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Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 165622 October 17, 2008
MERCURY DRUG CORPORATION and AURMELA GANZON,
petitioners,
vs.
RAUL DE LEON, respondents.
DECISION
REYES, R.T., J.:
IN REALITY, for the druggist, mistake is negligence and care is no
defense.1 Sa isang parmasyutika, ang pagkakamali ay
kapabayaan at ang pagkalinga ay hindi angkop na dipensa.
This is a petition for review on certiorari2 of two Resolutions3 of the
Court of Appeals (CA). The first Resolution granted respondent’s
motion to dismiss while the second denied petitioner’s motion for
reconsideration.
The Facts
Respondent Raul T. De Leon was the presiding judge of Branch 258,
Regional Trial Court (RTC) in Parañaque.4 On October 17, 1999, he
noticed that his left eye was reddish. He also had difficulty reading.5
On the same evening, he met a friend for dinner at the Foohyui
Restaurant. The same friend happened to be a doctor, Dr. Charles
Milla, and had just arrived from abroad.6
Aside from exchanging pleasantries, De Leon consulted Dr. Milla
about his irritated left eye.7 The latter prescribed the drugs "Cortisporin
Opthalmic" and "Ceftin" to relieve his eye problems.8 Before heading
to work the following morning, De Leon went to the Betterliving,
Parañaque, branch of Mercury Drug Store Corporation to buy the
prescribed medicines.9 He showed his prescription to petitioner
Aurmela Ganzon, a pharmacist assistant.10 Subsequently, he paid for
and took the medicine handed over by Ganzon.11
At his chambers, De Leon requested his sheriff to assist him in using
the eye drops.12 As instructed, the sheriff applied 2-3 drops on
respondent’s left eye.13 Instead of relieving his irritation, respondent
felt searing pain.14 He immediately rinsed the affected eye with water,
but the pain did not subside.15 Only then did he discover that he was
given the wrong medicine, "Cortisporin Otic Solution."16
De Leon returned to the same Mercury Drug branch, with his left eye
still red and teary.17 When he confronted Ganzon why he was given
ear drops, instead of the prescribed eye drops,18 she did not
apologize and instead brazenly replied that she was unable to fully
read the prescription.19 In fact, it was her supervisor who apologized
and informed De Leon that they do not have stock of the needed
Cortisporin Opthalmic.20
De Leon wrote Mercury Drug, through its president, Ms. Vivian K.
Askuna, about the day’s incident.21 It did not merit any response.22
Instead, two sales persons went to his office and informed him that
their supervisor was busy with other matters.23 Having been denied
his simple desire for a written apology and explanation,24 De Leon
filed a complaint for damages against Mercury Drug.25
Mercury Drug denied that it was negligent and therefore liable for
damages.26 It pointed out that the proximate cause of De Leon’s
unfortunate experience was his own negligence.27 He should have
first read and checked to see if he had the right eye solution before he
used any on his eye.28 He could have also requested his sheriff to do
the same before the latter applied the medicine on such a delicate part
of his body.29
Also, Mercury Drug explained that there is no available medicine
known as "Cortisporin Opthalmic" in the Philippine market.30
Furthermore, what was written on the piece of paper De Leon
presented to Ganzon was "Cortisporin Solution."31 Accordingly, she
gave him the only available "Cortisporin Solution" in the market.
Moreover, even the piece of paper De Leon presented upon buying
the medicine can not be considered as proper prescription.32 It lacked
the required information concerning the attending doctor’s name and
license number.33 According to Ganzon, she entertained De Leon’s
purchase request only because he was a regular customer of their
branch.34
RTC Disposition
On April 30, 2003, the RTC rendered judgment in favor of respondent,
the dispositive portion of which reads:
WHEREFORE, the court finds for the plaintiff.
For pecuniary loss suffered, Mercury Drug Store is to pay ONE
HUNDRED FIFTY-THREE PESOS AND TWENTY-FIVE
CENTAVOS (Php 153.25), the value of the medicine.
As moral damages defendants is (sic) ordered to pay ONE
HUNDRED THOUSAND PESOS (Php 100,000.00).
To serve as a warning to those in the field of dispensing
medicinal drugs discretion of the highest degree is expected of
them, Mercury Drug Store and defendant Aurmila (sic) Ganzon
are ordered to pay plaintiff the amount of THREE HUNDRED
THOUSAND PESOS (Php 300,000.00) as exemplary
damages.
Due to defendants callous reaction to the mistake done by
