[G.R. No. 160355.  May 16, 2005]

PHILIPPINE RABBIT BUS LINES, INC., petitioner, vs. HEIRS OF EDUARDO MANGAWANG and PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

CALLEJO, SR., J.:

This is a petition for review of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 78149 affirming the Decision[2] of the Regional Trial Court (RTC) in Criminal Case No. 743-C(’93) convicting the accused Ernesto Ancheta of reckless imprudence resulting in homicide.

The Antecedents

Ernesto Ancheta was employed by the Philippine Rabbit Bus Lines, Inc. (PRBLI) as driver of one of its passenger buses.  On July 23, 1993, an Information was filed with the RTC of Capas, Tarlac, Branch 66, charging Ancheta with reckless imprudence resulting in homicide.  The inculpatory portion of the Information reads:

That on November 23, 1992 at around 11:50 o’clock (sic) in the morning, at Brgy. Dolores, Municipality of Capas, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then the driver and person-in-charge of a Philippine Rabbit Bus bearing Plate No. CVE-707 with MVRR No. 63044987, registered in the name of the Philippine Rabbit Bus Lines, Inc. of Tarlac, Tarlac, did then and there, willfully, unlawfully and feloniously and with reckless imprudence and managed the said Philippine Rabbit Bus at Brgy. Dolores, Capas, Tarlac, in a careless, negligent and imprudent manner, without due regard to laws, regulations, ordinances and traffic code and without taking the necessary precaution to prevent accident to persons and damage to property and in violation of the Land Transportation Laws, said bus driven by the accused while cruising the MacArthur Highway towards the south direction, bumped the left rear side of a Toyota jeep with Plate No. TAB 929 with MVRR No. 64284647 owned by Zenaida B. Dizon of 193 M. Santos St., Pasay City, Metro Manila, and driven by Eduardo Mangawang towards the north direction, and as a result thereof said Eduardo Mangawang ultimately died and the jeep he was then driving sustained damages of an undetermined amount, to the damage and prejudice of the deceased and the owner thereof.

Contrary to law.[3]

The accused was assisted by Atty. Crispiniano Lamorena, Jr., whom the PRBLI assigned as counsel de parte.  Atty. Andres Pangilinan entered his appearance as private prosecutor.

The trial court rendered judgment on November 12, 1999, convicting the accused of the crime charged.  The fallo of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered finding the accused, ERNESTO ANCHETA, guilty beyond reasonable doubt of the crime of Reckless Imprudence Resulting to Homicide.

Accordingly, the said accused is hereby sentenced to suffer the indeterminate penalty of imprisonment of two (2) years and four (4) months of prision correccional in its minimum period as minimum to six (6) years of prision correccional in its maximum period as maximum.

For the civil liability of the accused, Ernesto Ancheta is hereby ordered to indemnify the heirs of Eduardo Mangawang the amounts of P28,600.00 as actual or compensatory damages and P1,436,466.30 representing loss of earning capacity.  The accused is similarly ordered to pay the amounts of P50,000.00 by way of indemnification for the death of Eduardo Mangawang and another P50,000.00 as moral damages.

SO ORDERED.[4]

The accused appealed the decision to the CA.  On November 10, 2000, the appellate court issued a Resolution dismissing the appeal due to Ancheta’s failure to file his brief as accused-appellant.[5] The resolution of the CA dismissing the appeal became final and executory, thus, entry of judgment was made of record on December 7, 2000.  After the transmission of the records to the RTC, it issued an Order on June 5, 2001 for the arrest of the accused.[6]

On June 29, 2001, the PRBLI, as Ancheta’s employer, filed a Notice of Appeal of the decision of the RTC.  On July 18, 2001, the RTC issued an Order denying due course to the notice of appeal, on its finding that the notice was filed long after the judgment of the RTC had become final and executory. [7]  The PRBLI filed a motion for the reconsideration of the order, claiming that it was not served with a copy of the decision of the RTC convicting the accused of the crime charged; hence, could not have appealed the same.  On August 1, 2001, the trial court issued an Order denying the said motion.  The PRBLI filed an urgent motion, this time for clarification of the said order, which the trial court denied in an Order dated August 31, 2001.  Undaunted, the PRBLI filed a manifestation with motion, citing the ruling of this Court in Ozoa v. Vda. de Madula.[8] On October 17, 2001, the trial court issued an Order, this time, granting the motion and giving due course to the appeal of the PRBLI.  The trial court, likewise, ordered the records to be transmitted to the CA for the consideration of the appeal, where the latter made the following assignment of errors:

I

THE TRIAL COURT SERIOUSLY ERRED IN THE APPRECIATION OF THE FACTS AND THE EVIDENCE.

II

THE TRIAL COURT SERIOUSLY ERRED IN ATTRIBUTING SUPPOSED NEGLIGENCE AND LACK OF FORESIGHT ON THE PART OF THE ACCUSED ANCHETA.

III

THE TRIAL COURT SERIOUSLY ERRED IN SO GENEROUSLY AWARDING UNCONSCIONABLE AMOUNTS IN SUPPOSED DAMAGES TO THE HEIRS OF EDUARDO MANGAWANG.[9]

On October 10, 2003, the CA rendered judgment affirming with modification the decision of the RTC.  The fallo of the decision reads:

WHEREFORE, premises considered, the Decision dated November 12, 1999 of the Regional Trial Court of Capas, Tarlac, Branch 66, in Criminal Case No. 743-C(’93) is hereby AFFIRMED with the correction that the actual damages to be awarded should only be P5,000.00.  All other respects remain.  Costs against appellant.

SO ORDERED.[10]

The appellate court dismissed the appeal on the ground that the decision of the RTC had long become final and executory when the PRBLI appealed the decision.  It ruled that the PRBLI was bound by the said decision against the accused therein. [11]

Nevertheless, the appellate court resolved the appeal on its merits and affirmed the decision of the RTC, but with modification.[12]

The PRBLI forthwith filed the present petition for review on certiorari, assailing the decision of the CA on the following grounds:

A.

THE COURT OF APPEALS ERRED IN HOLDING THAT THE CONVICTION OF THE ACCUSED HAS ATTAINED FINALITY AS AGAINST PETITIONER.

B.

PETITIONER MUST BE AFFORDED THE STANDING AND THE OPPORTUNITY TO QUESTION THE ACCUSED’S CONVICTION.[13]

The petitioner submits the ruling of this Court in Pajarito v. Seneris[14] and Miranda v. Malate Garage & Taxicab, Inc.,[15] that “the decision of the trial court convicting the employee is binding and conclusive upon the employer not only with regard to the civil liability but also, with regard to its amount,” should not apply to it.  It avers that unlike in Pajarito and Miranda, the counsel of the accused therein was given ample opportunity to defend the accused during the trial and on appeal in the CA.  The petitioner laments that in this case, the counsel it provided to defend the accused was remiss in the performance of his duties and failed to notify it of the RTC decision, the November 10, 2000 Resolution of the CA, as well as the June 5, 2001 Order of the RTC; consequently, it was not apprised of its civil liability to the heirs of the deceased, thus depriving the petitioner of its right to due process.  It avers that it was only on account of its own diligence that it discovered the decision of the RTC, the November 10, 2000 Resolution of the CA and the June 5, 2001 Order of the RTC.

The petitioner further avers that it was not furnished with a copy of the said CA Resolution, and of the Arrest Order of the RTC dated June 5, 2001.  The petitioner posits that until it is furnished with such copies, the period within which to assail the decision of the RTC on its civil liability to the heirs of the deceased had not commenced to run.

The petitioner submits that it is unjust and unreasonable for the CA to deprive it of its right to question its civil liability to the heirs of the deceased, considering the gross negligence of the counsel that it had provided the accused.

By way of comment on the petition, the Office of the Solicitor General (OSG) contends that the decision of the RTC convicting Ancheta of the crime charged had become final and executory, following the dismissal of his appeal before the CA.  The decision of the RTC was conclusive on the petitioner, not only with regard to its civil liability but also as to the amount thereof, absent any collusion between the accused-employee and the private complainant.  The petitioner was not a direct party in the criminal case; hence, was not entitled to a copy of the decision of the RTC or to appeal therefrom; it was, likewise, not entitled to be furnished a copy of the CA Resolution dated November 10, 2000 and the Order of the RTC dated June 5, 2001.  Hence, according to the OSG, it cannot complain of denial of its right to due process.  The OSG further asserts that the petition at bar is premature, considering that no writ of execution has yet been issued by the RTC, and cites the ruling of this Court in Philippine Rabbit Bus Lines, Inc. v. People [16] to buttress its stance.

The petition is denied for lack of merit.

The ruling of the CA dismissing the petitioner’s appeal of the RTC decision convicting Ancheta of reckless imprudence resulting in homicide is correct.  However, the Court of Appeals erred in modifying the decision of the RTC.

The petitioner, as the employer of the said accused, had no right to appeal from the said decision because, in the first place, it was not a party in the said case.  While the subsidiary liability provided for by Articles 102 and 103 of the Revised Penal Code may render the petitioner a party in substance and, in effect, it is not, for this reason, entitled to be furnished a copy of the decision of the RTC, as well as the resolution and decision of the CA.

Indeed, the petitioner was entitled to protect its interest by taking actual participation in the defense of its employee, Ancheta, by providing him with counsel.  It cannot leave its employee to his own fate because his failure is its failure. [17] The petitioner, as the employer of the accused, would thereby be apprised of the progress of the case and the outcome thereof from time to time through the said counsel.  The failure of such counsel to apprise the petitioner of the progress of the case is thus not equivalent to lack of due process.  The pronouncement of the Court in Miranda v. Malate Garage & Taxicab, Inc. [18] is instructive on this score:

It is true that an employer, strictly speaking, is not a party to the criminal case instituted against his employee but in substance and, in effect, he is considering the subsidiary liability imposed upon him by law.  It is his concern, as well as of his employee, to see to it that his interest be protected in the criminal case by taking virtual

participation in the defense of his employee.  He cannot leave him to his own fate because his failure is also his.  And if because of his indifference or inaction the employee is convicted and damages are awarded against him, he cannot later be heard to complain, if brought to court for the enforcement of his subsidiary liability, that he was not given his day in court.  It was not without purpose that this Court sounded the following stern warning:

“It is high time that the employer exercised the greatest care in selecting his employees, taking real and deep interest in their welfare; intervening in any criminal action brought against them by reason of or as a result of the performance of their duties, if only in the way of giving them the benefit of counsel; and, consequently, doing away with the practices of leaving them to their fates.  If these be done, the American rule requiring notice on the part of the employer shall have been satisfied.”  (Martinez v. Barredo, supra.)[19]

In Ozoa v. Vda. de Madula,[20] the Court explained the effect of a judgment of conviction against the employee on the subsidiary liability of the employer, as follows:

To be sure, the correctness of the legal principles cited by the Court a quo cannot be gainsaid.  A person criminally liable is also civilly liable; and upon the institution of the criminal action, the civil action for the recovery of the civil liability arising from the crime is also impliedly instituted unless waived, or the filing of a separate action therefor is reserved.  The employer is subsidiarily answerable for the adjudicated civil liability ex delicto of his employee in the event of the latter’s insolvency; and the judgment in the criminal action pronouncing the employee to be also civilly liable is conclusive on the employer not only as to the actuality of that liability but also as to its amount.[21]

Since the petitioner was not a party in the RTC and in the CA on the appeal of its employee (Ancheta), the petitioner cannot justifiably claim that it was deprived of its right to due process.  As explained by this Court in Martinez v. Barredo:[22]

The employer cannot be said to have been deprived of his day in court, because the situation before us is not one wherein the employer is sued for a primary liability under Article 1903 of the Civil Code, but one in which enforcement is sought of a subsidiary civil liability incident to and dependent upon his driver’s criminal negligence which is a proper issue to be tried and decided only in a criminal action.  In other words, the employer becomes ipso facto subsidiarily liable upon his driver’s conviction and upon proof of the latter’s insolvency, in the same way that acquittal wipes out not only the employee’s primary civil liability but also his employer’s subsidiary liability for such criminal negligence.  (Almeida, et al. v. Abaroa, 8 Phil. 178, affirmed in 218 U.S. 476; 54 Law ed., 1116; Wise & Co. v. Larion, 45 Phil. 314, 320; Francisco v. Onrubia, 46 Phil. 327; Province of Ilocos Sur v. Tolentino, G.R. No. 34186, 56 Phil. 829; Moran, Comments on the Rules of Court, Vol. II, p. 403.)[23]

Besides, as gleaned from the brief of the petitioner, as appellant in the CA, in CA-G.R. CV No. 78149, it sought the reversal of the decision of the RTC and the acquittal of its employee.  In Philippine Rabbit Bus Lines, Inc. v. People,[24] this Court held that such an appeal would be impermissible for the following reasons:

An appeal from the sentence of the trial court implies a waiver of the constitutional safeguard against double jeopardy and throws the whole case open to a review by the appellate court.  The latter is then called upon to render judgment as law and justice

dictate, whether favorable or unfavorable to the appellant.  This is the risk involved when the accused decides to appeal a sentence of conviction.  Indeed, appellate courts have the power to reverse, affirm or modify the judgment of the lower court and to increase or reduce the penalty it imposed.

If the present appeal is given [due] course, the whole case against the accused-employee becomes open to review.  It thus follows that a penalty higher than that which has already been imposed by the trial court may be meted out to him.  Petitioner’s appeal would thus violate his right against double jeopardy, since the judgment against him could become subject to modification without his consent.[25]

Indeed, to allow an employer to dispute its civil liability in the criminal case via an appeal from the decision of the RTC would be to annul, nullify or defeat a final judgment rendered by a competent court.[26]

The Court cannot second guess whether Ancheta’s failure to file his brief as appellant in the CA was through the negligence of his counsel or because of the belief that, indeed, he was guilty of the crime charged and it was purposeless and futile for him to still file such brief.

We agree with the contention of the OSG that the right of the petitioner as the employer of the accused to due process occurs during the hearing of the motion for the issuance of an alias writ of execution, on the basis of the sheriff’s return that the writ of execution issued by the court for the enforcement of its decision on the civil liability of the accused was not satisfied because of the latter’s insolvency, the sheriff being unable to locate any property in the name of the accused.  Such return is prima facie evidence of the insolvency of the accused.[27]

During the hearing of the motion for the issuance of an alias writ of execution, the prosecution must prove that (a) the petitioner PRBLI was the employer of the accused; (b) it was engaged in some kind of industry; (c) the crime was committed by the employee in the discharge of his duties; and   (d) execution against the employee is unsatisfied.[28] The prosecution may offer in evidence the sheriff’s return as prima facie evidence of the insolvency of the accused.

The petitioner, as the employer of the accused, may adduce evidence on questions which may be involved in the execution since the trial court which rendered the decision has a general supervisory control over the process of execution.[29]

From a ruling adverse to the employer, it may appeal by writ of error on questions of facts, or mixed questions of facts and of law, or by certiorari on questions of jurisdiction or grave abuse of discretion of the trial court, thus:

It goes without saying that the determination thus made as regards the employer’s subsidiary civil liability is not conclusive in the sense of being non-reviewable by higher judicial authority.  It may be appealed to a higher court at the instance of the aggrieved party – either the offended party or the employer – by writ of error seeking review of questions of fact or mixed questions of fact and law, or through a petition for review on certiorari, limited to a consideration only of questions of law.  Or review may be sought by the institution of a special civil action of certiorari, upon the theory that the determination was made by the trial court without or in excess of its jurisdiction, or with grave abuse of discretion.[30]

Hence, the Court of Appeals erred in modifying the decision of the RTC which had long become final and executory.  A final and executory decision, even if erroneous, can no longer be modified.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.  The Resolution of the Court of Appeals dismissing the appeal of the petitioner is AFFIRMED.  However, that portion of the Decision of the Court of Appeals modifying the decision of the Regional Trial Court, dated November 12, 1999, is SET ASIDE.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

[G.R. No. 163351.  June 21, 2005]

ANTONIO V. NUEVA ESPAÑA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

CORONA, J.:

At about 11:15 a.m. on May 15, 1998, petitioner Antonio E. Nueva España was driving a passenger bus owned by Vallacar Transit, Inc. He was then traversing the national highway of Calag-Calag, Ayungon, Negros Oriental and was southbound going to Dumaguete City. While negotiating a curve, the passenger bus collided with a northbound Honda motorcycle. As a result, Reynard So, the driver of the motorcycle, and Nilo Castro, the person riding in tandem with him, were killed. An information for reckless imprudence resulting in double homicide [1] was filed against petitioner who was also accused of failing to extend aid or assistance to the victims.

During the trial of the case, the prosecution presented Julito Dayuday and Florencio Banico as eyewitnesses to the collision. The father of So and the mother of Castro were also called to the witness stand to substantiate their respective claims for damages.

Julito Dayuday, a resident of Calag-Calag, Ayungon, Negros Oriental, testified that he was waiting for a ride to Dumaguete City when the collision between the bus and the Honda motorcycle occurred. He saw the bus coming from the north going to Dumaguete City and, in the opposite direction, a pedicab being followed by a Suzuki motorcycle and a Honda motorcycle on which So and Castro were riding. Upon approaching the curve on the highway, the bus swerved from its lane and struck the Honda motorcycle. The motorcycle snagged onto the left front fender of the bus and was dragged about 24 meters to the right of the southbound lane. So had been thrown to the ground by the time the bus finally stopped. Dayuday testified that he saw the accused get off the bus with the conductor and the passengers but, instead of assisting the victims, he casually walked away from the scene of the accident.

Florencio Banico, on the other hand, was a passenger of the bus driven by petitioner. He corroborated the testimony of Dayuday that the bus hit the motorcycle while it was negotiating a curve on the highway of Calag-Calag.  He also stated in court that the accused left the scene of the accident while the victims lay dying on the road. He heard Castro shouting for help while So was unconscious. He testified that nobody helped the victims.

The father of So testified that his son was 30 years old at the time of his death and he was engaged in the buying and selling of copra.  He was likewise a sugar cane planter and maintained a sari-sari store.  So’s father claimed that his son was earning P30,000 a month from his copra business and sari-sari store, and P50,000 a month from selling sugar cane. He added that his family spent P87,200[2] for the wake and funeral. He also demanded payment of attorney’s fees of P30,000.

The mother of Castro, on the other hand, testified that her son was 26 years old when he died. He worked as welder in Manila and earned P8,000 a month. She allegedly spent P30,000 for her son’s wake and burial.

For the defense, SPO2 Dolger Germundo, SPO3 Hilbert Arinaza, Roche Taburasa and the petitioner himself were called to the witness stand.

SPO2 Germundo, a policeman, testified that he found the southbound bus in its proper lane when he arrived at the site after the collision. He did not see any tire or skid marks which meant that the point of impact was at the center of the road, as stated by the prosecution witnesses. In his sketch[3] and photograph[4] of the accident, the passenger bus and the Honda motorcycle were at the outer part of the southbound lane, which was the lane the bus was traversing at the time of the accident. Due to the positions of the colliding vehicles, he concluded that it was the motorcycle that rammed into the bus.

SPO3 Arinaza of the Philippine National Police testified that he was on his way to Dumaguete City on board the bus driven by petitioner. At the time of the accident, he was seated behind petitioner-driver and felt the Honda motorcycle smash into the bus.

Taburasa, for his part, claimed he was the driver of the Suzuki motorcycle So tried to overtake when they were both nearing the curve on the highway of Calag-Calag. He claimed the collision occurred because the Honda motorcycle overshot its lane in its attempt to overtake him. He corroborated the declaration of SPO3 Arinaza that So’s motorcycle hit the left front fender of the bus.

When petitioner (the accused) was called to the witness stand, he denied the accusations against him. He testified that the Honda motorcycle swerved out of its lane and veered towards the bus, resulting in the collision. After the incident, he allegedly went down the bus to aid the victims and even helped carry them into the vehicle that brought them to a nearby hospital. He thereafter went to a police station to report the incident.

The trial court gave no credence to the defense witnesses and convicted petitioner of the crime charged. The dispositive part of the decision read:

WHEREFORE, premises considered, this court finds accused, ANTONIO VILLANUEVA NUEVA ESPAÑA, guilty beyond reasonable doubt for the crime of RECKLESS IMPRUDENCE RESULTING TO DOUBLE HOMICIDE, and aggravated by his failure to help the victim, as provided for Article 365 of the Revised Penal Code, and appreciating in his favor the benefits of the Indeterminate Sentence Law, is hereby imposed the indeterminate penalty of SIX (6) MONTHS of arresto mayor as minimum to SIX (6) YEARS AND ONE (1) DAY of prision correcional as maximum, and to pay the following damages:

TO THE HEIRS OF THE VICTIM REYNARD SO

1)       P2,997,000.00 – indemnity for loss of earning capacity of victim2)       14,200.00 – for expenses of the wake3)       20,000.00 – for funeral parlor4)       12,000.00 – for the tomb5)       53,000.00 – for cost of burial site6)       30,000.00 – for attorney’s fees7)       200,000.00 – for moral damages8)       100,000.00 – for exemplary damages

P 3,429,200.00 – TOTAL AMOUNT

which total amount shall bear interest at the rate of TWELVE (12%) percent per annum from the date of this decision until the same is paid.

TO THE HEIRS OF VICTIM NILO CASTRO

1)       P1,728,000.00 – indemnity for loss of earning capacity2)       20,000.00 – for funeral expenses3)       200,000.00 – for moral damages4)       50,000.00 – for exemplary damages

P 1,998,000.00 – TOTAL AMOUNT

which total amount shall bear interest at the rate of TWELVE (12%) percent per annum counted from the date of this decision until the same is fully paid.

Cost against accused.

So ordered.[5]

Via a petition for review, petitioner appealed the judgment of the court a quo to the Court of Appeals. On November 2, 2003, the appellate court modified the assailed judgment:

Consequently, the penalty imposed by the trial court is erroneous. The appellant should suffer the indeterminate penalty of SIX (6) YEARS of prision correcional, as minimum, to EIGHT (8) years of prision mayor, as maximum.

As to the civil liability, particularly the indemnity for the loss of the earning capacity of the victims, the formula last enunciated by the Supreme Court is:

“Net earning capacity (x) = life expectancy x gross-living expenses annual (50% ofgross annualincome)”

Thusly, since the victim Reynard So was earning P80,000 a month at the time of his death when he was thirty (30) years old, his lost earning capacity should be computed as follows:

x = 2 (80 ― 30) x [P960,000.00 ― P480,000.00)3

x = 33.4 x P480,000.00

x =          x P16,032,000.00

With respect to the victim Nilo Castro, he was earning P8,000.00 a month when he died at the age of twenty-six (26). His lost earnings were:

x = 2 (80 ― 26)    [P96,000.00 ― P48,000.00]3

x = 36 x P48,000.00

x = P1,728,000.00

which the trial court correctly computed.

The other items of damages awarded are correct.[6]

The appellate court likewise provided for the subsidiary liability of petitioner’s employer under Article 103[7] of the Revised Penal Code. The dispositive portion of the decision read:

WHEREFORE, the Decision appealed from is AFFIRMED, subject to MODIFICATION as to the penalty imposed; the indemnity for loss of earning capacity of the victim Reynard So; the reckoning date of the start of the 12% interest imposed; and the subsidiary civil liability of the accused appellant’s employer, all as herein-above indicated. Costs against appellant.

