Quasi-Delict: Definition

Art. 2176: Fault or negligence of a person, who, by his act or omission, connected or unconnected with, but independent from, any contractual relation, causes damage to another.

Elcano v. Hill: An act, whether punishable or not punishable by law, whether criminal or not criminal in character, whether intentional or voluntary or negligent, which result in the damage to another.

Quasi-Delict v. Torts

QD is known as culpa-aquiliana is a civil law concept while Torts is Anglo-American or common law concept. Torts is broader than culpa-aquiliana because it includes not only negligence, but intentional criminal acts as well. However, Article 21 with Art 19 and 20, greatly broadened the scope of the law on civil wrongs; it has become more supple and adaptable than the Anglo-American law on torts.

Quasi-Delict: Scope

Art. 2176 and Elcano v. Hill: covers not only punishable by law, but also criminal in character, whether intentional, voluntary, or negligent.

Presence of pre-existing contract generally bars the applicability of the law on quasi-delict. However, Air France v. Carrascoso and some other cases provides that the mere existence of a contract does not automatically negate the existence of quasi-delict xxx the act that breaks the contract may also be tort. Air France is reiterated in PSBA vs. CA.

Types of Quasi-Delicts:

Intentional Torts: When the law tries to serve its highest purpose; to regulate the relations among men; to promote mutual respect, dignity and justice.

Sea Commercial v. CA: Article 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrong which is impossible for human foresight to provide specifically in statutory law.

Elements of Abuse of Right1. there is a legal right or duty2. which is exercised in bad faith3. for the sole intent of prejudicing or injuring another 

Article 19 together with the succeeding articles on human relations was intended to embody certain basic principles “that are to be observed for the rightful relationship between human beings and for the stability of their social orders. (Sea Commercial supra)Strict Liability Torts:

The rule on strict liability is said to be applicable in situations in which social policy

requires the defendant make good the harm which results to others from abnormal risks which are inherent in activities that are not considered blameworthy because they are reasonably incident to desirable industrial activities.

Provisions:1. The possessor of an animal or whoever may make use of the same is responsible for the damage which it may cause, although it may escape or be lost (Art. 2183)2. Manufacturers and processors of foodstuffs, etc. (Art 2187)3. RA 7394 or the “Consumer Acts of the Philippines”.The product is defective when it does not offer the safety rightfully expected of it, taking relevant circumstances into consideration, including but not limited to: a. presentation of productb. use and hazard reasonably expected of itc. the time it was put into circulation4. Head of the family that lives in a building is responsible for the damages causes by things thrown or falling from the same ( Art 2193)

Nuisance

Refer to nuisance in property.

Scope: Public and privateNature: per se and per accidense

Nuisance is the limitation of the use of property

Bengzon v. Province of Pangasinan: The pumping station should have foreseen the consequences of the construction of such station. The duty shifted to pumping station that they should have thought that the construction may give damage to Bengzons.

Attractive Nuisance: Requisites1. it must involve children2. it must have dangerous instrumentality3. there is a failure to take reasonable precaution 

Attractive nuisance is an implied license to enter and a breach of duty.

Quasi-Delict: Person Responsible

Art. 2176: One who directly responsible for the damages is responsible, others are:1. Father or mother with respect to the damages of their minor child.2. Guardians with authority to minor child or incapacitated who lives with them3. Owners and managers of the establishment with respect to employees4. Employers5. The State6. Teachers or heads of establishment of arts and trades with respect to students

Schloendoerff doctrine regards a physician, even if employed by a hospital, as an

independent contractor, because of his skill the exercises and the lack of control exerted over his work. Under this doctrine, the hospital is exempt from the application of the repondeat superior principle for fault or negligence committed by physician in the discharge of their profession. HOWEVER, Ramos v. CA weakens this doctrine- hospitals are no longer exempt from universal rule of respondeat superior.

Doctrine of Corporate Negligence, hospitals have now the duty to make reasonable effort to monitor and oversee the treatment prescribed and administered by physicians practicing in its premises.

Doctrine of ostensible agency- imposes liability upon hospital because of the hospitals’ actions as principal or as employer in somehow misleading the public into believing that the relationship or the authority exists.

Quasi-Delict: Requisites

Taylor v. Manila Electric Co.: 1. Fault or negligence of the defendant2. Damage suffered or incurred by plaintiff3. The relation of cause and effect between the fault or negligence of the defendant and the damage incurred by the plaintiff.

Traditional Quasi-Delict: Elements

Art. 2176:1. act or omission2. damage or injury is caused to another3. fault or negligence is present4. no pre-existing contractual obligation5. causal connection between damage done and act or omission 

Quasi-Delict and Crime: Difference

Barredo v. Garcia: 1. Crimes affect public interest, while quasi-delict concerns only private concerns2. The RPC punishes the criminal act, while NCC, by means of indemnification, merely repairs the damages incurred3. Crimes are not broad as quasi-delicts, because the former are punished only if there is a law clearly covering them, while the latter include all acts in which any kind of fault or negligence intervenes.

Quasi-Delict and Culpa contractual: Difference

Cangco v. Manila Railroad Co.: Culpa aquiliana (QD) the culpa is substantive and independent, which of itself constitutes the source of an obligation between persons not formerly connected by any legal tie, while culpa contractual, culpa is considered as an accident in the performance of an obligation already existing.

Test of Negligence

Negligence is statutorily defined to be the omission of that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of persons, time, and place (Art 1173)

Test: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinary prudent person would have used in the same situation? If not he is guilty of negligence. (Roman Law paterfamilias).

