GAN V. COURT OF APPEALS, 165 SCRA 378 (1988)FACTS: In the morning of July 4, 1972 at about 8:00 o'clock, the accused Hedy Gan was driving a Toyota car along North Bay Boulevard, Tondo, Manila. While in front of house no. 694 of North Bay Boulevard, there were two vehicles, a truck and a jeepney parked on one side of the road, one following the other about two to three meters from each other. As the car driven by the accused approached the place where the two vehicles were parked, there was a vehicle coming from the opposite direction, followed by another which tried to overtake and bypass the one in front of it and thereby encroached the lane of the car driven by the accused. To avoid a head-on collision with the oncoming vehicle, the defendant swerved to the right and as a consequence, the front bumper of the Toyota Crown Sedan hit an old man who was about to cross the boulevard from south to north, pinning him against the rear of the parked jeepney. The force of the impact caused the parked jeepney to move forward hitting the rear of the parts truck ahead of it. The pedestrian was injured, the Toyota Sedan was damaged on its front, the jeep suffered damages on its rear and front paints, and the truck sustained scratches at the wooden portion of its rear. The body of the old man who was later Identified as Isidoro Casino was immediately brought to the Jose Reyes Memorial Hospital but was (pronounced) dead on arrival.

Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless Imprudence of the CFI Manila. On appeal, CA found him guilty beyond reasonable doubt of the crime of homicide thru simple imprudence

ISSUE: WON CA erred in convicting petitioner of the the crime of homicide thru simple imprudence

HELD: No. Petitioner is not guilty of the crime of Simple Imprudence resulting in Homicide.

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

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

The appellate court is asking too much from a mere mortal like the petitioner who in the blink of an eye had to exercise her best judgment to extricate herself from a difficult and dangerous situation caused by the driver of the overtaking vehicle. Petitioner certainly

could not be expected to act with all the coolness of a person under normal conditions. The danger confronting petitioner was real and imminent, threatening her very existence. She had no opportunity for rational thinking but only enough time to heed the very powerful instinct of self-preservation. The petitioner was driving her car within the legal limits. We therefore rule that the "emergency rule" enunciated above applies with full force to the case at bar and consequently absolve petitioner from any criminal negligence in connection with the incident under consideration. The award of damages to the heirs of the victim, who by executing a release of the claim due them, had effectively and clearly waived their right thereto.

PROFESSIONAL SERVICES INC V. AGANA, 513 SCRA 478 (2007)FACTS: In April 1984, Natividad Agana was rushed to the Medical City General Hospital (The Medical City) because of difficulty of bowel movement and bloody anal discharge. After a series of medical examinations, Dr. Ampil diagnosed her to be suffering from cancer of the sigmoid

1. On April 11, Dr. Ampil, assisted by the medical staff of TMC performed anterior resection surgery on Natividad. He found out that the cancer had spread on her left ovary, thus the need to removal several portions of it. Dr. Ampil obtained Enrique’s consent (Natividad’s husband) to permit Dr. Fuentes to perform hysterectomy (removal of uterus) on Natividad

2. After Dr. Fuentes completed the hysterectomy, Dr. Ampil took over and completed the operation

3. However, based on the report of the count nurse, the OR appeared to be missing 2 sponges and noted that “announced [missing sponges] to the surgeon search (sic) done but to no avail continue for closure.”

4. A few days after the operation, Natividad complained of excruciating pain in her anal region. She consulted both Dr. Ampil and Fuentes who told her that the pain was a natural consequence of the surgery and recommended that she consult an oncologist regarding the cancerous nodes which were not removed during the operation

5. In May 1984, spouses Agana flew to US to seek further treatment. After some consultation and examination, Natividad was told she was cancer-free

6. When spouses Agana returned to the Philippines in August 1984, Natividad was still suffering from pains. Thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampil extracted by hand a piece of gauze and assured her that the pains would soon vanish

7. But instead, the pain intensified, prompting Natividad to seek treatment at the Polymedic General Hospital. The attending physician, Dr. Gutierrez, detected another piece of gauze in her vagina which led to vaginal infection (pus had formed in her vaginal area which forced the stool to excrete through the vagina). Natividad underwent another surgery to remove the foreign object

8. Subsequently, spouses Agana filed with RTC Quezon City a complaint for damages against Professional Services Inc (PSI), owner of TMC, Dr. Ampil and Dr. Fuentes. They alleged that Dr. Ampil and Dr. Fuentes were liable for negligence for leaving 2 pieces of gauze inside Natividad’s body and malpractice for concealing their acts of negligence

9. Enrique also filed with the PRC an administrative complaint against Dr. Ampil and Dr. Fuentes for gross negligence and malpractice. PRC heard the case only with respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who as in the US at the time. PRC dismissed the case against Dr. Fuentes citing that the prosecution failed to show that Dr. Fuentes was the one who left the gauze inside Natividad’s body and that he concealed such fact from her.

