning On September 8, 2010, the CA rendered a decision setting aside
agency that supplied manpower to Denklav Maritime Services, the NLRC Resolution and reinstating the LA Decision. The CA
Ltd. (Denklav), a foreign maritime corporation, hired the services explained that since having varicose veins was not among those
of Gilbert Quizora (petitioner) to work as a messman on board listed as occupational diseases under Presidential Decree (P.D.)
the international vessels of Denklav. Based on Article 4.2 of the No. 626, petitioner bore the burden of proving that such ailment
Collective Bargaining Agreement3 (CBA) entered into by and was brought about by his working conditions. His mere claim
between the Association of Marine Officers and Seamen Union that his employment with respondent company was the cause of
of the Philippines (AMOSUP) and Denholm Ship Management his varicose veins hardly constituted substantial evidence to
(Singapore) Ltd., represented by Denklav, his contractual work convince a reasonable mind that his ailment was work-related or
as messman was considered terminated upon the expiration of the risk of contracting it was increased by his working conditions
each contract. Article 5.1 thereof provided that the duration of his with respondent company. There was even no proof that the
sea service with respondent company was nine (9) months disease progressed due to the circumstances of his work which
depending on the requirements of the foreign principal. After the did not fall under any of the factors that contribute to varicose
end of a contract for a particular vessel, he would be given his veins. The mere fact that he had no other employer except
next assignment on a different vessel. His last assignment was respondent company did not necessarily impute to the latter the
from November 4, 1999 to July 16, 2000 on board the vessel disease acquired by him. Since his claim was not supported by
"MV Leopard." substantial evidence, he was not entitled to disability benefits.

17
Unsatisfied with the CA decision, petitioner raised before this his bare allegations, there is nothing to support his theory that
Court the following his intermittent contracts of employment with respondent
company had reasonable connection with his acquisition of
ISSUES varicose veins. He neither presented proof on this point nor
offered a medical expert opinion.

I
Respondent company further argues that the disputable
presumption under Section 20(B) (4) of the 2000 POEA SEC is
WHETHER RESPONDENT HAS THE BURDEN OF completely irrelevant to this case. First, the 2000 POEA-SEC
PROVING THAT PETITIONER’S ILLNESS IS NOT initially took effect sometime in July 2002. Petitioner’s last
WORK RELATED employment contract with respondent company was from
November 1999 to July 2000. Thus, at the time the parties
II entered into an overseas employment contract in November
1999, the provisions of the POEA-SEC, which were deemed
incorporated into the contract, were those from the 1996 POEA-
WHETHER PETITIONER’S ILLNESS IS WORK SEC. Hence, it is the 1996 POEA-SEC, not the 2000 POEA-
RELATED SEC, which should govern his claim for disability benefits. The
disputable presumption relied upon by petitioner does not
III appear in the 1996 POEA-SEC but can only be found in the
2000 POEA-SEC.
WHETHER PETITIONER IS ENTITLED TO
DISABILITY BENEFITS Second, even assuming that the 2000 POEA-SEC governed
petitioner’s previous employment with respondent company, he
was still not entirely relieved of the burden to submit evidence to
In advocacy of his position, petitioner argues that the burden of prove his claim because Section 20(B) of the 2000 POEA-SEC
proving that his illness is not work-related rests on the specifically pertains to work-related injury or illness. Therefore, it
respondent company. Citing the provisions of the Philippine is still incumbent upon him to present proof that his varicose
Overseas and Employment Authority Standard Employment veins were reasonably connected to his work.
Contract (POEA-SEC), he claims that illnesses not listed therein
are disputably presumed work-related. It is only when the claim
is under the provisions of the Employees Compensation Act that Respondent company opines that varicose veins is a common
the claimant has the burden of proving that the illness is work- disease for those who are at least 30 years old and it can be
related. As it is not listed, he is relieved from the trouble of acquired genetically or through lack of exercise.
proving the work-relatedness of the illness because it is already
disputably presumed by law. Hence, respondent company Lastly, respondent company asserts that there is no showing
should rebut this presumption by proving otherwise but, that petitioner’s varicose veins caused him permanent disability.
unfortunately, it failed to do so. While affliction with varicose veins may bring pain and
discomfort to the body of a person, the illness is not permanent
To petitioner, there is little difficulty in showing that acquiring as it can actually be treated, either through self-help or medical
varicose veins is work-related for a seafarer. He avers that he care.
was engaged by respondent company as a seafarer for nine (9)
years covering seven (7) contracts with their vessels; that he The Court’s Ruling
was medically screened in every contract; and that he was found
fit to work up to his last contract on board the vessel "MV
Leopard." The Court finds no merit in the petition.

Moreover, petitioner claims that he is entitled to total and Before tackling the issue of what rule governs the case, there is
permanent disability benefits because his varicose veins have a need to compare the provisions of Section 20-B of the 1996
rendered him permanently incapacitated to return to work as a POEA-SEC and Section 20-B of the 2000 POEA-SEC. Section
seafarer. 20 (B) of the 1996 POEA-SEC reads as follows:

Position of respondent company SECTION 20. COMPENSATION AND BENEFITS

Respondent company counters that there is no evidence B. COMPENSATION AND BENEFITS FOR INJURY OR
showing that petitioner’s varicose veins were caused by his ILLNESS:
previous employment with respondent company, that this
disease was work-related, and that it caused him permanent The liabilities of the employer when the seafarer suffers injury or
disability. illness during the term of his contract are as follows:

Petitioner omitted to mention his health after his stint on the "MV 1. The employer shall continue to pay the seafarer his
Leopard." Also, his application for a new contract with wages during the time he is on board the vessel;
respondent company came long after the contract ended. He
was discovered to have varicose veins in March 2001, or months
after his last employment contract with respondent company 2. If the injury or illness requires medical and/or dental
ended in July 2000. So, it is difficult to conclude that his varicose treatment in a foreign port, the employer shall be liable
veins can only be attributable to his previous employment with for the full cost of such medical, serious dental,
the company. surgical and hospital treatment as well as board and
lodging until the seafarer is declared fit to work or to be
repatriated.
Besides, petitioner’s employment was not continuous but on a
per-contract basis which usually lasted for nine (9) months
depending on the requirement of the foreign principal. He was However, if after repatriation, the seafarer still requires
considered "signed-off" upon the expiration of each contract. It medical attention arising from said injury or illness, he
was possible that he acquired varicose veins while he was shall be so provided at cost to the employer until such
"signed-off" from the vessels of respondent company. Except for time he is declared fit or the degree of his disability has

18
 been established by the company-designated no case shall this period exceed one hundred twenty
physician. (120) days.

3. Upon sign-off from the vessel for medical treatment, For this purpose, the seafarer shall submit himself to a
the seafarer is entitled to sickness allowance post-employment medical examination by a company-
equivalent to his basic wage until he is declared fit to designated physician within three working days upon
work or the degree of permanent disability has been his return, except when he is physically incapacitated
assessed by the company-designated physician, but in to do so, in which case a written notice to the agency
no case shall this period exceed one hundred twenty within the same period is deemed as compliance.
(120) days. Failure of the seafarer to comply with the mandatory
reporting requirement shall result in his forfeiture of the
For this purpose, the seafarer shall submit himself to a right to claim the above benefits.
post-employment medical examination by a company-
designated physician within three working days upon If a doctor appointed by the seafarer disagrees with the
his return except when he is physically incapacitated to assessment, a third doctor may be agreed jointly
do so, in which case, a written notice to the agency between the employer and the seafarer. The third
within the same period is deemed as compliance. doctor's decision shall be final and binding on both
Failure of the seafarer to comply with the mandatory parties.
reporting requirement shall result in his forfeiture of the
right to claim the above benefits. 4. Those illnesses not listed in Section 32 of this
Contract are disputably presumed as work related.
4. Upon sign-off of the seafarer from the vessel for
medical treatment, the employer shall bear the full cost 5. Upon sign-off of the seafarer from the vessel for
of repatriation in the event that the seafarer is declared medical treatment, the employer shall bear the full cost
(1) fit for repatriation; or (2) fit to work but the employer of repatriation in the event the seafarer is declared (1)
is unable to find employment for the seafarer on board fit for repatriation; or (2) fit to work, but the employer is
his former vessel or another vessel of the employer unable to find employment for the seafarer on board
despite earnest efforts. his former vessel or another vessel of the employer
despite earnest efforts.
5. In case of permanent total or partial disability of the
seafarer during the term of employment caused by 6. In case of permanent total or partial disability of the
either injury or illness, the seafarer shall be seafarer caused by either injury or illness, the seafarer
compensated in accordance with the schedule of shall be compensated in accordance with the schedule
benefits enumerated in Section 30 of his Contract. of benefits enumerated in Section 32 of his Contract.
Computation of his benefits arising from an illness or Computation of his benefits arising from an illness or
disease shall be governed by the rates and the rules of disease shall be governed by the rates and the rules of
compensation applicable at the time the illness or compensation applicable at the time the illness or
disease was contracted. disease was contracted. [Emphasis supplied]