Cruz v CA: 

G.R. No. 122445 November 18, 1997

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

(digested by Norietess De los Reyes)

Facts:

            The present case against petitioner is in the nature of a medical malpractice suit,

which in simplest terms is the type of claim which a victim has available to him or her to

redress a wrong committed by a medical professional which has caused bodily harm.The

petitioner and one Dr. Lina Ercillo who was the attending anaesthesiologist during the

operation of the deceased were charged with "reckless imprudence and negligence resulting

to (sic) homicide for the untimely death of said Lydia Umali on the day following her surgical

operation.

            Rowena Umali De Ocampo, accompanied her mother, Lydia, to the Perpetual Help

Clinic and General Hospital. Lydia was examined by the petitioner who found a "myoma" in

her uterus, and scheduled her for a hysterectomy operation on March 23, 1991. Because of

the untidy state of the clinic, Rowena tried to persuade her mother not to proceed with the

operation.  The following day, before her mother was wheeled into the operating room,

Rowena asked the petitioner if the operation could be postponed. Lydia then informed

Rowena that the petitioner told her that she must be operated on as scheduled.  Rowena

and her other relatives waited outside the operating room while Lydia underwent operation.

While they were waiting, Dr. Ercillo went out of the operating room and instructed them to

buy tagamet ampules which Rowena's sister immediately bought. About one hour had

passed when Dr. Ercillo came out again this time to ask them to buy blood for Lydia. After

the lapse of a few hours, the petitioner informed them that the operation was finished. Some

thirty minutes after, Lydia was brought out of the operating room in a stretcher and the

petitioner asked Rowena and the other relatives to buy additional blood for Lydia.

Unfortunately, they were not able to comply with petitioner's order as there was no more

type "A" blood available in the blood bank. Thereafter, a person arrived to donate blood

which was later transfused to Lydia. 

            Rowena then noticed her mother, who was attached to an oxygen tank, gasping for

breath. Apparently the oxygen supply had run out and Rowena's husband together with the

driver of the accused had to go to the San Pablo District Hospital to get oxygen. Lydia was

given the fresh supply of oxygen as soon as it arrived. But at around 10:00 o'clock P.M. she

went into shock and her blood pressure dropped to 60/50. Lydia's unstable condition

necessitated her transfer to the San Pablo District Hospital so she could be connected to a

respirator and further examined.  Upon Lydia's arrival at the San Pablo District Hospital, she

was wheeled into the operating room and the petitioner and Dr. Ercillo re-operated on her

because there was blood oozing from the abdominal incision.  While the petitioner was

closing the abdominal wall, the patient died. Lydia Umali was pronounced dead. Her death

certificate states "shock" as the immediate cause of death and "Disseminated Intravascular

Coagulation (DIC)" as the antecedent cause. 

            Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the

above-mentioned charge. On March 4, 1994, the Municipal Trial Court in Cities (MTCC) of

San Pablo City rendered a decision finding the accused Dra. Lina Ercillo not guilty of the

offense charged for insufficiency of evidence while her co-accused Dra. Ninevetch Cruz is

hereby held responsible for the death of Lydia Umali on March 24, 1991, and therefore guilty

under Art. 365 of the Revised Penal Code. The RTC and the Court of Appeals affirmed the

MTCC in toto and further directed petitioner to pay the heirs of Lydia Umali P50,000.00 as

indemnity for her death. 

Issue: Won petitioner is guilty of reckless imprudence resulting in homicide?

Held:   

        No. This Court finds the foregoing circumstances insufficient to sustain a judgment of

conviction against the petitioner for the crime of reckless imprudence resulting in homicide.

The elements of reckless imprudence are: (1) that the offender does or fails to do an act; (2)

that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4)that

material damage results from the reckless imprudence; and (5) that there is inexcusable

lack of precaution on the part of the offender, taking into consideration his employment or

occupation, degree of intelligence, physical condition, and other circumstances regarding

persons, time and place.

            Even granting arguendo that the inadequacy of the facilities and untidiness of the

clinic; the lack of provisions; the failure to conduct pre-operation tests on the patient; and

the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on

her by the petitioner do indicate, even without expert testimony, that petitioner was

recklessly imprudent in the exercise of her duties as a surgeon, no cogent proof exists that

any of these circumstances caused petitioner's death. Thus, the absence of the fourth

element of reckless imprudence: that the injury to the person or property was a

consequence of the reckless imprudence.

            Whether or not a physician has committed an "inexcusable lack of precaution" in the

treatment of his patient is to be determined according to the standard of care observed by

other members of the profession in good standing under similar circumstances bearing in

mind the advanced state of the profession at the time of treatment or the present state of

medical science.  The prosecution's expert witnesses in the persons of Dr. Floresto Arizala

and Dr. Nieto Salvador, Jr. of the National Bureau of Investigation (NBI) only testified as to

the possible cause of death but did not venture to illuminate the court on the matter of the

standard of care that petitioner should have exercised.  Expert testimony should have been

offered to prove that the circumstances cited by the courts below are constitutive of conduct

falling below the standard of care employed by other physicians in good standing when

performing the same operation. It must be remembered that when the qualifications of a

physician are admitted, as in the instant case, there is an inevitable presumption that in

proper cases he takes the necessary precaution and employs the best of his knowledge and

skill in attending to his clients, unless the contrary is sufficiently established. This

presumption is rebuttable by expert opinion which is so sadly lacking in the case at bench.