10.Pending litigation, Natividad died11.RTC Quezon City rendered its decision in favor of Agana, finding PSI, Dr. Ampil

and Fuentes liable for negligence and malpractice12.PSI, Dr. Fuentes and Dr. Ampil filed an appeal to CA. CA dismissed the appeal.

13.PSI alleged that CA erred in holding thata. It is estopped from raising the defense that Dr. Ampil is not an employee but

an independent contractor (consultant)b. It is solidarily liable with Dr. Ampil; andc. It is not entitled to its counterclaim against the Aganas

14.The Aganas maintained that CA erred in finding that Dr. Fuentes is not guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They contend that the gauze found on Natividad are prima facie evidence that the operating surgeons had been negligent

15.Dr. Ampil argued that CA erred in finding that he was liable for negligence and malpractice because:a. It was Dr. Fuentes who used gauzes during the hysterectomyb. The attending nurses’ failure to property count the gauze during the

operation; andc. The medical intervention of the American doctors who examined Natividad

ISSUES:1. WON CA erred in holding Dr. Ampil liable for negligence and malpractice2. WON CA erred in absolving Dr. Fuentes of any liability 3. WON PSI may be held solidarily liable for the negligence of Dr. Ampil

HELD: FIRST ISSUE: No. Records show that he did not present any evidence to prove that the American doctors were the ones who put or left the gauzes in Natividad’s body. Neither did he submit evidence to rebut the correctness of the record of operation, particularly the number of gauzes used. As to the alleged negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his (Dr. Fuentes’) work and found it in order.

It is well-settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at least prima facie negligence by the operating surgeon. To put it simply, such act is considered so inconsistent with due care as to raise an inference of negligence. There are even legions of authorities to the effect that such act is negligence per se.

Even if it has been shown that a surgeon was required by the urgent necessities of the case to leave a sponge in his patient’s abdomen, because of the dangers attendant upon delay, still, it is his legal duty to so inform his patient within a reasonable time thereafter by advising her of what he had been compelled to do. This is in order that she might seek relief from the effects of the foreign object left in her body as her condition might permit.

CAB: Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled her that the pain she was experiencing was the ordinary consequence of her operation. Had he been more candid, Natividad could have taken the immediate and appropriate medical remedy to remove the gauzes from her body. To our mind,

what was initially an act of negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully pursue this kind of case, a patient must only prove that a health care provider either failed to do something which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent provider would not have done; and that failure or action caused injury to the patient . Simply put, the elements are duty, breach, injury and proximate causation. Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividad’s body before closure of the incision. When he failed to do so, it was his duty to inform Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to Natividad, necessitating her further examination by American doctors and another surgery. That Dr. Ampil’s negligence is the proximate causeof Natividad’s injury could be traced from his act of closing the incision despite the information given by the attending nurses that two pieces of gauze were still missing. That they were later on extracted from Natividad’s vagina established the causal link between Dr. Ampil’s negligence and the injury. And what further aggravated such injury was his deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.

SECOND ISSUE: No. Res ipsa loquitur means "the thing speaks for itself." It is the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of fact for defendant to meet with an explanation. Stated differently, where the thing which caused the injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is such that it should not have occurred if he, having such control used proper care, it affords reasonable evidence, in the absence of explanation that the injury arose from the defendant’s want of care, and the burden of proof is shifted to him to establish that he has observed due care and diligence.

For res ipsa loquitur to apply, the following must concur:1. The occurrence of the injury;2. The thing which caused the injury was under the control and management of the

defendant (most important factor)3. The occurrence was such that in the ordinary course of things, would not have

happened if those who had control or management used proper care; and4. The absence of explanation by the defendant

The element of control or management is lacking in Dr. Fuentes’ case. Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the surgery room and all personnel connected with the operation. Their duty is to obey his orders. Dr. Ampil was the lead surgeon. In other words, he was the "Captain of the Ship." That he discharged such role is evident from his following conduct:

(1) calling Dr. Fuentes to perform a hysterectomy;

(2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’ permission to leave; and (4) ordering the closure of the incision.

Res ipsa loquitur is not a rule of substantive law, hence, does not per se create or constitute an independent or separate ground of liability, being a mere evidentiary rule. In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence

THIRD ISSUE: Yes. Private hospitals, hire, fire and exercise real control over their attending and visiting ‘consultant’ staff. While ‘consultants’ are not, technically employees, x x x, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages.

For purposes of apportioning responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians.

But the Ramos v. CA is not our only basis in sustaining PSI’s liability. Its liability is also anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine of corporate negligence which have gained acceptance in the determination of a hospital’s liability for negligent acts of health professionals. The present case serves as a perfect platform to test the applicability of these doctrines, thus, enriching our jurisprudence.Apparent authority, or what is sometimes referred to as the "holding out" theory, or doctrine of ostensible agency or agency by estoppel, has its origin from the law of agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or the authority exists.

Our jurisdiction recognizes the concept of an agency by implication or estoppel. Art 1869 NCC.