On the other hand, Section 20 (B) of the 2000 POEA-SEC reads: Considering that petitioner executed an overseas employment
contract with respondent company in November 1999, the 1996
SECTION 20. COMPENSATION AND BENEFITS POEA-SEC should govern. The 2000 POEA-SEC initially took
effect on June 25, 2000. Thereafter, the Court issued the
B. COMPENSATION AND BENEFITS FOR INJURY OR Temporary Restraining Order (TRO) which was later lifted on
ILLNESS June 5, 2002. This point was discussed in the case of Coastal
Safeway Marine Services, Inc. v. Leonisa Delgado,4 where it
was written:
The liabilities of the employer when the seafarer suffers work-
related injury or illness during the term of his contract are as
follows: The employment of seafarers, including claims for death
benefits, is governed by the contracts they sign every time they
are hired or rehired; and as long as the stipulations therein are
1. The employer shall continue to pay the seafarer his not contrary to law, morals, public order or public policy, they
wages during the time he is on board the vessel; have the force of law between the parties. While the seafarer
and his employer are governed by their mutual agreement, the
2. If the injury or illness requires medical and/or dental POEA rules and regulations require that the POEA Standard
treatment in a foreign port, the employer shall be liable Employment Contract be integrated in every seafarer’s contract.
for the full cost of such medical, serious dental,
surgical and hospital treatment, as well as board and A perusal of Jerry’s employment contract reveals that what was
lodging, until the seafarer is declared fit to work or to expressly integrated therein by the parties was DOLE
be repatriated. Department Order No. 4, series of 2000 or the POEA Amended
Standard Terms and Conditions Governing the Employment of
However, if after repatriation, the seafarer still requires Filipino Seafarers on Board Ocean-Going Vessels, and POEA
medical attention arising from said injury or illness, he Memorandum Circular No. 9, series of 2000. However, POEA
shall be so provided at cost to the employer until such had issued Memorandum Circular No. 11, series of 2000 stating
time he is declared fit or the degree of his disability has that:
been established by the company-designated
physician. In view of the Temporary Restraining Order issued by the
Supreme Court in a Resolution dated 11 September 2000 on the
3. Upon sign-off from the vessel for medical treatment, implementation of certain amendments of the Revised Terms
the seafarer is entitled to sickness allowance and Conditions Governing the Employment of Filipino Seafarers
equivalent to his basic wage until he is declared fit to on Board Ocean-Going Vessels as contained in DOLE
work, or the degree of permanent disability has been Department Order No. 04 and POEA Memorandum Circular No.
assessed by the company-designated physician, but in 09, both Series of 2000, please be advised of the following:

19
Section 20, Paragraphs (A), (B) and (D) of the former Standard respondent company was considered automatically terminated
Terms and Conditions Governing the Employment of Filipino after the expiration of each overseas employment contract. Upon
Seafarers on Board Ocean-Going Vessels, as provided in DOLE the termination of each contract, he was considered "signed-off"
Department Order No. 33, and POEA Memorandum Circular No. and he would have to go back and re-apply by informing
55, both Series of 1996 shall apply in lieu of Section 20 (A), respondent company as to his availability. Thereafter, he would
(B) and (D) of the Revised Version; have to sign an Availability Advise Form. Meanwhile, he would
have to wait for a certain period of time, probably months, before
xxxx he would be called again for sea service.

In effect, POEA Memorandum Circular No. 11-00 thereby paved Thus, respondent company can argue that petitioner’s eight (8)
the way for the application of the POEA Standard Employment years of service with it did not automatically mean that he
Contract based on POEA Memorandum Circular No. 055, series acquired his varicose veins by reason of such employment. His
of 1996. Worth noting, Jerry boarded the ship [in] August 2001 sea service was not an unbroken service. The fact that he never
before the said temporary restraining order was lifted on June 5, applied for a job with any other employer is of no moment. He
2002 by virtue of Memorandum Circular No. 2, series of 2002. enjoyed month-long "sign-off" vacations when his contract
Consequently, Jerry’s employment contract with Coastal must expired. It is possible that he acquired his condition during one
conform to Section 20(A) of the POEA Standard Employment of his "sign-off" periods.
Contract based on POEA Memorandum Circular No. 055, series
of 1996, in determining compensability of Jerry’s death. As discussed in the decision of the CA, varicose veins may be
[Emphases supplied] caused by trauma, thrombosis, inflammation or heredity.
Although the exact cause of varicose veins is still unknown, a
Thus, petitioner cannot simply rely on the disputable number of factors contribute to it which include heredity,
presumption provision mentioned in Section 20 (B) (4) of the advance aging, prolonged standing, being overweight, hormonal
2000 POEA-SEC. As he did so without solid proof of work- influences during pregnancy, use of birth control pills, post-
relation and work-causation or work-aggravation of his illness, menopausal hormonal replacement therapy, prolonged sitting
the Court cannot provide him relief. with legs crossed, wearing tight undergarments or clothes,
history of blood clots, injury to the veins, conditions that cause
increased pressure in the abdomen including liver disease, fluid
At any rate, granting that the provisions of the 2000 POEA-SEC in the abdomen, previous groin injury, heart failure, topical
apply, the disputable presumption provision in Section 20 (B) steroids, trauma or injury to the skin, previous venous surgery
does not allow him to just sit down and wait for respondent and exposure to ultra-violet rays.
company to present evidence to overcome the disputable
presumption of work-relatedness of the illness. Contrary to his
position, he still has to substantiate his claim in order to be Lastly, there is also no proof that petitioner’s varicose veins
entitled to disability compensation. He has to prove that the caused him to suffer total and permanent disability.1âwphi1 The
illness he suffered was work-related and that it must have Pre-Employment Medical Examination6 (PEME) he underwent
existed during the term of his employment contract. He cannot cannot serve as enough basis to justify a finding of a total and
simply argue that the burden of proof belongs to respondent permanent disability because of its non-exploratory nature.
company.
The fact that respondent passed the company’s PEME is of no
For disability to be compensable under Section 20 (B) of the moment. We have ruled that in the past the PEME is not
2000 POEA-SEC, two elements must concur: (1) the injury or exploratory in nature. It was not intended to be a totally in-depth
illness must be work-related; and (2) the work-related injury or and thorough examination of an applicant’s medical condition.
illness must have existed during the term of the seafarer’s The PEME merely determines whether one is "fit to work" at sea
employment contract. In other words, to be entitled to or "fit for sea service," it does not state the real state of health of
compensation and benefits under this provision, it is not an applicant. In short, the "fit to work" declaration in the
sufficient to establish that the seafarer’s illness or injury has respondent’s PEME cannot be a conclusive proof to show that
rendered him permanently or partially disabled; it must also be he was free from any ailment prior to his deployment. Thus we
shown that there is a causal connection between the seafarer’s held in NYK-FIL Ship Management, Inc. v. NLRC:
illness or injury and the work for which he had been contracted.
While a PEME may reveal enough for the petitioner (vessel) to
The 2000 POEA-SEC defines "work-related injury" as "injury[ies] decide whether a seafarer is fit for overseas employment, it may
resulting in disability or death arising out of and in the course of not be relied upon to inform petitioners of a seafarer’s true state
employment" and "work-related illness" as "any sickness of health. The PEME could not have divulged respondent’s
resulting to disability or death as a result of an occupational illness considering that the examinations were not exploratory.7
disease listed under Section 32-A of this contract with the
conditions set therein satisfied.5 Besides, it was not expressly stated in his medical diagnosis that
his illness was equivalent to a total and permanent disability.
Unfortunately for petitioner, he failed to prove that his varicose Absent any indication, the Court cannot accommodate him.
veins arose out of his employment with respondent company.
Except for his bare allegation that it was work-related, he did not WHEREFORE, the petition is DENIED.
narrate in detail the nature of his work as a messman aboard
Denklav’s vessels. He likewise failed to particularly describe his SO ORDERED.
working conditions while on sea duty. He also failed to
specifically state how he contracted or developed varicose veins
while on sea duty and how and why his working conditions
aggravated it. Neither did he present any expert medical opinion
regarding the cause of his varicose veins. No written document
whatsoever was presented that would clearly validate his claim
or visibly demonstrate that the working conditions on board the
vessels he served increased the risk of acquiring varicose veins. G.R. No. 178901               November 23, 2011