            In litigations involving medical negligence, the plaintiff has the burden of

establishing appellant's negligence and for a reasonable conclusion of negligence, there

must be proof of breach of duty on the part of the surgeon as well as a causal connection of

such breach and the resulting death of his patient.  It is significant to state at this juncture

that the autopsy conducted by Dr. Arizala on the body of Lydia did not reveal any untied or

unsutured cut blood vessel nor was there any indication that the tie or suture of a cut blood

vessel had become loose thereby causing the hemorrhage.  This Court has no recourse but

to rely on the expert testimonies rendered by both prosecution and defense witnesses that

substantiate rather than contradict petitioner's allegation that the cause of Lydia's death

was DIC which, as attested to by an expert witness, cannot be attributed to the petitioner's

fault or negligence. The probability that Lydia's death was caused by DIC was unrebutted

during trial and has engendered in the mind of this Court a reasonable doubt as to the

petitioner's guilt. Thus, her acquittal of the crime of reckless imprudence resulting in

homicide, but this Court finds the petitioner civilly liable for the death of Lydia Umali, for

while a conviction of a crime requires proof beyond reasonable doubt, only a preponderance

of evidence is required to establish civil liability. 

WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is hereby ACQUITTED of

the crime of reckless imprudence resulting in homicide but is ordered to pay the heirs of the

deceased Lydia Umali the amount of FIFTY THOUSAND PESOS (P50,000.00) as civil liability,

ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral damages, and FIFTY THOUSAND

PESOS (P50,000.00) as exemplary damages

SALUDAGA vs. FAR EASTERN UNIVERSITY

G.R. No. 179337 April 30, 2008

Facts:

Petitioner Joseph Saludaga was a sophomore law student of respondent Far Eastern

University when he was shot by Alejandro Rosete, one of the security guards on duty at the

school premises on August 18, 1996. Rosete was brought to the police station where he

explained that the shooting was accidental. He was eventually released considering that no

formal complaint was filed against him.

Respondents, in turn, filed a Third-Party Complaint against Galaxy Development and

Management Corporation (Galaxy), the agency contracted by respondent FEU to provide

security services within its premises and Mariano D. Imperial (Galaxy’s President), to

indemnify them for whatever would be adjudged in favor of petitioner.

Petitioner is suing respondents for damages based on the alleged breach of student-school

contract for a safe and secure environment and an atmosphere conducive to learning.

Issue:

WON FEU was not negligent and such shooting was tantamount to a caso fortuito? NO, it

was negligent and such is not a fortuitous case.

Held:

When an academic institution accepts students for enrollment, there is established a

contract between them, resulting in bilateral obligations which both parties are bound to

comply with. For its part, the school undertakes to provide the student with an education

that would presumably suffice to equip him with the necessary tools and skills to pursue

higher education or a profession. On the other hand, the student covenants to abide by the

school’s academic requirements and observe its rules and regulations.

Respondent FEU failed to discharge the burden of proving that they exercised due diligence

in providing a safe learning environment for their students. It failed to show that they

undertook steps to ascertain and confirm that the security guards assigned to them actually

possess the qualifications required in the Security Service Agreement. It was not proven that

they examined the clearances, psychiatric test results, 201 files, and other vital documents

enumerated in its contract with Galaxy. Total reliance on the security agency about these

matters or failure to check the papers stating the qualifications of the guards is negligence

on the part of respondents. A learning institution should not be allowed to completely

relinquish or abdicate security matters in its premises to the security agency it hired. To do

so would result to contracting away its inherent obligation to ensure a safe learning

environment for its students.

Respondent FEU is liable to petitioner for damages.

FEU cannot be held liable for damages under Art. 2180 of the Civil Code because

respondents are not the employers of Rosete. The latter was employed by Galaxy. The

instructions issued by respondents Security Consultant to Galaxy and its security guards are

ordinarily no more than requests commonly envisaged in the contract for services entered

into by a principal and a security agency. They cannot be construed as the element of

control as to treat respondents as the employers of Rosete. It had no hand in selecting

thesecurity guards. Thus, the duty to observe the diligence of a good father of a family

cannot be demanded from the said client

FALLO:

“For these acts of negligence and for having supplied respondent FEU with an unqualified

security guard, which resulted to the latters breach of obligation to petitioner, it is proper to

hold Galaxy liable to respondent FEU for such damages equivalent to the above-mentioned

amounts awarded to petitioner. Unlike respondent De Jesus, we deem Imperial to be

solidarily liable with Galaxy for being grossly negligent in directing the affairs of the security

agency

plaintiff's confinement, the defendants or any of their representative did not bother to visit and inquire about his condition. This abject indifference on the part of the defendants continued even after plaintiff was discharged from the hospital when not even a word of consolation was heard from them. Plaintiff waited for more than one (1) year for the defendants to perform their moral obligation but the wait was fruitless.

Respondents also failed to show that they undertook steps to ascertain and confirm that the security guards assigned to them actually possess the qualifications required in the Security Service Agreement. It was not proven that they examined the clearances, psychiatric test results, 201 files, and other vital documents enumerated in its contract with Galaxy. Total reliance on the security agency about these matters or failure to check the papers stating the qualifications of the guards is negligence on the part of respondents. 

PNR vs.Court of Appeals

(G.R. No. L-55347 October 4, 1985)

FACTS:

Winifredo Tupang, husband of respondent Rosario Tupang, boarded 'Train No. 516 of petitioner at Libmanan, Camarines Sur, as a paying passenger bound for Manila. Due to some mechanical defect, the train stopped at Sipocot, Camarines Sur, for repairs, taking some two hours before the train could resume its trip to Manila. Unfortunately, upon passing Iyam Bridge at Lucena, Quezon, Winifredo Tupang fell off the train resulting in his death. The train did not stop despite the alarm raised by the other passengers that somebody fell from the train. Instead, the train conductor Perfecto Abrazado, called the station agent at Candelaria, Quezon, and requested for verification of the information. Police authorities of Lucena City were dispatched to the Iyam Bridge where they found the lifeless body of Winifredo Tupang.