CAB: PSI publicly displays in the lobby of the Medical City Hospital the names and specializations of the physicians associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur with the Court of Appeals’ conclusion that it "is now estopped from passing all the blame to the physicians whose names it proudly paraded in the public directory leading the public to believe that it vouched for their skill and competence." Indeed, PSI’s act is tantamount to holding out to the public that Medical City Hospital, through its accredited physicians, offers quality health care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their qualifications, the hospital created the impression that they were its agents, authorized to perform medical or surgical services for its patients. As expected, these patients, Natividad being one of them, accepted the services on the reasonable belief that such were being rendered by the hospital or its employees, agents, or servants.

Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem of allocating hospital’s liability for the negligent acts of health practitioners, absent facts to support the application of respondeat superior or apparent authority. Its formulation proceeds from the judiciary’s acknowledgment that in these modern times, the duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician. The modern hospitals have changed structure. Hospitals now tend to organize a highly professional medical staff whose competence and performance need to be monitored by the hospitals commensurate with their inherent responsibility to provide quality medical care.

CAB: It was duly established that PSI operates the Medical City Hospital for the purpose and under the concept of providing comprehensive medical services to the public. Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted into its facility for medical treatment. Unfortunately, PSI failed to perform such duty.

PSI, apart from a general denial of its responsibility, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the accreditation and supervision of the latter. In neglecting to offer such proof, PSI failed to discharge its burden under the last paragraph of Art 2180 and therefore, must be adjudged solidarily liable with Dr. Ampil. Moreover. PSI is also directly liable to the Aganas.

CANTRE V. GO, 522 SCRA 547 (2007)FACTS: Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the Dr. Jesus Delgado Memorial Hospital. She was the attending physician of respondent Nora S. Go, who was admitted at the said hospital on April 19, 1992. At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy. However, at around 3:30 a.m., Nora suffered profuse bleeding inside her womb due to some parts of the placenta which were not completely expelled from her womb after delivery. Nora suffered hypovolemic shock, resulting in a drop in her blood pressure to "40" over "0." Petitioner and the assisting resident physician performed various medical procedures to stop the bleeding and to restore Nora’s blood pressure. While in the recovery room, her husband, respondent John David Z. Go noticed a fresh gaping wound two and a half (2 ½) by three and a half (3 ½) inches in the inner portion of her left arm, close to the armpit. He asked the nurses what caused the injury. He was informed it was a burn. . Petitioner said the blood pressure cuff caused the injury.

John David brought Nora to the National Bureau of Investigation for a physical examination, the medico-legal found that Nora’s injury appeared to be a burn and that a droplight when placed near the skin for about 10 minutes could cause such burn. He dismissed the likelihood that the wound was caused by a blood pressure cuff as the scar was not around the arm, but just on one side of the arm. Nora’s injury was referred to a plastic surgeon at the Dr. Jesus Delgado Memorial Hospital for skin grafting. Nora’s arm would never be the same. Aside from the unsightly mark, the pain in her left arm remains. When sleeping, she has to cradle her wounded arm. Her movements now are also restricted. Her children cannot play with the left side of her body as they might accidentally bump the injured arm, which aches at the slightest touch.

Respondent spouses filed a complaint for damages against petitioner, Dr. Abad, and the hospital.

ISSUE: Is petitioner liable for the injury suffered by respondent Nora Go

HELD: Yes. Intent is immaterial in negligence cases because where negligence exists and is proven, it automatically gives the injured a right to reparation for the damage caused. In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an injury to justify a presumption of negligence on the part of the person who controls the instrument causing the injury, provided that the following requisites concur:

1. The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence;2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.

The gaping wound on Nora’s arm is certainly not an ordinary occurrence in the act of delivering a baby. Whether the injury was caused by the droplight or by the blood

pressure cuff is of no moment. Both instruments are deemed within the exclusive control of the physician in charge under the "captain of the ship" doctrine. This doctrine holds the surgeon in charge of an operation liable for the negligence of his assistants during the time when those assistants are under the surgeon’s control. The petitioner, being the senior consultant in charge during the delivery of Nora’s baby, exercised control over the assistants assigned to both the use of the droplight and the taking of Nora’s blood pressure. Hence, the use of the droplight and the blood pressure cuff is also within petitioner’s exclusive control. The gaping wound on Nora’s left arm, by its very nature and considering her condition, could only be caused by something external to her and outside her control as she was unconscious while in hypovolemic shock.Thus, petitioner is obliged to pay Nora for moral damages suffered by the latter as a proximate result of petitioner’s negligence.

However, that petitioner has served well as Nora’s obstetrician for her past three successful deliveries. This is the first time petitioner is being held liable for damages due to negligence in the practice of her profession. The fact that petitioner promptly took care of Nora’s wound before infection and other complications set in is also indicative of petitioner’s good intentions. Nora was suffering from a critical condition when the injury happened, such that saving her life ecame petitioner’s elemental concern. Nonetheless, it should be stressed that all these could not justify negligence on the part of petitioner.