SO ORDERED.[8]

In this appeal before us, petitioner insists that he should not be made liable for the mishap as it was actually the Honda motorcycle that rammed into the bus he was driving. He seeks the reversal of his conviction for reckless imprudence resulting in double homicide. The issues raised by him can be summarized as follows:

1.  the ruling of the Court of Appeals is untenable and contrary to law because the evidence of the prosecution is incompatible with the physical evidence on record;

2.  the award of damages in the (total) amount of more than P18 Million is untenable and contrary to jurisprudence and law.[9]

On the first issue, the Court does not ordinarily pass upon the findings of fact of the trial court, specially if they have been affirmed on appeal by the appellate court. [10] The trial court was able to observe the witnesses and their demeanor on the stand and was in a position to scrutinize and discern whether they were telling the truth. [11] Without any clear showing that the trial court and the appellate court overlooked, misunderstood or misapplied some facts or circumstances of weight and substance, the rule should not be disturbed. In the case at bar, we see no reason to deviate from the rule. The Court is in

full agreement with the trial court and with the Court of Appeals regarding petitioner’s liability for the crime charged against him.

On the second issue, however, we deem it necessary to modify the award of damages given by the lower courts.

When death occurs due to a crime, the following damages may be recovered: (1) a civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; (5) attorney’s fees and expenses of litigation, and (6) interest, in proper cases.

CIVIL INDEMNITY ex delicto

Both the trial court and the Court of Appeals failed to award civil indemnity ex delicto to the heirs of the victims. The award for civil indemnity is mandatory and is granted to the heirs of the victim without need of proof other than the commission of the crime.[12] Hence, based on recent jurisprudence[13], the award of civil indemnity ex delicto of P50,000 each for the heirs of  both So and Castro is in order.

ACTUAL DAMAGES: INDEMNITY FOR LOSS OF EARNINGCAPACITY AND OTHER COMPENSATORY DAMAGES

With respect to indemnification for loss of earning capacity, the Court, in the case of People vs. Mallari,[14] enunciated:

The rule is that documentary evidence should be presented to substantiate a claim for loss of earning capacity. By way of exception, damages therefore may be awarded despite the absence of documentary evidence if there is testimony that the victim was either (1) self-employed, earning less than the minimum wage under current labor laws, and judicial notice is taken of the fact that in the victim's line of work, no documentary evidence is available; or (2) employed as a daily-wage worker earning less than the minimum wage under current labor laws.[15]

In this case, neither of the two exceptions applied.  The earnings of So and Castro were both above the minimum wage set by labor laws in their respective workplaces at the time of their death.[16] This being the case, the general rule of requiring documentary evidence of their earning capacities finds application. Unfortunately for their heirs, no such proof was presented at all.  It was therefore erroneous for both the trial court and the Court of Appeals to award compensatory damages for loss of earning capacity on the basis alone of the oral testimonies of So’s father and Castro’s mother.

The lack of documentary evidence notwithstanding, since loss was actually established in this case, temperate damages in the amount of P25,000 each may be awarded to the heirs of So and Castro, respectively.  Under Article 2224 of the Civil Code, temperate or moderate damages (which are more than nominal but less than

compensatory damages) may be recovered when the court finds that some pecuniary loss was suffered but its amount cannot be proved with certainty.[17]

With respect to other compensatory damages, [18] the Court in People v. Agudez [19]

declared that competent evidence must likewise be presented to support the claim for such damages. In the case at bar, the father of So claimed that he spent P87,200[20] for the wake and burial of his son but all he was able to support with receipts were the payment to the funeral parlor of P20,000 and the cost of the burial site of P53,000.[21]

Regarding the claim for reimbursement of the actual expense allegedly incurred by the mother of Castro, the Court opts to award her temperate damages, in lieu of actual or compensatory damages, because she failed to submit any evidence in support thereof. Again, temperate damages should instead be given since it was to be expected that she spent for the burial and funeral services although the amount thereof was not determined with certitude.[22]

MORAL DAMAGES

The award for moral damages by the court a quo, as affirmed by the Court of Appeals, should be adjusted for being excessive. While courts have a wide latitude in ascertaining the proper award for moral damages, the award should not be to such an extent that it inflicts injustice on the accused. The award of P200,000 as moral damages each for the heirs of So and Castro, respectively, should accordingly be reduced to P50,000.[23]

EXEMPLARY DAMAGES

Under Article 2230 of the Civil Code, exemplary damages may also be imposed when the crime was committed with one or more aggravating circumstances. Here, petitioner failed to render aid or assistance to his victims after the collision. [24] Based on the prevailing jurisprudence, the award for exemplary damages for homicide is P25,000.[25]

ATTORNEY’S FEES

We affirm the award of P30, 000 for attorney’s fees made by the trial court and the appellate court. Under Article 2208 of the Civil Code, attorney’s fees and expenses of litigation may be recovered when exemplary damages have been awarded, as in this case.

SUMMARY

To summarize, the heirs of the deceased Reynard So are entitled to the following:

P   50,000 — civil indemnity ex delicto     73,000 — actual damages     25,000 — temperate damages[26]

     50,000 — moral damages     25,000 — exemplary damages        30,000 — attorney’s fees P 253,000 — TOTAL

The heirs of Nilo Castro are also entitled to the following:

P    50,000 — civil indemnity ex delicto       50,000 — temperate damages[27]

       50,000 — moral damages       25,000 — exemplary damages            30,000 — attorney’s feesP  205,000 —  TOTAL

SUBSIDIARY LIABILITY

We adopt the pronouncement of the Court of Appeals regarding the subsidiary liability of petitioner’s employer, Vallacar Transit Inc., under Article 103 of the Revised Penal Code. An employer may be subsidiarily liable for the employee’s civil liability in the criminal action if it can be shown that: (1) the employer is engaged in any kind of industry; (2) the employee committed the offense in the discharge of his duties and (3) the accused is insolvent.[28] However, subject to prevailing jurisprudence, [29] the subsidiary liability may be enforced only upon a motion for subsidiary writ of execution against Vallacar Transit, Inc. and upon proof that petitioner is insolvent.

IMPRISONMENT

Lastly, we are also constrained to amend the penalty imposed by the Court of Appeals. The imposable penalty, under Article 365 (2) of the Revised Penal Code for homicide resulting from reckless imprudence in the use of the motor vehicle is prision correcional in its medium and maximum period, which ranges from 2 years, 4 months and 1 day to 6 years.

Under Article 64 of the same law, the penalty shall be divided into three equal portions, each of which shall form one period. The offense having been attended by one aggravating circumstance premised on the failure of petitioner to aid his victims, the penalty shall be increased but it cannot exceed the penalty provided by law in its maximum period.[30] Applying the provisions of the Indeterminate Sentence Law, the petitioner is thus entitled to a minimum term to be taken from the penalty next lower in degree, which is arresto mayor in any of its periods, to prision correcional maximum.

Accordingly, petitioner should suffer the penalty of 2 years, 4 months and 1 day of arresto mayor, as minimum, to 6 years of prision correcional, as maximum.

WHEREFORE, the decision appealed from is AFFIRMED with MODIFICATIONS as to the award of damages and the penalty imposed, as already discussed. The total amount of damages shall bear interest at the rate of 12% per annum from the finality of this decision.

Costs against petitioner.

SO ORDERED.

SECOND DIVISION

L.G. FOODS CORPORATION and VICTORINO GABOR, Vice-President and General Manager,

Petitioners,

- versus -

HON. PHILADELFA B. PAGAPONG-AGRAVIADOR, in her capacity as Presiding Judge of Regional Trial Court, Branch 43, Bacolod City, and SPS. FLORENTINO and THERESA VALLEJERA,

Respondents.

G.R. No. 158995

Present:

PUNO, J., Chairperson, SANDOVAL-GUTIERREZ, CORONA, AZCUNA, and GARCIA, JJ.

Promulgated:

September 26, 2006

x------------------------------------------------------------------------------------x

D E C I S I O N

GARCIA, J.:

Assailed and sought to be set aside in this petition for review on certiorari is

the Decision1[1] dated April 25, 2003 of the Court of Appeals (CA), as reiterated in

1

its Resolution of July 10, 2003,2[2] in CA-G.R. SP No. 67600, affirming an earlier

Order of the Regional Trial Court (RTC) of Bacolod City, Branch 43, which

denied the petitioners’ motion to dismiss in Civil Case No. 99-10845, an action for

damages arising from a vehicular accident thereat instituted by the herein private

respondents - the spouses Florentino Vallejera and Theresa Vallejera - against the

petitioners.

The antecedent facts may be briefly stated as follows:

On February 26, 1996, Charles Vallereja, a 7-year old son of the spouses

Florentino Vallejera and Theresa Vallejera, was hit by a Ford Fiera van owned by

the petitioners and driven at the time by their employee, Vincent Norman Yeneza y

Ferrer. Charles died as a result of the accident.

In time, an Information for Reckless Imprudence Resulting to Homicide was

filed against the driver before the Municipal Trial Court in Cities (MTCC),

Bacolod City, docketed as Criminal Case No. 67787, entitled People of the

Philippines v. Vincent Norman Yeneza.

Unfortunately, before the trial could be concluded, the accused driver

committed suicide, evidently bothered by conscience and remorse. On account

thereof, the MTCC, in its order of September 30, 1998, dismissed the criminal

case.

On June 23, 1999, in the RTC of Bacolod City, the spouses Vallejera filed a

complaint3[3] for damages against the petitioners as employers of the deceased

2

3

driver, basically alleging that as such employers, they failed to exercise due

diligence in the selection and supervision of their employees. Thereat docketed as

Civil Case No. 99-10845, the complaint was raffled to Branch 43 of the court.

In their Answer with Compulsory Counterclaim,4[4] the petitioners as

defendants denied liability for the death of the Vallejeras’ 7-year old son, claiming

that they had exercised the required due diligence in the selection and supervision

of their employees, including the deceased driver. They thus prayed in their

Answer for the dismissal of the complaint for lack of cause of action on the part of

the Vallejera couple.

During pre-trial, the defendant petitioners insisted that their dismissal prayer

be resolved. Hence, the trial court required them to file within ten days a

memorandum of authorities supportive of their position.

Instead, however, of the required memorandum of authorities, the defendant

petitioners filed a Motion to Dismiss, principally arguing that the complaint is

basically a “claim for subsidiary liability against an employer” under the provision

of Article 1035[5] of the Revised Penal Code. Prescinding therefrom, they contend

that there must first be a judgment of conviction against their driver as a condition

sine qua non to hold them liable. Ergo, since the driver died during the pendency

of the criminal action, the sine qua non condition for their subsidiary liability was

not fulfilled, hence the of lack of cause of action on the part of the plaintiffs. They

further argue that since the plaintiffs did not make a reservation to institute a

separate action for damages when the criminal case was filed, the damage suit in 4

5

question is thereby deemed instituted with the criminal action. which was already

dismissed.

In an Order dated September 4, 2001,6[6] the trial court denied the motion to

dismiss for lack of merit and set the case for pre-trial. With their motion for

reconsideration having been denied by the same court in its subsequent order7[7] of

September 26, 2001, the petitioners then went on certiorari to the CA in CA-G.R.

SP No. 67600, imputing grave abuse of discretion on the part of the trial judge in

refusing to dismiss the basic complaint for damages in Civil Case No. 99-10845.

In the herein assailed decision8[8] dated April 25, 2003, the CA denied the

petition and upheld the trial court. Partly says the CA in its challenged issuance:

xxx xxx xxx

It is clear that the complaint neither represents nor implies that the responsibility charged was the petitioner’s subsidiary liability under Art. 103, Revised Penal Code. As pointed out [by the trial court] in the Order of September 4, 2001, the complaint does not even allege the basic elements for such a liability, like the conviction of the accused employee and his insolvency. Truly enough, a civil action to enforce subsidiary liability separate and distinct from the criminal action is even unnecessary.

xxx xxx xxx

Specifically, Civil Case No. 99-10845 exacts responsibility for fault or negligence under Art. 2176, Civil Code, which is entirely separate and distinct from the civil liability arising from negligence under the Revised Penal Code. Verily, therefore, the liability under Art. 2180, Civil Code, is direct and immediate, and not conditioned upon prior recourse against the negligent employee or prior showing of the latter’s insolvency. (Underscoring in the original.)

6

7

8

In time, the petitioners moved for a reconsideration but their motion was

denied by the CA in its resolution9[9] of July 10, 2003. Hence, the petitioners’

present recourse on their submission that the appellate court committed reversible

error in upholding the trial court’s denial of their motion to dismiss.

We DENY.

As the Court sees it, the sole issue for resolution is whether the spouses

Vallejeras’ cause of action in Civil Case No. 99-10845 is founded on Article 103

of the Revised Penal Code, as maintained by the petitioners, or derived from

Article 218010[10] of the Civil Code, as ruled by the two courts below.

It thus behooves us to examine the allegations of the complaint for damages

in Civil Case No. 99-10845. That complaint alleged, inter alia, as follows:

xxx xxx xxx

3. That defendant [LG Food Corporation] is the registered owner of a Ford Fiera Van with Plate No. NMS 881 and employer sometime February of 1996 of one Vincent Norman Yeneza y Ferrer, a salesman of said corporation;

4. That sometime February 26, 1996 at around 2:00 P.M. at Rosario St., Bacolod City, the minor son of said plaintiffs [now respondents], Charles Vallejera, 7 years old, was hit and bumped by above-described vehicle then driven by said employee, Vincent Norman Yeneza y Ferrer;

5. That the mishap was due to the gross fault and negligence of defendant’s employee, who drove said vehicle, recklessly, negligently and at a high speed without regard to traffic condition and safety of other road users and likewise to the fault and negligence of the owner employer, herein defendants LG

9

10

Food Corporation who failed to exercise due diligence in the selection and supervision of his employee, Vincent Norman Yeneza y Ferrer;

6. That as a result of said incident, plaintiffs’ son suffered multiple body injuries which led to his untimely demise on that very day;

7. That a criminal case was filed against the defendant’s employee, docketed as Criminal Case No. 67787, (earlier filed as Crim. Case No. 96-17570 before RTC) before MTC-Branch III, entitled “People v. Yeneza” for “Reckless Imprudence resulting to Homicide,” but the same was dismissed because pending litigation, then remorse-stricken [accused] committed suicide;

xxx xxx xxx8. That the injuries and complications as well as the resultant death

suffered by the late minor Charles Vallejera were due to the negligence and imprudence of defendant’s employee;

9. That defendant LG Foods Corporation is civilly liable for the negligence/imprudence of its employee since it failed to exercise the necessary diligence required of a good father of the family in the selection and supervision of his employee, Vincent Norman Yeneza y Ferrer which diligence if exercised, would have prevented said incident. (Bracketed words and emphasis ours.)

Nothing in the foregoing allegations suggests, even remotely, that the herein

petitioners are being made to account for their subsidiary liability under Article

103 of the Revised Penal Code. As correctly pointed out by the trial court in its

order of September 4, 2001 denying the petitioners’ Motion to Dismiss, the

complaint did not even aver the basic elements for the subsidiary liability of an

employer under Article 103 of the Revised Penal Code, such as the prior

conviction of the driver in the criminal case filed against him nor his insolvency.

Admittedly, the complaint did not explicitly state that plaintiff Vallejeras

were suing the defendant petitioners for damages based on quasi-delict. Clear it is,

however, from the allegations of the complaint that quasi-delict was their choice of

remedy against the petitioners. To stress, the plaintiff spouses alleged in their

complaint gross fault and negligence on the part of the driver and the failure of the

petitioners, as employers, to exercise due diligence in the selection and supervision

of their employees. The spouses further alleged that the petitioners are civilly liable

for the negligence/imprudence of their driver since they failed to exercise the

necessary diligence required of a good father of the family in the selection and

supervision of their employees, which diligence, if exercised, could have prevented

the vehicular accident that resulted to the death of their 7-year old son.

Section 2, Rule 2, of the 1997 Rules of Civil Procedure defines cause of

action as the “act or omission by which a party violates the right of another.” Such

act or omission gives rise to an obligation which may come from law, contracts,

quasi contracts, delicts or quasi-delicts.11[11]

Corollarily, an act or omission causing damage to another may give rise to

two separate civil liabilities on the part of the offender, i.e., 1) civil liability ex

delicto;12[12] and 2) independent civil liabilities, such as those (a) not arising from

an act or omission complained of as felony (e.g., culpa contractual or obligations

arising from law;13[13] the intentional torts;14[14] and culpa aquiliana15[15]); or (b)

where the injured party is granted a right to file an action independent and distinct

from the criminal action.16[16] Either of these two possible liabilities may be

enforced against the offender.17[17]

11

12

13

14

15

16

17

Stated otherwise, victims of negligence or their heirs have a choice between

an action to enforce the civil liability arising from culpa criminal under Article 100

of the Revised Penal Code, and an action for quasi-delict (culpa aquiliana) under

Articles 2176 to 2194 of the Civil Code. If, as here, the action chosen is for quasi-

delict, the plaintiff may hold the employer liable for the negligent act of its

employee, subject to the employer’s defense of exercise of the diligence of a good

father of the family. On the other hand, if the action chosen is for culpa criminal,

the plaintiff can hold the employer subsidiarily liable only upon proof of prior

conviction of its employee.18[18]

Article 116119[19] of the Civil Code provides that civil obligation arising from

criminal offenses shall be governed by penal laws subject to the provision of

Article 217720[20] and of the pertinent provision of Chapter 2, Preliminary Title on

Human Relation, and of Title XVIII of this Book, regulating damages. Plainly,

Article 2177 provides for the alternative remedies the plaintiff may choose from in

case the obligation has the possibility of arising indirectly from the delict/crime or

directly from quasi-delict/tort. The choice is with the plaintiff who makes known

his cause of action in his initiatory pleading or complaint,21[21] and not with the

defendant who can not ask for the dismissal of the plaintiff’s cause of action or

lack of it based on the defendant’s perception that the plaintiff should have opted

to file a claim under Article 103 of the Revised Penal Code.

18

19

20

21

Under Article 2180 of the Civil Code, the liability of the employer is direct

or immediate. It is not conditioned upon prior recourse against the negligent

employee and a prior showing of insolvency of such employee.22[22]

Here, the complaint sufficiently alleged that the death of the couple’s minor

son was caused by the negligent act of the petitioners’ driver; and that the

petitioners themselves were civilly liable for the negligence of their driver for

failing “to exercise the necessary diligence required of a good father of the family

in the selection and supervision of [their] employee, the driver, which diligence, if

exercised, would have prevented said accident.”

Had the respondent spouses elected to sue the petitioners based on Article

103 of the Revised Penal Code, they would have alleged that the guilt of the

driver had been proven beyond reasonable doubt; that such accused driver is

insolvent; that it is the subsidiary liability of the defendant petitioners as employers

to pay for the damage done by their employee (driver) based on the principle that

every person criminally liable is also civilly liable.23[23] Since there was no

conviction in the criminal case against the driver, precisely because death

intervened prior to the termination of the criminal proceedings, the spouses’

recourse was, therefore, to sue the petitioners for their direct and primary liability

based on quasi-delict.

Besides, it is worthy to note that the petitioners, in their Answer with

Compulsory Counter-Claim,24[24] repeatedly made mention of Article 2180 of the

Civil Code and anchored their defense on their allegation that “they had exercised

22

23

24

due diligence in the selection and supervision of [their] employees.” The Court

views this defense as an admission that indeed the petitioners acknowledged the

private respondents’ cause of action as one for quasi-delict under Article 2180 of

the Civil Code.

All told, Civil Case No. 99-10845 is a negligence suit brought under

Article 2176 - Civil Code to recover damages primarily from the petitioners as

employers responsible for their negligent driver pursuant to Article 2180 of the

Civil Code. 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. Thus, the employer is liable for damages caused by his employees and

household helpers acting within the scope of their assigned tasks, even though the

former is not engaged in any business or industry.

Citing Maniago v. CA,25[25] petitioner would argue that Civil Case No. 99-

10845 should have been dismissed for failure of the respondent spouses to make a

reservation to institute a separate civil action for damages when the criminal case

against the driver was filed.

The argument is specious.

To start with, the petitioners’ reliance on Maniago is obviously misplaced.

There, the civil case was filed while the criminal case against the employee was

still pending. Here, the criminal case against the employee driver was prematurely

terminated due to his death. Precisely, Civil Case No. 99-10845 was filed by the

respondent spouses because no remedy can be obtained by them against the

25

petitioners with the dismissal of the criminal case against their driver during the

pendency thereof.

The circumstance that no reservation to institute a separate civil action for

damages was made when the criminal case was filed is of no moment for the

simple reason that the criminal case was dismissed without any pronouncement

having been made therein. In reality, therefor, it is as if there was no criminal case

to speak of in the first place. And for the petitioners to insist for the conviction of

their driver as a condition sine qua non to hold them liable for damages is to ask

for the impossible.

IN VIEW WHEREOF, the instant petition is DENIED for lack of merit.

Costs against the petitioners.

SO ORDERED.

CANCIO C. GARCIAAssociate Justice

SECOND DIVISION

[G.R. No. 151452.  July 29, 2005]

SPS. ANTONIO C. SANTOS and ESPERANZA C. SANTOS, NORA BARNALO, BELINDA LUMACTAD, MARIENELA DY, NIKKA SANTOS and LEONARDO FERRER, petitioners, vs. HON. NORMANDIE B. PIZARDO, as Presiding Judge, RTC of Quezon City, Branch 101, DIONISIO M SIBAYAN, and VIRON TRANSPORTATION COMPANY, INC., represented by VIRGILIO Q. RONDARIS, President/Chairman, respondents.

D E C I S I O N

TINGA, J.:

In this Petition for Review on Certiorari[1] dated March 1, 2002, petitioners assail the Resolutions of the Court of Appeals dated September 10, 2001 and January 9, 2002, respectively dismissing their petition for certiorari and denying their motion for reconsideration, arising from the dismissal of their complaint to recover civil indemnity for the death and physical injuries of their kin.

The following facts are matters of record.

In an Information dated April 25, 1994, Dionisio M. Sibayan (Sibayan) was charged with Reckless Imprudence Resulting to Multiple Homicide and Multiple Physical Injuries in connection with a vehicle collision between a southbound Viron Transit bus driven by Sibayan and a northbound Lite Ace Van, which claimed the lives of the van’s driver and three (3) of its passengers, including a two-month old baby, and caused physical injuries to five (5) of the van’s passengers.  After trial, Sibayan was convicted and sentenced to suffer the penalty of imprisonment for two (2) years, four (4) months and one (1) day to four (4) years and two (2) months. However, as there was a reservation to file a separate civil action, no pronouncement of civil liability was made by the municipal circuit trial court in its decision promulgated on December 17, 1998.[2]

On October 20, 2000, petitioners filed a complaint for damages against Sibayan, Viron Transit and its President/Chairman, Virgilio Q. Rondaris, with the Regional Trial Court of Quezon City, pursuant to their reservation to file a separate civil action. [3] They cited therein the judgment convicting Sibayan.

Viron Transit moved to dismiss the complaint on the grounds of improper service of summons, prescription and laches, and defective certification of non-forum shopping. It also sought the dropping of Virgilio Q. Rondaris as defendant in view of the separate personality of Viron Transit from its officers.[4]

Petitioners opposed the motion to dismiss contending, among others, that the right to file a separate action in this case prescribes in ten (10) years reckoned from the finality of the judgment in the criminal action.  As there was no appeal of the decision convicting Sibayan, the complaint which was filed barely two (2) years thence was clearly filed within the prescriptive period.