Upon complaint filed by the deceased's widow, Rosario Tupang, the then Court of First Instance of Rizal, after trial, held the petitioner PNR liable for damages for breach of contract of carriage and ordered "to pay the plaintiff the sum of P12,000,00 for the death of Winifredo Tupang, plus P20,000.00 for loss of his earning capacity and the further sum of P10,000.00 as moral damages, and P2,000.00 as attorney's fees, and costs.

On appeal, the Appellate Court sustained the holding of the trial court that the PNR did not exercise the utmost diligence required by law of a common carrier. It further increased the amount adjudicated by the trial court by ordering PNR to pay the plaintiff an additional sum of P5,000.00 as exemplary damages.

ISSUE:

Whether or not petitioner is liable as a common carrier.

HELD:

The appellate court found, the petitioner does not deny, that the train boarded by the deceased Winifredo Tupang was so over-crowded that he and many other passengers had no choice but to sit on the open platforms between the coaches of the train. It is likewise undisputed that the train did not even slow down when it approached the Iyam Bridge which was under repair at the time, Neither did the train stop, despite the alarm raised by other passengers that a person had fallen off the train at lyam Bridge.

The petitioner has the obligation to transport its passengers to their destinations and to observe extraordinary diligence in doing so. Death or any injury suffered by any of its passengers gives rise to the presumption that it was negligent in the performance of its obligation under the contract of carriage. Thus, as correctly ruled by the respondent court, the petitioner failed to overthrow such presumption of negligence with clear and convincing evidence. 

But while petitioner failed to exercise extraordinary diligence as required by law, 8 it appears that the deceased was chargeable with contributory negligence. Since he opted to sit on the open platform between the coaches of the train, he should have held tightly and tenaciously on the upright metal bar

found at the side of said platform to avoid falling off from the speeding train. Such contributory negligence, while not exempting the PNR from liability, nevertheless justified the deletion of the amount adjudicated as moral damages. By the same token, the award of exemplary damages must be set aside. Exemplary damages may be allowed only in cases where the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. There being no evidence of fraud, malice or bad faith on the part of petitioner, the grant of exemplary damages should be discarded. 

WHEREFORE, the decision of the respondent appellate court is hereby modified by eliminating therefrom the amounts of P10,000.00 and P5,000.00 adjudicated as moral and exemplary damages, respectively. No costs

GAID VS PEOPLE

Before the Court is a petition for review on certiorari1 assailing the 12 July 2005 Decision2 of the Court of Appeals and its subsequent Resolution3 denying petitioner’s motion for reconsideration.

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

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

CONTRARY TO LAW.4

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

The antecedent facts are undisputed.

At around 12:00 noon on 25 October 2001, petitioner was driving his passenger jeepney along a two-lane road where the Laguindingan National High School is located toward the direction of Moog in Misamis Oriental. His jeepney was filled to seating capacity.5 At the time several students were coming out of the school premises.6Meanwhile, a fourteen year-old student, Michael Dayata (Dayata), was seen by

eyewitness Artman Bongolto (Bongolto) sitting near a store on the left side of the road. From where he was at the left side of the road, Dayata raised his left hand to flag down petitioner’s jeepney7 which was traveling on the right lane of the road.8 However, neither did petitioner nor the conductor, Dennis Mellalos (Mellalos), saw anybody flagging down the jeepney to ride at that point.9

The next thing Bongalto saw, Dayata’s feet was pinned to the rear wheel of the jeepney, after which, he laid flat on the ground behind the jeepney.10 Another prosecution witness, Usaffe Actub (Actub), who was also situated on the left side of the street but directly in front of the school gate, heard "a strong impact coming from the jeep sounding as if the driver forced to accelerate in order to hurdle an obstacle."11 Dayata was then seen lying on the ground12 and caught in between the rear tires.13 Petitioner felt that the left rear tire of the jeepney had bounced and the vehicle tilted to the right side.14

Mellalos heard a shout that a boy was run over, prompting him to jump off the jeepney to help the victim. Petitioner stopped and saw Mellalos carrying the body of the victim.15 Mellalos loaded the victim on a motorcycle and brought him to the hospital. Dayata was first brought to the Laguindingan Health Center, but it was closed. Mellalos then proceeded to the El Salvador Hospital. Upon advice of its doctors, however, Dayata was brought to the Northern Mindanao Medical Center where he was pronounced dead on arrival.16

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

The Municipal Circuit Trial Court (MCTC) of Laguindingan19 found petitioner guilty beyond reasonable doubt of the crime charged. The lower court held petitioner negligent in his driving considering that the victim was dragged to a distance of 5.70 meters from the point of impact. He was also scored for "not stopping his vehicle after noticing that the jeepney’s left rear tire jolted causing the vehicle to tilt towards the right."20 On appeal, the Regional Trial Court (RTC)21 affirmed in toto the decision of the MCTC.

The Court of Appeals affirmed the trial court’s judgment with modification in that it found petitioner guilty only of simple negligence resulting in homicide.1avvphi1.zw+

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

In its 6 February 2006 Resolution, the Court of Appeals denied petitioner’s motion for reconsideration.23

Hence, the instant petition.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In Philippine National Construction Corporation v. Court of Appeals,37 the petitioner was the franchisee that operates and maintains the toll facilities in the North and South Luzon Toll Expressways. It failed to exercise the requisite diligence in maintaining the NLEX safe for motorists. The lighted cans and lane dividers on the highway were removed even as flattened sugarcanes lay scattered on the ground. The highway was still wet from the juice and sap of the flattened sugarcanes. The petitioner should have foreseen that the wet condition of the highway would endanger motorists passing by at night or in the wee hours of the morning.38 Consequently, it was held liable for damages.