MERCURY DRUG V. BAKING, G.R. NO 156037 (2007)FACTS: Sometime in November 1993, respondent Baking went to Dr Sy for a medical checkup. After undergoing some blood work, it was found out that Baking’s blood sugar and triglyceride were above normal levels. As such, Dr. Sy prescribed DIAMICRON for his blood sugar and BENALIZE for his triglyceride

1. Respondent then went to Mercury Drug Alabang Branch to purchase the prescribed medicine. However, the saleslady misread the prescription of Diamicron as a prescription for DORMICUM, a potent sleeping pill. Thus, what was sold to Baking was DORMICUM

2. Unaware that he was given the wrong medicine, Baking took one pill of Dormicum for 3 consecutive days

3. On the third day he took the medicine, Baking fell asleep while driving and figured in a vehicular accident. The car he was driving collided with the car of Peralta.

4. Baking went to Sy’s clinic and discovered that what was actually sold to him was Dormicum instead of the prescribed Diamicron

5. As such, Baking filed a complaint for damages against petitioner Mercury Drug.6. The trial court (RTC Quezon City) held in favor of Baking and awarded moral

damages, attorney’s fees, and ½ costs of the suit7. On appeal, CA affirmed in toto the RTC judgment

ISSUE: WON petitioner Mercury Drug was negligent, and if so, whether such negligence was the proximate cause of Baking’s accident

HELD: Yes. Art 2176 NCC provides: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.To sustain a claim based on the said provision, the following must be present:

(a) Damage suffered by the plaintiff (damage)(b) Fault or negligence of the defendant; (fault or negligence) and(c) Connection of cause and effect between the fault or negligence of the

defendant and the damage incurred by the plaintiff (proximate cause)

It is generally recognized that the drugstore business is imbued with public interest. The health and safety of the people will be put into jeopardy if drugstore employees will not exercise the highest degree of care and diligence in selling medicines

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 death for a buying patient, the said employee should have been very cautious in dispensing medicines. She should have verified whether the medicine she gave respondent was indeed the one prescribed by his physician.

Petitioner’s contention that the proximate cause of the accident was respondent’s negligence in driving his car is untenable. Proximate cause is defined as any cause

that produces injury in a natural and continuous sequence, unbroken by any efficient intervening cause, such that the result would not have occurred otherwise. Proximate cause is determined from the facts of each case, upon a combined consideration of logic, common sense, policy, and precedent.

CAB: The vehicular accident could not have occurred had petitioner’s employee been careful in reading Dr. Sy’s prescription. Without the potent effects of Dormicum, a sleeping tablet, it was unlikely that respondent would fall asleep while driving his car, resulting in a collision.

LIABILITY OF EMPLOYER: Art 2180 states that the obligation imposed by Art 2176 NCC is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible.

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 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 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. 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 damages caused by the latter.

MORAL DAMAGES: Award of moral damages is in order. Moral damages may be awarded whenever the defendant’s wrongful act or omission is the proximate cause of the plaintiff’s physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury in the cases specified or analogous to those provided in Art 2219 NCC.

Respondent has adequately established the factual basis for the award of moral damages when he testified that he suffered mental anguish and anxiety as a result of the accident caused by the negligence of petitioner’s employee.

There is no hard and fast rule on determining the amount of moral damages since each case must be governed by its own peculiar facts. However, it must be commensurate to the loss or injury suffered.

Moral damages is also granted under Art 2229 by way of example or correction for the public good. Due to the sensitive nature of its business, petitioner must at all times maintain a high level of meticulousness.

LIBI V. INTERMEDIATE APPELLATE COURT, 214 SCRA 16 (1992)FACTS: Respondent spouses are the legitimate parents of Julie Ann Gotiong who, at the time of the deplorable incident which took place and from which she died on January 14,1979, was an 18-year old first year commerce student of the University of San Carlos, Cebu City; while petitioners are the parents of Wendell Libi, then a minor between 18 and 19 years of age living with his aforesaid parents, and who also died in the same event on the same date.- More than 2 years before their deaths, Julie Ann Gotiong and Wendell Libi were sweethearts until December, 1978 when Julie Ann broke up with Wendell after she found him to be sadistic and irresponsible.- January, 1979 - Wendell kept pestering Julie Ann with demands for reconciliation but the Julie refused, prompting him to resort to threats against her. In order to avoid him, Julie Ann stayed in the house of her best friend, Malou Alfonso- January 14,1979 - Julie and Wendell died from a single gunshot wound inflicted with the same firearm licensed under Cresencio Libi, father of Wendell - both set of parents came up with versions of the story Gotiongs:> Wendell caused her death by shooting her and thereafter turning the gun on himself to commit suicideLibis:> an unknown third party, whom Wendell may have displeased or antagonized by reason of his work as a narcotics informer of the Constabulary Anti-Narcotics Unit (CANU), must have caused Wendell's death and then shot Julie Ann to eliminate any witness andthereby avoid identification- CFI Cebu: Gotiongs filed civil case against the parents of Wendell to recover damages arising from the latter's vicarious liability under A2180 CC. CFI dismissed the complaint for insufficiency of the evidence.- IAC: CFI decision set aside and found Libis subsidiarily liable