Moreover, although petitioner was rehired by respondent GOVERNTMENT SERVICE INSURANCE SYSTEM, Petitioner,
company several times, his eight-year service as a seaman was vs.
not actually without a "sign-off" period. His contract with MANUEL P. BESITAN, Respondent.
20
 DECISION Ruling of the Employees’ Compensation Commission

DEL CASTILLO, J.: Besitan elevated the matter to the ECC and the case was
docketed as ECC Case No. GM-17449-1002-06.15
In compensation proceedings, the test of proof is probability, not
absolute certainty; hence, a claimant only needs to show On November 16, 2006, the ECC issued a Decision16 affirming
reasonable work connection and not direct causal relation.1 the denial by the GSIS of respondent’s claim. It said:

This Petition for Review on Certiorari2 under Rule 45 of the The appeal is not meritorious.
Rules of Court assails the May 10, 2007 Decision3 of the Court
of Appeals (CA) in CA-G.R. SP No. 97407 ordering petitioner The appellant alleged that the nature and working conditions of
Government Service Insurance System (GSIS) to pay his employment caused or contributed to the development of his
respondent Manuel P. Besitan’s (Besitan) claim for kidney ailment. However, Harisson’s Principles of Internal
compensation benefits. Also assailed is the CA’s July 7, 2007 Medicine, Vol. 2, 15th edition shows otherwise, to wit:
Resolution4 denying the motion for reconsideration.

‘The causes of Glomerulonephritis are the following:

Factual Antecedents

 Cause is not known (Idiopathic)

Petitioner GSIS is a social insurance institution created under
Commonwealth Act (CA) No. 186,5 charged with the
management and administration of the trust fund of the  A response to a known antigenic stimulus such as
Employees’ Compensation Commission (ECC) for government the Streptococcal antigenic component seen in
officials and employees.6 Poststreptococcal Glomerulonephritis. Other bacterial,
viral and parasitic infections may also produce an
antigenic component.1âwphi1 Some of these infections
Respondent Besitan was employed by the Central Bank of the are Typhoid fever, Syphilis, Leptospirosis,
Philippines (now Bangko Sentral ng Pilipinas) on January 21, Toxoplasmosis, Varicella, Mumps, Measles,
1976 as a Bank Examiner.7 Subsequently, he was promoted as Schistosomiasis and Hepatitis B and C infection.
Bank Officer II and eventually as Bank Officer III.8 His duties and
responsibilities are as follows:
 May form part of a multisystem immune-complex
disorder such as Lupus nephritis, Henoch-Schonlein
1. Heads a team of examiners in the conduct of Purpura, Cryoglobulinemia, Bacterial Endocarditis,
regular/special examination of rural banks; Systemic Vasculitis and Rheumatoid Arthritis.’

2. Submits report of examination/memoranda to MB The appellant alleged that he was exposed to tremendous
and other reports related to examination; pressures demanded by his job necessitating prolonged hours of
work, most of the time sitting for hours and even delaying or
3. Confers with Head/Top Management of rural banks foregoing urination in order not to disrupt the continuity of
under examination; concentration on the job. He also alleged that during his field
assignments, mostly in remote provinces, he also experienced
4. Monitors, verifies, and analyzes various periodic and foregoing urination and skipping of meals in order to rush the
special reports required of rural banks to ascertain, completion of his examination reports. Unfortunately, his bare
among others, compliance with pertinent laws and assertions do not automatically make his ailment compensable.
regulations, and prepares reports corresponding Awards for compensation cannot rest on speculations or
thereto; presumptions. The employee must present evidence to prove a
positive proposition (Orate vs. CA, G.R. No. 132761, March 26,
2003). The appellant’s habit of delaying his urination should not
5. Evaluates, processes, and prepares be attributed to his work but to personal neglect of his health.
memoranda/reports on various requests such as the
establishment of branches/banking offices and
investments in allied Generally, a physician’s report is the best evidence of work-
undertakings/subsidiaries/affiliates, both locally and connection and be the basis for an award because the physician
abroad; as well as prepares appropriate is in the best position to judge possible causal relation between
recommendations on requests/complaints received the illness and the work performed. In this case, the certificate
from the public, etc.; issued by the appellant’s attending physician is silent under the
item which reads: Was the injury or illness directly caused by the
employee’s duties? Having failed to find substantial evidence to
6. Performs related duties as may be assigned.9 establish work-connection in this case, this Commission finds no
sufficient cause to deviate from the decision of the System
In October 2005, Besitan was diagnosed with End Stage Renal denying appellant’s claim.
Disease secondary to Chronic Glomerulonephritis and thus, had
to undergo a kidney transplant at the National Kidney and WHEREFORE, the appealed decision is AFFIRMED and the
Transplant Institute (NKTI), for which he incurred medical claim is DISMISSED for lack of merit.
expenses amounting to ₱817,455.40.10
SO ORDERED.17
Ruling of the Government Service Insurance System
Ruling of the Court of Appeals
Believing that his working condition increased his risk of
contracting the disease, Besitan filed with the GSIS a claim for
compensation benefits under Presidential Decree (PD) No. On appeal, the CA reversed the ruling of the ECC. The CA ruled
626,11 as amended. The GSIS, however, denied the claim in a that Besitan is entitled to compensation benefits under PD No.
letter dated May 2, 2006.12 Besitan sought reconsideration in a 626, as amended, because his ailment was aggravated by the
letter dated June 6, 2006;13 but the GSIS denied the same in a nature of his work, as evidenced by the Medical
letter dated June 20, 2006.14 Certificate18 issued by Dr. Gregorio Suarez II, Bank Physician III
21
of the Bangko Sentral ng Pilipinas.19 Thus, the dispositive portion SECTION 1. Grounds –
of the Decision of the CA reads:
(a) For the injury and the resulting disability or death to
UPON THE VIEW WE TAKE OF THIS CASE, THUS, the be compensable, the injury must be the result of
petition for review is GRANTED. The November 16, 2006 accident arising out of and in the course of the
Decision of the Employees’ Compensation Commission in ECC employment. (ECC Resolution No. 2799, July 25,
Case No. GM-17449-1002-06 is REVERSED and SET ASIDE. 1984).
The respondent Government Service Insurance System is
ORDERED to pay the petitioner Manuel P. Besitan’s full claim (b) For the sickness and the resulting disability or
for compensation benefits under PD No. 626, as amended. death to be compensable, the sickness must be the
Without costs in this instance. result of an occupational disease listed under Annex
"A" of these Rules with the conditions set therein
SO ORDERED.20 satisfied, otherwise, proof must be shown that the risk
of contracting the disease is increased by the working
GSIS filed a Motion for Reconsideration which was denied by conditions.
the CA in a Resolution21 dated July 17, 2007.
xxxx
Issue
Corollarily, for the sickness or resulting disability or death to be
Hence, the instant petition with the basic issue of whether compensable, the claimant must prove either (1) that the
Besitan is entitled to compensation benefits under PD No. 626, employee’s sickness was the result of an occupational disease
as amended. listed under Annex "A" of the Amended Rules on Employees’
Compensation, or (2) that the risk of contracting the disease was
increased by his working conditions.
Petitioner’s Arguments
Certainty is not required only probability
GSIS contends that Besitan’s ailment, Glomerulonephritis, is not
an occupational disease; hence, it is incumbent upon him to
prove that the risk of contracting the said disease was increased Under the increased risk theory, there must be a reasonable
by his employment and working condition.22 And since he failed proof that the employee’s working condition increased his risk of
to show that there is a causal relationship between his contracting the disease, or that there is a connection between
employment and his ailment, he cannot claim compensation his work and the cause of the disease.35 Only a reasonable proof
benefits under PD No. 626, as amended.23 GSIS also puts in of work-connection, not direct causal relation, however, is
issue the use of the word "probably" by required to establish compensability of a non-occupational
disease.36 Probability, and not certainty, is the yardstick in
compensation proceedings; thus, any doubt should be
the CA in its Decision24 which proves that the CA was not interpreted in favor of the employees for whom social
definite of its findings.25 GSIS claims that awards of legislations, like PD No. 626, were enacted. 37
compensation must be based on substantial evidence, not on
presumptions or speculations.26
Compensability proved by substantial evidence