The trial court dismissed the complaint on the principal ground that the cause of action had already prescribed. According to the trial court, actions based on quasi delict,

as it construed petitioners’ cause of action to be, prescribe four (4) years from the accrual of the cause of action. Hence, notwithstanding the fact that petitioners reserved the right to file a separate civil action, the complaint ought to be dismissed on the ground of prescription.[5]

Improper service of summons was likewise cited as a ground for dismissal of the complaint as summons was served through a certain Jessica Ubalde of the legal department without mentioning her designation or position.

Petitioners filed a motion for reconsideration pointing out yet again that the complaint is not based on quasi delict but on the final judgment of conviction in the criminal case which prescribes ten (10) years from the finality of the judgment. [6] The trial court denied petitioners’ motion for reconsideration reiterating that petitioners’ cause of action was based on quasi delict and had prescribed under Article 1146 of the Civil Code because the complaint was filed more than four (4) years after the vehicular accident.[7] As regards the improper service of summons, the trial court reconsidered its ruling that the complaint ought to be dismissed on this ground.

Petitioners filed a petition for certiorari with the Court of Appeals which dismissed the same for error in the choice or mode of appeal. [8] The appellate court also denied petitioners’ motion for reconsideration reasoning that even if the respondent trial court judge committed grave abuse of discretion in issuing the order of dismissal, certiorari is still not the permissible remedy as appeal was available to petitioners and they failed to allege that the petition was brought within the recognized exceptions for the allowance of certiorari in lieu of appeal.[9]

In this petition, petitioners argue that a rigid application of the rule that certiorari cannot be a substitute for appeal will result in a judicial rejection of an existing obligation arising from the criminal liability of private respondents. Petitioners insist that the liability sought to be enforced in the complaint arose ex delicto and is not based on quasi delict.  The trial court allegedly committed grave abuse of discretion when it insisted that the cause of action invoked by petitioners is based on quasi delict and concluded that the action had prescribed. Since the action is based on the criminal liability of private respondents, the cause of action accrued from the finality of the judgment of conviction.

Assuming that their petition with the appellate court was procedurally flawed, petitioners implore the Court to exempt this case from the rigid operation of the rules as they allegedly have a legitimate grievance to vindicate, i.e., damages for the deaths and physical injuries caused by private respondents for which no civil liability had been adjudged by reason of their reservation of the right to file a separate civil action.

In their Comment[10] dated June 13, 2002, private respondents insist that the dismissal of the complaint on the ground of prescription was in order. They point out that the averments in the complaint make out a cause of action for quasi delict under Articles 2176 and 2180 of the Civil Code. As such, the prescriptive period of four (4) years should be reckoned from the time the accident took place.

Viron Transit also alleges that its subsidiary liability cannot be enforced since Sibayan was not ordered to pay damages in the criminal case. It is Viron Transit’s contention that the subsidiary liability of the employer contemplated in Article 103 of the

Revised Penal Code presupposes a situation where the civil aspect of the case was instituted in the criminal case and no reservation to file a separate civil case was made.

Private respondents likewise allege that the recourse to the Court of Appeals via certiorari was improper as petitioners should have appealed the adverse order of the trial court.  Moreover, they point out several other procedural lapses allegedly committed by petitioners, such as lack of certification against forum-shopping; lack of duplicate original or certified true copy of the assailed order of the trial court; and non-indication of the full names and addresses of petitioners in the petition.

Petitioners filed a Reply[11] dated September 14, 2002, while private respondents filed a Rejoinder[12] dated October 14, 2002, both in reiteration of their arguments.

We grant the petition.

Our Revised Penal Code provides that every person criminally liable for a felony is also civilly liable.[13] Such civil liability may consist of restitution, reparation of the damage caused and indemnification of consequential damages. [14] When a criminal action is instituted, the civil liability arising from the offense is impliedly instituted with the criminal action, subject to three notable exceptions: first, when the injured party expressly waives the right to recover damages from the accused; second, when the offended party reserves his right to have the civil damages determined in a separate action in order to take full control and direction of the prosecution of his cause; and third, when the injured party actually exercises the right to maintain a private suit against the offender by instituting a civil action prior to the filing of the criminal case.

Notably, it was the 1985 Rules on Criminal Procedure, as amended in 1988, which governed the institution of the criminal action, as well as the reservation of the right to file a separate civil action.  Section 1, Rule 111 thereof states:

Section 1. Institution of criminal and civil actions.—When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.

A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the right to file, any of said civil actions separately waives the others.

The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

In no case may the offended party recover damages twice for the same act or omission of the accused.

When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate or exemplary damages, the filing fees for such action as provided in these Rules shall constitute a first lien on the judgment except in an award for actual damages.

In cases wherein the amount of damages, other than actual, is alleged in the complaint or information, the corresponding filing fees shall be paid by the offended party upon filing thereof in court for trial.

Petitioners expressly made a reservation of their right to file a separate civil action as a result of the crime committed by Sibayan.  On account of this reservation, the municipal circuit trial court, in its decision convicting Sibayan, did not make any pronouncement as to the latter’s civil liability.

Predicating their claim on the judgment of conviction and their reservation to file a separate civil action made in the criminal case, petitioners filed a complaint for damages against Sibayan, Viron Transit and its President/Chairman. Petitioners assert that by the institution of the complaint, they seek to recover private respondents’ civil liability arising from crime.  Unfortunately, based on its misreading of the allegations in the complaint, the trial court dismissed the same, declaring that petitioners’ cause of action was based on quasi delict and should have been brought within four (4) years from the time the cause of action accrued, i.e., from the time of the accident.

A reading of the complaint reveals that the allegations therein are consistent with petitioners’ claim that the action was brought to recover civil liability arising from crime.  Although there are allegations of negligence on the part of Sibayan and Viron Transit, such does not necessarily mean that petitioners were pursuing a cause of action based on quasi delict, considering that at the time of the filing of the complaint, the cause of action ex quasi delicto had already prescribed.  Besides, in cases of negligence, the offended party has the choice between an action to enforce civil liability arising from crime under the Revised Penal Code and an action for quasi delict under the Civil Code.

An act or omission causing damage to another may give rise to two separate civil liabilities on the part of the offender, i.e., (1) civil liability ex delicto, under Article 100 of the Revised Penal Code; and (2) independent civil liabilities, such as those (a) not arising from an act or omission complained of as a felony, e.g., culpa contractual or obligations arising from law under Article 31 of the Civil Code, intentional torts under Articles 32 and 34, and culpa aquiliana under Article 2176 of the Civil Code; or (b) where the injured party is granted a right to file an action independent and distinct from the criminal action under Article 33 of the Civil Code. [15] Either of these liabilities may be enforced against the offender subject to the caveat under Article 2177 of the Civil Code that the plaintiff cannot recover damages twice for the same act or omission of the defendant and the similar proscription against double recovery under the Rules above-quoted.

At the time of the filing of the complaint for damages in this case, the cause of action ex quasi delicto had already prescribed. Nonetheless, petitioners can pursue the remaining avenue opened for them by their reservation, i.e., the surviving cause of action ex delicto.  This is so because the prescription of the action ex quasi delicto does not operate as a bar to an action to enforce the civil liability arising from crime especially as the latter action had been expressly reserved.

The case of Mendoza v. La Mallorca Bus Company[16] was decided upon a similar set of facts. Therein, the driver of La Mallorca Bus Company was charged with reckless imprudence resulting to damage to property. The plaintiff made an express reservation

for the filing of a separate civil action.  The driver was convicted which conviction was affirmed by this Court. Later, plaintiff filed a separate civil action for damages based on quasi delict which was ordered dismissed by the trial court upon finding that the action was instituted more than six (6) years from the date of the accident and thus, had already prescribed. Subsequently, plaintiff instituted another action, this time based on the subsidiary liability of the bus company.  The trial court dismissed the action holding that the dismissal of the earlier civil case operated as a bar to the filing of the action to enforce the bus company’s subsidiary liability.

We held that the dismissal of the action based on culpa aquiliana is not a bar to the enforcement of the subsidiary liability of the employer. Once there is a conviction for a felony, final in character, the employer becomes subsidiarily liable if the commission of the crime was in the discharge of the duties of the employees.  This is so because Article 103 of the Revised Penal Code operates with controlling force to obviate the possibility of the aggrieved party being deprived of indemnity even after the rendition of a final judgment convicting the employee.

Seen in this light, the trial court should not have dismissed the complaint on the ground of prescription, but instead allowed the complaint for damages ex delicto to be prosecuted on the merits, considering petitioners’ allegations in their complaint, opposition to the motion to dismiss[17] and motion for reconsideration[18] of the order of dismissal, insisting that the action was to recover civil liability arising from crime.

This does not offend the policy that the reservation or institution of a separate civil action waives the other civil actions.  The rationale behind this rule is the avoidance of multiple suits between the same litigants arising out of the same act or omission of the offender.[19] However, since the stale action for damages based on quasi delict should be considered waived, there is no more occasion for petitioners to file multiple suits against private respondents as the only recourse available to them is to pursue damages ex delicto.  This interpretation is also consistent with the bar against double recovery for obvious reasons.

Now the procedural issue. Admittedly, petitioners should have appealed the order of dismissal of the trial court instead of filing a petition for certiorari with the Court of Appeals. Such procedural misstep, however, should be exempted from the strict application of the rules in order to promote their fundamental objective of securing substantial justice.[20] We are loathe to deprive petitioners of the indemnity to which they are entitled by law and by a final judgment of conviction based solely on a technicality.  It is our duty to prevent such an injustice.[21]

WHEREFORE, judgment is hereby rendered SETTING ASIDE the resolutions of the Court of Appeals dated September 10, 2001 and January 9, 2002, respectively dismissing the present action and denying petitioners’ motion for reconsideration, as well as the orders of the lower court dated February 26, 2001 and July 16, 2001. Let the case be REMANDED to the trial court for further proceedings.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.

[1] Rollo, pp. 25-45.

SECOND DIVISION

[G.R. No. 113433. March 17, 2000]

LUISITO P. BASILIO, petitioner, vs. THE COURT OF APPEALS, HON. JESUS G. BERSAMIRA, and FE ADVINCULA, respondents. Scä

D E C I S I O N

QUISUMBING, J.:

This is a petition for review26[1] under Rule 45 of the Revised Rules of Court which seeks to annul and set aside the Decision27[2] and Resolution28[3] of the Court of Appeals dated October 27, 1992 and January 5, 1994, respectively. The decision sustained the Order dated April 7, 1992 of the Regional Trial Court of Pasig City, Branch 166, denying due course to petitioner’s appeal from the Judgment in Criminal Case No. 70278 and allowing execution against the petitioner of the subsidiary indemnity arising from the offense committed by his truck driver.

The relevant facts as gleaned from the records are as follows:

On July 23, 1987, Simplicio Pronebo was charged by the Provincial Fiscal of Rizal with the crime of reckless imprudence resulting in damage to property with double homicide and double physical injuries.29[4] The case was docketed as Criminal Case No. 70278.

The information against him reads: ScmisÓ

"The undersigned Assistant Fiscal accused Simplicio Pronebo y Cruz of the crime of Reckless Imprudence Resulting in Damage to Property with Double Homicide and Double Physical Injuries, committed as follows:

"That on or about the 15th day of July, 1987 in the municipality of Marikina, Metro Manila, Philippines and within the jurisdiction of this

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Honorable Court, the said accused, being then the driver and person in charge of a dump truck with plate no. NMW-609 owned and registered in the name of Luisito Basilio, without due regard to traffic laws, rules and regulations and without taking the necessary care and precaution to prevent damage to property and avoid injuries to persons, did then and there willfully, unlawfully and feloniously drive, manage and operate said dump truck in a careless, reckless, negligent and imprudent manner as a result of which said dump truck being then driven by him hit/bumped and sideswiped the following vehicles, to wit: a) a motorized tricycle with plate no. NF-2457 driven by Benedicto Abuel thereby causing damage in the amount of P1,100.00; b) an automobile Toyota Corona with plate no. NAL -138 driven by Virgilio Hipolito thereby causing damage in the amount of P2,190.50 c) a motorized tricycle with plate no. NW-9018 driven by Ricardo Sese y Julian thereby causing damage of an undetermined amount d) an automobile Mitsubishi Lancer with plate no. PHE-283 driven by Angelito Carranto thereby causing damage of an undetermined amount and 3) a Ford Econo Van with plate no. NFR-898 driven by Ernesto Aseron thereby causing damage of an undetermined amount; that due to the strong impact caused by the collision, the driver Ricardo Sese y Julian and his 3 passengers including Danilo Advincula y Poblete were hit/bumped which directly caused their death; while the other 2 passengers, namely; Cirilo Bangot sustained serious physical injuries which required medical attendance for a period of more than 30 days which incapacitated him from performing his customary labor for the same period of time and Dominador Legaspi Jr. sustained physical injuries which required medical attendance for a period of less than nine days and incapacitated him from performing his customary labor for the same period of time.

Contrary to law." MisÓ sc

After arraignment and trial, the court rendered its judgment dated February 4, 1991, which reads:

"WHEREFORE, the court finds accused Simplicio Pronebo y Cruz guilty beyond reasonable doubt of Reckless Imrpudence resulting in the death of Danilo Advincula and is hereby sentenced to suffer the indeterminate penalty of two (2) years and four (4) months, as minimum to six (6) years of prision correccional, as maximum, and to indemnify the heirs of danilo Advincula P30,000.00 for the latter’s death, P31,614.00, as actual and compensatory damages. P2,000,000.00 for the loss of his earning capacity. P150,000.00, as moral damages, and P30,000.00 as attorney’s fees, plus the costs of suit."30[5]

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Thereafter, the accused filed an application for probation, so that the above judgment became final and executory.

Pertinently, the trial court also found that at the time of the vehicular accident accused Simplicio Pronebo was employed as the driver of the dump truck owned by petitioner Luisito Basilio.

On March 27, 1991, petitioner Luisito Basilio filed with the trial court a "Special Appearance and Motion for Reconsideration"31[6] praying that the judgment dated February 4, 1991, be reconsidered and set aside insofar as it affected him and subjected him to a subsidiary liability for the civil aspect of the criminal case. The motion was denied for lack of merit on September 16, 1991.32[7] Petitioner filed a Notice of Appeal33[8] on September 25, 1991. MisÓ spped

On September 23, 1991, private respondent filed a Motion for Execution of the subsidiary civil liability34[9] of petitioner Basilio.

On April 7, 1992, the trial court issued two separate Orders. One denied due course and dismissed Basilio’s appeal for having been filed beyond the reglementary period.35[10] The other directed the issuance of a writ of execution against him for the enforcement and satisfaction of the award of civil indemnity decreed in judgment on February 4, 1991.36[11]

Aggrieved, petitioner filed a petition for certiorari37[12] under Rule 65 of the Revised Rules of Court with the Court of Appeals, alleging that respondent judge acted without jurisdiction or with grave abuse of discretion in issuing: (1) the Order dated September 16, 1991, denying the petitioner’s motion for reconsideration of the judgment dated February 4, 1991 insofar as the subsidiary liability of the petitioner was concerned, and (2) the Order dated April 7, 1992, directing the issuance of a writ of execution against the petitioner. Before the appellate court, petitioner claimed he was not afforded due process when he was found subsidiarily liable for the civil liability of the accused Pronebo in the criminal case.

The Court of Appeals dismissed the petition in its Decision dated October 27, 1992, disposing as follows: Sppedâ

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"ACCORDINGLY, in view of the foregoing disquisitions, the instant petition for certiorari and prohibition with preliminary injunction is DENIED DUE COURSE and should be, as it is hereby, DISMISSED for lack of persuasive force and effect."38[13]

A motion for reconsideration39[14] was filed by the petitioner on November 24, 1992. This was denied in a Resolution40[15] dated January 5, 1994. Hence this petition for review.

Now, petitioner, in his assignment of errors, avers that respondent Court of Appeals erred:

I. ... IN SUSTAINING THE RULING OF THE TRIAL COURT THAT THE JUDGMENT OF 4 FEBRUARY 1991 HAD BECOME FINAL AND EXECUTORY AS REGARDS BOTH THE CIVIL AND CRIMINAL ASPECTS WHEN THE ACCUSED APPLIED FOR PROBATION AT THE PROMULGATION.

II. ... IN HOLDING THAT AS PETITIONER IS NEITHER AN ACCUSED OR A PARTY IN CRIMINAL CASE NO. 70278, HE IS NOT ENTITLED TO FILE A MOTION FOR RECONSIDERATION OF THE JUDGMENT OF SUBSIDIARY CIVIL LIABILITY AGAINST HIM.

III. ... IN HOLDING THAT PETITIONER WAS NOT DEPRIVED OF HIS DAY IN COURT IN VIOLATION OF PROCEDURAL DUE PROCESS. Joä spped

IV. ... IN HOLDING THAT PETITIONER WAS NOT ENTITLED TO THE AUXILIARY RELIEF OF PRELIMINARY INJUNCTION BECAUSE THE JUDGMENT OF CONVICTION "IS CONCLUSIVE UPON THE EMPLOYER".

V. … IN RULING THAT THE RESPONDENT JUDGE DID NOT ACT IN ABUSE OF AND/OR EXCESS OF JURISDICTION.41[16]

The issue before us is whether respondent Court of Appeals erred and committed grave abuse of discretion in denying the special civil action under Rule 65 filed by petitioner against the trial court. To resolve it, we must, however, also pass upon the following:

(1) Had the judgment of February 4, 1991 of the trial court become final and executory when accused applied for probation at the promulgation?

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(2) May the petitioner as employer file a Motion for Reconsideration concerning civil liability decreed in the judgment if he is not a party to the criminal case?

(3) May petitioner, as employer, be granted relief by way of a writ of preliminary injunction? Sppedä jo

Petitioner asserts that he was not given the opportunity to be heard by the trial court to prove the absence of an employer-employee relationship between him and accused. Nor that, alternatively, the accused was not lawfully discharging duties as an employee at the time of the incident. While these assertions are not moved, we shall give them due consideration.

The statutory basis for an employer’s subsidiary liability is found in Article 103 of the Revised Penal Code.42[17] This liability is enforceable in the same criminal proceeding where the award is made.43[18] However, before execution against an employer ensues, there must be a determination, in a hearing set for the purpose of 1) the existence of an employer-employee relationship; 2) that the employer is engaged in some kind of industry; 3) that the employee is adjudged guilty of the wrongful act and found to have committed the offense in the discharge of his duties (not necessarily any offense he commits "while" in the discharge of such duties; and 4) that said employee is insolvent.44

[19]

In Vda. De Paman vs. Señeris, 115 SCRA 709, 714 (1982), the Court observed that the drawback in the enforcement of the subsidiary liability in the same criminal proceeding is that the alleged employer is not afforded due process. Not being a party to the case, he is not heard as to whether he is indeed the employer. Hence, we held: Miso

"To remedy the situation and thereby afford due process to the alleged employer, this Court directed the court a quo in Pajarito vs. Señeris (supra) to hear and decide in the same proceeding the subsidiary liability of the alleged owner and operator of the passenger bus. It was explained therein that the proceeding for the enforcement of the subsidiary liability may be considered as part of the proceeding for the execution of the judgment. A case in which an execution has been issued is regarded as still pending so that all proceedings on the execution are proceedings in the suit."45[20]

There are two instances when the existence of an employer-employee relationship of an accused driver and the alleged vehicle owner may be determined. One during the

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criminal proceeding, and the other, during the proceeding for the execution of the judgment. In both instances, petitioner should be given the opportunity to be heard, which is the essence of due process.46[21]

Petitioner knew of the criminal case that was filed against accused because it was his truck that was involved in the incident.47[22] Further, it was the insurance company, with which his truck was insured, that provided the counsel for the accused, pursuant to the stipulations in their contract.48[23] Petitioner did not intervene in the criminal proceedings, despite knowledge, through counsel, that the prosecution adduced evidence to show employer-employee relationship.49[24] With the convict’s application for probation, the trial court’s judgment became final and executory. All told, it is our view that the lower court did not err when it found that petitioner was not denied due process. He had all his chances to intervene in the criminal proceedings, and prove that he was not the employer of the accused, but he chooses not to intervene at the appropriate time. Nexâ old

Petitioner was also given the opportunity during the proceedings for the enforcement of judgment. Even assuming that he was not properly notified of the hearing on the motion for execution of subsidiary liability, he was asked by the trial court to make an opposition thereto, which he did on October 17, 1991, where he properly alleged that there was no employer-employee relationship between him and accused and that the latter was not discharging any function in relation to his work at the time of the incident.50

[25] In addition, counsel for private respondent filed and duly served on December 3, 1991, and December 9, 1991, respectively, a manifestation praying for the grant of the motion for execution.51[26] This was set for hearing on December 13, 1991. However,

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51[G.R. No. 131280. October 18, 2000]

PEPE CATACUTAN and AURELIANA CATACUTAN, petitioners, vs. HEIRS OF NORMAN KADUSALE, HEIRS OF LITO AMANCIO and GIL B. IZON, respondents.

D E C I S I O N

YNARES-SANTIAGO, J.:

counsel for petitioner did not appear. Consequently, the court ordered in open court that the matter be submitted for resolution. It was only on January 6, 1992, that the petitioner’s counsel filed a counter-manifestation52[27] that belatedly attempted to contest the move of the private prosecutor for the execution of the civil liability. Thus, on April 7, 1992, the trial court issued the Order granting the motion for execution of the subsidiary liability. Given the foregoing circumstances, we cannot agree with petitioner that the trial court denied him due process of law. Neither can we fault respondent appellant court for sustaining the judgment and orders of the trial court. Maniâ kx

The issue raised in this petition for review on certiorari is whether or not a subsidiary writ of execution may issue against the employers of an accused, against whom a judgment of conviction had been entered, even when said employers never took part in the criminal proceedings where the accused was charged, tried and convicted.

Assailed in the instant petition is the August 12, 1997 Decision?[1] of the Court of Appeals in CA-G.R. SP No. 43617, directing the issuance of a subsidiary writ of execution against petitioners, as well as its October 9, 1997 Resolution,?[2] denying petitioners' Motion for Reconsideration.

The antecedent facts relevant to the issue before us may be summarized, as follows -

Petitioner Aureliana Catacutan is the registered owner and operator of a jeepney, driven by the accused Porferio Vendiola, which bumped a tricycle on April 11, 1991, in Banilad, Bacong, Negros Oriental, thereby causing the death of its driver, Norman Kadusale, and its passenger, Lito Amancio, and serious physical injuries to another passenger, respondent Gil B. Izon.

Respondents thus filed a criminal case against Porferio Vendiola, for Reckless Imprudence Resulting in Double Homicide with Physical Injuries and Damages to Property on July 26, 1991, before the Regional Trial Court of Negros Oriental.

On December 1, 1995, the trial court rendered judgment,?[3] the dispositive portion of which reads as follows:

Wherefore, foregoing considered, this court is convinced beyond doubt that accused is guilty of negligence and imprudence under Article 365 of the Revised Penal Code in the collision which occurred in Banilad, Bacong, Negros Oriental on April 11, 1991 which claimed the lives of Norman Kadusale, the driver of the motortricycle, and Lito Amancio, a passenger of the motortricycle, and caused injury to Gil B. Izon.