their employee which forced plaintiff to litigate, Defendant (sic)
Mercury Drug Store is to pay plaintiff attorney’s fees of
₱50,000.00 plus litigation expenses.
SO ORDERED.35
In ruling in favor of De Leon, the RTC ratiocinated:
The proximate cause of the ill fate of plaintiff was defendant
Aurmila (sic) Ganzon’s negligent exercise of said discretion.
She gave a prescription drug to a customer who did not have
the proper form of prescription, she did not take a good look at
said prescription, she merely presumed plaintiff was looking
for Cortisporin Otic Solution because it was the only one
available in the market and she further presumed that by
merely putting the drug by the counter wherein plaintiff looked
at it, paid and took the drug without any objection meant he
understood what he was buying.36
The RTC ruled that although De Leon may have been negligent by
failing to read the medicine’s label or to instruct his sheriff to do so,
Mercury Drug was first to be negligent.37 Ganzon dispensed a drug
without the requisite prescription.38 Moreover, she did so without fully
reading what medicine was exactly being bought.39 In fact, she
presumed that since what was available was the drug Cortisporin Otic
Solution, it was what De Leon was attempting to buy.40 Said the court:
When the injury is caused by the negligence of a servant or
employee, there instantly arises a presumption of law that
there was negligence on the part of the employer or employer
either in the selection of the servant or employee, or in the
supervision over him after the selection or both.
xxxx
The theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant.41
Dissatisfied with the RTC ruling, Mercury Drug and Ganzon elevated
the matter to the CA. Accordingly, they filed their respective briefs.
Raising technical grounds, De Leon moved for the appeal’s dismissal.
CA Disposition
On July 4, 2008, the CA issued a resolution which granted De Leon’s
motion and dismissed the appeal. Said the appellate court:
As pointed out by the plaintiff-appellee, the Statement of
Facts, Statement of the Case, Assignment of Errors/issues,
Arguments/ Discussions in the Brief make no references to the
pages of the records. We find this procedural lapse justify the
dismissal of the appeal, pursuant to Section 1(f), Rule 50 of
the 1997 Rules of Civil Procedure x x x.42
xxxx
"The premise that underlies all appeals is that they are merely
rights which arise form a statute; therefore, they must be
exercised in the manner prescribed by law. It is to this end that
rules governing pleadings and practice before the appellate
court were imposed. These rules were designed to assist the
appellate court in the accomplishment of its tasks, and overall,
to enhance the orderly administration of justice."
xxxx
x x x If the statement of fact is unaccompanied by a page
reference to the record, it may be stricken or disregarded all
together.43
On October 5, 2004, the CA denied Mercury Drug’s and Ganzon’s joint
motion for reconsideration. Although mindful that litigation is not a
game of technicalities,44 the CA found no persuasive reasons to relax
procedural rules in favor of Mercury Drug and Ganzon.45 The CA
opined:
In the case under consideration, We find no faithful
compliance on the part of the movants that will call for the
liberal application of the Rules. Section 1(f) of Rule 50 of the
1997 Rules of Civil Procedure explicitly provides that an
appeal may be dismissed by the Court of Appeals, on its own
motion or on that of the appellee, for want of page references
to the records as required in Section 13 of Rule 44 of the same
rules46
Issues
Petitioner has resorted to the present recourse and assigns to the CA
the following errors:
I
THE HONORABLE COURT OF APPEALS ERRED IN
DISMISSING PETITIONER’S APPEAL BASED ON THE
CASES OF DE LIANA VS. CA (370 SCRA 349) AND HEIRS
OF PALOMINIQUE VS. CA (134 SCRA 331).
II
THE HONORABLE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION IN DISMISSING
PETITIONER’S APPEAL DESPITE SUBSTANTIAL
COMPLIANCE WITH SECTION 1(F), RULE 60 AND
SECTION 13, RULE 44 OF THE RULES OF COURT.
III
THE HONORABLE COURT OF APPEALS ERRED WHEN IT
FAVORED MERE TECHNICALITY OVER SUBSTANTIAL
JUSTICE WHICH WILL CERTAINLY CAUSE GRAVE
INJUSTICE AND GREAT PREJUDICE TO PETITIONER
CONSIDERING THAT THE ASSAILED DECISION ON
APPEAL IS CLUSTERED WITH ERRORS AND IN
CONTRAST with the DECISIONS OF THIS HONORABLE
SUPREME COURT.47 (Underscoring supplied)
Our Ruling
The appeal succeeds in part.
Dismissal of an appeal under Rule 50 is discretionary.
In several cases,48 this Court stressed that the grounds for dismissal