Respondent’s Arguments
Moreover, direct and clear evidence, is not necessary to prove a
claim.38 Strict rules of evidence do not apply as PD No. 626 only
Besitan admits that his ailment is not listed as an occupational requires substantial evidence or "such relevant evidence as a
disease under PD No. 626, as amended.27 He, however, insists reasonable mind might accept as adequate to support a
that he was able to prove by substantial evidence that the risk of conclusion."39
contracting the disease was increased by his working
condition.28 He maintains that in claiming compensation benefits,
certainty is not required, only probability.29 He points out that he In this case, since Besitan’s ailment, End Stage Renal Disease
was in good health when he was employed by the Bangko secondary to Chronic Glomerulonephritis is not among those
Sentral ng Pilipinas in 1976 and that it was only in 2004 that he listed under Annex "A," of the Amended Rules on Employees’
contracted his kidney ailment.30 He avers that in performing his Compensation, he needs to show by substantial evidence that
duties and responsibilities, he had to travel frequently to different his risk of contracting the disease was increased by his working
barangays and provinces in Luzon, Visayas and Mindanao; that condition.
during his trips to these places, he had to ride provincial buses
up to 8-10 hours; that while on the bus, he had to delay his After a careful study of the instant case, we find that Besitan has
urination; and that during his stay in these places, he was sufficiently proved that his working condition increased his risk of
constrained to drink deep well water due to lack of sufficient contracting Glomerulonephritis, which according to GSIS may be
potable water.31 He also asserts that his ailment could have caused by bacterial, viral, and parasitic infection (i.e. Typhoid
been caused by viral and bacterial infections which he could fever, Syphilis, Leptospirosis, Toxoplasmosis, Varicella, Mumps,
have acquired when he was assigned to these remote Measles, Schistosomiasis, Hepatitis B and C infection, etc.).40
places.32 Thus, he claims that his working condition increased
his risk of contracting the disease.331âwphi1 When Besitan entered the government service in 1976, he was
given a clean bill of health. In 2005, he was diagnosed with End
Our Ruling Stage Renal Disease secondary to Chronic Glomerulonephritis.
It would appear therefore that the nature of his work could have
The petition lacks merit. increased his risk of contracting the disease. His frequent travels
to remote areas in the country could have exposed him to
certain bacterial, viral, and parasitic infection, which in turn could
Section 1, Rule III of the Amended Rules on Employees’ have caused his disease. Delaying his urination during his long
Compensation34 provides: trips to the provinces could have also increased his risk of
contracting his disease. As a matter of fact, even the Bank
RULE III Physician of Bangko Sentral ng Pilipinas, Dr. Gregorio Suarez II,
Compensability agreed that Besitan’s working condition could have contributed

22
to the weakening of his kidneys, which could have caused his the witnesses just called Visaya, apparently not knowing his
disease, to wit: name, seated in the left side of the driver, and a woman named
Natalia Villanueva, seated just behind the four last mentioned. At
This is to certify that Mr. Manuel P. Besitan [is] a Bank Examiner about 2:00 o'clock that same morning, while the bus was running
of BSP, whose duties [require] him to work over prolonged hours within the jurisdiction of Imus, Cavite, one of the front tires burst
and travel to remote places in the Philippines. and the vehicle began to zig-zag until it fell into a canal or ditch
on the right side of the road and turned turtle. Some of the
passengers managed to leave the bus the best way they could,
He claims that during the delivery of his duties he often others had to be helped or pulled out, while the three
[foregoes] urination and taking replenishment of passengers seated beside the driver, named Bataclan, Lara and
water.1âwphi1 At times, he claims that he has to eat and drink the Visayan and the woman behind them named Natalia
what is available in the area [of his bank examination]. This Villanueva, could not get out of the overturned bus. Some of the
could probably contribute to the increase of uric acid in his passengers, after they had clambered up to the road, heard
system. groans and moans from inside the bus, particularly, shouts for
help from Bataclan and Lara, who said they could not get out of
All these conditions could contribute to the weakening of his the bus. There is nothing in the evidence to show whether or not
kidney thereby [progressing] to the present condition of his the passengers already free from the wreck, including the driver
ESRD.41 and the conductor, made any attempt to pull out or extricate and
rescue the four passengers trapped inside the vehicle, but calls
or shouts for help were made to the houses in the neighborhood.
Clearly, the above-quoted Medical Certificate42 is sufficient to After half an hour, came about ten men, one of them carrying a
prove that the working condition of Besitan increased his risk of lighted torch made of bamboo with a wick on one end, evidently
contracting Glomerulonephritis. In claims for compensation fueled with petroleum. These men presumably approach the
benefits, a doctor’s certification as to the nature of a claimant’s overturned bus, and almost immediately, a fierce fire started,
disability deserves full credence because no medical practitioner burning and all but consuming the bus, including the four
would issue certifications indiscriminately.43 As we see it then, passengers trapped inside it. It would appear that as the bus
Besitan was able to prove by substantial evidence his overturned, gasoline began to leak and escape from the
entitlement to compensation benefits under PD No. 626. gasoline tank on the side of the chassis, spreading over and
permeating the body of the bus and the ground under and
In closing, it may not be amiss to add that the primordial purpose around it, and that the lighted torch brought by one of the men
of PD No. 626 is to provide meaningful protection to the workers who answered the call for help set it on fire.
against the hazards of disability or illness; hence, a liberal
attitude in favor of the employee and his beneficiaries in deciding That same day, the charred bodies of the four deemed
claims for compensation should be adopted.44 passengers inside the bus were removed and duly identified that
of Juan Bataclan. By reason of his death, his widow, Salud
WHEREFORE, the petition is hereby DENIED. The assailed Villanueva, in her name and in behalf of her five minor children,
May 10, 2007 Decision and the July 17, 2007 Resolution of the brought the present suit to recover from Mariano Medina
Court of Appeals in CA-G.R. SP No. 97407 are hereby compensatory, moral, and exemplary damages and attorney's
AFFIRMED. Petitioner Government Service Insurance System is fees in the total amount of P87,150. After trial, the Court of First
hereby ORDERED to pay respondent Manuel P. Besitan the Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as
compensation benefits due him under Presidential Decree No. attorney's fee, plus P100, the value of the merchandise being
626, as amended. carried by Bataclan to Pasay City for sale and which was lost in
the fire. The plaintiffs and the defendants appealed the decision
to the Court of Appeals, but the latter endorsed the appeal to us
SO ORDERED. because of the value involved in the claim in the complaint.