He is therefore sentenced to suffer the penalty of prision correccional medium and maximum periods. Applying the Indeterminate Sentence Law, the accused is sentenced to one year eight months and one day of prision correccional as minimum to two years, four months and one day of prision correccional as maximum for each death to be served successively, and for the physical injuries suffered by Gil B. Izon, accused is ordered to suffer the penalty of thirty days of arresto mayor straight. He is likewise ordered to indemnify the heirs of Norman Kadusale and Lito Amancio in the amount of Fifty Thousand Pesos each victim; and to pay actual damages to:

Accordingly, the instant petition is DENIED for lack of merit. The Decision of the Court of Appeals dated October 27, 1992, in CA-G.R. SP No. 27850 is AFFIRMED. Costs against petitioner.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur. Maniksâ

1. Norman Kadusale or his heirs the amount of P170,543.24;

2. Lito Amancio or his heirs the amount of P38,394.35; and

3. Gil B. Izon, the amount of P23,454.00.

SO ORDERED.?[4]

Accused Vendiola did not appeal the judgment of conviction. Instead, he applied for probation. Meanwhile, when the judgment became final and executory, respondents moved for the issuance of a writ of execution and the corresponding writ was issued by the trial court on April 24, 1996. However, per the Sheriff's Return of Service,?[5] dated July 3, 1996, the writ was unsatisfied as the accused had "nothing to pay off the damages in the decision."

On August 28, 1996, respondents filed a Motion for Subsidiary Writ of Execution ?[6]

before the trial court, praying that such writ be issued against petitioner Aureliana Catacutan as registered owner and operator of the jeepney driven by the accused when the collision occurred. Petitioner Aureliana Catacutan filed her Opposition?[7] thereto, arguing that she was never a party to the case and that to proceed against her would be in violation of the due process clause of the Constitution. Petitioner also argued that the subsidiary liability of the employer is not determined in the criminal case against the employee.

On October 3, 1996, the trial court issued an Order?[8] denying the said Motion for lack of merit. According to the trial court, it never acquired jurisdiction over petitioner Aureliana Catacutan since she was never impleaded as party to the case, and respondents' remedy was to file a separate case for damages. Respondents' Motion for Reconsideration was also denied on December 3, 1996.?[9]

Undaunted, respondents went on certiorari to the Court of Appeals. On August 12, 1997, the Court of Appeals rendered the assailed Decision.

The issue raised in the instant petition is not new. It has been passed upon in the case of Yusay v. Adil,?[10] where this Court held -

Petitioners contend that they were not informed of Criminal Case No. 11828 nor heard therein, in the matter of their alleged subsidiary liability and that they were thus denied their day in court, and that the court did not acquire jurisdiction over them.

We hold otherwise. Petitioners were given ample opportunity to present their side. The respondent judge admitted their "Urgent Ex Parte Motion for Time to File Necessary Pleadings."

[G.R. No. 112346. March 29, 1996]

EVELYN YONAHA, petitioner, vs. HON. COURT OF APPEALS and

The respondent judge also issued an order suspending the execution of the writ dated 24 October 1980 and granting petitioners until 5 November 1980 within which to file their comment and/or opposition to the Motion for Issuance of the Writ of Subsidiary Execution. On 4 November 1980, petitioners filed their Motion for Reconsideration of the order of 24 October 1980 and To Set Aside Subsidiary Writ of Execution. This was opposed by private respondent. On 21 November 1980, an order of denial of the Motion dated 4 November 1980 was issued. A second motion for reconsideration was filed by petitioners which was again opposed by private respondent. Petitioners filed their reply thereto. Acting on the pleadings, respondent judge issued a resolution denying petitioners' second motion for reconsideration.

As stated in Martinez v. Barredo:

"The employer cannot be said to have been deprived of his day in court, because the situation before us is not one wherein the employer is sued for a primary liability under article 1903 of the Civil Code, but one in which enforcement is sought of a subsidiary civil liability incident to and dependent upon his driver's criminal negligence which is a proper issue to be tried and decided only in a criminal action. In other words, the employer becomes ipso facto subsidiarily liable upon his driver's conviction and upon proof of the latter's insolvency, in the same way that acquittal wipes out not only the employee's primary liability but also his employer's subsidiary liability for such criminal negligence (81 Phil. 1, 3, G.R. No. L-49308, May 13, 1948, citing Almeida et al., vs. Abaroa, 8 Phil., 178, affirmed in 218 U.S. 476; 54 Law ed., 1116; Wise & Co. vs. Larion, 45 Phil. 314, 320; Francisco vs. Onrubia, 46 Phil. 327; Province of Ilocos Sur vs. Tolentino, G.R. No. 34186, 56 Phil., 829; Moran, Comments on the Rules of Court, Vol. II, p. 403)."

The employer is, in substance and in effect, a party to the criminal case against his employee, considering the subsidiary liability imposed upon him by law. Thus:

"It is true that an employer, strictly speaking, is not a party to the criminal case instituted against his employee but in substance and in effect he is considering the subsidiary liability imposed upon him by law. It is his concern, as well as his employee, to see to it that his interest be protected in the criminal case by taking virtual participation in the defense of his employee. He cannot leave him to his own fate because his failure is also his. And if because of his indifference or inaction the employee is convicted and damages are awarded against him, he cannot later be heard to complain, if brought to court for the enforcement of his subsidiary liability, that he was not given his day in court. It was not without purpose that this Court sounded the following stern warning:

"It is high time that the employer exercised the greatest care in selecting his employees, taking real and deep interest in their welfare; intervening in any criminal action brought against them by reason or as a result of the performance of their duties, if only in the way of giving them benefit of counsel; and consequently doing away with the practice of leaving them to their fates.

HEIRS OF HECTOR CAÑETE, respondents.

D E C I S I O N

VITUG, J.:

From the decision of the Court of Appeals dismissing for lack of merit the petition for certiorari, with prayer for preliminary injunction, filed by Evelyn Yonaha against an order, dated 29 May 1992, of the Regional Trial Court i[1] which had granted private

If these be done, the American rule requiring notice on the part of the employer shall have been satisfied (Miranda vs. Malate Garage and Taxicab, Inc., 99 Phil. 670, 675, citing Martinez vs. Barredo, supra)."

More recently, in the case of Basilio v. Court of Appeals,?[11] the issuance of a subsidiary writ of execution against the employer of the accused therein was once more upheld, notwithstanding the non-participation of such employer in the criminal case against the accused. Instructive as it is on the issue at hand, we are reproducing hereunder this Court's pronouncement in said case, to wit -

The statutory basis for an employer's subsidiary liability is found in Article 103 of the Revised Penal Code. This liability is enforceable in the same criminal proceeding where the award is made. (Rules of Court, Rule 111, Sec. 1) However, before execution against an employer ensues, there must be a determination, in a hearing set for the purpose of 1) the existence of an employer-employee relationship; 2) that the employer is engaged in some kind of industry; 3) that the employee is adjudged guilty of the wrongful act and found to have committed the offense in the discharge of his duties (not necessarily any offense he commits "while" in the discharge of such duties); and 4) that said employee is insolvent. (Yonaha vs. CA, 255 SCRA 397, 402 [1996].)

In Vda. De Paman vs. Señeris, 115 SCRA 709, 714 (1982), the Court observed that the drawback in the enforcement of the subsidiary liability in the same criminal proceeding is that the alleged employer is not afforded due process. Not being a party to the case, he is not heard as to whether he is indeed the employer. Hence, we held:

To remedy the situation and thereby afford due process to the alleged employer, this Court directed the court a quo in Pajarito vs. Señeris (supra) to hear and decide in the same proceeding the subsidiary liability of the alleged owner and operator of the passenger bus. It was explained therein that the proceeding for the enforcement of the subsidiary liability may be considered as part of the proceeding for the execution of the judgment. A case in which an execution has been issued is regarded as still pending so that all proceedings on the execution are proceedings in the suit. (Vda. De Paman vs. Señeris, 115 SCRA 709, 714 [1982].)

There are two instances when the existence of an employer-employee relationship of an accused driver and the alleged vehicle owner may be determined. One during the criminal proceeding, and the other, during the proceeding for the execution of the judgment. In both instances, petitioner should be given the opportunity to be heard, which is the essence of due process. (National Federation of Labor vs. National Labor Relations Commissions, 283 SCRA 275, 284 [1997].)

Petitioner knew of the criminal case that was filed against accused because it was his truck that was involved in the incident. Further, it was the insurance company, with which his truck

respondents’ motion for the issuance of a writ of subsidiary execution, the instant appeal was taken.

In Criminal Case No. 01 106-L, Elmer Ouano was charged with the crime of “Reckless Imprudence Resulting In Homicide” in an information which averred -

“That on April 14, 1990, at or about 11:45 A.M., in Basak, Lapulapu City, Philippines, within the jurisdiction of this Honorable Court, the aforenamed accused, while driving a Toyota Tamaraw sporting Plate No. GCX-237 duly registered in the name of Raul Cabahug and owned by EK SEA Products, did then and there unlawfully and feloniously maneuver and operate it in a negligent and reckless manner, without

was insured, that provided the counsel for the accused, pursuant to the stipulations in their contract. Petitioner did not intervene in the criminal proceedings, despite knowledge, through counsel, that the prosecution adduced evidence to show employer-employee relationship. With the convict's application for probation, the trial court's judgment became final and executory. All told, it is our view that the lower court did not err when it found that petitioner was not denied due process. He had all his chances to intervene in the criminal proceedings, and prove that he was not the employer of the accused, but he chooses not to intervene at the appropriate time.

Petitioner was also given the opportunity during the proceedings for the enforcement of judgment. Even assuming that he was not properly notified of the hearing on the motion for execution of subsidiary liability, he was asked by the trial court to make an opposition thereto, which he did on October 17, 1991, where he properly alleged that there was no employer-employee relationship between him and accused and that the latter was not discharging any function in relation to his work at the time of the incident. In addition, counsel for private respondent filed and duly served on December 3, 1991, and December 9, 1991, respectively, a manifestation praying for the grant of the motion for execution. This was set for hearing on December 13, 1991. However, counsel for petitioner did not appear. Consequently, the court ordered in open court that the matter be submitted for resolution. It was only on January 6, 1992, that the petitioner's counsel filed a counter-manifestation that belatedly attempted to contest the move of the private prosecutor for the execution of the civil liability. Thus, on April 7, 1992, the trial court issued the Order granting the motion for execution of the subsidiary liability. Given the foregoing circumstances, we cannot agree with petitioner that the trial court denied him due process of law. Neither can we fault respondent appellant court for sustaining the judgment and orders of the trial court.

In the instant case, we find no reason why the subsidiary writ of execution issued against petitioner Aurelianana Catacutan should be set aside. To begin with, as in Yusay and Basilio, supra, petitioners cannot complain of having been deprived of their day in court. They were duly furnished a copy of respondents' Motion for Subsidiary Writ of Execution to which they filed their Opposition.

So, too, we find no good ground to order a separate hearing to determine the subsidiary liability of petitioner Aureliana Catacutan, as was ordered in the case of Pajarito v. Señeris, supra. To do so would entail a waste of both time and resources of the trial court as the requisites for the attachment of the subsidiary liability of the employer have already been established, to wit: First, the existence of an employer-employee relationship.?[12] Second, the employer is engaged in some kind of industry, land transportation industry in this case as the jeep driven by accused was admittedly a passenger jeep.?[13] Third, the employee has already been adjudged guilty of the

taking the necessary precaution to avoid injuries to person and damage to property, as a result thereof the motor vehicle he was then driving bumped and hit Hector Cañete, which caused the latter’s instantaneous death, due to the multiple severe traumatic injuries at different parts of his body.”ii[2]

When arraigned, the accused pleaded “guilty” and, on 09 March 1992, the trial court pronounced its judgment –

“Finding therefore the accused guilty beyond reasonable doubt of the offense charged against him and taking into account the mitigating circumstances of voluntary surrender and plea of guilty which the prosecuting fiscal readily accepted, the Court hereby sentences the accused to suffer and undergo an imprisonment of 1 year and 1 day to 1 year and 8 months and to pay the heirs of the victim the sum of P50,000.00 for

wrongful act and found to have committed the offense in the discharge of his duties.?[14]

Finally, said employee is insolvent.?[15]

WHEREFORE, based on the foregoing, the petition is DENIED. No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

52

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ii[G.R. No. 147703. April 14, 2004]

PHILIPPINE RABBIT BUS LINES, INC., petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

PANGANIBAN, J.:

When the accused-employee absconds or jumps bail, the judgment meted out becomes final and executory. The employer cannot defeat the finality of the judgment by filing a notice of appeal on its own behalf in the guise of asking for a review of its subsidiary civil liability. Both the primary civil liability of the accused-employee and the subsidiary civil liability of the employer are carried in one single decision that has become final and executory.

the death of the victim; P30,000.00 for actual damages incurred in connection with the burial and the nightly prayer of the deceased victim and P10,000.00 as attorney’s fees.”iii[3]

On 27 April 1992, a writ of execution was issued for the satisfaction of the monetary award. In his Return of Service, dated 07 May 1992, the MTCC Deputy City Sheriff stated that he had served the writ on accused Elmer Ouano but that the latter had manifested his inability to pay the money obligation.

Forthwith, private respondents presented a “motion for subsidiary execution” with

The Case

Before this Court is a Petition for Review?[1] under Rule 45 of the Rules of Court, assailing the March 29, 2000?[2] and the March 27, 2001?[3] Resolutions of the Court of Appeals (CA) in CA-GR CV No. 59390. Petitioner’s appeal from the judgment of the Regional Trial Court (RTC) of San Fernando, La Union in Criminal Case No. 2535 was dismissed in the first Resolution as follows:

“WHEREFORE, for all the foregoing, the motion to dismiss is GRANTED and the appeal is ordered DISMISSED.”?[4]

The second Resolution denied petitioner’s Motion for Reconsideration.?[5]

The Facts

The facts of the case are summarized by the CA in this wise:

“On July 27, 1994, accused [Napoleon Roman y Macadangdang] was found guilty and convicted of the crime of reckless imprudence resulting to triple homicide, multiple physical injuries and damage to property and was sentenced to suffer the penalty of four (4) years, nine (9) months and eleven (11) days to six (6) years, and to pay damages as follows:

‘a. to pay the heirs of JUSTINO TORRES the sum of P50,000.00 as indemnity for his death, plus the sum of P25,383.00, for funeral expenses, his unearned income for one year at P2,500.00 a month, P50,000.00 as indemnity for the support of Renato Torres, and the further sum of P300,000.00 as moral damages;

‘b. to the heirs of ESTRELLA VELERO, the sum of P50,000.00 as indemnity for her death, the sum of P237,323.75 for funeral expenses, her unearned income for three years at P45,000.00 per annum, and the further sum of P1,000,000.00 as moral damages and P200,000.00 as attorney’s fees[;]

‘c. to the heirs of LORNA ANCHETA, the sum of P50,000.00 as indemnity for her death, the sum of P22,838.00 as funeral expenses, the sum of

neither a notice of hearing nor notice to petitioner. Acting on the motion, nevertheless, the trial court issued an order, dated 29 May 1992, directing the issuance of a writ of subsidiary execution. The sheriff went to petitioner’s residence to enforce the writ, and it was then, allegedly for the first time, that petitioner was informed of Ouano’s conviction. Petitioner filed a motion to stay and to recall the subsidiary writ of execution principally anchored on the lack of prior notice to her and on the fact that the employer’s liability had yet to be established. Private respondents opposed the motion.

On 24 August 1992, the trial court denied petitioner’s motion. On 23 September 1992, petitioner’s plea for reconsideration of the denial was likewise rejected.

P20,544.94 as medical expenses and her loss of income for 30 years at P1,000.00 per month, and the further sum of P100,000.00 for moral damages;

‘d. to MAUREEN BRENNAN, the sum of P229,654.00 as hospital expenses, doctor’s fees of P170,000.00 for the orthopedic surgeon, P22,500.00 for the [n]eurologist, an additional indemnity [of] at least P150,000.00 to cover future correction of deformity of her limbs, and moral damages in the amount of P1,000,000.00;

‘e. to ROSIE BALAJO, the sum of P3,561.46 as medical expenses, P2,000.00 as loss of income, and P25,000.00 as moral damages;

‘f. to TERESITA TAMONDONG, the sum of P19,800.47 as medical expenses, P800.00 for loss of income, and P25,000.00 as moral damages;

‘g. to JULIANA TABTAB, the amount of P580.81 as medical expenses, P4,600.00 as actual damages and her loss earnings of P1,400.00 as well as moral damages in the amount of P10,000.00;

‘h. to MIGUEL ARQUITOLA, the sum of P12,473.82 as hospital expenses, P14,530.00 as doctor’s fees, P1,000.00 for medicines and P50,000.00 as moral damages;

‘i. to CLARITA CABANBAN, the sum of P155.00 for medical expenses, P87.00 for medicines, P1,710.00 as actual damages and P5,000.00 as moral damages;

‘j. to MARIANO CABANBAN, the sum of P1,395.00 for hospital bills, P500.00 for medicine, P2,100.00 as actual damages, P1,200.00 for loss of income and P5,000.00 as moral damages;

‘k. to La Union Electric Company as the registered owner of the Toyota Hi-Ace Van, the amount of P250,000.00 as actual damages for the cost of the totally wrecked vehicle; to the owner of the jeepney, the amount of P22,698.38 as actual damages;’

“The court further ruled that [petitioner], in the event of the insolvency of accused, shall be liable for the civil liabilities of the accused. Evidently, the judgment against accused had become final and executory.

“Admittedly, accused had jumped bail and remained at-large. It is worth mention[ing] that Section 8, Rule 124 of the Rules of Court authorizes the dismissal of

Petitioner promptly elevated the matter to the Court of Appeals (CA-GR SP No. 29116) for review. The appellate court initially restrained the implementation of the assailed orders and issued a writ of preliminary injunction upon the filing of a P10,000.00 bond. Ultimately, however, the appellate court, in its decision of 28 September 1993, dismissed the petition for lack of merit and thereby lifted the writ of preliminary injunction. The Court of Appeals ratiocinated:

“We are not unmindful of the ruling in the aforecited case of Lucia Pajarito vs. Seneris, supra. - that enforcement of the secondary or subsidiary liability of employer may be done by motion in the same criminal case, a recourse which presupposes a

appeal when appellant jumps bail. Counsel for accused, also admittedly hired and provided by [petitioner], filed a notice of appeal which was denied by the trial court. We affirmed the denial of the notice of appeal filed in behalf of accused.

“Simultaneously, on August 6, 1994, [petitioner] filed its notice of appeal from the judgment of the trial court. On April 29, 1997, the trial court gave due course to [petitioner’s] notice of appeal. On December 8, 1998, [petitioner] filed its brief. On December 9, 1998, the Office of the Solicitor General received [a] copy of [petitioner’s] brief. On January 8, 1999, the OSG moved to be excused from filing [respondents’] brief on the ground that the OSG’s authority to represent People is confined to criminal cases on appeal. The motion was however denied per Our resolution of May 31, 1999. On March 2, 1999, [respondent]/private prosecutor filed the instant motion to dismiss.”?

[6] (Citations omitted)

Ruling of the Court of Appeals

The CA ruled that the institution of a criminal case implied the institution also of the civil action arising from the offense. Thus, once determined in the criminal case against the accused-employee, the employer’s subsidiary civil liability as set forth in Article 103 of the Revised Penal Code becomes conclusive and enforceable.

The appellate court further held that to allow an employer to dispute independently the civil liability fixed in the criminal case against the accused-employee would be to amend, nullify or defeat a final judgment. Since the notice of appeal filed by the accused had already been dismissed by the CA, then the judgment of conviction and the award of civil liability became final and executory. Included in the civil liability of the accused was the employer’s subsidiary liability.

Hence, this Petition.?[7]

The Issues

Petitioner states the issues of this case as follows:

“A. Whether or not an employer, who dutifully participated in the defense of its accused-employee, may appeal the judgment of conviction independently of the

hearing. But even assuming that issuance of writ of subsidiary execution requires notice and hearing, we believe a hearing in the present case would be sheer rigmarole, an unnecessary formality, because, as employer, petitioner became subsidiarily liable upon the conviction of her accused driver, Elmer Ouano, and proof of the latter’s insolvency. And if she had any defense to free herself from such subsidiary liability, she could have ventilated and substantiated the same in connection with her (petitioner’s) motion to stay and recall the writ of subsidiary execution in question. But from her said motion, it can be gleaned that except for the protestation of violation of due process, and absence of notice to her of the motion for issuance of a writ of subsidiary execution, petitioner intimated no defense which could absolve her of

accused.

“B. Whether or not the doctrines of Alvarez v. Court of Appeals (158 SCRA 57) and Yusay v. Adil (164 SCRA 494) apply to the instant case.”?[8]

There is really only one issue. Item B above is merely an adjunct to Item A.

The Court’s Ruling

The Petition has no merit.

Main Issue:Propriety of Appeal by the Employer

Pointing out that it had seasonably filed a notice of appeal from the RTC Decision, petitioner contends that the judgment of conviction against the accused-employee has not attained finality. The former insists that its appeal stayed the finality, notwithstanding the fact that the latter had jumped bail. In effect, petitioner argues that its appeal takes the place of that of the accused-employee.

We are not persuaded.

Appeals in Criminal Cases

Section 1 of Rule 122 of the 2000 Revised Rules of Criminal Procedure states thus:

“Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy.”

Clearly, both the accused and the prosecution may appeal a criminal case, but the government may do so only if the accused would not thereby be placed in double jeopardy.?[9] Furthermore, the prosecution cannot appeal on the ground that the accused should have been given a more severe penalty.?[10] On the other hand, the offended parties may also appeal the judgment with respect to their right to civil liability. If the

subsidiary liability under the premises. Then, too, after the denial of her motion to stay and recall subject writ, petitioner moved for reconsideration but in her motion for reconsideration, she averred no exculpatory facts which could save her from subsidiary liability, as employer of the convicted Elmer Ouano.”iv[4]

In the instant appeal, petitioner additionally reminds the Court that Ouano’s conviction was not the result of a finding of proof beyond reasonable doubt but from his spontaneous plea of guilt.

We find merit in the petition.

The statutory basis for an employer’s subsidiary liability is found in Article 103 of the

accused has the right to appeal the judgment of conviction, the offended parties should have the same right to appeal as much of the judgment as is prejudicial to them.?[11]

Appeal by the AccusedWho Jumps Bail

Well-established in our jurisdiction is the principle that the appellate court may, upon motion or motu proprio, dismiss an appeal during its pendency if the accused jumps bail. The second paragraph of Section 8 of Rule 124 of the 2000 Revised Rules of Criminal Procedure provides:

“The Court of Appeals may also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a foreign country during the pendency of the appeal.”?[12]

This rule is based on the rationale that appellants lose their standing in court when they abscond. Unless they surrender or submit to the court’s jurisdiction, they are deemed to have waived their right to seek judicial relief.?[13]

Moreover, this doctrine applies not only to the accused who jumps bail during the appeal, but also to one who does so during the trial. Justice Florenz D. Regalado succinctly explains the principle in this wise:

“x x x. When, as in this case, the accused escaped after his arraignment and during the trial, but the trial in absentia proceeded resulting in the promulgation of a judgment against him and his counsel appealed, since he nonetheless remained at large his appeal must be dismissed by analogy with the aforesaid provision of this Rule [Rule 124, §8 of the Rules on Criminal Procedure]. x x x”?[14]

The accused cannot be accorded the right to appeal unless they voluntarily submit to the jurisdiction of the court or are otherwise arrested within 15 days from notice of the judgment against them.?[15] While at large, they cannot seek relief from the court, as they are deemed to have waived the appeal.?[16]

Finality of a Decisionin a Criminal Case

Revised Penal Code.v[5] This Court has since sanctioned the enforcement of this subsidiary liability in the same criminal proceedings in which the employee is adjudged guilty,vi[6] on the thesis that it really is a part of, and merely an incident in, the execution process of the judgment. But, execution against the employer must not issue as just a matter of course, and it behooves the court, as a measure of due process to the employer, to determine and resolve a priori, in a hearing set for the purpose, the legal applicability and propriety of the employer’s liability. The requirement is mandatory even when it appears prima facie that execution against the convicted employee cannot be satisfied. The court must convince itself that the convicted employee is in truth in the

As to when a judgment of conviction attains finality is explained in Section 7 of Rule 120 of the 2000 Rules of Criminal Procedure, which we quote:

“A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation.”