of an appeal under Section 1 of Rule 5049 are discretionary upon the
appellate court. The very wording of the rule uses the word "may"
instead of "shall." This indicates that it is only directory and not
mandatory.50 Sound discretion must be exercised in consonance with
the tenets of justice and fair play, keeping in mind the circumstances
obtaining in each case.51
The importance of an appellant’s brief cannot be gainsaid. Its purpose
is two-fold: (1) to present to the court in coherent and concise form the
point and questions in controversy; and (2) to assist the court in
arriving at a just and proper conclusion.52 It is considered a vehicle of
counsel to convey to the court the essential facts of a client’s case, a
statement of the questions of law involved, the law to be applied, and
the application one desires of it by the court.53
The absence of page reference to the record is a ground for dismissal.
It is a requirement intended to ultimately aid the appellate court in
arriving at a just and proper conclusion of the case.54 However, as
earlier discussed, such dismissal is not mandatory, but discretionary
on the part of the appellate court.
This Court has held that the failure to properly cite reference to
the original records is not a fatal procedural lapse.55 When
citations found in the appellant’s brief enable the court to
expeditiously locate the portions of the record referred to, there
is substantial compliance with the requirements of Section 13(c),
(d), and (f) of Rule 44.56
In De Leon v. CA,57 this Court ruled that the citations contained in the
appellant’s brief sufficiently enabled the appellate court to
expeditiously locate the portions of the record referred to. They were in
substantial compliance with the rules. The Court said:
Nothing in the records indicate that it was exercised
capriciously, whimsically, or with a view of permitting injury
upon a party litigant. For the same reasons, we hold that the
respondent Court of Appeals did not err when it did not
dismiss the appeal based on the allegation that appellant’s
brief failed to comply with the internal rules of said court.58
Similar to the instant case, the appellant’s brief in Yuchengco v. Court
of Appeals59 contained references to Exhibits and Transcript of
Stenographic Notes and attachments. These were found to have
substantially complied with the requirements of Section 13(c) and (d)
of Rule 44.
x x x The Appellant’s brief may not have referred to the exact
pages of the records, however, the same is not fatal to their
cause since the references they made enabled the appellate
court to expeditiously locate the portions referred to. x x x60
It is true that in De Liano v. Court of Appeals,61 this Court held that a
statement of facts unaccompanied by a page reference to the record
may be presumed to be without support in the record and may be
stricken or disregarded altogether. However, the instant case is not on
all fours with De Liano.
In De Liano, the appellant’s brief lacked a Subject Index and a Table of
Cases and Authorities.62 Moreover, the Statement of the Case,
Statements of Facts, and Statements of Arguments had no page
references to the record.63 When notified of such defects, defendants-
appellants failed to amend their brief to conform to the rules.64
Instead, they continued to argue that their errors were harmless.65 All
these omissions and non-compliance justified the dismissal of the
appeal by the CA.66
In the case under review, although there were no page references to
the records, Mercury Drug and Ganzon referred to the exhibits, TSN,
and attachments of the case. Despite its deficiencies, the brief is
sufficient in form and substance as to apprise the appellate court of
the essential facts, nature of the case, the issues raised, and the laws
necessary for the disposition of the same.
Reliance on Heirs of Palomique v. Court of Appeals67 is likewise
misplaced. In Heirs of Palomique, the appellant’s brief did not at all
contain a separate statement of facts.68 This critical omission,
together with the failure to make page references to the record to
support the factual allegations, justified the dismissal of the appeal.69
Rules of procedure are intended to promote, not to defeat, substantial
justice. They should not be applied in a very rigid and technical
sense.70 For reasons of justice and equity, this Court has allowed
exceptions to the stringent rules governing appeals.71 It has, in the
past, refused to sacrifice justice for technicality.72
However, brushing aside technicalities, petitioners are still liable.
Mercury Drug and Ganzon failed to exercise the highest degree of