Our new Civil Code amply provides for the responsibility of

common carrier to its passengers and their goods. For purposes
of reference, we are reproducing the pertinent codal provisions:

G.R. No. L-10126           October 22, 1957 ART. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound to
SALUD VILLANUEVA VDA. DE BATACLAN and the minors observe extraordinary diligence in the vigilance over
NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO the goods and for the safety of the passengers
BATACLAN, represented by their Natural guardian, SALUD transported by them, according to all the
VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants, circumstances of each case.
vs.
MARIANO MEDINA, defendant-appellant. Such extraordinary diligence in the vigilance over the
goods is further expressed in articles 1734, 1735, and
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for 1745, Nos. 5, 6, and 7, while the extra ordinary
plaintiffs-appellants. diligence for the safety of the passengers is further set
Fortunato Jose for defendant and appellant. forth in articles 1755 and 1756.

MONTEMAYOR, J.: ART. 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
Shortly after midnight, on September 13, 1952 bus no. 30 of the cautious persons, with a due regard for all the
Medina Transportation, operated by its owner defendant circumstances.
Mariano Medina under a certificate of public convenience, left
the town of Amadeo, Cavite, on its way to Pasay City, driven by
its regular chauffeur, Conrado Saylon. There were about ART. 1756. In case of death of or injuries to
eighteen passengers, including the driver and conductor. Among passengers, common carriers are presumed to have
the passengers were Juan Bataclan, seated beside and to the been at fault or to have acted negligently, unless they
right of the driver, Felipe Lara, sated to the right of Bataclan, prove that they observed extraordinary diligence as
another passenger apparently from the Visayan Islands whom prescribed in articles 1733 and 1755

23
 ART. 1759. Common carriers are liable for the death of circumstances obtaining in the same, we do not hesitate to hold
or injuries to passengers through the negligence or that the proximate cause was the overturning of the bus, this for
willful acts of the former's employees, although such the reason that when the vehicle turned not only on its side but
employees may have acted beyond the scope of their completely on its back, the leaking of the gasoline from the tank
authority or in violation of the order of the common was not unnatural or unexpected; that the coming of the men
carriers. with a lighted torch was in response to the call for help, made
not only by the passengers, but most probably, by the driver and
This liability of the common carriers does not cease the conductor themselves, and that because it was dark (about
upon proof that they exercised all the diligence of a 2:30 in the morning), the rescuers had to carry a light with them,
good father of a family in the selection and supervision and coming as they did from a rural area where lanterns and
of their employees. flashlights were not available; and what was more natural than
that said rescuers should innocently approach the vehicle to
extend the aid and effect the rescue requested from them. In
ART. 1763. A common carrier responsible for injuries other words, the coming of the men with a torch was to be
suffered by a passenger on account of the willful acts expected and was a natural sequence of the overturning of the
or negligence of other passengers or of strangers, if bus, the trapping of some of its passengers and the call for
the common carrier's employees through the exercise outside help. What is more, the burning of the bus can also in
of the diligence of a good father of a family could have part be attributed to the negligence of the carrier, through is
prevented or stopped the act or omission. driver and its conductor. According to the witness, the driver and
the conductor were on the road walking back and forth. They, or
We agree with the trial court that the case involves a breach of at least, the driver should and must have known that in the
contract of transportation for hire, the Medina Transportation position in which the overturned bus was, gasoline could and
having undertaken to carry Bataclan safely to his destination, must have leaked from the gasoline tank and soaked the area in
Pasay City. We also agree with the trial court that there was and around the bus, this aside from the fact that gasoline when
negligence on the part of the defendant, through his agent, the spilled, specially over a large area, can be smelt and directed
driver Saylon. There is evidence to show that at the time of the even from a distance, and yet neither the driver nor the
blow out, the bus was speeding, as testified to by one of the conductor would appear to have cautioned or taken steps to
passengers, and as shown by the fact that according to the warn the rescuers not to bring the lighted torch too near the bus.
testimony of the witnesses, including that of the defense, from Said negligence on the part of the agents of the carrier come
the point where one of the front tires burst up to the canal where under the codal provisions above-reproduced, particularly,
the bus overturned after zig-zaging, there was a distance of Articles 1733, 1759 and 1763.
about 150 meters. The chauffeur, after the blow-out, must have
applied the brakes in order to stop the bus, but because of the As regard the damages to which plaintiffs are entitled,
velocity at which the bus must have been running, its momentum considering the earning capacity of the deceased, as well as the
carried it over a distance of 150 meters before it fell into the other elements entering into a damage award, we are satisfied
canal and turned turtle. that the amount of SIX THOUSAND (P6,000) PESOS would
constitute satisfactory compensation, this to include
There is no question that under the circumstances, the compensatory, moral, and other damages. We also believe that
defendant carrier is liable. The only question is to what degree. plaintiffs are entitled to attorney's fees, and assessing the legal
The trial court was of the opinion that the proximate cause of the services rendered by plaintiffs' attorneys not only in the trial
death of Bataclan was not the overturning of the bus, but rather, court, but also in the course of the appeal, and not losing sight of
the fire that burned the bus, including himself and his co- the able briefs prepared by them, the attorney's fees may well be
passengers who were unable to leave it; that at the time the fire fixed at EIGHT HUNDRED (P800) PESOS for the loss of
started, Bataclan, though he must have suffered physical merchandise carried by the deceased in the bus, is adequate
injuries, perhaps serious, was still alive, and so damages were and will not be disturbed.
awarded, not for his death, but for the physical injuries suffered
by him. We disagree. A satisfactory definition of proximate cause There is one phase of this case which disturbs if it does not
is found in Volume 38, pages 695-696 of American shock us. According to the evidence, one of the passengers
jurisprudence, cited by plaintiffs-appellants in their brief. It is as who, because of the injuries suffered by her, was hospitalized,
follows: and while in the hospital, she was visited by the defendant
Mariano Medina, and in the course of his visit, she overheard
. . . 'that cause, which, in natural and continuous him speaking to one of his bus inspectors, telling said inspector
sequence, unbroken by any efficient intervening cause, to have the tires of the bus changed immediately because they
produces the injury, and without which the result would were already old, and that as a matter of fact, he had been
not have occurred.' And more comprehensively, 'the telling the driver to change the said tires, but that the driver did
proximate legal cause is that acting first and producing not follow his instructions. If this be true, it goes to prove that the
the injury, either immediately or by setting other events driver had not been diligent and had not taken the necessary
in motion, all constituting a natural and continuous precautions to insure the safety of his passengers. Had he
chain of events, each having a close causal connection changed the tires, specially those in front, with new ones, as he
with its immediate predecessor, the final event in the had been instructed to do, probably, despite his speeding, as we
chain immediately effecting the injury as a natural and have already stated, the blow out would not have occurred. All in
probable result of the cause which first acted, under all, there is reason to believe that the driver operated and drove
such circumstances that the person responsible for the his vehicle negligently, resulting in the death of four of his
first event should, as an ordinary prudent and passengers, physical injuries to others, and the complete loss
intelligent person, have reasonable ground to expect at and destruction of their goods, and yet the criminal case against
the moment of his act or default that an injury to some him, on motion of the fiscal and with his consent, was
person might probably result therefrom. provisionally dismissed, because according to the fiscal, the
witnesses on whose testimony he was banking to support the
complaint, either failed or appear or were reluctant to testify. But
It may be that ordinarily, when a passenger bus overturns, and the record of the case before us shows the several witnesses,
pins down a passenger, merely causing him physical injuries, if passengers, in that bus, willingly and unhesitatingly testified in
through some event, unexpected and extraordinary, the court to the effect of the said driver was negligent. In the public
overturned bus is set on fire, say, by lightning, or if some interest the prosecution of said erring driver should be pursued,
highwaymen after looting the vehicle sets it on fire, and the this, not only as a matter of justice, but for the promotion of the
passenger is burned to death, one might still contend that the safety of passengers on public utility buses. Let a copy of this
proximate cause of his death was the fire and not the decision be furnished the Department of Justice and the
overturning of the vehicle. But in the present case under the Provincial Fiscal of Cavite.
24
In view of the foregoing, with the modification that the damages 1. ₱250,000.00 as moral damages;
awarded by the trial court are increased from ONE THOUSAND
(P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and 2. ₱20,000.00 as attorney’s fees and litigation
from SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) expenses;
PESOS, for the death of Bataclan and for the attorney's fees,
respectively, the decision appealed is from hereby affirmed, with
costs. 3. plus ½% of the cost of the suit.