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

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

Assuming arguendo that petitioner had been negligent, it must be shown that his negligence was the proximate cause of the accident. Proximate cause is defined as that which, in the natural and continuous sequence, unbroken by any efficient, intervening cause, produces the injury, and without which the result would not have

occurred.41 In order to establish a motorist's liability for the negligent operation of a vehicle, it must be shown that there was a direct causal connection between such negligence and the injuries or damages complained of. Thus, negligence that is not a substantial contributing factor in the causation of the accident is not the proximate cause of an injury.42

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

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

Moreover, mere suspicions and speculations that the victim could have lived had petitioner stopped can never be the basis of a conviction in a criminal case.48 The Court must be satisfied that the guilt of the

accused had been proven beyond reasonable doubt.49 Conviction must rest on nothing less than a moral certainty of the guilt of the accused. The overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains doubt as to his guilt.50

Clearly then, the prosecution was not able to establish that the proximate cause of the victim’s death was petitioner’s alleged 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.

To avoid liability for acts of an employee, the employer must overcome the presumption by presenting convincing proof that he exercised the required diligence both in the selection andsupervision of his employee. It's not enough that the employees chosen be competent and qualified, inasmuch as the employer is still required to exercise due diligence in supervising its employees. Due diligence in supervision requires the formulation of rules and regulations for the guidance of employees and the issuance of proper instructions as well as actual implementation and monitoring of consistent compliance with the rules. (Source: Delsan Transport Lines, Inc. vs. C&A Construction, Inc., G.R. No. 156034, 1 October 2003

Delsan Transport Lines Inc. v C&A Construction | Ynares-Santiago.G.R. No. 156034, October 1, 2003 |FACTSNHA contracted with C&A to build a deflector wall for Vitas Reclamation Area inVitas, Tondo. Project was finished in 1994. In October 20, 1994 12mn CaptainJusep of Delsan lines owned ship M/V Delsan express received information thatthere was a typhoon coming in from Japan. At 8.35AM M/V Delsan Expressattempted to get into North Harbor but could not. 10.00AM M/V Delsan Expressdropped anchor off of Vitas 4 miles away from Napocor barge. M/V DelsanExpress nearly collided with the Napocor barge but managed to avoid it and insteadhit the deflector wall causing almost 500,000 in damage. Petitioner refused to payand thus a civil case was filed against Delsan by C&A. TC Ruled emergency rule

applied, CA found captain negligent.

ISSUES & ARGUMENTSW/N Captain Jusep is negligentW/N under Art. 2180 Delsan liable for the quasi-delict

HOLDING & RATIO DECIDENDICaptain Jusep is negligent by waiting for 8.35AM before bringing the ship toNorth HarborPetitioners are vicariously liable under 2180Art. 2176 of the Civil Code states that whoever by act or omission causes damage toanother, there being fault or negligence, is obliged to pay for the damage done.Captain Jusep received the report 12MN and waited for more than 8 hours to movethe ship, he likewise ignored the weather report and in all angles failed to take actionto prevent the damage.Under Art. 2180 whenever an employee’s negligence causes damage or injury toanother there arises a presumption juris tantum that the employer failed to exercisedue diligence of a good father of a family in the selection and supervision of itsemployees.Petitioner failed to present evidence that showed it formulated guidelines/rules forthe proper performance of functions of employees and any monitoring system.Not necessary to state petitioner is negligent in selecting or supervising employees asnegligence is presumed by operation of law. Allegations of negligence of theemployee and existence of employer-employee relationship in complaint are enoughto make out a case of quasi-delict under 2180.

College Assurance Plan and Comprehensive Annuity Plan and Pension Corporation vs Belfranlt Development Inc.

Belfranlt Development, Inc. (respondent) is the owner of Belfranlt Building in Angeles City,

Pampanga. It leased to petitioners College Assurance Plan Phil., Inc. (CAP) and

Comprehensive Annuity Plans and Pension Corporation (CAPP) several units on the second

and third floors of the building.

On October 8, 1994, fire destroyed portions of the building, including the third floor units

being occupied by petitioners. An October 20, 1994 field investigation report by an unnamed

arson investigator assigned to the case disclosed that the origin of the fire was the store

room occupied by CAP. Respondent sent petitioners on November 3, 1994 a notice to vacate

the leased premises to make way for repairs, and to pay reparation estimated at P1.5

million.

Respondent wrote petitioners another letter, reiterating its claim for reparation, this time

estimated by professionals to be no less than P2 million.

On November 11, 1994, petitioners vacated the leased premises, including the units on the

second floor, but they did not act on the demand for reparation, pointing out that the fire

was a fortuitous event for which they could not be held responsible.

The issue is whether the fire that partially burned respondent's building was a fortuitous

event

.