diligence expected of them.
Denying that they were negligent, Mercury Drug and Ganzon pointed
out that De Leon’s own negligence was the proximate cause of his
injury. They argued that any injury would have been averted had De
Leon exercised due diligence before applying the medicine on his eye.
Had he cautiously read the medicine bottle label, he would have
known that he had the wrong medicine.
Mercury Drug and Ganzon can not exculpate themselves from any
liability. As active players in the field of dispensing medicines to the
public, the highest degree of care and diligence is expected of them.73
Likewise, numerous decisions, both here and abroad, have laid
salutary rules for the protection of human life and human health.74 In
the United States case of Tombari v. Conners,75 it was ruled that the
profession of pharmacy demands care and skill, and druggists must
exercise care of a specially high degree, the highest degree of care
known to practical men. In other words, druggists must exercise the
highest practicable degree of prudence and vigilance, and the most
exact and reliable safeguards consistent with the reasonable conduct
of the business, so that human life may not constantly be exposed to
the danger flowing from the substitution of deadly poisons for harmless
medicines.76
In Fleet v. Hollenkemp,77 the US Supreme Court ruled that a druggist
that sells to a purchaser or sends to a patient one drug for another or
even one innocent drug, calculated to produce a certain effect, in
place of another sent for and designed to produce a different effect,
cannot escape responsibility, upon the alleged pretext that it was an
accidental or innocent mistake. His mistake, under the most favorable
aspect for himself, is negligence. And such mistake cannot be
countenanced or tolerated, as it is a mistake of the gravest kind and of
the most disastrous effect.78
Smith’s Admrx v. Middelton79 teaches Us that one holding himself out
as competent to handle drugs, having rightful access to them, and
relied upon by those dealing with him to exercise that high degree of
caution and care called for by the peculiarly dangerous nature of the
business, cannot be heard to say that his mistake by which he
furnishes a customer the most deadly of drugs for those comparatively
harmless, is not in itself gross negligence.80
In our own jurisdiction, United States v. Pineda81 and Mercury Drug
Corporation v. Baking are illustrative.82 In Pineda, the potassium
chlorate demanded by complainant had been intended for his race
horses. When complainant mixed with water what he thought and
believed was potassium chlorate, but which turned out to be the
potently deadly barium chlorate, his race horses died of poisoning only
a few hours after.
The wisdom of such a decision is unquestionable. If the victims had
been human beings instead of horses, the damage and loss would
have been irreparable.83
In the more recent Mercury Drug, involving no less than the same
petitioner corporation, Sebastian Baking went to the Alabang branch of
Mercury Drug84 and presented his prescription for Diamicron, which
the pharmacist misread as Dormicum.85 Baking was given a potent
sleeping tablet, instead of medicines to stabilize his blood sugar.86 On
the third day of taking the wrong medicine, Baking figured in a
vehicular accident.87 He fell asleep while driving.88
This Court held that the proximate cause of the accident was the gross
negligence of the pharmacist who gave the wrong medicine to Baking.
The Court said:
x x x 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. The care required
must be commensurate with the danger involved, and the skill
employed must correspond with the superior knowledge of the
business which the law demands.89
This Court once more reiterated that the profession of pharmacy
demands great care and skill. It reminded druggists to exercise the
highest degree of care known to practical men.
In cases where an injury is caused by the negligence of an
employee, there instantly arises a presumption of law that there
has been negligence on the part of the employer, either in the
selection or supervision of one’s employees. This presumption
may be rebutted by a clear showing that the employer has
exercised the care and diligence of a good father of the family.90
Mercury Drug failed to overcome such presumption.91
Petitioners Mercury Drug and Ganzon have similarly failed to live up to
high standard of diligence expected of them as pharmacy
professionals. They were grossly negligent in dispensing ear drops
instead of the prescribed eye drops to De Leon. Worse, they have
