FIRST DIVISION

[G.R. No. 127934. August 23, 2000]

ACE HAULERS CORPORATION, petitioner, vs. THE HONORABLE COURT OF APPEALS AND EDERLINDA ABIVA, respondents.

D E C I S I O N

PARDO, J.:

The case is an appeal via certiorari seeking to set aside the decision of the Court of Appeals1[1] affirming that of the Regional Trial Court, Quezon City, Branch 106, except for the award of thirty thousand pesos (P30,000.00) as exemplary damages, which was deleted. The dispositive portion of the trial court's decision reads as follows:

WHEREFORE, judgment is hereby rendered ordering the defendant to pay plaintiff:

1. the amount of Two Hundred Thousand (P200,000.00) as actual damages;

2. the amount of Fifty Thousand (P50,000.00) as moral damages;

3. the amount of Thirty Thousand (P30,000.00) as exemplary damages;

4. the amount of Thirty Thousand (P30,000.00) as attorneys fees;

5. Costs of suit.

SO ORDERED.2[2]

The facts, culled from the findings of the Court of Appeals, are as follows:

The case was an action for damages arising from a vehicular mishap which took place on June 1, 1984, involving a truck owned by petitioner Ace Haulers Corporation and driven by its employee, Jesus dela Cruz, and a

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jeepney owned by Isabelito Rivera, driven by Rodolfo Parma. A third vehicle, a motorcycle, was bumped and dragged by the jeepney, and its rider, Fidel Abiva, was run over by the truck owned by petitioner Ace Haulers Corporation, causing his death. Upon his untimely demise, Fidel Abiva left behind a wife, respondent Erderlinda Abiva and their three (3) children.

On July 27, 1984, a criminal information for reckless imprudence resulting in homicide was filed against the two drivers, Dela Cruz and Parma, docketed as Criminal Case No. Q-37248 before the RTC of Quezon City, Branch 103.

While the criminal action was pending, on March 11, 1985, respondent Ederlinda Abiva filed with the Regional Trial Court, Quezon City, Branch 93, a separate civil action for damages against the two accused in the criminal case, as well as against Isabelito Rivera and petitioner Ace Haulers Corp., the owners of the vehicles involved in the accident and employers of the accused.

In her complaint, respondent Abiva prayed that:

1. A Writ of Preliminary Attachment be immediately issued against the properties of the defendants as security for the satisfaction of any judgment that may be recovered;

2. Defendants in solidum, to pay plaintiff the amount of P200,000.00 as actual damage;

3. Defendants, in solidum, to pay plaintiff the sum of P50,000.00 as attorneys fees;

4. Defendants, in solidum, to pay plaintiff the amount of moral and exemplary damages which this Court may reasonably assess.

On January 31, 1986, petitioner Ace Haulers Corp. and Jesus dela Cruz filed a motion to dismiss bringing to the trial courts attention the fact that a criminal action was pending before another branch of the same court, and that under the 1985 Rules on Criminal Procedure, the filing of an independent civil action arising from a quasi-delict is no longer allowed. Furthermore, said defendants alleged that respondents private counsel actively participated in the criminal proceedings, showing that the respondent was in fact pursuing the civil aspect automatically instituted with the criminal case.

On February 21, 1986, respondent filed an opposition to the motion arguing that she was not pursuing the civil aspect in the criminal case as she, in fact, manifested in open court in the criminal proceedings that she was filing a separate and independent civil action for damages against the accused and their employers, as allowed under Articles 2177 and 2180 of the Civil Code.

On February 28, 1986, the trial court dismissed the action for damages on the ground that no civil action shall proceed independently of the criminal prosecution in a case for reckless imprudence resulting in homicide. Respondent Abivas motion for reconsideration of the order of dismissal was also denied by the trial court. She then elevated the case before the Intermediate Appellate Court (IAC) by way of a petition for certiorari, docketed as Civil Case No. 09644. The appellate court reversed the dismissal order of the trial court. It was then petitioner Ace Haulers Corporation and Jesus dela Cruzs turn to appeal the judgment of the IAC before the Supreme Court. On August 3, 1988, the Supreme Court issued a resolution denying the petition for review of Ace Haulers Corp. and Jesus dela Cruz for failure to sufficiently show that the Court of Appeals had committed any reversible error in the questioned error. The case was remanded to the trial court for further proceedings.