In the case before us, the accused-employee has escaped and refused to surrender to the proper authorities; thus, he is deemed to have abandoned his appeal. Consequently, the judgment against him has become final and executory.?[17]

Liability of an Employerin a Finding of Guilt

Article 102 of the Revised Penal Code states the subsidiary civil liabilities of innkeepers, as follows:

“In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees.

“Innkeepers are also subsidiary liable for restitution of goods taken by robbery or theft within their houses from guests lodging therein, or for payment of the value thereof, provided that such guests shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have followed the directions which such innkeeper or his representative may have given them with respect to the care and vigilance over such goods. No liability shall attach in case of robbery with violence against or intimidation of persons unless committed by the innkeeper’s employees.”

Moreover, the foregoing subsidiary liability applies to employers, according to Article 103 which reads:

“The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for

employ of the employer; that the latter is engaged in an industry of some kind; that the employee has committed the crime to which civil liability attaches while in the performance of his duties as such; and that execution against the employee is unsuccessful by reason of insolvency.vii[7]

The assumption that, since petitioner in this case did not aver any exculpatory facts in her “motion to stay and recall,” as well as in her motion for reconsideration, which could save her from liability, a hearing would be a futile and a sheer rigmarole is unacceptable. The employer must be given his full day in court.

felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties.”

Having laid all these basic rules and principles, we now address the main issue raised by petitioner.

Civil Liability Deemed Institutedin the Criminal Prosecution

At the outset, we must explain that the 2000 Rules of Criminal Procedure has clarified what civil actions are deemed instituted in a criminal prosecution.

Section 1 of Rule 111 of the current Rules of Criminal Procedure provides:

“When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.

“x x x x x x x x x”

Only the civil liability of the accused arising from the crime charged is deemed impliedly instituted in a criminal action, that is, unless the offended party waives the civil action, reserves the right to institute it separately, or institutes it prior to the criminal action.?[18] Hence, the subsidiary civil liability of the employer under Article 103 of the Revised Penal Code may be enforced by execution on the basis of the judgment of conviction meted out to the employee.?[19]

It is clear that the 2000 Rules deleted the requirement of reserving independent civil actions and allowed these to proceed separately from criminal actions. Thus, the civil actions referred to in Articles 32,?[20] 33,?[21]34?[22] and 2176?[23] of the Civil Code shall remain “separate, distinct and independent” of any criminal prosecution based on the same act. Here are some direct consequences of such revision and omission:

1. The right to bring the foregoing actions based on the Civil Code need not be reserved in the criminal prosecution, since they are not deemed included therein.

2. The institution or the waiver of the right to file a separate civil action arising from the crime charged does not extinguish the right to bring such action.

To repeat, the subsidiary liability of an employer under Article 103 of the Revised Penal Code requires (a) the existence of an employer-employee relationship; (b) that the employer is engaged in some kind of industry; (c) that the employee is adjudged guilty of the wrongful act and found to have committed the offense in the discharge of his duties (not necessarily any offense he commits “while” in the discharge of such duties); and (d) that said employee is insolvent. The judgment of conviction of the employee, of course, concludes the employerviii[8] and the subsidiary liability may be enforced in the same criminal case, but to afford the employer due process, the court should hear and decide that liability on the basis of the conditions required therefor by law.ix[9]

3. The only limitation is that the offended party cannot recover more than once for the same act or omission.?[24]

What is deemed instituted in every criminal prosecution is the civil liability arising from the crime or delict per se (civil liability ex delicto), but not those liabilities arising from quasi-delicts, contracts or quasi-contracts. In fact, even if a civil action is filed separately, the ex delicto civil liability in the criminal prosecution remains, and the offended party may -- subject to the control of the prosecutor -- still intervene in the criminal action, in order to protect the remaining civil interest therein.?[25]

This discussion is completely in accord with the Revised Penal Code, which states that “[e]very person criminally liable for a felony is also civilly liable.”?[26]

Petitioner argues that, as an employer, it is considered a party to the criminal case and is conclusively bound by the outcome thereof. Consequently, petitioner must be accorded the right to pursue the case to its logical conclusion -- including the appeal.

The argument has no merit. Undisputedly, petitioner is not a direct party to the criminal case, which was filed solely against Napoleon M. Roman, its employee.

In its Memorandum, petitioner cited a comprehensive list of cases dealing with the subsidiary liability of employers. Thereafter, it noted that none can be applied to it, because “in all th[o]se cases, the accused’s employer did not interpose an appeal.”?[27]

Indeed, petitioner cannot cite any single case in which the employer appealed, precisely because an appeal in such circumstances is not possible.

The cases dealing with the subsidiary liability of employers uniformly declare that, strictly speaking, they are not parties to the criminal cases instituted against their employees.?[28] Although in substance and in effect, they have an interest therein, this fact should be viewed in the light of their subsidiary liability. While they may assist their employees to the extent of supplying the latter’s lawyers, as in the present case, the former cannot act independently on their own behalf, but can only defend the accused.

Waiver of Constitutional Safeguard Against Double Jeopardy

Petitioner’s appeal obviously aims to have the accused-employee absolved of his

WHEREFORE, finding the order, dated 29 May 1992, as well as the order of 24 August 1992 to have been improvidently issued, said orders are hereby SET ASIDE. Petitioner shall be given the right to a hearing on the motion for the issuance of a writ of subsidiary execution filed by private respondents, and the case is REMANDED to the trial court for further proceedings conformably with our foregoing opinion. No costs.

Padilla, Bellosillo, Kapunan, and Hermosisima, Jr., JJ., concur.

criminal responsibility and the judgment reviewed as a whole. These intentions are apparent from its Appellant’s Brief?[29] filed with the CA and from its Petition?[30] before us, both of which claim that the trial court’s finding of guilt “is not supported by competent evidence.”?[31]

An appeal from the sentence of the trial court implies a waiver of the constitutional safeguard against double jeopardy and throws the whole case open to a review by the appellate court. The latter is then called upon to render judgment as law and justice dictate, whether favorable or unfavorable to the appellant.?[32] This is the risk involved when the accused decides to appeal a sentence of conviction.?[33] Indeed, appellate courts have the power to reverse, affirm or modify the judgment of the lower court and to increase or reduce the penalty it imposed.?[34]

If the present appeal is given course, the whole case against the accused-employee becomes open to review. It thus follows that a penalty higher than that which has already been imposed by the trial court may be meted out to him. Petitioner’s appeal would thus violate his right against double jeopardy, since the judgment against him could become subject to modification without his consent.

We are not in a position to second-guess the reason why the accused effectively waived his right to appeal by jumping bail. It is clear, though, that petitioner may not appeal without violating his right against double jeopardy.

Effect of Abscondingon the Appeal Process

Moreover, within the meaning of the principles governing the prevailing criminal procedure, the accused impliedly withdrew his appeal by jumping bail and thereby made the judgment of the court below final.?[35] Having been a fugitive from justice for a long period of time, he is deemed to have waived his right to appeal. Thus, his conviction is now final and executory. The Court in People v. Ang Gioc?[36] ruled:

“There are certain fundamental rights which cannot be waived even by the accused himself, but the right of appeal is not one of them. This right is granted solely for the benefit of the accused. He may avail of it or not, as he pleases. He may waive it either expressly or by implication. When the accused flees after the case has been submitted to the court for decision, he will be deemed to have waived his right to

appeal from the judgment rendered against him. x x x.”?[37]

By fleeing, the herein accused exhibited contempt of the authority of the court and placed himself in a position to speculate on his chances for a reversal. In the process, he kept himself out of the reach of justice, but hoped to render the judgment nugatory at his option.?[38] Such conduct is intolerable and does not invite leniency on the part of the appellate court.?[39]

Consequently, the judgment against an appellant who escapes and who refuses to surrender to the proper authorities becomes final and executory.?[40]

Thus far, we have clarified that petitioner has no right to appeal the criminal case against the accused-employee; that by jumping bail, he has waived his right to appeal; and that the judgment in the criminal case against him is now final.

Subsidiary LiabilityUpon Finality of Judgment

As a matter of law, the subsidiary liability of petitioner now accrues. Petitioner argues that the rulings of this Court in Miranda v. Malate Garage & Taxicab, Inc.,?[41]

Alvarez v. CA?[42] and Yusay v. Adil?[43] do not apply to the present case, because it has followed the Court’s directive to the employers in these cases to take part in the criminal cases against their employees. By participating in the defense of its employee, herein petitioner tries to shield itself from the undisputed rulings laid down in these leading cases.

Such posturing is untenable. In dissecting these cases on subsidiary liability, petitioner lost track of the most basic tenet they have laid down -- that an employer’s liability in a finding of guilt against its accused-employee is subsidiary.

Under Article 103 of the Revised Penal Code, employers are subsidiarily liable for the adjudicated civil liabilities of their employees in the event of the latter’s insolvency.?[44]

The provisions of the Revised Penal Code on subsidiary liability -- Articles 102 and 103 -- are deemed written into the judgments in the cases to which they are applicable. ?[45]

Thus, in the dispositive portion of its decision, the trial court need not expressly pronounce the subsidiary liability of the employer.

In the absence of any collusion between the accused-employee and the offended party, the judgment of conviction should bind the person who is subsidiarily liable.?[46] In effect and implication, the stigma of a criminal conviction surpasses mere civil liability.?[47]

To allow employers to dispute the civil liability fixed in a criminal case would enable them to amend, nullify or defeat a final judgment rendered by a competent court.?[48] By the same token, to allow them to appeal the final criminal conviction of their employees without the latter’s consent would also result in improperly amending, nullifying or defeating the judgment.

The decision convicting an employee in a criminal case is binding and conclusive upon the employer not only with regard to the former’s civil liability, but also with regard to its amount. The liability of an employer cannot be separated from that of the employee.?[49]

Before the employers’ subsidiary liability is exacted, however, there must be adequate evidence establishing that (1) they are indeed the employers of the convicted employees; (2) that the former are engaged in some kind of industry; (3) that the crime was committed by the employees in the discharge of their duties; and (4) that the execution against the latter has not been satisfied due to insolvency.?[50]

The resolution of these issues need not be done in a separate civil action. But the determination must be based on the evidence that the offended party and the employer may fully and freely present. Such determination may be done in the same criminal action in which the employee’s liability, criminal and civil, has been pronounced;?[51] and in a hearing set for that precise purpose, with due notice to the employer, as part of the proceedings for the execution of the judgment.

Just because the present petitioner participated in the defense of its accused-employee does not mean that its liability has transformed its nature; its liability remains subsidiary. Neither will its participation erase its subsidiary liability. The fact remains that since the accused-employee’s conviction has attained finality, then the subsidiary liability of the employer ipso facto attaches.

According to the argument of petitioner, fairness dictates that while the finality of conviction could be the proper sanction to be imposed upon the accused for jumping bail, the same sanction should not affect it. In effect, petitioner-employer splits this case into two: first, for itself; and second, for its accused-employee.

The untenability of this argument is clearly evident. There is only one criminal case against the accused-employee. A finding of guilt has both criminal and civil aspects. It is the height of absurdity for this single case to be final as to the accused who jumped bail, but not as to an entity whose liability is dependent upon the conviction of the former.

The subsidiary liability of petitioner is incidental to and dependent on the pecuniary civil liability of the accused-employee. Since the civil liability of the latter has become final and enforceable by reason of his flight, then the former’s subsidiary civil liability has also become immediately enforceable. Respondent is correct in arguing that the concept of subsidiary liability is highly contingent on the imposition of the primary civil liability.

No Deprivationof Due Process

As to the argument that petitioner was deprived of due process, we reiterate that what is sought to be enforced is the subsidiary civil liability incident to and dependent upon the employee’s criminal negligence. In other words, the employer becomes ipso facto subsidiarily liable upon the conviction of the employee and upon proof of the latter’s insolvency, in the same way that acquittal wipes out not only his primary civil liability, but also his employer’s subsidiary liability for his criminal negligence.?[52]

It should be stressed that the right to appeal is neither a natural right nor a part of due process.?[53] It is merely a procedural remedy of statutory origin, a remedy that may be exercised only in the manner prescribed by the provisions of law authorizing such exercise.?[54] Hence, the legal requirements must be strictly complied with.?[55]

It would be incorrect to consider the requirements of the rules on appeal as merely harmless and trivial technicalities that can be discarded.?[56] Indeed, deviations from the rules cannot be tolerated.?[57] In these times when court dockets are clogged with numerous litigations, such rules have to be followed by parties with greater fidelity, so as to facilitate the orderly disposition of those cases.?[58]

After a judgment has become final, vested rights are acquired by the winning party. If the proper losing party has the right to file an appeal within the prescribed period, then

the former has the correlative right to enjoy the finality of the resolution of the case.?[59]

In fact, petitioner admits that by helping the accused-employee, it participated in the proceedings before the RTC; thus, it cannot be said that the employer was deprived of due process. It might have lost its right to appeal, but it was not denied its day in court.?

[60] In fact, it can be said that by jumping bail, the accused-employee, not the court, deprived petitioner of the right to appeal.

All told, what is left to be done is to execute the RTC Decision against the accused. It should be clear that only after proof of his insolvency may the subsidiary liability of petitioner be enforced. It has been sufficiently proven that there exists an employer-employee relationship; that the employer is engaged in some kind of industry; and that the employee has been adjudged guilty of the wrongful act and found to have committed the offense in the discharge of his duties. The proof is clear from the admissions of petitioner that “[o]n 26 August 1990, while on its regular trip from Laoag to Manila, a passenger bus owned by petitioner, being then operated by petitioner’s driver, Napoleon Roman, figured in an accident in San Juan, La Union x x x.”?[61] Neither does petitioner dispute that there was already a finding of guilt against the accused while he was in the discharge of his duties.

WHEREFORE, the Petition is hereby DENIED, and the assailed Resolutions AFFIRMED. Costs against petitioner.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

[G.R. No. 122445. November 18, 1997]

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

D E C I S I O N

FRANCISCO, J.:

"Doctors are protected by a special law. They are not guarantors of care. They do not even warrant a good result. They are not insurers against mishap or unusual consequences. Furthermore they are not liable for honest mistake of judgment…"?[1]

The present case against petitioner is in the nature of a medical malpractice suit, which in simplest term 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 cause bodily harm.?[2] In this jurisdiction, however, such claims are most often brought as a civil action for damages under Article 2176 of the Civil Code,?[3] and in some instances, as a criminal case under Article 365 of the Revised Penal Code?[4] with which the civil action for damages is impliedly instituted. It is via the latter type of action that the heirs of the deceased sought redress for the petitioner's alleged imprudence and negligence in treating the deceased thereby causing her death. 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" in an information which reads:

"That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused abovenamed, being then the attending anaesthesiologist and surgeon, respectively, did then and there, in a negligence (sic), careless, imprudent, and incompetent manner, and failing to supply or store sufficient provisions and facilities necessary to meet any and all exigencies apt to arise before, during and/or after a surgical operation causing by such negligence, carelessness, imprudence, and incompetence, and causing by such failure, including the lack of preparation and foresight needed to avert a tragedy, the untimely death of said Lydia Umali on the day following said surgical operation."?[5]

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, the dispositive portion of which is hereunder quoted as follows:

"WHEREFORE, the court finds the accused Dr. 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, and she is hereby sentenced to suffer the penalty of 2 months and 1 day imprisonment of arresto mayor with costs."?[6]

The petitioner appealed her conviction to the Regional Trial Court (RTC) which affirmed in toto the decision of the MTCC?[7] prompting the petitioner to file a petition for review with the Court of Appeals but to no avail. Hence this petition for review on certiorari assailing the decision promulgated by the Court of Appeals on October 24, 1995 affirming petitioner's conviction with modification that she is further directed to pay the heirs of Lydia Umali P50,000.00 as indemnity for her death.?[8]

In substance, the petition brought before this Court raises the issue of whether or not petitioner's conviction of the crime of reckless imprudence resulting in homicide, arising from an alleged medical malpractice, is supported by the evidence on record.

First the antecedent facts.

On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her mother to the Perpetual Help Clinic and General Hospital situated in Balagtas Street, San Pablo City, Laguna. They arrived at the said hospital at around 4:30 in the afternoon of the same day.?[9] Prior to March 22, 1991, Lydia was examined by the petitioner who found a "myoma"?[10] in her uterus, and scheduled her for a hysterectomy operation on March 23, 1991.?[11] Rowena and her mother slept in the clinic on the evening of March 22, 1991 as the latter was to be operated on the next day at 1:00 o'clock in the afternoon.?[12] According to Rowena, she noticed that the clinic was untidy and the window and the floor were very dusty prompting her to ask the attendant for a rag to wipe the window and the floor with.?[13] Because of the untidy state of the clinic, Rowena tried to persuade her mother not to proceed with the operation.?[14] The following day, before her mother was wheeled into the operating room, Rowena asked the petitioner if the operation could be postponed. The petitioner called Lydia into her office and the two had a conversation. Lydia then informed Rowena that the petitioner told her that she must be operated on as scheduled.?[15]

Rowena and her other relatives, namely her husband, her sister and two aunts 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. They bought

type "A" blood from the St. Gerald Blood Bank and the same was brought by the attendant into the operating room. After the lapse of a few hours, the petitioner informed them that the operation was finished. The operating staff then went inside the petitioner's clinic to take their snacks. 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. ?[16] 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.?[17] The transfer to the San Pablo City District Hospital was without the prior consent of Rowena nor of the other relatives present who found out about the intended transfer only when an ambulance arrived to take Lydia to the San Pablo District Hospital. Rowena and her other relatives then boarded a tricycle and followed the ambulance.?[18]

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.?[19] The attending physicians summoned Dr. Bartolome Angeles, head of the Obstetrics and Gynecology Department of the San Pablo District Hospital. However, when Dr. Angeles arrived, Lydia was already in shock and possibly dead as her blood pressure was already 0/0. Dr. Angeles then informed petitioner and Dr. Ercillo that there was nothing he could do to help save the patient.?[20]

While petitioner was closing the abdominal wall, the patient died.?[21] Thus, on March 24, 1991, at 3:00 o'clock in the morning, 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.?[22]

In convicting the petitioner, the MTCC found the following circumstances as sufficient basis to conclude that she was indeed negligent in the performance of the operation:

"x x x, the clinic was untidy, there was lack of provision like blood and oxygen to prepare for any contingency that might happen during the operation. The manner and

the fact that the patient was brought to the San Pablo District Hospital for reoperation indicates that there was something wrong in the manner in which Dra. Cruz conducted the operation. There was no showing that before the operation, accused Dr. Cruz had conducted a cardio pulmonary clearance or any typing of the blood of the patient. It was (sic) said in medical parlance that the "abdomen of the person is a temple of surprises" because you do not know the whole thing the moment it was open (sic) and surgeon must be prepared for any eventuality thereof. The patient (sic) chart which is a public document was not presented because it is only there that we could determine the condition of the patient before the surgery. The court also noticed in Exh. "F-1" that the sister of the deceased wished to postpone the operation but the patient was prevailed upon by Dra. Cruz to proceed with the surgery. The court finds that Lydia Umali died because of the negligence and carelessness of the surgeon Dra. Ninevetch Cruz because of loss of blood during the operation of the deceased for evident unpreparedness and for lack of skill, the reason why the patient was brought for operation at the San Pablo City District Hospital. As such, the surgeon should answer for such negligence. With respect to Dra. Lina Ercillo, the anaesthesiologist, there is no evidence to indicate that she should be held jointly liable with Dra. Cruz who actually did the operation."?[23]

The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's declaration of "incompetency, negligence and lack of foresight and skill of appellant (herein petitioner) in handling the subject patient before and after the operation."?[24] And likewise affirming the petitioner's conviction, the Court of Appeals echoed similar observations, thus:

"x x x. While we may grant that the untidiness and filthiness of the clinic may not by itself indicate negligence, it nevertheless shows the absence of due care and supervision over her subordinate employees. Did this unsanitary condition permeate the operating room? Were the surgical instruments properly sterilized? Could the conditions in the OR have contributed to the infection of the patient? Only the petitioner could answer these, but she opted not to testify. This could only give rise to the presumption that she has nothing good to testify on her defense. Anyway, the alleged "unverified statement of the prosecution witness" remains unchallenged and unrebutted.

Likewise undisputed is the prosecution's version indicating the following facts: that the accused asked the patient's relatives to buy Tagamet capsules while the operation was already in progress; that after an hour, they were also asked to buy type "A" blood for the patient; that after the surgery, they were again asked to procure more type "A" blood, but such was not anymore available from the source; that the oxygen given to

the patient was empty; and that the son-in-law of the patient, together with a driver of the petitioner, had to rush to the San Pablo City District Hospital to get the much-needed oxygen. All these conclusively show that the petitioner had not prepared for any unforeseen circumstances before going into the first surgery, which was not emergency in nature, but was elective or pre-scheduled; she had no ready antibiotics, no prepared blood, properly typed and cross-matched, and no sufficient oxygen supply.

Moreover, there are a lot of questions that keep nagging Us. Was the patient given any cardio-pulmonary clearance, or at least a clearance by an internist, which are standard requirements before a patient is subjected to surgery. Did the petitioner determine as part of the pre-operative evaluation, the bleeding parameters of the patient, such as bleeding time and clotting time? There is no showing that these were done. The petitioner just appears to have been in a hurry to perform the operation, even as the family wanted the postponement to April 6, 1991. Obviously, she did not prepare the patient; neither did she get the family's consent to the operation. Moreover, she did not prepare a medical chart with instructions for the patient's care. If she did all these, proof thereof should have been offered. But there is none. Indeed, these are overwhelming evidence of recklessness and imprudence."?[25]

This court, however, holds differently and 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.

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.?[26] In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al.,?[27] this Court stated that in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the

same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physician's conduct in the treatment and care falls below such standard.?[28] Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.?[29]

Immediately apparent from a review of the records of this case is the absence of any expert testimony on the matter of the standard of care employed by other physicians of good standing in the conduct of similar operations. 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.

All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of provisions such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardio-pulmonary test prior to the operation; the omission of any form of blood typing before transfusion; and even the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner. But while it may be true that the circumstances pointed out by the courts below seemed beyond cavil to constitute reckless imprudence on the part of the surgeon, this conclusion is still best arrived at not through the educated surmises nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert witnesses. For whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion.?[30] The deference of courts to the expert opinion of qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating.?[31] 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.?[32] This presumption is rebuttable by expert opinion which is so sadly lacking in the case at bench.