The Supreme Court held in the negative since it was fire that caused the damage to the

units being occupied by petitioners. The legal presumption therefore is that petitioners were

responsible for the damage. Petitioners insist, however, that they are exempt from liability

for the fire was a fortuitous event that took place without their fault or negligence

The CA correctly applied the doctrine of res ipsa loquitur under which expert testimony may be dispensed with35 to sustain an allegation of negligence if the following requisites obtain: a) the accident is of a kind which does not ordinarily occur unless someone is negligent; b) the cause of the injury was under the exclusive control of the person in charge and c) the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured.36The fire that damaged Belfranlt Building was not a spontaneous natural occurrence but the outcome of a human act or omission. It originated in the store room which petitioners had possession and control of. Respondent had no hand in the incident. Hence, the convergence of these facts and circumstances speaks for itself: petitioners alone having knowledge of the cause of the fire or the best opportunity to ascertain it, and respondent having no means to find out for itself, it is sufficient for the latter to merely allege that the cause of the fire was the negligence of the former and to rely on the occurrence of the fire as proof of such negligence.37 It was all up to petitioners to dispel such inference of negligence, but their bare denial only left the matter unanswered.

The CA therefore correctly affirmed the RTC in holding petitioners liable to respondent for actual damages consisting of unpaid rentals for the units they leased.

The CA deleted the award of actual damages of P2.2 million which the RTC had granted respondent to cover costs of building repairs. In lieu of actual damages, temperate damages in the amount of P500,000.00 were awarded by the CA. We find this in order.

LIABILITY OF HOSPITALS UNDER THE DOCTRINE OF APPARENT AUTHORITY AND DOCTRINE OF

CORPORATE NEGLIGENCE

The case of Professional Services, Inc. v. Agana, G.R. No. 126297; Agana, et al. v. Fuentes, G.R. No.

126467; Ampil v. Agana, et al., G.R. No. 127590, January 31, 2007 set the precedent for the liability of

hospitals for the negligence of doctors employed by it, or even consultants. The SC said that courts in

holding a hospital liable for damages, having undertaken one of mankind’s most important and delicate

endeavors, must assume the grave responsibility of pursuing it with appropriate care. The care and

service dispensed through this high trust, however technical, complex and esoteric its character may be,

must meet standards of responsibility commensurate with the undertaking to preserve and protect the

health, and indeed, the very lives of those placed in the hospital’s keeping. (Beeck v. Tuzon General

Hospital, 500 P. 2d 1153 (1972), citing Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326,

211 N.E. 2d 253).

Dr. Ampil, assisted by the medical staff of the Medical City Hospital, performed an anterior resection

surgery on Natividad. He found that the malignancy in her sigmoid area had spread on her left ovary,

necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the consent of Natividad’s

husband, Enrique Agana, to permit Dr. Juan Fuentes, to perform hysterectomy on her.

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

closed the incision.

The operation appeared to be flawed, because the attending nurse entered these remarks:

“sponge count lacking 2

“announced to surgeon searched (sic) done but to no avail continue for closure.”

Natividad was released from the hospital, but later on complained of excruciating pain in her anal region.

She consulted both doctors about it. They told her that the pain is the natural consequence of the surgery.

Dr. Ampil then recommended that she consult an oncologist to examine the cancerous nodes which were

not removed during the operation.

Accompanied by her husband she went to the United States to seek further treatment. After four months

of consultations and laboratory examinations, she was told she was free of cancer. Hence, she was

advised to return to the Philippines.

After her return to the Philippines, her daughter found a piece of gauze protruding from her vagina. Upon

being informed about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece

of gauze measuring 1.5 inches in width. He then assured her that the pains would soon vanish.

Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek

treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected the

presence of another foreign object in her vagina – a foul-smelling gauze measuring 1.5 inches in width

badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive organs which

forced stool to excrete through the vagina. Another surgical operation was needed to remedy the

damage. Thus, in October 1984, she underwent another surgery.

The spouses filed a complaint for damages alleging that the doctors are liable for negligence for leaving

two pieces of gauze inside Natividad’s body and malpractice for concealing their acts of negligence.

On February 16, 1986, pending the outcome of the above case, she died and was duly substituted by her

children.

The trial court rendered a judgment holding the doctors liable for negligence and malpractice.

On appeal, the CA dismissed the case against Dr. Fuentes but affirmed the judgment against Dr. Ampil

and the hospital.

On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-GR CV No.

42062 and CA-GR SP No. 32198, dismissing the case against Dr. Fuentes and holding PSI and Dr. Ampil

solidarily liable.

Only Dr. Ampil filed a motion for reconsideration, but was denied.

PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is estopped from raising the

defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil; and (3) it is not entitled

to its counterclaim against the Aganas. PSI contended that Dr. Ampil is not its employee, but a mere

consultant or independent contractor. As such, he alone should answer for his negligence.

The Aganas maintained that the Court of Appeals erred in finding that Dr. Fuentes is not guilty of

negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They contended that the

pieces of gauze are prima facie proofs that the operating surgeons have been negligent.

Dr. Ampil asserted that the Court of Appeals erred in finding him liable for negligence and malpractice

sans evidence that he left the two pieces of gauze in Natividad’s vagina. He pointed to other probable

cause, such as: (1) it was Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the attending

nurses’ failure to properly count the gauzes used during surgery; and (3) the medical intervention of the

American doctors who examined Natividad in the United States of America.

The issues submitted to the court were: first, whether the Court of Appeals erred in holding Dr. Ampil

liable for negligence and malpractice; second, whether the Court of Appeals erred in absolving Dr.

Fuentes of any liability; and third, whether PSI may be held solidarily liable for the negligence of Dr.

Ampil.

Held: (1) Whether the Court of Appeals erred in holding Dr. Ampil liable for negligence and malpractice.

Dr. Ampil argued that the Court should not discount either of the following possibilities: first, Dr. Fuentes

left the gauzes in Natividad’s body after performing hysterectomy; second, the attending nurses erred in

counting the gauzes; and third, the American doctors were the ones who placed the gauzes in Natividad’s

body.