In the meantime that the petition for review was pending before the Supreme Court, fire razed the portion of the Quezon City Hall building which housed the trial courts and the records of the case were among those that the fire reduced to ashes. It was not until March 26, 1992 that the records of the case was reconstituted by the trial court.

While the pre-trial proceedings in the civil action for damages was still being set and reset upon motion of the opposing parties, on July 6, 1992, the RTC, Quezon City, Branch 83 rendered judgment in the criminal case, finding as follows:

WHEREFORE, the prosecution having established beyond reasonable doubt the guilt of both accused Rodolfo Parma and Jesus dela Cruz for the offense of Reckless Imprudence Resulting in Homicide, this Court finds them guilty of said offense charged and hereby sentences each of them to suffer and undergo imprisonment of ONE (1) YEAR AND ONE (1) DAY of prision correccional as minimum to FOUR (4) YEARS, NINE (9) MONTHS and TEN (10) DAYS also of prision correccional as maximum, and to pay the costs.

Accused Rodolfo Parma and Jesus dela Cruz are hereby ordered to pay the heirs of the deceased Fidel O. Abiva, jointly or pro rata, the amount of FIFTY THOUSAND PESOS (P50,000.00) as indemnification for his death and the amount of FOUR THOUSAND PESOS (P4,000.00) by way of actual damages.

SO ORDERED.

On March 9, 1993, the pre-trial conference of the civil case was finally set on April 6, 1993, and notices thereof were sent to the parties and their respective counsel. On the appointed date, however, no representative nor counsel for petitioner Ace Haulers Corporation appeared. Consequently, upon motion of respondent Abiva, the petitioner was declared as in default. Furthermore, defendants Jesus dela Cruz, Isabelito Rivera and Rodolfo Parma were discharged as defendants, and the case against them dismissed.

On June 30, 1993, the trial court rendered a decision, ruling against petitioner Ace Haulers Corporation. The trial court summarized its findings thus:

Hence, Mrs. Ederlinda Abiva as part of plaintiffs evidence, testified that she is 43 years old, a widow and housekeeper, residing at Cefels Subdivision, Deparo, Novaliches, Quezon City. She told the Court that she is the widow of Fidel Abiva, who died on June 1, 1984 after he was ran over by Isuzu Cargo Truck Plate No. NWY-T Phil 93 owned and operated by the defendant Ace Haulers Corporation, then driven by Jesus dela Cruz and that because of the death of her husband, she suffered damages, among which, moral, exemplary and actual damages for her expenses and attorneys fees. She claimed that she is lawfully married to the late Fidel Abiva as evidenced by their Marriage Contract (Exhibits A and A-1). Out of their wedlock, (sic) they begot three (3) children, namely: Noel, Gina and Argentina with ages 25, 21 and 15, respectively. Her husband died on June 1, 1984 at around 11:45 p.m. (Exhibits B, B-1 and B-2), because of the vehicular accident which involved the wheeler truck of Ace Haulers Corporation driven by Jesus dela Cruz, a jeepney owned by Isabelito Rivera, then driven by Rodolfo Parma and a motorcycle driven by her husband. Her husband, after his death, was autopsied, as reflected in an Autopsy Report (Exhibit C) and by the Postmortem Finding (Exhibit C-1). This was also covered by a police report (Exhibit D) which shows that Jesus dela Cruz is the driver of the defendant (Exhibit D-1). This fact is reiterated in a sworn statement which she executed relative to this vehicular accident (Exhibit E) wherein the said driver mentioned and confirmed the name of his employer (Exhibit E-1). A criminal

case was lodged against the drivers of the two vehicles and a Decision was rendered thereon in Criminal Case No. Q-37248 entitled People of the Philippines versus Jesus dela Cruz and Rodolfo Parma finding both of them guilty beyond reasonable doubt of the crime charged. (Exhibits F, F-1, F-2, F-3, F-4 and F-5). This decision has now acquired finality as no appeal was taken by the accused. It is established, however, that prior to the filing of the instant case, Mrs. Abiva pleaded to Ace Haulers to compensate her for the death of her husband. But her plea went (sic) to deaf ears. She was thus constrained to file this case for damages.