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.

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 casual connection of such breach and the resulting death of his patient.?[33] In Chan Lugay v. St Luke's Hospital, Inc.,?[34] where the attending physician was absolved of liability for the death of the complainant's wife and newborn baby, this court held that:

"In order that there may be a recovery for an injury, however, it must be shown that the 'injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes.' In other words, the negligence must be the proximate cause of the injury. For, 'negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of.' And 'the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.'''?[35]

(Underscoring supplied.)

Dr. Arizala who conducted an autopsy on the body of the deceased summarized his findings as follows:

"Atty. Cachero:

Q. You mentioned about your Autopsy Report which has been marked as Exh. "A-1-b". There appears here a signature above the typewritten name Floresto Arizala, Jr., whose signature is that?

A. That is my signature, sir.

Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?

A. Only as to the autopsy report no. 91-09, the time and place and everything after the post mortem findings, sir.

Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm., infraumbilical area, anterior abdominal area, midline, will you please explain that in your own language?

A. There was incision wound (sic) the area just below the navel, sir.

Q. And the last paragraph of the postmortem findings which I read: Uterus, pear-shaped and pale measuring 7.5 x 5.5 x 5.0 cm, with some surface nodulation of the fundic area posteriorly. Cut-section shows diffusely pale myometrium with areas of streak induration. The ovaries and adnexal structures are missing with the raw surfaces patched with clotted blood. Surgical sutures were noted on the operative site.

Intestines and mesenteries are pale with blood clots noted between the mesentric folds.

Hemoperitonium: 300 s.s.,

right paracolic gutter,

50 c.c., left paracolic gutter

200 c.c., mesentric area,

100 c.c., right pelvic gutter

stomach empty.

Other visceral organs, pale.',

will you please explain that on (sic) your own language or in ordinary……………

A. There was a uterus which was not attached to the adnexal structures namely ovaries which were not present and also sign of previous surgical operation and there were (sic) clotted blood, sir.

Q. How about the ovaries and adnexal structures?

A. They are missing, sir.

Q. You mean to say there are no ovaries?

A. During that time there are no ovaries, sir.

Q. And there were likewise sign of surgical sutures?

A. Yes, sir.

Q. How about the intestines and mesenteries are place (sic) with blood clots noted between the mesenteric folds, will you please explain on (sic) this?

A. In the peritoneal cavity, they are mostly perritonial blood……….

Q. And what could have caused this blood?

A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic) outside as a result of the injuries which destroyed the integrity of the vessel allowing blood to sip (sic) out, sir.

Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can you tell the court the cause of death?

A. Yes, sir. The cause of death is: Gross findings are compatible with hemorrhagic shock.

Q. Can you tell the us what could have caused this hemorrhagic shock?

A. Well hemorrhagic shock is the result of blood loss.

Q. What could have the effect of that loss of blood?

A. Unattended hemorrhage, sir. ?[36] (Underscoring supplied.)

The foregoing was corroborated by Dr. Nieto Salvador:

"Q. And were you able to determine the cause of death by virtue of the examination of the specimen submitted by Dr. Arizala?

A. Without knowledge of the autopsy findings it would be difficult for me to determine the cause of death, sir.

Q. Have you examined the post mortem of Dr. Arizala?

A. Yes, sir, and by virtue of the autopsy report in connection with your pathology report.

Q. What could have caused the death of the victim?

A. This pathologic examination are (sic) compatible with the person who died, sir.

Q. Will you explain to us the meaning of hemorrhagic compatible?

A. It means that a person died of blood loss. Meaning a person died of non-replacement of blood and so the victim before she died there was shock of diminish of blood of the circulation. She died most probably before the actual

complete blood loss, sir.

Court: Is it possible doctor that the loss of the blood was due on (sic) operation?

A. Based on my pathology findings, sir.

Q. What could have caused this loss of blood?

A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel may be cut while on operation and this cause (sic) bleeding, or may be set in the course of the operation, or may be (sic) he died after the operation. Of course there are other cause (sic).

Atty. Cachero:

Q. Especially so doctor when there was no blood replacement?

A. Yes, sir."?[37] (Underscoring supplied.)

The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause of death. However, as likewise testified to by the expert witnesses in open court, hemorrhage or hemorrhagic shock during surgery may be caused by several different factors. Thus, Dr. Salvador's elaboration on the matter:

"Atty. Pascual:

Q. Doctor, among the causes of hemorrhage that you mentioned you said that it could be at the moment of operation when one losses (sic) control of the presence, is that correct? During the operation there is lost (sic) of control of the cut vessel?

A. Yes, sir.

Q. Or there is a failure to ligate a vessel of considerable size?

A. Yes, sir.

Q. Or even if the vessel were ligated the knot may have slipped later on?

A. Yes, sir.

Q. And you also mentioned that it may be possible also to some clotting defect, is that correct?

A. May be (sic)."?[38] (Underscoring supplied).

Defense witness, Dr. Bu C. Castro also gave the following expert opinion:

"Q. Doctor even a patient after an operations (sic) would suffer hemorrage what would be the possible causes of such hemorrage (sic)?

A. Among those would be what we call Intravascular Coagulation and this is the reason for the bleeding, sir, which cannot be prevented by anyone, it will happen to anyone, anytime and to any persons (sic), sir.

COURT:

What do you think of the cause of the bleeding, the cutting or the operations done in the body?

A. Not related to this one, the bleeding here is not related to any cutting or operation that I (sic) have done.

Q. Aside from the DIC what could another causes (sic) that could be the cause for the hemorrhage or bleeding in a patient by an operations (sic)?

A. In general sir, if there was an operations (sic) and it is possible that the ligature in the suture was (sic) become (sic) loose, it is (sic) becomes loose if proven.

x x x x x x x x x

Q. If the person who performed an autopsy does not find any untight (sic) clot (sic) blood vessel or any suture that become (sic) loose the cause of the bleeding could not be attributed to the fault of the subject?

A. Definitely, sir."?[39] (Underscoring supplied.)

According to both doctors, the possible causes of hemorrhage during an operation are: (1) the failure of the surgeon to tie or suture a cut blood vessel; (2) allowing a cut blood vessel to get out of control; (3) the subsequent loosening of the tie or suture applied to a cut blood vessel; and (4) and a clotting defect known as DIC. 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.?[40] Hence the following pertinent portion of Dr. Arizala's testimony:

"Q: Doctor, in examining these structures did you know whether these were sutured ligature or plain ligature

A: Ligature, sir.

Q: We will explain that later on. Did you recall if the cut structures were tied by first

suturing it and then tying a knot or the tie was merely placed around the cut structure and tied?

A: I cannot recall, sir.

Q: As a matter of fact, you cannot recall because you did not even bothered (sic) to examine, is that correct?

A: Well, I bothered enough to know that they were sutured, sir.

Q: So, therefore, Doctor, you would not know whether any of the cut structures were not sutured or tied neither were you able to determine whether any loose suture was found in the peritoneal cavity?

A: I could not recall any loose sutured (sic), sir."?[41]

On the other hand, the findings of all three doctors do not preclude the probability that DIC caused the hemorrhage and consequently, Lydia's death. DIC which is a clotting defect creates a serious bleeding tendency and when massive DIC occurs as a complication of surgery leaving raw surface, major hemorrhage occurs.?[42] And as testified to by defense witness, Dr. Bu C. Castro, hemorrhage due to DIC "cannot be prevented, it will happen to anyone, anytime."?[43] He testified further:

"Q. Now, under the circumstance one of the possibility as you mentioned in (sic) DIC?

A. Yes, sir.

Q. And you mentioned that it cannot be prevented?

A. Yes, sir.

Q. Can you even predict if it really happen (sic)?

A. Possible, sir.

Q. Are there any specific findings of autopsy that will tell you whether this patient suffered among such things as DIC?

A. Well, I did reserve because of the condition of the patient.

Q. Now, Doctor you said that you went through the record of the deceased Lydia Umali looking for the chart, the operated (sic) records, the post mortem findings on the histophanic (sic) examination based on your examination of record, doctor, can you more or less says (sic) what part are (sic) concerned could have been the caused (sic) of death of this Lydia Umali?

A. As far as the medical record is concern (sic) the caused (sic) of death is dessimulated (sic) Intra Vascular Coagulation or the DIC which resulted to hemorrhage or bleedings, sir.

Q. Doctor based on your findings then there is knowing (sic) the doctor would say whether the doctor her (sic) has been (sic) fault?

ATTY. MALVEDA:

We will moved (sic) to strike out the (sic) based on finding they just read the chart as well as the other record.

ATTY. PASCUAL:

Precisely based on this examination.

ATTY. MALVEDA:

Not finding, there was no finding made.

COURT:

He is only reading the record.

ATTY. PASCUAL:

Yes, sir.

A. No, sir, there is no fault on the part of the surgeon, sir ." ?[44]

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. While we condole with the family of Lydia Umali, our hands are bound by the dictates of justice and fair dealing which hold inviolable the right of an accused to be presumed innocent until proven guilty beyond reasonable doubt. Nevertheless, 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.?[45]

The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of evidence this Court was not able to render a sentence of conviction but it is not blind to the reckless and imprudent manner in which the petitioner carried out her duties. A precious life has been lost and the circumstances leading thereto exacerbated the grief of those left behind. The heirs of the deceased continue to feel the loss of their mother up to the present time?[46] and this Court is aware that no amount of compassion and commiseration nor words of bereavement can suffice to assuage the sorrow felt for the loss of a loved one. Certainly, the award of moral and exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case.

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.

Let the copy of this decision be furnished to the Professional Regulation Commission (PRC) for appropriate action.

SO ORDERED.

Romero, Melo, and Panganiban, JJ., concur.Narvasa, C.J., (Chairman), on leave.

[G.R. No. 104392. February 20, 1996]

RUBEN MANIAGO, petitioner, vs. THE COURT OF APPEALS (First Division), HON. RUBEN C. AYSON, in his capacity as Acting Presiding Judge, Regional Trial Court, Branch IV, Baguio City, and ALFREDO BOADO, respondents.

D E C I S I O N

MENDOZA, J.:

Petitioner Ruben Maniago was the owner of shuttle buses which were used in transporting employees of the Texas Instruments, (Phils.), Inc. from Baguio City proper to its plant site at the Export Processing Authority in Loakan, Baguio City.

On January 7, 1990, one of his buses figured in a vehicular accident with a passenger jeepney owned by private respondent Alfredo Boado along Loakan Road, Baguio City. As a result of the accident, a criminal case for reckless imprudence resulting in damage to property and multiple physical injuries was filed on March 2, 1990 against petitioner’s driver, Herminio Andaya, with the Regional Trial Court of Baguio City, Branch III, where it was docketed as Criminal Case No. 7514-R. A month later, on April 19, 1990, a civil case for damages was filed by private respondent Boado against petitioner himself The complaint, docketed as Civil Case No. 2050-R, was assigned to Branch IV of the same court.

Petitioner moved for the suspension of the proceedings in the civil case against him, citing the pendency of the criminal case against his driver. But the trial court, in its order dated August 30, 1991, denied petitioner’s motion on the ground that pursuant to the Civil Code, the action could proceed independently of the criminal action, in addition to the fact that the petitioner was not the accused in the criminal case.

Petitioner took the matter on certiorari and prohibition to the Court of Appeals, maintaining that the civil action could not proceed independently of the criminal case because no reservation of the right to bring it separately had been made in the criminal case.

On January 31, 1992, the Court of Appeals dismissed his petition on the authority of Garcia v. Florido,1 and Abellana v. Marave,2 which it held allowed a civil action for damages to be filed independently of the criminal action even though no reservation to file the same has been made. Therefore, it was held, the trial court correctly denied petitioner’s motion to suspend the proceedings in the civil case.3

Hence this petition for review on certiorari. There is no dispute that private respondent, as offended party in the criminal case, did not reserve the right to bring a separate civil action, based on the same accident, either against the driver, Herminio Andaya, or against the latter’s employer, herein petitioner Ruben Maniago. The question is whether despite the absence of such reservation, private respondent may nonetheless bring an action for damages against petitioner under the following provisions of the Civil Code:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

Art. 2177 states that responsibility for fault or negligence under the above-quoted provisions is entirely separate and distinct from the civil liability arising from negligence under the Revised Penal Code.

However, Rule 111 of the Revised Rules of Criminal Procedure, while reiterating that a civil action under these provisions of the Civil Code may be brought separately from the criminal action, provides that the right to bring it must be reserved. This Rule reads:

Section 1. Institution of criminal and civil actions. - When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.

xxx xxx xxx

The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

xxx xxx xxx

Sec. 3. When civil action may proceed independently. - In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action which has been reserved may be brought by the offended party, shall proceed

independently of the criminal action, and shall require only a preponderance of evidence.

Based on these provisions, petitioner argues that the civil action against him was impliedly instituted in the criminal action previously filed against his employee because private respondent did not reserve his right to bring this action separately. (The records show that while this case was pending in the Court of Appeals, the criminal action was dismissed on July 10, 1992 for failure of the prosecution to file a formal offer of its evidence, with the consequence that the prosecution failed to prosecute its case. Accordingly, it seems to be petitioner’s argument that since the civil action to recover damages was impliedly instituted with the criminal action, the dismissal of the criminal case brought with it the dismissal of the civil action.)

Private respondent admits that he did not reserve the right to institute the present civil action against Andaya’s employer. He contends, however, that the rights provided in Arts. 2176 and 2177 of the Civil Code are substantive rights and, as such, their enforcement cannot be conditioned on a reservation to bring the action to enforce them separately. Private respondent cites in support of his position statements made in Abellana v. Marave,4 Tayag v. Alcantara,5 Madeja v. Caro,6 and Jarantilla v. Court of Appeals,7 to the effect that the requirement to reserve the civil action is substantive in character and, therefore, is beyond the rulemaking power of this Court under the Constitution.8

After considering the arguments of the parties, we have reached the conclusion that the right to bring an action for damages under the Civil Code must be reserved as required by Rule 111, § 1, otherwise it should be dismissed.

I.

A. To begin with, §1 quite clearly requires that a reservation must be made to institute separately all civil actions for the recovery of civil liability, otherwise they will be deemed to have been instituted with the criminal case. Such civil actions are not limited to those which arise “from the offense charged,” as originally provided in Rule 111 before the amendment of the Rules of Court in 1988. In other words the right of the injured party to sue separately for the recovery of the civil liability whether arising from crimes (ex delicto) or from quasi delict under Art. 2176 of the Civil Code must be reserved otherwise they will be deemed instituted with the criminal action.9

Thus Rule 111, §1 of the Revised Rules of Criminal Procedure expressly provides:

Section 1. Institution of criminal and civil actions.- When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.

B. There are statements in some cases implying that Rule 111, §§1 and 3 are beyond the rulemaking power of the Supreme Court under the Constitution. A careful examination of the cases, however, will show that approval of the filing of separate civil action for damages even though no reservation of the right to institute such civil action had been reserved rests on considerations other than that no reservation is needed.

In Garcia v. Florido10 the right of an injured person to bring an action for damages even if he did not make a reservation of his action in the criminal prosecution for physical injuries through reckless imprudence was upheld on the ground that by bringing the civil action the injured parties had “in effect abandoned their right to press for recovery of damages in the criminal case. . .. Undoubtedly an offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived the civil action or expressly reserved his right to institute, but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared.”11 The statement that Rule 111, § 1 of the 1964 Rules is “an unauthorized amendment of substantive law, Articles 32, 33 and 34 of the Civil Code, which do not provide for the reservation” is not the ruling of the Court but only an aside, quoted from an observation made in the footnote of a decision in another case.12

Another case cited by private respondent in support of his contention that the civil case need not be reserved in the criminal case is Abellana v. Marave13 in which the right of persons injured in a vehicular accident to bring a separate action for damages was sustained despite the fact that the right to bring it separately was not reserved. But the basis of the decision in that case was the fact that the filing of the civil case was equivalent to a reservation because it was made after the decision of the City Court convicting the accused had been appealed. Pursuant to Rule 123, §7 of the 1964 Rules, this had the effect of vacating the decision in the criminal case so that technically, the injured parties could still reserve their right to institute a civil action while the criminal case was pending in the Court of First Instance. The statement “the right of a party to sue for damages independently of the criminal action is a substantive right which cannot

be frittered away by a construction that could render it nugatory” without raising a “serious constitutional question”14 was thrown in only as additional support for the ruling of the Court.

On the other hand, in Madeja v. Caro15 the Court held that a civil action for damages could proceed even while the criminal case for homicide through reckless imprudence was pending and did not have to await the termination of the criminal case precisely because the widow of the deceased had reserved her right to file a separate civil action for damages. We do not see how this case can lend support to the view of private respondent.

In Jarantilla v. Court of Appeals16 the ruling is that the acquittal of the accused in the criminal case for physical injuries through reckless imprudence on the ground of reasonable doubt is not a bar to the filing of an action for damages even though the filing of the latter action was not reserved. This is because of Art. 29 of the Civil Code which provides that “when an accused is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted.” This ruling obviously cannot apply to this case because the basis of the dismissal of the criminal case against the driver is the fact that the prosecution failed to prove its case as a result of its failure to make a formal offer of its evidence. Rule 132, §34 of the Revised Rules on Evidence provides that “The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.”

To the same effect are the holdings in Tayag, Sr. v. Alcantara,17 Bonite v. Zosa18 and Diong Bi Chu v. Court of Appeals.19 Since Art. 29 of the Civil Code authorizes the bringing of a separate civil action in case of acquittal on reasonable doubt and under the Revised Rules of Criminal Procedure such action is not required to be reserved, it is plain that the statement in these cases that to require a reservation to be made would be to sanction an unauthorized amendment of the Civil Code provisions is a mere dictum. As already noted in connection with the case of Garcia v. Florido, that statement was not the ruling of the Court but only an observation borrowed from another case.20

The short of it is that the rulings in these cases are consistent with the proposition herein made that, on the basis of Rule 111, §§1-3, a civil action for the recovery of civil liability is, as a general rule, impliedly instituted with the criminal action, except only (1) when such action arising from the same act or omission, which is the subject of the criminal action, is waived; (2) the right to bring it separately is reserved or (3) such

action has been instituted prior to the criminal action. Even if an action has not been reserved or it was brought before the institution of the criminal case, the acquittal of the accused will not bar recovery of civil liability unless the acquittal is based on a finding that the act from which the civil liability might arise did not exist because of Art. 29 of the Civil Code.

Indeed the question on whether the criminal action and the action for recovery of the civil liability must be tried in a single proceeding has always been regarded a matter of procedure and, since the rulemaking power has been conferred by the Constitution on this Court, it is in the keeping of this Court. Thus the subject was provided for by G.O. No. 58, the first Rules of Criminal Procedure under the American rule. Sec. 107 of these Orders provided:

The privileges now secured by law to the person claiming to be injured by the commission of an offense to take part in the prosecution of the offense and to recover damages for the injury sustained by reason of the same shall not be held to be abridged by the provisions of this order; but such person may appear and shall be heard either individually or by attorney at all stages of the case, and the court upon conviction of the accused may enter judgment against him for the damages occasioned by his wrongful act. It shall, however, be the duty of the promotor fiscal to direct the prosecution, subject to the right of the person injured to appeal from any decision of the court denying him a legal right.

This was superseded by the 1940 Rules of Court, Rule 106 of which provided:

SEC. 15. Intervention of the offended party in criminal action. - Unless the offended party has waived the civil action or expressly reserved the right to institute it after the termination of the criminal case, and subject to the provisions of Section 4 hereof, he may intervene, personally or by attorney, in the prosecution of the offense.

This Rule was amended thrice, in 1964, in 1985 and lastly in 1988. Through all the shifts or changes in policy as to the civil action arising from the same act or omission for which a criminal action is brought, one thing is clear: The change has been effected by this Court. Whatever contrary impression may have been created by Garcia v. Florid21

and its progeny22 must therefore be deemed to have been clarified and settled by the new rules which require reservation of the right to recover the civil liability, otherwise the action will be deemed to have been instituted with the criminal action.

Contrary to private respondent’s contention, the requirement that before a separate civil action may be brought it must be reserved does not impair, diminish or defeat

substantive rights, but only regulates their exercise in the general interest of orderly procedure. The requirement is merely procedural in nature. For that matter the Revised Penal Code, by providing in Art. 100 that any person criminally liable is also civilly liable, gives the offended party the right to bring a separate civil action, yet no one has ever questioned the rule that such action must be reserved before it may be brought separately.

Indeed, the requirement that the right to institute actions under the Civil Code separately must be reserved is not incompatible with the independent character of such actions. There is a difference between allowing the trial of civil actions to proceed independently of the criminal prosecution and requiring that, before they may be instituted at all, a reservation to bring them separately must be made. Put in another way, it is the conduct of the trial of the civil action - not its institution through the filing of a complaint - which is allowed to proceed independently of the outcome of the criminal case.

C. There is a practical reason for requiring that the right to bring an independent civil action under the Civil Code separately must be reserved. It is to avoid the filing of more than one action for the same act or omission against the same party. Any award made against the employer, whether based on his subsidiary civil liability under Art. 103 of the Revised Penal Code or his primary liability under Art. 2180 of the Civil Code, is ultimately recoverable from the accused.23

In the present case, the criminal action was filed against the employee, bus driver. Had the driver been convicted and found insolvent, his employer would have been held subsidiarily liable for damages. But if the right to bring a separate civil action (whether arising from the crime or from quasi-delict) is reserved, there would be no possibility that the employer would be held liable because in such a case there would be no pronouncement as to the civil liability of the accused. In such a case the institution of a separate and independent civil action under the Civil Code would not result in the employee being held liable for the same act or omission. The rule requiring reservation in the end serves to implement the prohibition against double recovery for the same act or omission.24 As held in Barredo v. Garcia,25 the injured party must choose which of the available causes of action for damages he will bring. If he fails to reserve the filing of a separate civil action he will be deemed to have elected to recover damages from the bus driver on the basis of the crime. In such a case his cause of action against the employer will be limited to the recovery of the latter’s subsidiary liability under Art. 103 of the Revised Penal Code.

II.

Nor does it matter that the action is against the employer to enforce his vicarious liability under Art. 2180 of the Civil Code. Though not an accused in the criminal case, the employer is very much a party, as long as the right to bring or institute a separate action (whether arising from crime or from quasi delict) is not reserved.26 The ruling that a decision convicting the employee is binding and conclusive upon the employer “not only with regard to its civil liability but also with regard to its amount because the liability of an employer cannot be separated but follows that of his employee”27 is true not only with respect to the civil liability arising from crime but also with respect to the civil liability under the Civil Code. Since whatever is recoverable against the employer is ultimately recoverable by him from the employee, the policy against double recovery requires that only one action be maintained for the same act or omission whether the action is brought against the employee or against his employer. Thus in Dulay v. Court of Appeals28 this Court held that an employer may be sued under Art. 2180 of the Civil Code and that the right to bring the action did not have to be reserved because, having instituted before the criminal case against the employee, the filing of the civil action against the employer constituted an express reservation of the right to institute its separately.

WHEREFORE, the decision appealed from is RESERVED and the complaint against petitioner is DISMISSED.

SO ORDERED.

Regalado (Chairman), Romero and Puno, JJ., concur.

[A.M. No. MTJ-00-1321. March 10, 2004]

VICTORY LINER, INC., represented by JOHNNY T. HERNANDEZ, President, complainant, vs. JUDGE REYNALDO B. BELLOSILLO,

respondent.