ISSUE: WON A2180 CC is applicable in making Libi’s liable for vicarious liability

HELD: YES. The diligence of a good father of a family required by law in a parent and child relationship consists, to a large extent, of the instruction and supervision of the child. Had the defendants-appellees been diligent in supervising the activities of their son, Wendell, and in keeping said gun from his reach, they could have prevented Wendell from killing Julie Ann Gotiong. Therefore, appellants are liable under A2180 CC.

Undue emphasis was placed by the lower court on the absence of gunpowder or tattooing around the wound at the point of entry of the bullet. It should be emphasized, however, that this is not the only circumstance to be taken into account in the determination of whether it was suicide or not as the body was cleaned already in the funeral parlor - Amelita Libi, mother of Wendell, testified that her husband, Cresencio Libi, owns a gun which he kept in a safety deposit box inside a drawer in their bedroom. Each of these petitioners holds a key to the safety deposit box and Amelita's key is

always in her bag, all of which facts were known to Wendell. They have never seen their son Wendell taking or using the gun. She admitted, however, that on that fateful night the gun was no longer in the safety deposit box. We, accordingly, cannot but entertain serious doubts that petitioner spouses had really been exercising the diligence of a good father of a family by safely locking the fatal gun away. Wendell could not have gotten hold thereof unless one of the keys to the safety deposit box was negligently left lying around or he had free access to the bag of his mother where the other key was.

- A2180': The subsidiary liability of parents for damages caused by their minor children imposed by A2180 CC covers obligations wising from both quasidelicts and criminal offenses.' - BUT Liability is not subsidiary BUT primary > if the liability of the parents for crimes and quasi-delicts of their minor children is subsidiary, they can neither invoke nor be absolved of civil liability on the defense that they acted with the diligence of a good father ofthe family to prevent damages. But if the liability is direct and primary, the diligence would constitute a valid substantial defense. HENCE, LIABILITY OF PARENTS FOR QDS OF THEIR MINOR KIDS AS CONTEMPLATED IN A2180 ID PRIMARY NOT SUBSIDIARY > applying A2194 (solidary liability of joint tortfeasors) the parent is also solidarily liable with the child. THE LIABILITY OF PARENTS FOR FELONIES IS LIKEWISEPRIMARY NOT SUBSIDIARY. A101 RPC SAYS SO > RULES:+ for civil liability from crimes committed by minors under the legal authority and control or who live in the company of the parents: PRIMARY= premised on A101 RPC fot damages ex delicto by kids 9 or under or 9-15 but without discernment = premised on A2180 CC for kids 9-15 with discernment or 15-21 (now 18) + liability effected against father or mother? BOTHPARENTS AND THOSE WHO EXERCISE PARENTAL AUHTORITY OVER THE MINOR= youth welfare code= FC: responsibility of parents + for civil liability arising from quasi-delicts committed by minors: same rules in A2180 and A2182

Disposition Instant petition is DENIED and the assailed judgment of respondent Court of Appeals is hereby AFFIRMED

EXCONDE V. CAPUNO, 101 PHIL 843 (1957)FACTS: In March 1949, Dante Capuno (15 years old), a Boy Scout and student of the Balintawak Elementry School, attended a parade in honor of Dr. Jose Rizal.

1. From the school, Dante and other students, boarded a jeep when it started to run, Dante took hold of the wheel and drove it while the driver sat on his left side. The jeep then turned turtle which case the death of 2 passengers, Amado Ticzon and Isidoro Caperina

2. It appears that Delfin Capuno, father of Dante, was not with his son at the time of the accident nor did he know that Dante was going to attend the parade

3. As such, Dante was accused of double homicide through reckless imprudence. CFI Laguna found Dante guilty of the crime charged and on appeal, CA affirmed the CFI decision

4. During the trial (at the CFI), Sabina Exconde (mother of Isidoro) reserved her right to bring a separate civil action for damages against the accused.

5. Exconde then filed an action for damages against Delfin and Dante Capuno for the death of her son, Isodoro.

6. Delfin contended that Dante should be held liable for the death of Isidoro since Delfin was not with Dante at the time of the accident and as such, he had no control, supervision and custody over the latter.

7. The lower court sustained the defense and only held Dante liable for damages8. Plaintiff argued that Delfin should be held liable for the damages jointly and

severally with his son Dante because at the time the latter committed the negligent act which result in the death of the victim, he was a minor and was then living with his father.

ISSUE: WON Delfin Capuno can be held civilly liable, jointly and severally with his son Dante, for damages resulting to the death of Isodoro caused by the negligent act of minor Dante

HELD: Yes. Art 1903 of the Spanish Civil Code provides: The obligation imposed by the next preceding articles is enforceable not only for personal acts and omissions, but also for those of persons for whom another is responsible.