Further testimony of Mrs. Abiva revealed that before the death of her husband, he was employed with Philippine Airlines (PAL) earning P4,600.00.00 a month, as evidenced by the Pay Statement covering the period of 4-15-84 in the amount of P2,065.00 (Exhibits G, G-1, G-2 and G-3); that when he died, he was only 40 years old and healthy, and that based on the life history and pedigree of his family where some of its members lived up to 100 years, she expects her husband to live for no less than 15 years more and could have earned no less than P828,000.00 for the family. But this, her family was deprived, because his life was snatched away by this accident while her husband was riding in a motorcycle which he bought for P11,850.00 (Exhibits H and H-1) which was also totally wrecked.

Resulting from her husbands death, Mrs. Abiva told the Court that she incurred expenses for his burial and funeral in the total amount of no less than P30,000.00 and for his wake of six days, in the amount of about P40,600.00 (Exhibits J, J-1, J-2, J-3, J-4, J-5, and J-6). She also spent around P80,000.00 as litigation expenses, in her quest for justice since she has to engage the services of four (4) counsels from the time of the filing of this case before the Hon. Miriam Defensor-Santiago, then Presiding Judge of this Court who once dismissed this case, and which led eventually to an appeal by certiorari which was later elevated up to the Supreme Court. (Exhibits K, K-1, K-2, K-3, K-4, K-5 and K-6). Blaming the defendant, Mrs. Abiva claimed that had Ace Haulers exercised diligence, care and prudence in the selection and supervision of its employees, her husband would have been spared from this accident. Hence, her prayer for the award of P200,000.00 for the death of her husband, who by now, could have risen in the promotional ladder to a senior Executive of PAL and could be earning about P30,000.00 salary per month by now. She further prays for award of moral damages in the amount of P200,000.00 exemplary damages of P100,000.00, attorneys fees of P50,000.00 and litigation expenses of P50,000.00.

After the testimony of Mrs. Abiva as the lone witness for the plaintiff, counsel formally offered his exhibits and rested his case.

Gathered from the evidence presented, testimonial and documentary, the Court finds enough legal and factual basis to grant the claim for damages by the plaintiff. The insinuations of negligence on the part of defendants driver is amply shown as one, who drove his vehicle fast, impervious to the safety of life and property of others, his utter lack of care and caution and his unmitigated imprudence, rolled into one, all these predicated the occurrence of this accident which took away a precious human life.

Whoever by act or omission causes damages to another, there being fault or negligence, is obliged to pay for the damages done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict x x x (Article 2176, New Civil Code).

Corollary to this, is the civil law concept that:

The obligations imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those persons for whom one is responsible (Art. 2180, 1st paragraph, New Civil Code)

x x x x x x

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, x x x (Article 2180 paragraph 5, New Civil Code).

Taken in their appropriate context, and predicated on the evidence adduced which has not been evidentiarily traversed by the defendant, this Court is left to (sic) no other recourse but to grant the remedies and reliefs which in her complaint plaintiff prays for, all of them having been by her adduced evidence, preponderantly shown and established and out of which, she has shown herself to be completely deserving.3[3]

On September 13, 1993, petitioner appealed to the Court of Appeals.4[4]

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On January 17, 1997, the Court of Appeals promulgated its decision, the dispositive portion of which reads as follows:

WHEREFORE, except for the award of thirty thousand (P30,000.00) as exemplary damages, which is hereby set aside, the Decision appealed from is hereby AFFIRMED in all other respect.

SO ORDERED.

Hence, this appeal.5[5]

The issues raised are whether or not in an action for damages arising from a vehicular accident plaintiff may recover damages against the employer of the accused driver both in the criminal case (delict) and the civil case for damages based on quasi delict, but not recover twice for the same act; (2) whether the Court of Appeals erred in not lifting the order declaring petitioner as in default for failure to appear at the pre-trial conference; and (3) whether the damages awarded in the civil case were excessive, much more than the previous award in the criminal case.

In Padua v. Robles,5 we held that Civil liability coexists with criminal responsibility. In negligence cases, the offended party (or his heirs) has the option between an action for enforcement of civil liability based on culpa criminal under Article 100 of the Revised Penal Code and an action for recovery of damages based on culpa aquiliana under Article 2176 of the Civil Code. x x x Article 2177 of the Civil Code, however, precludes recovery of damages twice for the same negligent act or omission.6

Consequently, a separate civil action for damages lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary.7

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Hence, in this case, respondent Abiva shall have the choice which of the awards to take, naturally expecting that she would opt to recover the greater amount. It has not been shown that she has recovered on the award in the criminal case, consequently, she can unquestionably recover from petitioner in the civil case.