D E C I S I O N

DAVIDE, JR., C.J.:

For our resolution is the verified complaint of Victory Liner, Inc. (VLI) against respondent Judge Reynaldo B. Bellosillo, then Presiding Judge of the Municipal Circuit Trial Court (MCTC) of Orani, Bataan, and Acting Presiding Judge of the MCTC of Dinalupihan-Hermosa, Bataan, for gross ignorance of the law, grave abuse of authority, oppression, and inaction on a pending motion.

The antecedent facts are as follows:

On 2 March 2000, while a Victory Liner bus bearing Plate No. CWF-935 was cruising along the National Highway of Dinalupihan, Bataan, it accidentally hit and fatally injured Marciana Bautista Morales. Marciana died the following day. VLI shouldered all the funeral and burial expenses of Marciana. Subsequently, on 6 March 2000, VLI and the heirs of the victim entered into an Agreement/Undertaking.?[1] On 14 March 2000, after payment by VLI of the claims, Faustina M. Antonio, the authorized and designated representative of the heirs of the victim, executed a Release of Claim?[2]

and an Affidavit of Desistance?[3] in favor of VLI and the driver Reino de la Cruz.

However, earlier or on 3 March 2000, two of Marciana’s sons Rolando B. Soriano and Jimmy B. Morales, who were also signatories to the Agreement/Undertaking, executed a Pinagsamang Salaysay?[4] against Reino de la Cruz. On the strength of that document, a criminal complaint was filed with the MCTC of Dinalupihan-Hermosa, Bataan, for reckless imprudence resulting in homicide,?[5] which was docketed as Criminal Case No. 10512.

After preliminary examination, or on 13 March 2000, respondent Judge Bellosillo ordered the immediate issuance of a warrant of arrest against De la Cruz and fixed his bail at P50,000 to be posted in cash. He further directed the Chief of Police of Dinalupihan, Bataan, to immediately impound the bus involved in the accident, which could be released only upon the posting of a cash bond in the amount of P50,000.?[6]

On 30 March 2000, VLI filed a Manifestation and Motion?[7] manifesting that it was depositing to the court under protest a cash bond of P50,000 for the release of its bus. After making the deposit, VLI’s counsel presented the receipt issued by the Clerk of

Court of MCTC, Dinalupihan, to the Chief of Police of Dinalupihan, Bataan, who then released the bus.

On 4 April 2000, VLI filed with respondent’s court a petition?[8] to declare null and void the order directing it to post bond for the release of its bus. This petition was, however, dismissed for improper venue and lack of jurisdiction.

On that same day also, respondent Judge Bellosillo issued an order directing the Chief of Police of Dinalupihan, Bataan, and his deputies and investigators to explain in writing why they should not be held in contempt of court for, and be administratively charged with, having released without a court order the Victory Liner bus involved in Criminal Case No. 10512. Thus, the bus was re-impounded by the police authorities of Dinalupihan, Bataan.

Subsequently, on 18 April 2000, respondent Judge acted on VLI’s Manifestation and Motion dated 30 March 2000 and issued an order?[9] for the release of the bus.

On 23 June 2000, VLI filed a verified complaint?[10] with the Office of the Court Administrator (OCA) claiming that the respondent (a) is guilty of gross ignorance of the law in impounding its bus and requiring it to post a cash bond for the release of the bus; (b) gravely abused his authority when it revoked the surety bond of one of VLI’s driver Edwin Serrano in Criminal Case No. 9373; (c) knowingly rendered an unjust and oppressive order when he increased the bond to P350,000 and required that it be posted in cash; (d) gravely abused his authority when he ordered the police authorities of Dinalupihan, Bataan, to file a case against Reino de la Cruz; and (e) is guilty of inaction or dereliction of duty in failing to resolve, despite the lapse of two months, VLI’s petition for the nullification of the order requiring the posting of a cash bond for the release of the bus involved in the accident. Later, VLI filed with the Office of the Chief Justice a verified supplemental complaint against the respondent, which was forthwith indorsed to the OCA.

In his comment,?[11] respondent Judge Bellosillo explains that in the exercise of his sound discretion and in the greater interest of justice and fair play, he required a cash bond of P50,000 for the release of the police-impounded vehicle to answer for damages by way of subsidiary liability in case of accused’s insolvency. The requirement of a bond for the release of impounded vehicles involved in reckless imprudence cases is practiced not only by him but by other judges throughout the country.

As for his order for the re-impounding of the Victory Liner bus, respondent Judge

claims that it was just under the circumstances considering that its prior release was illegal. The payment of cash bond for the release of the impounded vehicle was made by the VLI when respondent Judge was at his official station in the MCTC of Orani-Samal, Bataan. Thus, in his absence, no order could have been issued for the release of the impounded vehicle. If ever said vehicle had to be re-impounded, it was the fault of VLI’s counsel, as he was the one who misled the police authorities into believing that with the payment of the bond, the bus could already be released.

The respondent justifies the substitution of the surety bond of accused Edwin Serrano in Criminal Case No. 9373 with a cash bond on the strength of the prayer of the prosecutor that the bond be posted in cash in view of the gravity of the offense. The Rules of Court leave to the discretion of trial judges the question of whether a bail should be posted in the form of a corporate surety bond, property bond, cash deposit, or personal recognizance. Having found that Serrano’s surety bond, which was not even attached to the information but merely noted on the third page thereof, was in a minimal amount and had expired already, he required a cash bond. He increased the bond after considering that Serrano was a fugitive from justice.

Respondent Judge Bellosillo denies that he ordered the police authorities of Dinalupihan to file the criminal case against Reino de la Cruz. He points to (a) the Pinagsamang Salaysay dated 3 March 2000 of Rolando B. Soriano and Jimmy B. Morales, which was the basis for the filing of the criminal complaint by the police investigator and; (b) the fact that said criminal complaint filed by the police investigator was duly approved by the Chief of Police. Thus, with these circumstances, it could not be said that he compelled the police authorities into filing the criminal case.

As to the charge of dereliction of duty for failure to act on the petition for the nullification of the order requiring a bond for the release of VLI’s bus, respondent Judge avers that the same is baseless. Contrary to VLI’s contention, he acted on that petition as early as 10 April 2000, which was the date set by VLI’s counsel for the hearing of such petition.?[12] VLI’s counsel did not appear on that date and refused to accept or receive notices of hearing and court orders from court personnel.

In his Report and Recommendation, retired Justice Narciso T. Atienza, the OCA Consultant to whom this case was referred by the Court, submits that Judge Bellosillo’s resignation, which was accepted by the Court En Banc effective 27 March 2002, does not render moot and academic the instant administrative complaint. He finds that the respondent Judge erred in ordering the impounding of the Victory Liner bus and in

requiring a cash bond of P50,000 for its release; in fixing an excessive bail bond for Reino de la Cruz in Criminal Case No. 10512; and in increasing the bail bond of Edwin Serrano in Criminal Case No. 9373 unconscionably from P60,000 to P350,000. He then recommends that the respondent Judge be penalized with a fine of P20,000. But for lack of evidence, he exonerates respondent Judge from complainant’s charge that he compelled the police authorities into filing the criminal case against De la Cruz. As to respondent’s alleged inaction on VLI’s petition to declare null and void the order requiring a bond for the release of the subject bus, Justice Atienza finds that the said petition was resolved on 10 April 2000, right on the day it was submitted for resolution. Likewise, he disregards the additional charges in the supplemental complaint, there being no showing that the respondent received a copy thereof.

Justice Atienza also notes that in A.M. No. 00-1293, promulgated on 5 July 2000, respondent Judge was reprimanded for issuing a policy action and an order beyond the scope of his authority; and in MTJ No. 00-1308, promulgated on 16 December 2002, respondent Judge was found guilty of undue delay in rendering a decision and was ordered to pay a fine of P11,000 to be taken from his retirement benefits. He further notes the pending administrative cases against respondent Judge: (1) OCA IPI No. 96-232-MTJ for conduct unbecoming a judge; (2) OCA IPI No. 98-533-MTJ for ignorance of the law, grave abuse of discretion, and gross misconduct; (3) OCA IPI No. 96-203-MTJ for issuing an unjust interlocutory order and gross ignorance of the law; (4) A.M. No. 99-1222 for violation of the constitutional rights to information and to speedy trial; and (5) undocketed cases for unprofessional and ill-mannered conduct, refusing to receive documents, and illegal possession of firearms.

Verily, the resignation of respondent Judge Bellosillo does not render moot and academic the instant administrative case. The jurisdiction that the Court had at the time of the filing of the administrative complaint is not lost by the mere fact that the respondent judge ceased to be in office during the pendency of this case. The Court retains its jurisdiction to pronounce the respondent official innocent or guilty of the charges against him. A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications.?[13]

We agree with Justice Atienza in exonerating the respondent from the charges of inaction on a pending motion and of compelling the police authorities to file a criminal case against De la Cruz. We, however, hesitate to hold the respondent administratively accountable for gross ignorance of the law in ordering (1) the impounding of the vehicle involved in the vehicular accident and (2) the posting of a P50,000 bond for the release

of the vehicle, both of which were found by OCA Consultant Atienza to be erroneous.

Notably, in its Motion to Resolve, VLI submits that this case presents a good occasion for us to resolve, among other issues, “the legality of the imposition by trial judges on bus operators to post bail bond for their impounded vehicles in accident cases, in addition to the bail bond required for the provisional liberty of accused-drivers.” According to VLI, our ruling on this matter would guide trial court judges nationwide in accident cases so that bus operators and their personnel would not be at the mercy of judges like the respondent in this case, who during his incumbency had been requiring vehicle owners involved in accidents to post cash bonds for the release of impounded vehicles.

In Lacadin v. Mangino,?[14] the respondent Judge therein was sought to be administratively liable for extending the lifetime of a search warrant issued by him. We held that even if he may have committed an error of judgment or an abuse of discretion for such act, he cannot be punished administratively therefor in the absence of proof that he was motivated by ignominy or ill-will. Moreover, we ruled that the administrative case is not the right forum to determine whether the life of a search warrant may be extended by the court upon proper motion filed before the expiration of the 10-day period.

Worth noting also is the case of Cañas v. Castigador.?[15] In that case, an Isuzu trailer truck involved in a vehicular mishap was ordered impounded in an Order of 11 September 1996 of the trial court where the criminal case against its driver was pending. That order was addressed to the Chief of Police of General Trias, Cavite, or any officer of the law. In an earlier order of 14 August 1996, the vehicle owner was required to surrender the truck to the court. Subsequently, on motion of the prosecutor, the trial court declared the vehicle owner guilty of indirect contempt for continued defiance of the 11 September 1996 Order. However, upon the vehicle owner’s petition, we found respondent’s order holding the petitioner therein guilty of indirect contempt to be highly improper for several reasons. But we did not pass upon the issue of the legality of the impounding of the vehicle involved in the vehicular accident. We did not declare the order for the impounding of the vehicle to be illegal or unauthorized. If it were so, it could have been one of the several reasons for admonishing the respondent Judge therein.

In the same vein, this administrative case is not the right forum to determine the issue of the legality of respondent’s order requiring VLI to post a cash bond for the

release of its impounded vehicle. VLI should have raised that issue in the proper courts and not directly to us, and much less by way of an administrative case. There is after all a hierarchy of courts. As we have said in Santiago v. Vasquez,?[16] the propensity of litigants and lawyers to disregard the hierarchy of courts in our judicial system by seeking a ruling directly from us must be put to a halt.?[17]

It must be recalled that on 4 April 2000, VLI filed with respondent judge’s court a Petition to Declare Order Directing Victory Liner, Inc., to Post Bond for the Release of the Bus Null and Void.?[18] In that petition, VLI submitted that there is no legal basis for the order directing the impounding of the bus and the posting by the bus owner of a cash bond for its release, and hence that order is void ab initio.?[19] However, despite notice, VLI’s counsel Atty. Reynaldo R. Romero did not appear on 10 April 2000, the schedule?[20] for the hearing of that petition as set by him.?[21] The respondent thereupon issued an order?[22] dismissing the petition outright on grounds of improper venue and lack of jurisdiction, and ordering that a copy of the said order be furnished VLI’s counsel at his given address. However, VLI’s counsel reportedly refused to accept or receive from court personnel notices of hearing and court orders. And, according to respondent Judge, he (VLI’s counsel) never appeared and continued not to appear before the respondent for reasons known only to him.?[23] VLI cannot, therefore, resurrect that issue directly before us, and much less through a mere verified administrative complaint or motion to resolve.

To allow VLI to raise that issue before us and obtain a ruling thereon directly from us through an administrative case would be to countenance a disregard of the established rules of procedure and of the hierarchy of courts. VLI would thus be able to evade compliance with the requirements inherent in the filing of a proper petition, including the payment of docket fees. Hence, we shall shun from passing upon that issue in this case.

In any event, the absence of a ruling in Cañas v. Castigador on the legality of the impounding of vehicles involved in an accident, as well as the foregoing statements of VLI in its Motion to Resolve, implies that there is yet no clear-cut policy or rule on the matter. They would, therefore, negate a finding of gross ignorance of the law or grave abuse of authority on the part of respondent Judge. Moreover, even assuming that the acts of the respondent in ordering the impounding and subsequent re-impounding of the subject vehicle and in requiring the posting of a cash bond for its release were erroneous, as found by OCA Consultant Atienza, such are errors of judgment that cannot be the subject of a disciplinary action absent proof of fraud, dishonesty,

corruption, or bad faith.?[24] A judge may not be held administratively liable for every erroneous order or decision he renders. To hold otherwise would be to render a judicial office unbearable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in rendering a judgment. For a judge to be held administratively liable for ignorance of the law, it is necessary that the law be sufficiently basic that all that the judge must do is to simply apply it;?[25] or that the error must be gross or patent, deliberate and malicious, or incurred with evident bad faith.?[26]

We, however, find respondent administratively liable for imposing excessive cash bail bonds on accused Reino de la Cruz in Criminal Case No. 10512 and Edwin Serrano in Criminal Case No. 9373.

The Constitution guarantees to every person under legal custody the right to bail except those charged with offenses punishable with reclusion perpetua when evidence of guilt is strong.?[27] Section 9, Rule 114 of the 1985 Rules on Criminal Procedure, as amended,?[28] provides that in fixing the amount of bail, the judge must primarily consider the following factors:

a) Financial ability of the accused to give bail;

b) Nature and circumstances of the offense;

c) Penalty for the offense charged;

d) Character and reputation of the accused;

e) Age and health of the accused;

f) The weight of the evidence against the accused;

g) Probability of the accused appearing in trial;

h) Forfeiture of the bonds;

i) The fact that the accused was a fugitive from justice when arrested; and

j) The pendency of other cases in which the accused is under bond.

The amount of bail should, therefore, be reasonable at all times. It should be high enough to assure the presence of the accused when required, but no higher than is reasonably calculated to serve this purpose. Excessive bail shall not be required.?[29] In implementing this mandate, the accused’s financial capability should particularly be considered. What is reasonable to a wealthy person may not be so to a man charged

with a like offense. Where the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive.?[30]

Moreover, under the 2000 Bail Bond Guide of the Department of Justice (DOJ), crimes of reckless imprudence resulting in homicide and with violation of the Land Transportation and Traffic Code, bail shall be P30,000 regardless of the number of deaths. ?[31]

De la Cruz and Serrano were both charged with the offense of reckless imprudence resulting in homicide. Although permanently employed as drivers of VLI, it could not be said that each was capable of posting a cash bail bond of P50,000 and P350,000, respectively. In fixing such amounts, the respondent apparently did not take into account the gravity of the offense charged and the financial capability of the accused. He thereby willfully disregarded the guidelines under Section 9, Rule 114 of the 1985 Rules on Criminal Procedure, as amended, and the 2000 Bail Bond Guide of the DOJ. In effect, he violated the constitutional right of the accused to bail, as well as the prohibition against excessive bail, making the right, in the words of Justice Jackson, “a teasing illusion like a munificent bequest in a pauper’s will.”?[32]

The bail fixed by the respondent is all the more excessive because it was in the form of cash. The posting of a cash bond would entail a transfer of assets into the possession of the court, and its procurement could work untold hardship on the part of the accused as to have the effect of altogether denying the accused’s constitutional right to bail. On the other hand, a surety bond may be obtained by the accused upon the payment of a relatively small premium. A surety or property bond does not require an actual financial outlay on the part of the bondsman or the property owner. Only the reputation or credit standing of the bondsman or the expectancy of the price at which the property can be sold is placed in the hands of the court to guarantee the production of the body of the accused at the various proceedings leading to conviction or acquittal. ?

[33]

While cash bail is authorized under our rules, the option to deposit cash in lieu of a surety bond primarily belongs to the accused,?[34] as can be gleaned from the language of Section 14, Rule 114 of the 1985 Rules on Criminal Procedure, as amended, ?[35] which read:

SEC. 14. Deposit of cash as bail. – The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court or recommended by

the prosecutor who investigated or filed the case, and upon submission of a proper certificate of deposit and of a written undertaking showing compliance with the requirements of Section 2 hereof, the accused shall be discharged from custody….

The respondent judge, therefore, grossly erred in converting Serrano’s surety bond to cash bond and in demanding that De la Cruz post a cash bond to obtain their provisional liberty.?[36]

It bears repeating that judges should exhibit more than cursory acquaintance with the basic legal norms and precepts, as well as with statutes and procedural rules. As advocates of justice and visible representations of the law, they are expected to keep abreast with the law and jurisprudence, and be proficient in the application and interpretation thereof. When the law or rule is basic, judges owe it to their office to simply apply it; anything less than that is gross ignorance of the law.?[37]

In light of our current jurisprudence,?[38] the respondent should be fined in the amount of P10,000 for his act of imposing on accused De la Cruz and Serrano an excessive bail to be posted in cash in violation of pertinent rules and guidelines, as well as the constitutional right of the accused to bail and the proscription against excessive bail.

WHEREFORE, for gross ignorance of the law and oppression in imposing excessive cash bail bonds on Reino de la Cruz in Criminal Case No. 10512 and Edwin Serrano in Criminal Case No. 9373, respondent Judge Reynaldo B. Bellosillo is hereby ORDERED to pay a fine of Ten Thousand Pesos (P10,000) to be taken from his retirement benefits.

SO ORDERED.

MAURICIO MANLICLIC and PHILIPPINE RABBIT BUS LINES, INC.,

Petitioners,

- versus -

MODESTO CALAUNAN,

Respondent.G.R. No. 150157

Present:

YNARES-SANTIAGO, J Chairperson,AUSTRIA-MARTINEZ,

CALLEJO, SR., and

CHICO-NAZARIO, JJ.

Promulgated:

January 25, 2007x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CHICO-NAZARIO, J.:

Assailed before Us is the decision?[1] of the Court of Appeals in CA-G.R. CV

No. 55909 which affirmed in toto the decision?[2] of the Regional Trial Court (RTC)

of Dagupan City, Branch 42, in Civil Case No. D-10086, finding petitioners Mauricio

Manliclic and Philippine Rabbit Bus Lines, Inc. (PRBLI) solidarily liable to pay

damages and attorney’s fees to respondent Modesto Calaunan.

The factual antecedents are as follows:

The vehicles involved in this case are: (1) Philippine Rabbit Bus No. 353 with

plate number CVD-478, owned by petitioner PRBLI and driven by petitioner

Mauricio Manliclic; and (2) owner-type jeep with plate number PER-290, owned

by respondent Modesto Calaunan and driven by Marcelo Mendoza.

At around 6:00 to 7:00 o’clock in the morning of 12 July 1988, respondent

Calaunan, together with Marcelo Mendoza, was on his way to Manila from

Pangasinan on board his owner-type jeep. The Philippine Rabbit Bus was likewise

bound for Manila from Concepcion, Tarlac. At approximately Kilometer 40 of the

North Luzon Expressway in Barangay Lalangan, Plaridel, Bulacan, the two vehicles

collided. The front right side of the Philippine Rabbit Bus hit the rear left side of

the jeep causing the latter to move to the shoulder on the right and then fall on a

ditch with water resulting to further extensive damage. The bus veered to the left

and stopped 7 to 8 meters from point of collision.

Respondent suffered minor injuries while his driver was unhurt. He was

first brought for treatment to the Manila Central University Hospital in Kalookan

City by Oscar Buan, the conductor of the Philippine Rabbit Bus, and was later

transferred to the Veterans Memorial Medical Center.

By reason of such collision, a criminal case was filed before the RTC of

Malolos, Bulacan, charging petitioner Manliclic with Reckless Imprudence

Resulting in Damage to Property with Physical Injuries, docketed as Crim. Case

No. 684-M-89. Subsequently on 2 December 1991, respondent filed a complaint

for damages against petitioners Manliclic and PRBLI before the RTC of Dagupan

City, docketed as Civil Case No. D-10086. The criminal case was tried ahead of

the civil case. Among those who testified in the criminal case were respondent

Calaunan, Marcelo Mendoza and Fernando Ramos.

In the civil case (now before this Court), the parties admitted the following:

1. The parties agreed on the capacity of the parties to sue and be sued as well as the venue and the identities of the vehicles involved;

2. The identity of the drivers and the fact that they are duly licensed;

3. The date and place of the vehicular collision;

4. The extent of the injuries suffered by plaintiff Modesto Calaunan and the existence of the medical certificate;

5. That both vehicles were going towards the south; the private jeep being ahead of the bus;

6. That the weather was fair and the road was well paved and straight, although there was a ditch on the right side where the jeep fell into.?[3]

When the civil case was heard, counsel for respondent prayed that the

transcripts of stenographic notes (TSNs)?[4] of the testimonies of respondent

Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case be

received in evidence in the civil case in as much as these witnesses are not

available to testify in the civil case.

Francisco Tuliao testified that his brother-in-law, respondent Calaunan, left

for abroad sometime in November, 1989 and has not returned since then.

Rogelio Ramos took the stand and said that his brother, Fernando Ramos, left for

Amman, Jordan, to work. Rosalia Mendoza testified that her husband, Marcelo

Mendoza, left their residence to look for a job. She narrated that she thought her

husband went to his hometown in Panique, Tarlac, when he did not return after

one month. She went to her husband’s hometown to look for him but she was

informed that he did not go there.

The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos,

Bulacan, the court where Criminal Case No. 684-M-89 was tried, to bring the TSNs

of the testimonies of respondent Calaunan,?[5] Marcelo Mendoza?[6] and Fernando

Ramos?[7] in said case, together with other documentary evidence marked therein.

Instead of the Branch Clerk of Court, it was Enrique Santos Guevara, Court

Interpreter, who appeared before the court and identified the TSNs of the three

afore-named witnesses and other pertinent documents he had brought.?[8]

Counsel for respondent wanted to mark other TSNs and documents from the said

criminal case to be adopted in the instant case, but since the same were not

brought to the trial court, counsel for petitioners compromised that said TSNs and

documents could be offered by counsel for respondent as rebuttal evidence.

For the defendants, petitioner Manliclic and bus conductor Oscar Buan

testified. The TSN?[9] of the testimony of Donato Ganiban, investigator of the

PRBLI, in Criminal Case No. 684-M-89 was marked and allowed to be adopted in

the civil case on the ground that he was already dead.

Respondent further marked, among other documents, as rebuttal evidence,

the TSNs?[10] of the testimonies of Donato Ganiban, Oscar Buan and petitioner

Manliclic in Criminal Case No. 684-M-89.