The father, and, in case of his death or incapacity, the mother, are liable for any damages caused by the minor children who live with them.

Finally, teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices while they are under their custody.

While it is true that under the law above quoted, "teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices while they are under their custody", but this provision only applies to an institution of arts and trades and not to any academic educational institution. Here, Dante Capuno was then a student of the Balintawak Elementary School and as part of his extra-curricular activity, he attended the parade in honor of Dr. Jose Rizal upon instruction of the city school's supervisor. And it was in connection with that parade that Dante boarded a jeep with some companions and while driving it, the accident occurred. In the circumstances, it is

clear that neither the head of that school, nor the city school's supervisor, could be held liable for the negligent act of Dante because he was not then a student of an institute of arts and trades as provided by law.

The civil liability which the law imposed upon the father, and, in case of his death or incapacity, the mother, for any damages that may be caused by the minor children who live with them, is obvious. This is necessary consequence of the parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating them and instructing them in proportion to their means", while, on the other hand, gives them the "right to correct and punish them in moderation.” The only way by which they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good father of a family to prevent the damage(Article 1903, last paragraph, Spanish Civil Code). This defendants failed to prove.

JBL REYES, DISSENTING: The decision of the lower court relieving the father of liability should be upheld. There is no sound reason for limiting Art 1903 to teachers of arts and trades and not to academic ones, as there is no substantial difference between them insofar as the proper supervision and vigilance over their students. The phrase "teachers or heads of establishments of arts and trades" used in Art. 1903 of the old Civil Code, the words "arts and trades" does not qualify "teachers" but only "heads of establishments".

If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in some culpa in vigilando (custodial culpability) that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would seem clear that where the parent places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts committed while under his custody, for the very reason that the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the child is under instruction. And if there is no authority, there can be no responsibility.

CAB: Dante Capuno, was instructed by the City School Supervisor to attend the Rizal parade. The father had every reason to assume that in ordering a minor to attend a parade with other children, the school authorities would provide adequate supervision over them. If a teacher or scout master was present, then he should be the one responsible for allowing the minor to drive the jeep without being qualified to do so. On the other hand, if no teacher or master was at hand to watch over the pupils, the school authorities are the ones answerable for that negligence, and not the father.

Delfin was in no way able to prevent, and which he had every right to assume the school authorities would avoid. Having proved that he trusted his child to the custody of school authorities that were competent to exercise vigilance over him, the father has rebutted the presumption of Art. 1903 and the burden of proof shifted to the claimant to show actual negligence on the part of the parent in order to render him liable.

FUELLAS V. CADANO, 3 SCRA 361 (1961)Facts: Pepito Cadano and Rico Fuellas, son of defendant-appellant Agapito Fuellas, were both 13 years old, on September 16, 1954. They were classmates at St. Mary's High School, Dansalan City. They had a quarrel that lead to Pepito’s injury, his right arm was broken after Rico pushed him on the ground. It is contended that in the decision of the Court of Appeals, the petitioner-appellant was ordered to pay damages for the deliberate injury caused by his son; that the said court held the petitioner liable pursuant to par. 2 of Art. 2180 of the Civil Code, in connection with Art. 2176 of the same Code; that according to the last article, the act of the minor must be one wherein "fault or negligence" is present; and that there being no fault or negligence on the part of petitioner-appellant's minor son, but deliberate intent, the above mentioned articles are not applicable, for the existence of deliberate intent in the commission of an act negatives the presence of fault or negligence in its commission. Appellant, therefore, submits that the appellate Court erred in holding him liable for damages for the deliberate criminal act of his minor son.

Issue: WON the father is liable civilly for the criminal act of his son?

Held: Yes. In an earlier case (Exconde vs. Capuno, et al., G.R. No. L-10132, prom. June 29, 1957), holding the defendants jointly and severally liable with his minor son Dante for damages, arising from the criminal act committed by the latter, this tribunal gave the following reasons for the rule: —

The civil liability which the law imposes upon the father and, in case of his deathor incapacity, the mother, for any damages that may be caused by theminor children who live with them, is obvious. This is a necessary consequenceof the parental authority they exerciseover them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating them in proportion to their means", while on the other hand, gives them the "right to correct and punish them in moderation" (Arts. 134 and 135, Spanish Civil Code). The only way by which they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good father of a family to prevent the damage (Art. 1903, last paragraph, Spanish Civil Code). This, defendants failed to prove.