As to the second issue raised, we find that petitioner was rightly declared as in default for its failure to appear during the pre-trial conference despite due notice. This is a factual question resolved by the Court of Appeals which we cannot review.8

As to the third issue regarding the award of damages to respondent Abiva, we find the award of actual damages to be supported by preponderant evidence. Basic is the rule that to recover actual damages, the amount of loss must not only be capable of proof but must actually be proven with reasonable degree of certainty, premised upon competent proof or best evidence obtainable of the actual amount thereof.9 However, there is no basis for the award of moral damages, which is hereby deleted. The person claiming moral damages must prove the existence of bad faith by clear and convincing evidence for the law always presumes good faith. It is not enough that one merely suffered sleepless nights, mental anguish, serious anxiety as the result of the actuations of the other party. Invariably such action must be shown to have been willfully done in bad faith or with ill motive.1010

The attorney's fees awarded is reduced to P20,000.00 which is ten (10%) percent of the amount of actual damages.

WHEREFORE, the Court DENIES the petition for review on certiorari and AFFIRMS the decision of the Court of Appeals,1111 with modification. The Court deletes the award of fifty thousand pesos (P50,000.00) as moral damages, and reduces the attorney fees to twenty thousand pesos (P20,000.00).

No costs.

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SO ORDERED.

SECOND DIVISION

[G.R. No. 107725. January 22, 1998]

ESPERO SALAO, petitioner, vs. THE HONORABLE COURT OF APPEALS and JOWIE APOLONIO, respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition for review on certiorari of the decisioni[1] of the Court of Appeals affirming the decision of the Regional Trial Court, Branch XIV, Malolos, Bulacan, which ordered petitioner Espero Salao to pay private respondent Jowie Apolonio P20,000.00 in actual damages, P10,000.00 in moral damages, and P15,000.00 in attorneys fees, as well as the appellate courts resolution of October 23, 1992 denying petitioners motion for reconsideration.

This case originated from a complaint for damages filed by the private respondent for head injuries allegedly inflicted on him by petitioner on August 24, 1986. Private respondent, then a senior student at the Philippine Air Transport and Training Services, Inc., testified that on August 24, 1986, at around 6:30 p.m., he saw a friends jeep parked outside the compound of the petitioner. Upon entering the compound he saw his friend having drinks with petitioner. He therefore decided to join them but petitioner saw him and drove him away for being a drug addict. As he was leaving petitioner hit him on the head with a gun and threatened him with further harm. Only the timely intervention of private respondents brother, Gary Apolonio, and petitioners mother, Lourdes Salao, saved him from further injuries in the hands of petitioner.ii[2]

Private respondent submitted in evidence a certification and receipts,iii[3] in support of his claim for damages. The expenses were incurred for an operation at Martinez Memorial Hospital which necessitated private respondents confinement there from September 4 to 9, 1986.iv[4]

The private respondents claim was corroborated by his brother, Gary Apolonio, who testified that while he was buying cigarettes from a store in

front of petitioners residence, he saw the latter hit his brother on the head with a gun, even as he accused him of teaching petitioners son, Dennis, how to abuse drugs. Gary said he had to take his brother to the hospital because of injuries on the head caused by petitioner.v[5]

Dr. Antonio Sarrosa testified that he operated on Jowie Apolonio for a fractured skull at the Martinez Memorial Hospital.vi[6]

On the other hand, petitioner claimed it was private respondent who tried to assault him and he only acted in self defense by hitting private respondent with his gun. According to petitioner, on August 24, 1986, between 5 and 6:30 p.m., he was surprised to see private respondent inside their yard having drinks with his nephew and the latters friends. Because he told the group to stop drinking, private respondent resented his order and left. Later, petitioners wife arrived and told him that private respondent was very angry and making threats against petitioner. As petitioner went to buy cigarettes at the store of his sister-in-law located also within the compound, private respondent shouted at him and hit him. Petitioner claimed that, in self defense, he pulled his gun and hit the private respondent with it. He asked the group to throw private respondent out of the compound.vii[7]

Petitioner also claimed he was going to file charges against private respondent but was persuaded not to do so by private respondents mother because they were neighbors.viii[8] He said he counseled his sons not to keep private respondent in their company as he suspected him to be engaged in illegal acts and trying to make his sons do the same.ix[9]

The trial court found the private respondents version of the incident to be more convincing than that of the petitioner which it found to be uncorroborated and self-serving.x[10] Accordingly, it rendered judgment against the petitioner. The trial court also denied petitioners subsequent motion for reconsideration and new trial.