The disagreement arises from the question: Who is to be held liable for the

collision?

Respondent insists it was petitioner Manliclic who should be liable while

the latter is resolute in saying it was the former who caused the smash up.

The versions of the parties are summarized by the trial court as follows:

The parties differed only on the manner the collision between the two (2) vehicles took place. According to the plaintiff and his driver, the jeep was cruising at the speed of 60 to 70 kilometers per hour on the slow lane of the expressway when the Philippine Rabbit Bus overtook the jeep and in the process of overtaking the jeep, the

Philippine Rabbit Bus hit the rear of the jeep on the left side. At the time the Philippine Rabbit Bus hit the jeep, it was about to overtake the jeep. In other words, the Philippine Rabbit Bus was still at the back of the jeep when the jeep was hit. Fernando Ramos corroborated the testimony of the plaintiff and Marcelo Mendoza. He said that he was on another jeep following the Philippine Rabbit Bus and the jeep of plaintiff when the incident took place. He said, the jeep of the plaintiff overtook them and the said jeep of the plaintiff was followed by the Philippine Rabbit Bus which was running very fast. The bus also overtook the jeep in which he was riding. After that, he heard a loud sound. He saw the jeep of the plaintiff swerved to the right on a grassy portion of the road. The Philippine Rabbit Bus stopped and they overtook the Philippine Rabbit Bus so that it could not moved (sic), meaning they stopped in front of the Philippine Rabbit Bus. He testified that the jeep of plaintiff swerved to the right because it was bumped by the Philippine Rabbit bus from behind.

Both Mauricio Manliclic and his driver, Oscar Buan admitted that the Philippine Rabbit Bus bumped the jeep in question. However, they explained that when the Philippine Rabbit bus was about to go to the left lane to overtake the jeep, the latter jeep swerved to the left because it was to overtake another jeep in front of it. Such was their testimony before the RTC in Malolos in the criminal case and before this Court in the instant case. [Thus, which of the two versions of the manner how the collision took place was correct, would be determinative of who between the two drivers was negligent in the operation of their respective vehicles.]?[11]

Petitioner PRBLI maintained that it observed and exercised the diligence of

a good father of a family in the selection and supervision of its employee,

specifically petitioner Manliclic.

On 22 July 1996, the trial court rendered its decision in favor of respondent

Calaunan and against petitioners Manliclic and PRBLI. The dispositive portion of

its decision reads:

WHEREFORE, judgment is rendered in favor of the plaintiff and against the defendants ordering the said defendants to pay plaintiff jointly and solidarily the amount of P40,838.00 as actual damages for the towing as well as the repair and the materials used for the repair of the jeep in question; P100,000.00 as moral damages and another P100,000.00 as exemplary damages and P15,000.00 as attorney’s fees, including appearance fees of the lawyer. In addition, the defendants are also to pay costs.?[12]

Petitioners appealed the decision via Notice of Appeal to the Court of

Appeals.?[13]

In a decision dated 28 September 2001, the Court of Appeals, finding no

reversible error in the decision of the trial court, affirmed it in all respects.?[14]

Petitioners are now before us by way of petition for review assailing the

decision of the Court of Appeals. They assign as errors the following:

I

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURT’S QUESTIONABLE ADMISSION IN EVIDENCE OF THE TSN’s AND OTHER DOCUMENTS PRESENTED IN THE CRIMINAL CASE.

II

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURT’S RELIANCE ON THE VERSION OF THE RESPONDENT ON HOW THE ACCIDENT SUPPOSEDLY OCCURRED.

III

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURT’S UNFAIR DISREGARD OF HEREIN PETITIONER PRBL’s DEFENSE OF EXERCISE OF DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF ITS EMPLOYEES.

IV

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURT’S QUESTIONABLE AWARD OF DAMAGES AND ATTORNEY’S FEE.

With the passing away of respondent Calaunan during the pendency of this

appeal with this Court, we granted the Motion for the Substitution of Respondent

filed by his wife, Mrs. Precila Zarate Vda. De Calaunan, and children, Virgilio

Calaunan, Carmelita Honeycomb, Evelyn Calaunan, Marko Calaunan and

Liwayway Calaunan.?[15]

In their Reply to respondent’s Comment, petitioners informed this Court of

a Decision?[16] of the Court of Appeals acquitting petitioner Manliclic of the charge?

[17] of Reckless Imprudence Resulting in Damage to Property with Physical Injuries

attaching thereto a photocopy thereof.

On the first assigned error, petitioners argue that the TSNs containing the

testimonies of respondent Calaunan,?[18] Marcelo Mendoza?[19] and Fernando

Ramos?[20] should not be admitted in evidence for failure of respondent to comply

with the requisites of Section 47, Rule 130 of the Rules of Court.

For Section 47, Rule 130?[21] to apply, the following requisites must be

satisfied: (a) the witness is dead or unable to testify; (b) his testimony or

deposition was given in a former case or proceeding, judicial or administrative,

between the same parties or those representing the same interests; (c) the

former case involved the same subject as that in the present case, although on

different causes of action; (d) the issue testified to by the witness in the former

trial is the same issue involved in the present case; and (e) the adverse party had

an opportunity to cross-examine the witness in the former case.?[22]

Admittedly, respondent failed to show the concurrence of all the requisites

set forth by the Rules for a testimony given in a former case or proceeding to be

admissible as an exception to the hearsay rule. Petitioner PRBLI, not being a party

in Criminal Case No. 684-M-89, had no opportunity to cross-examine the three

witnesses in said case. The criminal case was filed exclusively against petitioner

Manliclic, petitioner PRBLI’s employee. The cases dealing with the subsidiary

liability of employers uniformly declare that, strictly speaking, they are not parties

to the criminal cases instituted against their employees.?[23]

Notwithstanding the fact that petitioner PRBLI was not a party in said

criminal case, the testimonies of the three witnesses are still admissible on the

ground that petitioner PRBLI failed to object on their admissibility.

It is elementary that an objection shall be made at the time when an

alleged inadmissible document is offered in evidence; otherwise, the objection

shall be treated as waived, since the right to object is merely a privilege which the

party may waive. Thus, a failure to except to the evidence because it does not

conform to the statute is a waiver of the provisions of the law. Even assuming ex

gratia argumenti that these documents are inadmissible for being hearsay, but on

account of failure to object thereto, the same may be admitted and considered as

sufficient to prove the facts therein asserted.?[24] Hearsay evidence alone may be

insufficient to establish a fact in a suit but, when no objection is made thereto, it

is, like any other evidence, to be considered and given the importance it

deserves.?[25]

In the case at bar, petitioner PRBLI did not object to the TSNs containing

the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos

in the criminal case when the same were offered in evidence in the trial court. In

fact, the TSNs of the testimonies of Calaunan and Mendoza were admitted by

both petitioners.?[26] Moreover, petitioner PRBLI even offered in evidence the TSN

containing the testimony of Donato Ganiban in the criminal case. If petitioner

PRBLI argues that the TSNs of the testimonies of plaintiff’s witnesses in the

criminal case should not be admitted in the instant case, why then did it offer the

TSN of the testimony of Ganiban which was given in the criminal case? It appears

that petitioner PRBLI wants to have its cake and eat it too. It cannot argue that

the TSNs of the testimonies of the witnesses of the adverse party in the criminal

case should not be admitted and at the same time insist that the TSN of the

testimony of the witness for the accused be admitted in its favor. To disallow

admission in evidence of the TSNs of the testimonies of Calaunan, Marcelo

Mendoza and Fernando Ramos in the criminal case and to admit the TSN of the

testimony of Ganiban would be unfair.

We do not subscribe to petitioner PRBLI’s argument that it will be denied

due process when the TSNs of the testimonies of Calaunan, Marcelo Mendoza

and Fernando Ramos in the criminal case are to be admitted in the civil case. It is

too late for petitioner PRBLI to raise denial of due process in relation to Section

47, Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of

the TSNs. For failure to object at the proper time, it waived its right to object that

the TSNs did not comply with Section 47.

In Mangio v. Court of Appeals,?[27] this Court, through Associate Justice

Reynato S. Puno,?[28] admitted in evidence a TSN of the testimony of a witness in

another case despite therein petitioner’s assertion that he would be denied due

process. In admitting the TSN, the Court ruled that the raising of denial of due

process in relation to Section 47, Rule 130 of the Rules of Court, as a ground for

objecting to the admissibility of the TSN was belatedly done. In so doing, therein

petitioner waived his right to object based on said ground.

Petitioners contend that the documents in the criminal case should not

have been admitted in the instant civil case because Section 47 of Rule 130 refers

only to “testimony or deposition.” We find such contention to be untenable.

Though said section speaks only of testimony and deposition, it does not mean

that documents from a former case or proceeding cannot be admitted. Said

documents can be admitted they being part of the testimonies of witnesses that

have been admitted. Accordingly, they shall be given the same weight as that to

which the testimony may be entitled.?[29]

On the second assigned error, petitioners contend that the version of

petitioner Manliclic as to how the accident occurred is more credible than

respondent’s version. They anchor their contention on the fact that petitioner

Manliclic was acquitted by the Court of Appeals of the charge of Reckless

Imprudence Resulting in Damage to Property with Physical Injuries.

To be resolved by the Court is the effect of petitioner Manliclic’s acquittal in

the civil case.

From the complaint, it can be gathered that the civil case for damages was

one arising from, or based on, quasi-delict.?[30] Petitioner Manliclic was sued for

his negligence or reckless imprudence in causing the collision, while petitioner

PRBLI was sued for its failure to exercise the diligence of a good father in the

selection and supervision of its employees, particularly petitioner Manliclic. The

allegations read:

“4. That sometime on July 12, 1988 at around 6:20 A.M. plaintiff was on board the above-described motor vehicle travelling at a moderate speed along the North Luzon Expressway heading South towards Manila together with MARCELO MENDOZA, who was then driving the same;

“5. That approximately at kilometer 40 of the North Luzon Express Way, the above-described motor vehicle was suddenly bumped from behind by a Philippine Rabbit Bus with Body No. 353 and with plate No. CVD 478 then being driven by one Mauricio Manliclic of San Jose, Concepcion, Tarlac, who was then travelling recklessly at a very fast speed and had apparently lost control of his vehicle;

“6. That as a result of the impact of the collision the above-described motor vehicle was forced off the North Luzon Express Way towards the rightside where it fell on its driver’s side on a ditch, and that as a consequence, the above-described motor vehicle which maybe valued at EIGHTY THOUSAND PESOS (P80,000) was rendered a total wreck as shown by pictures to be presented during the pre-trial and trial of this case;

“7. That also as a result of said incident, plaintiff sustained bodily injuries which compounded plaintiff’s frail physical condition and required his hospitalization from July 12, 1988 up to and until July 22, 1988, copy of the medical certificate is hereto attached as Annex “A” and made an integral part hereof;

“8. That the vehicular collision resulting in the total wreckage of the above-described motor vehicle as well as bodily (sic) sustained by plaintiff, was solely due to the reckless imprudence of the defendant driver Mauricio Manliclic who drove his Philippine Rabbit Bus No. 353 at a fast speed without due regard or observance of existing traffic rules and regulations;

“9. That defendant Philippine Rabbit Bus Line Corporation failed to exercise the diligence of a good father of (sic) family in the selection and supervision of its drivers; x x x”?[31]

Can Manliclic still be held liable for the collision and be found negligent

notwithstanding the declaration of the Court of Appeals that there was an

absence of negligence on his part?

In exonerating petitioner Manliclic in the criminal case, the Court of

Appeals said:

To the following findings of the court a quo, to wit: that accused-appellant was negligent “when the bus he was driving bumped the jeep from behind”; that “the proximate cause of the accident was his having driven the bus at a great speed while

closely following the jeep”; x x x

We do not agree.

The swerving of Calaunan’s jeep when it tried to overtake the vehicle in front of it was beyond the control of accused-appellant.

x x x x

Absent evidence of negligence, therefore, accused-appellant cannot be held liable for Reckless Imprudence Resulting in Damage to Property with Physical Injuries as defined in Article 365 of the Revised Penal Code.?[32]

From the foregoing declaration of the Court of Appeals, it appears that

petitioner Manliclic was acquitted not on reasonable doubt, but on the ground

that he is not the author of the act complained of which is based on Section 2(b)

of Rule 111 of the Rules of Criminal Procedure which reads:

(b) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from

which the civil might arise did not exist.

In spite of said ruling, petitioner Manliclic can still be held liable for the

mishap. The afore-quoted section applies only to a civil action arising from crime

or ex delicto and not to a civil action arising from quasi-delict or culpa aquiliana.

The extinction of civil liability referred to in Par. (e) of Section 3, Rule 111 [now

Section 2 (b) of Rule 111], refers exclusively to civil liability founded on Article 100

of the Revised Penal Code, whereas the civil liability for the same act considered

as a quasi-delict only and not as a crime is not extinguished even by a declaration

in the criminal case that the criminal act charged has not happened or has not

been committed by the accused.?[33]

A quasi-delict or culpa aquiliana is a separate legal institution under the

Civil Code with a substantivity all its own, and individuality that is entirely apart

and independent from a delict or crime – a distinction exists between the civil

liability arising from a crime and the responsibility for quasi-delicts or culpa extra-

contractual. The same negligence causing damages may produce civil liability

arising from a crime under the Penal Code, or create an action for quasi-delicts or

culpa extra-contractual under the Civil Code.?[34] It is now settled that acquittal of

the accused, even if based on a finding that he is not guilty, does not carry with it

the extinction of the civil liability based on quasi delict.?[35]

In other words, if an accused is acquitted based on reasonable doubt on his

guilt, his civil liability arising from the crime may be proved by preponderance of

evidence only. However, if an accused is acquitted on the basis that he was not

the author of the act or omission complained of (or that there is declaration in a

final judgment that the fact from which the civil might arise did not exist), said

acquittal closes the door to civil liability based on the crime or ex delicto. In this

second instance, there being no crime or delict to speak of, civil liability based

thereon or ex delicto is not possible. In this case, a civil action, if any, may be

instituted on grounds other than the delict complained of.

As regards civil liability arising from quasi-delict or culpa aquiliana, same

will not be extinguished by an acquittal, whether it be on ground of reasonable

doubt or that accused was not the author of the act or omission complained of (or

that there is declaration in a final judgment that the fact from which the civil

liability might arise did not exist). The responsibility arising from fault or

negligence in a quasi-delict is entirely separate and distinct from the civil liability

arising from negligence under the Penal Code.?[36] An acquittal or conviction in

the criminal case is entirely irrelevant in the civil case?[37] based on quasi-delict or

culpa aquiliana.

Petitioners ask us to give credence to their version of how the collision

occurred and to disregard that of respondent’s. Petitioners insist that while the

PRBLI bus was in the process of overtaking respondent’s jeep, the latter, without

warning, suddenly swerved to the left (fast) lane in order to overtake another

jeep ahead of it, thus causing the collision.

As a general rule, questions of fact may not be raised in a petition for

review. The factual findings of the trial court, especially when affirmed by the

appellate court, are binding and conclusive on the Supreme Court.?[38] Not being a

trier of facts, this Court will not allow a review thereof unless:

(1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellant and appellees; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said findings of fact are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and (10) the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.?[39]

After going over the evidence on record, we do not find any of the

exceptions that would warrant our departure from the general rule. We fully

agree in the finding of the trial court, as affirmed by the Court of Appeals, that it

was petitioner Manliclic who was negligent in driving the PRBLI bus which was the

cause of the collision. In giving credence to the version of the respondent, the

trial court has this say:

x x x Thus, which of the two versions of the manner how the collision took place was correct, would be determinative of who between the two drivers was negligent in the operation of their respective vehicle.

In this regard, it should be noted that in the statement of Mauricio Manliclic (Exh. 15) given to the Philippine Rabbit Investigator CV Cabading no mention was made by him about the fact that the driver of the jeep was overtaking another jeep when the collision took place. The allegation that another jeep was being overtaken by the jeep of Calaunan was testified to by him only in Crim. Case No. 684-M-89 before the Regional Trial Court in Malolos, Bulacan and before this Court. Evidently, it was a product of an afterthought on the part of Mauricio Manliclic so that he could explain why he should not be held responsible for the incident. His attempt to veer away from the truth was also apparent when it would be considered that in his statement given to the Philippine Rabbit Investigator CV Cabading (Exh. 15), he alleged that the Philippine Rabbit Bus bumped the jeep of Calaunan while the Philippine Rabbit Bus was behind the said jeep. In his testimony before the Regional Trial Court in Malolos, Bulacan as well as in this Court, he alleged that the Philippine Rabbit Bus was already on the left side of the jeep when the collision took place. For this inconsistency between his statement and testimony, his explanation regarding the manner of how the collision between the jeep and the bus took place should be taken with caution. It might be true that in the statement of Oscar Buan given to the Philippine Rabbit Investigator CV Cabading, it was mentioned by the former that the jeep of plaintiff was in the act of overtaking another jeep when the collision between the latter jeep and the Philippine Rabbit Bus took place. But the fact, however, that his statement was given on July 15, 1988, one day after Mauricio Manliclic gave his statement should not escape attention. The one-day difference between the giving of the two statements would be significant enough to entertain the possibility of Oscar Buan having received legal advise before giving his statement. Apart from that, as between his statement and the statement of Manliclic himself, the statement of the latter should prevail. Besides, in his Affidavit of March 10, 1989, (Exh. 14), the unreliability of the statement of Oscar Buan (Exh. 13) given to CV Cabading rear its “ugly head” when he did not mention in said affidavit that the jeep of Calaunan was trying to overtake another jeep when the collision between the jeep in question and the Philippine Rabbit bus took place.

x x x x

If one would believe the testimony of the defendant, Mauricio Manliclic, and his conductor, Oscar Buan, that the Philippine Rabbit Bus was already somewhat parallel to the jeep when the collision took place, the point of collision on the jeep should have been somewhat on the left side thereof rather than on its rear. Furthermore, the jeep should have fallen on the road itself rather than having been forced off the road. Useless, likewise to emphasize that the Philippine Rabbit was running very fast as testified to by Ramos which was not controverted by the defendants.?[40]

Having ruled that it was petitioner Manliclic’s negligence that caused the

smash up, there arises the juris tantum presumption that the employer is

negligent, rebuttable only by proof of observance of the diligence of a good father

of a family.?[41] Under Article 2180?[42] of the New Civil Code, when an injury is

caused by the negligence of the employee, there instantly arises a presumption of

law that there was negligence on the part of the master or employer either in the

selection of the servant or employee, or in supervision over him after selection or

both. The liability of the employer under Article 2180 is direct and immediate; it

is not conditioned upon prior recourse against the negligent employee and a prior

showing of the insolvency of such employee. Therefore, it is incumbent upon the

private respondents to prove that they exercised the diligence of a good father of

a family in the selection and supervision of their employee.?[43]

In the case at bar, petitioner PRBLI maintains that it had shown that it

exercised the required diligence in the selection and supervision of its employees,

particularly petitioner Manliclic. In the matter of selection, it showed the

screening process that petitioner Manliclic underwent before he became a

regular driver. As to the exercise of due diligence in the supervision of its

employees, it argues that presence of ready investigators (Ganiban and Cabading)

is sufficient proof that it exercised the required due diligence in the supervision of

its employees.

In the selection of prospective employees, employers are required to

examine them as to their qualifications, experience and service records. In the

supervision of employees, the employer must formulate standard operating

procedures, monitor their implementation and impose disciplinary measures for

the breach thereof. To fend off vicarious liability, employers must submit

concrete proof, including documentary evidence, that they complied with

everything that was incumbent on them.?[44]

In Metro Manila Transit Corporation v. Court of Appeals,?[45] it was

explained that:

Due diligence in the supervision of employees on the other hand, includes the formulation of suitable rules and regulations for the guidance of employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his or its employees and the imposition of necessary disciplinary measures upon employees in case of breach or as may be warranted to ensure the performance of acts indispensable to the business of and beneficial to their employer. To this, we add that actual implementation and monitoring of consistent compliance with said rules should be the constant concern of the employer, acting through dependable supervisors who should regularly report on their supervisory functions.

In order that the defense of due diligence in the selection and supervision of employees may be deemed sufficient and plausible, it is not enough to emptily invoke the existence of said company guidelines and policies on hiring and supervision. As the negligence of the employee gives rise to the presumption of negligence on the part of the employer, the latter has the burden of proving that it has been diligent not only in the selection of employees but also in the actual supervision of their work. The mere allegation of the existence of hiring procedures and supervisory policies, without anything more, is decidedly not sufficient to overcome such presumption.

We emphatically reiterate our holding, as a warning to all employers, that “the formulation of various company policies on safety without showing that they were being complied with is not sufficient to exempt petitioner from liability arising from negligence of its employees. It is incumbent upon petitioner to show that in recruiting and

employing the erring driver the recruitment procedures and company policies on efficiency and safety were followed.” x x x.

The trial court found that petitioner PRBLI exercised the diligence of a good

father of a family in the selection but not in the supervision of its employees. It

expounded as follows:

From the evidence of the defendants, it seems that the Philippine Rabbit Bus Lines has a very good procedure of recruiting its driver as well as in the maintenance of its vehicles. There is no evidence though that it is as good in the supervision of its personnel. There has been no iota of evidence introduced by it that there are rules promulgated by the bus company regarding the safe operation of its vehicle and in the way its driver should manage and operate the vehicles assigned to them. There is no showing that somebody in the bus company has been employed to oversee how its driver should behave while operating their vehicles without courting incidents similar to the herein case. In regard to supervision, it is not difficult to observe that the Philippine Rabbit Bus Lines, Inc. has been negligent as an employer and it should be made responsible for the acts of its employees, particularly the driver involved in this case.

We agree. The presence of ready investigators after the occurrence of the

accident is not enough to exempt petitioner PRBLI from liability arising from the

negligence of petitioner Manliclic. Same does not comply with the guidelines set

forth in the cases above-mentioned. The presence of the investigators after the

accident is not enough supervision. Regular supervision of employees, that is,

prior to any accident, should have been shown and established. This, petitioner

failed to do. The lack of supervision can further be seen by the fact that there is

only one set of manual containing the rules and regulations for all the drivers of

PRBLI. ?[46] How then can all the drivers of petitioner PRBLI know and be

continually informed of the rules and regulations when only one manual is being

lent to all the drivers?

For failure to adduce proof that it exercised the diligence of a good father

of a family in the selection and supervision of its employees, petitioner PRBLI is

held solidarily responsible for the damages caused by petitioner Manliclic’s

negligence.

We now go to the award of damages. The trial court correctly awarded the

amount of P40,838.00 as actual damages representing the amount paid by

respondent for the towing and repair of his jeep.?[47] As regards the awards for

moral and exemplary damages, same, under the circumstances, must be

modified. The P100,000.00 awarded by the trial court as moral damages must be

reduced to P50,000.00.?[48] Exemplary damages are imposed by way of example

or correction for the public good.?[49] The amount awarded by the trial court

must, likewise, be lowered to P50,000.00.?[50] The award of P15,000.00 for

attorney’s fees and expenses of litigation is in order and authorized by law.?[51]

WHEREFORE, premises considered, the instant petition for review is

DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 55909 is

AFFIRMED with the MODIFICATION that (1) the award of moral damages shall be

reduced to P50,000.00; and (2) the award of exemplary damages shall be lowered

to P50,000.00. Costs against petitioners.

SO ORDERED.

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