In another case, Salen and Salbanera vs. Jose Balce, the defendant Balce was the father of a minor Gumersindo Balce, below 18 years of age who was living with him. Gumersindo was found guilty of homicide for having killed Carlos Salen, minor son of plaintiffs. The trial court rendered judgment dismissing the case, stating that the civil liability of the minor son of defendant arising from his criminal liability must be determined under the provisions of the Revised Penal Code and not under Art. 2180 of the new Civil Code. In reversing the decision, this tribunal held: — It is true that under Art. 101 of the Revised Penal Code, a father is made civilly liable for the acts committed by his son only if the latter is an imbecile, an insane, under 9 years of age, or over 9 but under 15 years of age, who acts without discernment, unless it appears that there is no fault or negligence on his part. This is because a son who commits the act under any of

those conditions is by law exempt from criminal liability (Article 12, subdivisions 1, 2 and 3, Revised Penal Code). The idea is not to leave the act entirely unpunished but to attach certain civil liability to the person who has the delinquent minor under his legal authority or control. But a minor over 15 who acts with discernment is not exempt from criminal liability, for which reason the Code is silent as to the subsidiary liability of his parents should he stand convicted. In that case, resort should be had to the general law which is our Civil Code. The particular law that governs this case is Article 2180, the pertinent portion of which provides: "The father and, in case of his death or incapacity, the mother, are responsible for damages caused by the minor children who live in their company." To hold that this provision does not apply to the instant case because it only covers obligations which arise from quasi-delicts and not obligations which arise from criminal offenses, would result in the absurdity that while for an act where mere negligence intervenes the father or mother may stand subsidiarily liable for the damage caused by his or her son, no liability would attach if the damage is caused with criminal intent. Verily, the void apparently exists in the Revised Penal Code is subserved by this particular provision of our Civil Code, as may be gleaned from some recent decisions of this Court which cover equal or identical cases. Moreover, the case at bar was decided by the Court of Appeals on the basis of the evidence submitted therein by both parties, independently of the criminal case. And responsibility for fault or negligence under Article 2176 upon which the action in the present case was instituted, is entirely separate and distinct from the civil liability arising from fault of negligence under the Penal Code (Art. 2177), and having in mind the reasons behind the law as heretofore stated, any discussion as to the minor's criminal responsibility is of no moment. IN VIEW HEREOF, the petition is dismissed, the decision appealed from is affirmed

CUADRA V. MONFORT, 35 SCRA 160 (1970)FACTS: Maria Teresa Cuadra (12 years old) and Maria Teresa Montfort (13 years old) were classmates in Grade 6 at Mabini Elementary School. In July 1962, their teacher assigned them to weed the grass in the school premises

1. While weeding, Montfort girl found a plastic headband. Montfort played a joke on her classmate Cuadra and said that she found an earthworm. Montfort then threw the headband at Cuadra in an effort to frighten her

2. As Montfort threw the headband, Cuadra faced Montfort; at that precise moment, the object hit her right eye. Cuadra rubbed her eye in an effort to ease the pain and treated the same with powder

3. The next day, the eye became swollen. Cuadra’s parents took her to a doctor for treatment. She underwent two surgical operations and stayed in the hospital for 23 days. Despite the medical efforts, Cuadra completely lost sight in her right eye

4. Subsequently, Cuadra’s parents instituted a civil suit for damages against Montfort. The trial court held in favor of Cuadra and ordered Montfort to pay actual damages, moral damages and attorney’s fees

ISSUE: What is the liability of a parent for an act his minor child committed, which caused damage to another

HELD: Art 2176 and 2180 provide:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by provisions of this Chapter.ART 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity are responsible for the damages caused by the minor children who live in their company.

xxx xxx xxxThe responsibility treated of in this Article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

The underlying basis of the liability imposed by Art 2176 is the fault or negligence accompanying the act or the omission, there being no willfulness or intent to cause damage thereby. When the act or omission is that of one person for whom another is responsible, the latter then becomes himself liable under Art 2180, in the different cases enumerated therein, such as that of the father or the mother under

the circumstances above quoted. The basis of this vicarious, although primary, liability is, as in Art 2176, fault or negligence, which is presumed from that which accompanied the causative act or omission. The presumption is merely prima facie and may therefore be rebutted. This is the clear and logical inference that may be drawn from the last paragraph of Art 2180, which states "that the responsibility treated of in this Article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage."

Since the fact thus required to be proven is a matter of defense, the burden of proof necessarily rests on the defendant. Obviously there can be no meticulously calibrated measure applicable; and when the law simply refers to "all the diligence of a good father of the family to prevent damage," it implies a consideration of the attendant circumstances in every individual case, to determine whether or not by the exercise of such diligence the damage could have been prevented.

CAB: There is nothing from which it may be inferred that the defendant could have prevented the damage by the observance of due care, or that he was in any way remiss in the exercise of his parental authority in failing to foresee such damage, or the act which caused it. On the contrary, his child was at school, where it was his duty to send her and where she was, as he had the right to expect her to be, under the care and supervision of the teacher. And as far as the act which caused the injury was concerned, it was an innocent prank not unusual among children at play and which no parent, however careful, would have any special reason to anticipate much less guard against. Nor did it reveal any mischievous propensity, or indeed any trait in the child's character which would reflect unfavorably on her upbringing and for which the blame could be attributed to her parents.