once again attempted to shift the blame to their victim by underscoring
his own failure to read the label.
As a buyer, De Leon relied on the expertise and experience of Mercury
Drug and its employees in dispensing to him the right medicine.92 This
Court has ruled that in the purchase and sale of drugs, the buyer and
seller do not stand at arms length.93 There exists an imperative duty
on the seller or the druggist to take precaution to prevent death or
injury to any person who relies on one’s absolute honesty and peculiar
learning.94 The Court emphasized:
x x x The nature of drugs is such that examination would not
avail the purchaser anything. It would be idle mockery for the
customer to make an examination of a compound of which he
can know nothing. Consequently, it must be that the druggist
warrants that he will deliver the drug called for.95
Mercury Drug and Ganzon’s defense that the latter gave the only
available Cortisporin solution in the market deserves scant
consideration. Ganzon could have easily verified whether the medicine
she gave De Leon was, indeed, the prescribed one or, at the very
least, consulted her supervisor. Absent the required certainty in the
dispensation of the medicine, she could have refused De Leon’s
purchase of the drug.
The award of damages is proper and shall only be reduced
considering the peculiar facts of the case. Moral damages include
physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and
similar injury. Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of
defendant’s wrongful act or omission.96
Moral damages are not intended to impose a penalty to the wrongdoer
or to enrich the claimant at the expense of defendant.97 There is no
hard and fast rule in determining what would be a fair and reasonable
amount of moral damages since each case must be governed by its
peculiar circumstances.98 However, the award of damages must be
commensurate to the loss or injury suffered.99
Taking into consideration the attending facts of the case under review,
We find the amount awarded by the trial court to be excessive.
Following the precedent case of Mercury Drug, We reduce the amount
from ₱100,000.00 to ₱50,000.00 only.100 In addition, We also deem it
necessary to reduce the award of exemplary damages from the
exorbitant amount of ₱300,000.00 to ₱25,000.00 only.
This Court explained the propriety of awarding exemplary damages in
the earlier Mercury Drug case:
x x x Article 2229 allows the grant of exemplary damages by
way of example or correction for the public good. As
mentioned earlier, the drugstore business is affected by public
interest. Petitioner should have exerted utmost diligence in the
selection and supervision of its employees. On the part of the
employee concerned, she should have been extremely
cautious in dispensing pharmaceutical products. Due to
the sensitive nature of its business, petitioner must at all times
maintain a high level of meticulousness. Therefore, an award
of exemplary damages in the amount of ₱25,000.00 is in
order.101 (Emphasis supplied)
It is generally recognized that the drugstore business is imbued with
public interest. This can not be more real for Mercury Drug, the
country’s biggest drugstore chain. This Court can not tolerate any form
of negligence which can jeopardize the health and safety of its loyal
patrons. Moreover, this Court will not countenance the cavalier manner
it treated De Leon. Not only does a pharmacy owe a customer the duty
of reasonable care, but it is also duty-bound to accord one with
respect.
WHEREFORE, the petition is PARTIALLY GRANTED. The Decisions
of the CA and the RTC in Parañaque City are AFFIRMED WITH
MODIFICATION, in that the award of moral and exemplary damages
is reduced to ₱50,000.00 and ₱25,000.00, respectively.
SO ORDERED.
RUBEN T. REYES
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIOADOLFO S. AZCUNA
Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached
in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairperson’s Attestation, I certify that the conclusions in the above
decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice

Footnotes
1 United States v. Pineda, 37 Phil. 456, 465 (1918).

2 Treated here as petition for certiorari.

3 Rollo, pp. 128-130 & 141-143. Dated July 8, 2004 and October
4, 2004, respectively. Penned by Associate Justice Jose L. Sabio,
Jr., with Associate Justices Mariano C. Del Castillo and Noel S.
Tijam, concurring.
4 Id. at 31.

5 Id.

6 Id.

7 Id.

8 Id.

9 Id.

10 Id.

11 Id.

12 Id. at 32.

13 Id.

14 Id.

15 Id.

16 Id.

17 Id.

18 Id.

19 Id.

20 Id.

21 Id.

22 Id.

23 Id.