The arguments are purely conjectural and without basis. Records show that he did not present any

evidence to prove that the American doctors were the ones who put or left the gauzes in Natividad’s body.

Neither did he submit evidence to rebut the correctness of the record of operation, particularly the number

of gauzes used. As to the alleged negligence of Dr. Fuentes, Dr. Ampil examined his work and found it in

order.

The glaring truth is that all the major circumstances, taken together, as specified by the Court of Appeals,

directly point to Dr. Ampil as the negligent party, thus:

First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of the patient

during the surgical operation.

Second, immediately after the operation, the nurses who assisted in the surgery noted in their support

that the ‘sponge count (was) lacking 2’; that such anomaly was ‘announced to surgeon’ and that a ‘search

was done but to no avail’ prompting Dr. Ampil to ‘continue for closure’ x x x.

Third, after the operation, two (2) gauzes were extracted from the same spot of the body of Mrs. Agana

where the surgery was performed.

An operation requiring the placing of sponges in the incision is not complete until the sponges are

properly removed, and it is settled that the leaving of sponges or other foreign substances in the wound

after the incision has been closed is at least prima facie negligence by the operating surgeon. (Rule v.

Cheeseman, 317 P. 2d 472 (1957), citing Russel v. Newman, 116 Kan. 268 P. 752; Bernsden v. Johnson,

174 Kan. 230, 255 P. 2d 1033). To put simply, such act is considered so inconsistent with due care as to

raise an inference of negligence. There are even legions of authorities to the effect that such act is

negligence per se.

The SC further ruled that it is not blind to the reality that there are times when danger to a patient’s life

precludes a surgeon from further searching missing sponges or foreign objects left in the body. But this

does not leave him free from any obligation. Even if it has been shown that a surgeon was required by the

urgent necessities of the case to leave a sponge in his patient’s abdomen, because of the dangers

attendant upon delay, still, it is his legal duty to so inform his patient within a reasonable time thereafter by

advising her of what he had been compelled to do. This is in order that she might seek relief from the

effects of the foreign object left in her body as her condition might permit. In Smith v. Zeagler, it was ruled,

thus:

“The removal of all sponges used is part of a surgical operation, and when a physician or surgeon fails to

remove a sponge he has placed in his patient’s body that should be removed as part of the operation, he

thereby leaves his operation uncompleted and creates a new condition which imposes upon him the legal

duty of calling the new condition to his patient’s attention, and endeavoring with the means he has at

hand to minimize and avoid untoward results likely to ensue therefrom. (157 So. 328 Pla. (1934)).

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. What was initially an act of negligence by Dr. Ampil has ripened into a deliberate wrongful

act of deceiving his patient.

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. (Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5, 1997, 278 SCRA 769).

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 cause of Natividad’s injury

could be traced from his act of closing the incision despite the information given by the attending nurses

that two pieces of gauze were still missing. That they were later on extracted from Natividad’s vagina

established the causal link between Dr. Ampil’s negligence and the injury. And what further aggravated

such injury was his deliberate concealment of the missing gauzes from the knowledge of Natividad and

her family.

(2) Whether the Court of Appeals erred in absolving Dr. Fuentes of any liability.

The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground that it

is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces of gauze

were left inside Natividad’s body is a prima facie evidence of Dr. Fuentes’ negligence.

Held: The SC ruled otherwise.

Literally, res ipsa loquitur means “the thing speaks for itself”. It is the rule that the fact of the occurrence of

an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of

negligence, or make out a plaintiff’s prima facie case, and present a question of fact for defendant to meet

with an explanation. (Ramos v. CA, G.R. No. 124354, December 29, 1999, 321 SCRA 584). 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. (Africa v. Caltex (Phils.) Inc., 123 Phil. 280).

From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsa

loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the control

and management of the defendant; (3) the occurrence was such that in the ordinary course of things,

would not have happened if those who had control or management used proper care; and (4) the

absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the “control

and management of the thing which cause the injury”.

The element of “control and management of the thing which caused the injury” are wanting in the case.

Hence, the doctrine of res ipsa loquitur will not lie

People vs. Ritter –Rape!Rape of a 12-yr-old gir l al legedly by Appellantwho inserted a foreign into her vagina causingher death. Criminal case and civil case was filedagainst the defendant.Issue:

WON def liable on both cases.H e l d :   N o . O n l y   w i t h   r e g a r d t o   t h e c i v i l c a s e . Crim case requires evidence beyond reasonabled o u b t .  

W h i l e   c i v i l   c a s e s   r e q u i r e   o n l y preponderance of evidence.S o u r c e :   C r i m i n a l   o f f e n s e s .   A c t s   o r   o m i s s i o n punished by the law.**Institution of Civil Case while pending criminalc a s e ,   i s   r e s e r v a t i o n   t o   t h e   r i g h t   t o   f i l e   t h e former necessary or can f i le anytime within thependency of the criminal case?

apellant challenges his conviction of the crime involving a young girl of about 12 years old who had been allegedly raped and who later died because of a foreign object left inside her vaginal canal.