SO ORDERED.

G.R. No. 156037             May 28, 2007 On appeal, the Court of Appeals, in its Decision, affirmed in toto
the RTC judgment. Petitioner filed a motion for reconsideration
but it was denied in a Resolution dated November 5, 2002.
MERCURY DRUG CORPORATION, Petitioner,
vs.
SEBASTIAN M. BAKING, Respondent. Hence, this petition.

DECISION Petitioner contends that the Decision of the Court of Appeals is

not in accord with law or prevailing jurisprudence.
SANDOVAL-GUTIERREZ, J.:
Respondent, on the other hand, maintains that the petition lacks
merit and, therefore, should be denied.
For our resolution is the instant Petition for Review on
Certiorari1 assailing the Decision2 dated May 30, 2002 and
Resolution dated November 5, 2002 of the Court of Appeals in The issues for our resolution are:
CA-G.R. CV No. 57435, entitled "Sebastian M. Baking, plaintiff-
appellee, versus Mercury Drug Co. Inc., defendant-appellant." 1. Whether petitioner was negligent, and if so, whether
such negligence was the proximate cause of
The facts are: respondent’s accident; and

On November 25, 1993, Sebastian M. Baking, respondent, went 2. Whether the award of moral damages, attorney’s
to the clinic of Dr. Cesar Sy for a medical check-up. On the fees, litigation expenses, and cost of the suit is
following day, after undergoing an ECG, blood, and hematology justified.
examinations and urinalysis, Dr. Sy found that respondent’s
blood sugar and triglyceride were above normal levels. Dr. Sy Article 2176 of the New Civil Code provides:
then gave respondent two medical prescriptions – Diamicron for
his blood sugar and Benalize tablets for his triglyceride.
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the
Respondent then proceeded to petitioner Mercury Drug damage done. Such fault or negligence, if there is no pre-
Corporation (Alabang Branch) to buy the prescribed medicines. existing contractual relation between the parties, is called a
However, the saleslady misread the prescription for Diamicron quasi-delict and is governed by the provisions of this Chapter.
as a prescription for Dormicum. Thus, what was sold to
respondent was Dormicum, a potent sleeping tablet.
To sustain a claim based on the above provision, the following
requisites must concur: (a) damage suffered by the plaintiff; (b)
Unaware that what was given to him was the wrong medicine, fault or negligence of the defendant; and, (c) connection of
respondent took one pill of Dormicum on three consecutive days cause and effect between the fault or negligence of the
–November 6, 1993 at 9:00 p.m., November 7 at 6:00 a.m., and defendant and the damage incurred by the plaintiff.3
November 8 at 7:30 a.m.
There is no dispute that respondent suffered damages.
On November 8 or on the third day he took the medicine,
respondent figured in a vehicular accident. The car he was
driving collided with the car of one Josie Peralta. Respondent fell It is generally recognized that the drugstore business is imbued
asleep while driving. He could not remember anything about the with public interest. The health and safety of the people will be
collision nor felt its impact. put into jeopardy if drugstore employees will not exercise the
highest degree of care and diligence in selling medicines.
Inasmuch as the matter of negligence is a question of fact, we
Suspecting that the tablet he took may have a bearing on his defer to the findings of the trial court affirmed by the Court of
physical and mental state at the time of the collision, respondent Appeals.
returned to Dr. Sy’s clinic. Upon being shown the medicine, Dr.
Sy was shocked to find that what was sold to respondent was
Dormicum, instead of the prescribed Diamicron. Obviously, petitioner’s employee was grossly negligent in selling
to respondent Dormicum, instead of the prescribed Diamicron.
Considering that a fatal mistake could be a matter of life and
Thus, on April 14, 1994, respondent filed with the Regional Trial death for a buying patient, the said employee should have been
Court (RTC), Branch 80 of Quezon City a complaint for damages very cautious in dispensing medicines. She should have verified
against petitioner, docketed as Civil Case No. Q-94-20193. whether the medicine she gave respondent was indeed the one
prescribed by his physician. The care required must be
After hearing, the trial court rendered its Decision dated March commensurate with the danger involved, and the skill employed
18, 1997 in favor of respondent, thus: must correspond with the superior knowledge of the business
which the law demands.41awphi1.nét
WHEREFORE, premises considered, by preponderance of
evidence, the Court hereby renders judgment in favor of the Petitioner contends that the proximate cause of the accident was
plaintiff and against the defendant ordering the latter to pay respondent’s negligence in driving his car.
mitigated damages as follows:
We disagree.
25
Proximate cause is defined as any cause that produces injury in exorbitant. Thus, we reduce the amount of moral damages from
a natural and continuous sequence, unbroken by any efficient ₱250,000.00 to ₱50,000.00 only.
intervening cause, such that the result would not have occurred
otherwise. Proximate cause is determined from the facts of each In addition, we also deem it necessary to award exemplary
case, upon a combined consideration of logic, common sense, damages. Article 2229 allows the grant of exemplary damages
policy, and precedent.5 by way of example or correction for the public good. As
mentioned earlier, the drugstore business is affected with public
Here, the vehicular accident could not have occurred had interest. Petitioner should have exerted utmost diligence in the
petitioner’s employee been careful in reading Dr. Sy’s selection and supervision of its employees. On the part of the
prescription. Without the potent effects of Dormicum, a sleeping employee concerned, she should have been extremely cautious
tablet, it was unlikely that respondent would fall asleep while in dispensing pharmaceutical products. Due to the sensitive
driving his car, resulting in a collision. nature of its business, petitioner must at all times maintain a high
level of meticulousness. Therefore, an award of exemplary
Complementing Article 2176 is Article 2180 of the same Code damages in the amount of ₱25,000.00 is in order.1awphi1.nét
which states:
On the matter of attorney’s fees and expenses of litigation, it is
ART. 2180. The obligation imposed by Article 2176 is settled that the reasons or grounds for the award thereof must
demandable not only for one’s own acts or omissions, but also be set forth in the decision of the court.9 Since the trial court’s
for those of persons for whom one is responsible. decision did not give the basis of the award, the same must be
deleted. In Vibram Manufacturing Corporation v. Manila Electric
Company,10 we held:
xxx
Likewise, the award for attorney’s fees and litigation expenses
The owners and managers of an establishment or enterprise are should be deleted. Well-enshrined is that "an award for
likewise responsible for damages caused by their employees in attorney’s fees must be stated in the text of the court’s decision
the service of the branches in which the latter are employed or and not in the dispositive portion only" (Consolidated Bank and
on the occasion of their functions. Trust Corporation (Solidbank) v. Court of Appeals, 246 SCRA
193 [1995] and Keng Hua Paper Products, Inc. v. Court of
Employers shall be liable for the damages caused by their Appeals, 286 SCRA 257 [1998]). This is also true with the
employees and household helpers acting within the scope of litigation expenses where the body of the decision discussed
their assigned tasks, even though the former are not engaged in nothing for its basis.
any business or industry.
WHEREFORE, we DENY the petition. The challenged Decision
xxx and Resolution of the Court of Appeals in CA-G.R. CV No.
57435 are AFFIRMED with modification in the sense that (a) the
award of moral damages to respondent is reduced from
The responsibility treated of in this article shall cease when the ₱250,000.00 to ₱50,000.00; (b) petitioner is likewise ordered to
persons herein mentioned prove that they observed the pay said respondent exemplary damages in the amount of
diligence of a good father of a family to prevent damage. ₱25,000.00; and (c) the award of attorney’s fees and litigation
expenses is deleted.
It is thus clear that the employer of a negligent employee is liable
for the damages caused by the latter. When an injury is caused Costs against petitioner.
by the negligence of an employee, there instantly arises a
presumption of the law that there has been negligence on the
part of the employer, either in the selection of his employee or in SO ORDERED.
the supervision over him, after such selection. The presumption,
however, may be rebutted by a clear showing on the part of the
employer that he has exercised the care and diligence of a good
father of a family in the selection and supervision of his
employee.6 Here, petitioner's failure to prove that it exercised the
due diligence of a good father of a family in the selection and
supervision of its employee will make it solidarily liable for G.R. No. 171636               April 7, 2009
damages caused by the latter.
NORMAN A. GAID, Petitioner,
As regards the award of moral damages, we hold the same to be vs.
in order. Moral damages may be awarded whenever the PEOPLE OF THE PHILIPPINES, Respondent.
defendant’s wrongful act or omission is the proximate cause of
the plaintiff’s physical suffering, mental anguish, fright, serious DECISION
anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation, and similar injury in the cases specified or
analogous to those provided in Article 2219 of the Civil Code.7 TINGA, J.:

Respondent has adequately established the factual basis for the Before the Court is a petition for review on certiorari1 assailing
award of moral damages when he testified that he suffered the 12 July 2005 Decision2 of the Court of Appeals and its
mental anguish and anxiety as a result of the accident caused by subsequent Resolution3 denying petitioner’s motion for
the negligence of petitioner’s employee. reconsideration.

There is no hard-and-fast rule in determining what would be a Petitioner Norman A. Gaid was charged with the crime of
fair and reasonable amount of moral damages, since each case reckless imprudence resulting in homicide in an information
must be governed by its own peculiar facts. However, it must be which reads as follow:
commensurate to the loss or injury suffered.8 Taking into
consideration the attending circumstances here, we are That on or about 12:00 high noon of October 25, 2001, infront of
convinced that the amount awarded by the trial court is the Laguindingan National High School, Poblacion,
Laguindingan, Misamis Oriental, Philippines and within the
26
jurisdiction of this Honorable Court, the said accused mentioned "to promptly stop his vehicle to check what caused the sudden
above while driving a passenger’s jeepney color white bearing jotting of its rear tire."22
plate no. KVG-771 owned by barangay captain Levy Etom has
no precautionary measure to preempt the accident, did then and In its 6 February 2006 Resolution, the Court of Appeals denied
there willfully, unlawfully and feloniously ran [sic] over Michael petitioner’s motion for reconsideration.23
Dayata resulting of [sic] his untimely death as pronounced by the
attending physician of Northern Mindanao Medical Center
Hospital, Cagayan de Oro City. Hence, the instant petition.

CONTRARY TO LAW.4 Petitioner submits that the Court of Appeals erred in finding that
"there is (sic) absolutely lack of precaution on the part of the
petitioner when he continued even after he had noticed that the
Petitioner entered a not guilty plea. Thereafter, trial ensued. left rear tire and the jeep tilted to its right side."24 Petitioner
stressed that he, in fact, stopped his jeep when its left rear tire
The antecedent facts are undisputed. bounced and upon hearing that somebody had been ran over.

At around 12:00 noon on 25 October 2001, petitioner was driving Moreover, petitioner asserts that the Court of Appeals committed
his passenger jeepney along a two-lane road where the a grave abuse of discretion in convicting him of the offense of
Laguindingan National High School is located toward the simple negligence resulting in homicide. Assuming arguendo
direction of Moog in Misamis Oriental. His jeepney was filled to that he failed to promptly stop his vehicle, petitioner maintains
seating capacity.5 At the time several students were coming out that no prudent man placed in the same situation could have
of the school premises.6 Meanwhile, a fourteen year-old student, foreseen the vehicular accident or could have stopped his
Michael Dayata (Dayata), was seen by eyewitness Artman vehicle in time when its left rear tire bounced due to the following
Bongolto (Bongolto) sitting near a store on the left side of the reasons: (1) the victim was only a trespasser; (2) petitioner’s
road. From where he was at the left side of the road, Dayata attention was focused on the road and the students outside the
raised his left hand to flag down petitioner’s jeepney7 which was school’s gate; and (3) the jeepney was fully loaded with
traveling on the right lane of the road.8 However, neither did passengers and cargoes and it was impossible for the petitioner
petitioner nor the conductor, Dennis Mellalos (Mellalos), saw to promptly stop his vehicle.25
anybody flagging down the jeepney to ride at that point.9
The Office of the Solicitor-General (OSG) maintained that
The next thing Bongalto saw, Dayata’s feet was pinned to the petitioner was negligent when he continued to run towards the
rear wheel of the jeepney, after which, he laid flat on the ground direction of Moog, Laguindingan, dragging the victim a few
behind the jeepney.10 Another prosecution witness, Usaffe Actub meters from the point of impact, despite hearing that a child had
(Actub), who was also situated on the left side of the street but been run over.26
directly in front of the school gate, heard "a strong impact
coming from the jeep sounding as if the driver forced to The presence or absence of negligence on the part of petitioner
accelerate in order to hurdle an obstacle."11 Dayata was then is determined by the operative events leading to the death of
seen lying on the ground12 and caught in between the rear Dayata which actually comprised of two phases or stages. The
tires.13 Petitioner felt that the left rear tire of the jeepney had first stage began when Dayata flagged down the jeepney while
bounced and the vehicle tilted to the right side.14 positioned on the left side of the road and ended when he was
run over by the jeepney. The second stage covered the span
Mellalos heard a shout that a boy was run over, prompting him between the moment immediately after the victim was run over
to jump off the jeepney to help the victim. Petitioner stopped and and the point when petitioner put the jeepney to a halt.
saw Mellalos carrying the body of the victim.15 Mellalos loaded
the victim on a motorcycle and brought him to the hospital. During the first stage, petitioner was not shown to be negligent.
Dayata was first brought to the Laguindingan Health Center, but
it was closed. Mellalos then proceeded to the El Salvador
Hospital. Upon advice of its doctors, however, Dayata was Reckless imprudence consists of voluntarily doing or failing to
brought to the Northern Mindanao Medical Center where he was do, without malice, an act from which material damage results by
pronounced dead on arrival.16 reason of an inexcusable lack of precaution on the part of the
person performing or failing to perform such act.27
Dr. Tammy Uy issued an autopsy report stating cranio-cerebral
injuries as the cause of death.17 She testified that the head In Manzanares v. People,28 this Court convicted petitioner of the
injuries of Dayata could have been caused by having run over by crime of reckless imprudence resulting in multiple homicide and
the jeepney.18 serious physical injuries when he was found driving the Isuzu
truck very fast before it smashed into a jeepney.29 Likewise, in
Pangonorom v. People,30 a public utility driver, who was driving
The Municipal Circuit Trial Court (MCTC) of very fast, failed to slow down and hit a swerving car. He was
Laguindingan19 found petitioner guilty beyond reasonable doubt found negligent by this Court.
of the crime charged. The lower court held petitioner negligent in
his driving considering that the victim was dragged to a distance
of 5.70 meters from the point of impact. He was also scored for In the instant case, petitioner was driving slowly at the time of
"not stopping his vehicle after noticing that the jeepney’s left rear the accident, as testified to by two eyewitnesses. Prosecution
tire jolted causing the vehicle to tilt towards the right."20 On witness Actub affirmed this fact on cross-examination, thus:
appeal, the Regional Trial Court (RTC)21 affirmed in toto the
decision of the MCTC. ATTY. MACUA:

The Court of Appeals affirmed the trial court’s judgment with (to the witness)
modification in that it found petitioner guilty only of simple
negligence resulting in homicide.1avvphi1.zw+
Q Mr. Witness, when the passenger jeepney passed
by the gate of the Laguindingan National High School,
The Court of Appeals exonerated petitioner from the charge of is it running slowly, am I correct?
reckless imprudence resulting to homicide on the ground that he
was not driving recklessly at the time of the accident. However,
the appellate court still found him to be negligent when he failed A Yes, he was running slowly.31
27
 The slow pace of the jeepney was seconded by Expressways. It failed to exercise the requisite diligence in
Mellalos: maintaining the NLEX safe for motorists. The lighted cans and
lane dividers on the highway were removed even as flattened
Q You testified that you heard somebody outside from sugarcanes lay scattered on the ground. The highway was still
the vehicle shouting that a boy was ran over, am I wet from the juice and sap of the flattened sugarcanes. The
correct? petitioner should have foreseen that the wet condition of the
highway would endanger motorists passing by at night or in the
wee hours of the morning.38 Consequently, it was held liable for
A Yes, Sir. damages.

Q Now, before you heard that shouting, did you In an American case, Hernandez v. Lukas,39 a motorist traveling
observe any motion from the vehicle? within the speed limit and did all was possible to avoid striking a
child who was then six years old only. The place of the incident
A The jeep was moving slowly and I noticed that there was a neighborhood where children were playing in the
was something that [sic] the jeep a little bit bounced up parkways on prior occasions. The court ruled that it must be still
as if a hump that’s the time I heard a shout from proven that the driver did not exercise due care. The evidence
outside.32 showed that the driver was proceeding in lawful manner within
the speed limit when the child ran into the street and was struck
by the driver’s vehicle. Clearly, this was an emergency situation
Petitioner stated that he was driving at no more than 15 thrust upon the driver too suddenly to avoid.
kilometers per hour.33
In this case, the courts below zeroed in on the fact that petitioner
It appears from the evidence Dayata came from the left side of did not stop the jeepney when he felt the bouncing of his vehicle,
the street. Petitioner, who was driving the jeepney on the right a circumstance which the appellate court equates with
lane, did not see the victim flag him down. He also failed to see negligence. Petitioner contends that he did not immediately stop
him go near the jeepney at the left side. Understandably, because he did not see anybody go near his vehicle at the time
petitioner was focused on the road ahead. In Dayata’s haste to of the incident.40
board the jeep which was then running, his feet somehow got
pinned to the left rear tire, as narrated by Bongolto. Actub only
saw Dayata after he heard a strong impact coming from the Assuming arguendo that petitioner had been negligent, it must
jeep. be shown that his negligence was the proximate cause of the
accident. Proximate cause is defined as that which, in the
natural and continuous sequence, unbroken by any efficient,
With the foregoing facts, petitioner can not be held liable during intervening cause, produces the injury, and without which the
the first stage. Specifically, he cannot be held liable for reckless result would not have
imprudence resulting in homicide, as found by the trial court. The
proximate cause of the accident and the death of the victim was
definitely his own negligence in trying to catch up with the occurred.41 In order to establish a motorist's liability for the
moving jeepney to get a ride. negligent operation of a vehicle, it must be shown that there was
a direct causal connection between such negligence and the
injuries or damages complained of. Thus, negligence that is not
In the instant case, petitioner had exercised extreme precaution a substantial contributing factor in the causation of the accident
as he drove slowly upon reaching the vicinity of the school. He is not the proximate cause of an injury.42
cannot be faulted for not having seen the victim who came from
behind on the left side.
The head injuries sustained by Dayata at the point of impact
proved to be the immediate cause of his death, as indicated in
However, the Court of Appeals found petitioner guilty of simple the post-mortem findings.43 His skull was crushed as a result of
negligence resulting in homicide for failing to stop driving at the the accident. Had petitioner immediately stopped the jeepney, it
time when he noticed the bouncing of his vehicle. Verily, the would still not have saved the life of the victim as the injuries he
appellate court was referring to the second stage of the incident. suffered were fatal.

Negligence has been defined as the failure to observe for the The evidence on record do not show that the jeepney dragged
protection of the interests of another person that degree of care, the victim after he was hit and run over by the jeepney. Quite the
precaution, and vigilance which the circumstances justly contrary, the evidence discloses that the victim was not dragged
demand, whereby such other person suffers injury.34 at all. In fact, it is the other way around. Bongolto narrated that
after the impact, he saw Dayata left behind the jeepney.44 Actub
The elements of simple negligence: are (1) that there is lack of saw Dayata in a prone position and bleeding within seconds
precaution on the part of the offender; and (2) that the damage after impact.45 Right after the impact, Mellalos immediately
impending to be caused is not immediate or the danger is not jumped out of the jeepney and saw the victim lying on the
clearly manifest.35 ground.46 The distance of 5.70 meters is the length of space
between the spot where the victim fell to the ground and the spot
where the jeepney stopped as observed by the trial judge during
The standard test in determining whether a person is negligent the ocular inspection at the scene of the accident.47
in doing an act whereby injury or damage results to the person
or property of another is this: could a prudent man, in the
position of the person to whom negligence is attributed, foresee Moreover, mere suspicions and speculations that the victim
harm to the person injured as a reasonable consequence of the could have lived had petitioner stopped can never be the basis
course actually pursued? If so, the law imposes a duty on the of a conviction in a criminal case.48 The Court must be satisfied
actor to refrain from that course or to take precautions to guard that the guilt of the accused had been proven beyond
against its mischievous results, and the failure to do so reasonable doubt.49 Conviction must rest on nothing less than a
constitutes negligence. Reasonable foresight of harm, followed moral certainty of the guilt of the accused. The overriding
by the ignoring of the admonition born of this provision, is always consideration is not whether the court doubts the innocence of
necessary before negligence can be held to exist.36 the accused but whether it entertains doubt as to his guilt.50

In Philippine National Construction Corporation v. Court of Clearly then, the prosecution was not able to establish that the
Appeals,37 the petitioner was the franchisee that operates and proximate cause of the victim’s death was petitioner’s alleged
maintains the toll facilities in the North and South Luzon Toll
28
negligence, if at all, even during the second stage of the
incident.

If at all again, petitioner’s failure to render assistance to the

victim would constitute abandonment of one’s victim punishable
under Article 275 of the Revised Penal Code. However, the
omission is not covered by the information. Thus, to hold
petitioner criminally liable under the provision would be
tantamount to a denial of due process.

Therefore, petitioner must be acquitted at least on reasonable

doubt. The award of damages must also be deleted pursuant to
Article 2179 of the Civil Code which states that when the
plaintiff’s own negligence was the immediate and proximate
cause of his injury, he cannot recover damages.

WHEREFORE, the petition is GRANTED. The decision of the

Court of Appeals dated 12 July 2005 is REVERSED and SET
ASIDE. Petitioner Norman A. Gaid is ACQUITTED of the crime
of Simple Negligence Resulting in Homicide as found by the
Court of Appeals and of the charge of Reckless Imprudence
Resulting in Homicide in Criminal Case No. 1937 of the MCTC of
Laguindingan, Misamis Oriental.

SO ORDERED.

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