If the defendant is at all obligated to compensate her suffering, the obligation has no legal sanction enforceable in court, but only the moral compulsion of good conscience.

J. BARREDO, DISSENTING: Montfort should be held liable. She was 13 years and should have known that by jokingly saying "aloud that she had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at her," it was likely that something would happen to her friend, as in fact, she was hurt.

There being no evidence that her father had properly advised his daughter to behave properly and not to play dangerous jokes on her classmate and playmates, he can be liable under Art 2180 NCC. There is nothing in the record to show that he had done anything at all to even try to minimize the damage caused upon plaintiff child.

RODRIGUEZ-LUNA V. INTERMEDIATE APPELLATE COURT, 135 SCRA 242 (1985)FACTS: Roberto Luna, a businessman, was killed in a vehicular collision (between Luna, driving a gokart, and without a license) at a gokart practice area. Heirs of Luna brought a suit for damages against Luis and his father, which the CFI ruled in favor of the Lunas, awarding P1,650,000 as unearned net earnings of Luna, P12,000 compensatory damages, and P50,000 for loss of his companionship (come on!!), with legal interest from date of the decision, and attorney’s fees of P50,000 (no interest mentioned). (Note: father and son solidarily liable for damages.)

The Dela Rosas appealed in the CA, which affirmed in toto the RTC. In a MFR filed by the Dela Rosas, the CA modified the decision, this time reducing the unearned income to P450,000. Both parties filed separate petitions for review in the SC. Petition of the Dela Rosas was denied for lack of merit. The instant petition is the one filed by Lunas, contending that the CA erred in reducing the award for unearned income, and that the award for atty’s fees should include legal interest. Pending the decision, the SC came out with a resolution ordering the Dela Rosas, in the interest of justice (since the death took place in 1970, and 15 years after the process of litigation is still not over), to pay the Lunas P450,000 for unearned net earnings, P12,000 compensatory damages, P50,000 for loss of companionship, all with legal interest, and atty’s fees of P50,000, within 30 days.The Dela Rosas failed to pay the amounts, saying that they had no cash money. The writ of execution produced only a nominal amount. In the meantime, Luis is already of age, married, with 2 kids, and living in Spain but only causally employed (“His compensation is hardly enough to support his family. He has no assets of his own as yet”).

ISSUES: 1. WON the CA erred in reducing the unearned income2. WON the award for atty’s fees should have legal interest

HELD:1. YESRatio: The reduction of the award of net unearned earnings had no basis, thus is void.

Reasoning: the RTC based its computation of the net unearned earnings on 2 factors: life expectancy of the deceased of another 30 years, and an annual net income of P55,000 (P75,000 gross income less P20,000 personal expenses). In coming out with the life expectancy, RTC considered the age and health of the deceased. However, the CA modified this by factoring in the “engagement of Luna in car racing,” thus lowering the life expectancy to only 10 years. WRT to the gross income, RTC considered the various positions the deceased held at the time of his death, and the trend of his earnings over the span of his last few years, thus coming up with a potential gross income of P75,000. However, the CA increased the annual personal expenses to P30,000, due to the escalating gasoline expenses, thus lowering the net annual unearned income to P45,000. CA erred in ruling that the engagement with car racing reduced the life expectancy. There is nothing on record that supports the claim that the car racing was a dangerous and risky activity tending to shorten his life expectancy.

“That Luna was engaged in go-kart racing is the correct statement but then go-kart racing cannot be categorized as a dangerous sport for go-karts are extremely low slung, low powered vehicles, only slightly larger than foot-pedaled four wheeled conveyances. It was error on the part of the CA to have disturbed the determination of the RTC which it had previously affirmed.” Also, it was an error to increase the expenses without increasing the gross income. “It stands to reason that if his annual personal expenses should increase because of the ‘escalating price of gas which is a key expenditure in Roberto R. Luna's social standing’ [a statement which lacks complete basis], it would not be unreasonable to suppose that his income would also increase considering the manifold sources thereof”

2. YESRatio: The attorney's fees were awarded in the concept of damages in a quasi-delict case and under the circumstances, interest as part thereof may be adjudicated at the discretion of the court. (The atty’s fees should accrue interest from the date of filing of the compliant.)

Obiter: The Dela Rosas invoke the ruling in Elcano v Hilll, where the court held that A2180 applied to Atty. Hill nothwithstanding the emancipation by marriage of his son, but since the son had attained majority, as a matter of equity, the liability of Atty. Hill became merely subsidiarily to that of his son. The Dela Rosas now invoke that the father should also be held only subsidiarily.

To this contention, the court is “unwilling to apply equity instead of strict law because to do so will not serve the ends of justice. Luis is abroad and beyond the reach of Philippine Courts. Also, he has no property in the Phils or elsewhere.”

Disposition: resolution of CA SET ASIDE, reinstating the earlier decision with slight modification regarding the award of atty’s fees.