October 10, 1986 about midnight, accused Heinrich Stefan Ritter brought a boy and girl namely: Jessie Ramirez and Rosario Baluyot inside his hotel room at MGM Hotel along Magsaysay Drive, Olongapo City. These two (2) children were chosen from among a bunch of street children. Once inside the hotel room accused told them to take a bath. Jessie Ramirez, alias "Egan", was the first to take a bath and when he came out Rosario Baluyot went to the bathroom to do the same. While Rosario Baluyot was inside the bathroom, accused Ritter took out some pictures depicting dressed up young boys, and put them on top of the table. Other things which were taken out and placed on top of a table were three (3) other objects which he described as like that of a vicks inhaler. One of these objects the accused played with his hands and placed it on his palms. The color of which is grayish blue which turned out later to be the foreign object which was inserted inside the vagina of Rosario Baluyot. The other objects were later established to be anti-nasal inhalers against pollution purchased by the accused in Bangkok when he went there as a tourist. While Rosario was in the bathroom, accused told Ramirez to lay down on bed, and so did the accused. He then started masturbating the young boy and also guided the boy's hand for him to be masturbated, so that they masturbated each other, while they were both naked, and he gave Jessie Ramirez an erection. When Rosario Baluyot came out of the bathroom, she was told to remove her clothes by accused and to join him in bed. The accused then placed himself between the two (2) children and accused started fingering Rosario.

At this time, Ramirez was already sleepy, but Rosario touched him to call his attention. He looked, and he saw accused placing his penis against the vagina of Rosario and that he was trying to penetrate the vagina but it would not fit. After what he saw, Ramirez did not anymore bother to look because he was sleepy and fell asleep.

The following morning, the accused, whom the juveniles described as an "American, paid Ramirez alias "Egan" P200.00 and Rosario P300.00. He then left them in the hotel. After the American left, they went downstairs, and Rosario told Egan that the American inserted something in her vagina. But they could not do anything anymore, because the American had already left, and neither did they report the matter to the police. Sometime the following day, Jessie saw Rosario and he asked her whether the object was already removed from her body and Rosario said "Yes". However, Jessie Ramirez claimed that on the evening of that same date, he saw Rosario and she was complaining of pain in her vagina and when Egan asked her, she said that the foreign object was not yet removed. Then there was another occasion wherein Jessie was summoned and when he came he saw Rosario writhing in pain and when he tried to talk to Rosario she scolded him with defamatory remarks. Thereafter, he did not see Rosario anymore because he already went home to his aunt's house who resided at Barrio Barretto and resumed his studies in the primary grades.

Gaspar Alcantara, a defense witness, while garbage scavenging at Lot 21, near the gate of the U.S. Naval Base saw Rosario at Magsaysay Drive near the Happy Bake Shop near Lot 21, being ogled by people because Rosario's skirt was bloodied and she was unconscious and foul smelling. Since nobody helped Rosario, he took pity on her condition and brought her to the Olongapo City General Hospital in an unconscious condition, via jeepney. He went to the Information desk and he was the one who gave the personal circumstances of Rosario as to her name, age, her residence as Nagbakulaw, Lower Kalaklan, and Gaspar Alcantara signed as "guardian" of Rosario, while Rosario was already in the emergency room. Although Gaspar Alcantara denied that he did not know the name of Rosario Baluyot when he brought her to the hospital, this is belied by the testimony of the Information clerk Lorna Limos, who was then on duty. Limos testified that it was Alcantara who supplied the personal circumstances of Rosario

Noteworthy is the fact that nothing was mentioned about Rosario's activities after the hotel incident. Considering Dr. Barcinal's testimony indicating that she was "used" by a "Negro" three (3) months prior to admission in the hospital and Rosario's unfortunate profession, there is always the possibility that she could have allowed herself to be violated by this perverse kind of sexual behavior where a vibrator or vibrators were inserted into her vagina between October, 1986 and May, 1987.

Moreover, the long delay of seven (7) months after the incident in reporting the alleged crime renders the evidence for the prosecution insufficient to establish appellant's guilty connection with the requisite moral certainty. (See People v. Mula Cruz, 129 SCRA 156 [1984]).

The established facts do not entirely rule out the possibility that the appellant could have inserted a foreign object inside Rosario's vagina. This object may have caused her death. It is possible that the appellant could be the guilty person. However, the Court cannot base an affirmance of conviction upon mere possibilities. Suspicions and possibilities are not evidence and therefore should not be taken against the accused. (People v. Tolentino, supra)

Well-established is the rule that every circumstance favorable to the accused should be duly taken into account. This rule applies even to hardened criminals or those whose bizarre behaviour violates the mores of civilized society. The evidence against the accused must survive the test of reason. The strongest suspicion must not be allowed to sway judgment.

in the instant case, since there are circumstances which prevent our being morally certain of the guilt of the appellant, he is, therefore, entitled to an acquittal.

Rosario Baluyot is a street child who ran away from her grandmother's house. Circumstances forced her to succumb and enter this unfortunate profession. Nonetheless, she has left behind heirs who have certainly suffered mental anguish, anxiety and moral shock by her sudden and incredulous death as reflected in the records of the case. Though we are acquitting the appellant for the crime of rape with homicide, we emphasize that we are not ruling that he is innocent or blameless. It is only the constitutional presumption of innocence and the failure of the prosecution to build an airtight case for conviction which saved him, not that the facts of unlawful conduct do not exist. As earlier stated, there is the likelihood that he did insert the vibrator whose end was left inside Rosario's vaginal canal and that the vibrator may have caused her death. True, we cannot convict on probabilities or possibilities but civil liability does not require proof beyond reasonable doubt. The Court can order the payment of indemnity on the facts found in the records of this case.

The appellant certainly committed acts contrary to morals, good customs, public order or public policy (see Article 21 Civil Code). As earlier mentioned, the appellant has abused Filipino children, enticing them with money. We can not overstress the responsibility for proper behavior of all adults in the Philippines,

including the appellant towards young children. The sexual exploitation committed by the appellant should not and can not be condoned. Thus, considering the circumstances of the case, we are awarding damages to the heirs of Rosario Baluyot in the amount of P30,000.00.