On appeal, the Court of Appeals affirmed the trial courts decision in toto and later denied petitioners motion for reconsideration. Petitioner then brought this appeal questioning the award of damages and attorneys fees to private respondent. In his Reply to Private Respondents Comment, he raised as additional ground the fact that in the criminal case for serious physical injuries and grave threats based on the same incident, the Municipal Trial Court of Obando, Bulacan found him not guilty and accordingly dismissed the case against him.

The appeal is without merit.

First. It is settled that issues not raised in the court a quo cannot be raised for the first time on appeal in this Court without violating the basic rules of fair play, justice and due process.xi[11] In the case at bar, petitioner appealed to the Court of Appeals, assigning two errors allegedly committed by the trial court, to wit:

1. The Trial Court erred in taking cognizance of and hearing the case without plaintiff first availing the conciliation process provided by PD 1508; and

2. The Trial Court erred in denying defendant-appellants motion for reconsideration and alternatively motion for new trial.

The propriety of such award of damages and the effect of petitioners acquittal in the criminal cases were not questioned by petitioner. Consequently, he is barred from raising these questions for the first time in this appeal.

Second. Petitioner has not shown that the award of damages is not supported by evidence. For example, the award of P20,000.00 for actual damages is based on hospital bills and receipts for medicine which private respondent properly identified in court and formally offered in evidence.xii[12]

That private respondent is competent to testify regarding the authenticity and due execution of these documents is beyond doubt. Rule 132, 20 of the Revised Rules on Evidence provides:

20. Proof of private document. - Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuiness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.

Needless to say, this factual finding of the trial court, especially because it was affirmed by the Court of Appeals and petitioner in this case has presented no rebutting evidence, is well nigh conclusive in this appeal.xiii[13]

The award of P10,000.00 for moral damages is likewise appropriate. This being a case of physical injuries resulting from a crime or quasi-delict, moral damages may be awarded in the discretion of the court, as provided by Art. 2219(1) or (2) of the Civil Code. The evidence gives no ground for doubt that such discretion was properly and judiciously exercised by the trial court. The award is in fact consistent with the rule that moral damages are not intended to enrich the injured party, but to alleviate the moral suffering he has undergone by reason of the defendants culpable action.xiv[14]

With regard to the award of P15,000.00 for attorneys fees, petitioner invokes rulingsxv[15] that in view of the policy against placing a premium on the right to litigate, awards for attorneys fees must be based on findings of fact and law, expressed in the judgment of the trial court, which bring the case within the exceptions enumerated in Art. 2208 of the Civil Code. In this case, the award of attorneys fees is based on the trial court finding that because of this case private respondent was compelled to secure the services of counsel for P20,000.00.xvi[16] (The actual award is for P15,000.00) Art. 2208(2) provides:

Art. 2208. In the absence of stipulation, attorneys fees and expenses of litigation, other than judicial costs, cannot be recovered, except: . . . .

(2) When the defendants act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; . . .

Contrary to petitioners contention, there was compliance by the trial court with the rule regarding attorneys fees.

Third. Nor is there merit in petitioners claim that his acquittal in the criminal action for serious physical injuries constitutes a definitive finding that he has no civil liability to the private respondent. Petitioner invokes Rule 111, 2(b) of the Rules of Criminal Procedure which provides:

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.xvii[17]

The civil liability referred to in this Rule is the civil liability arising from crime (ex delicto). It is not the civil liability for quasi delict which is allowed to be brought separately and independently of the criminal action by Art. 33 of the Civil Code.xviii[18] The civil liability based on such cause of action 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.xix[19] Indeed, because the offended party does not intervene in the criminal prosecution, it is entirely possible that all the witnesses presented in the civil action may not have been presented by the public prosecutor in the criminal action with the result that the accused in the criminal case may be acquitted. This is what happened in the recent case of Heirs of Guaring v. Court of Appealsxx[20] where, because the only survivor in a motor car accident whose testimony proved to be pivotal in the civil case was not called to testify in the criminal prosecution of the driver of the other vehicle, the latter was acquitted on reasonable doubt.

We therefore hold that petitioners acquittal in the criminal case for serious physical injuries and grave threats is not conclusive of his liability for damages to private respondent. This case is separate, distinct and independent of the criminal action and requires only a preponderance to prove it.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with costs against petitioner.

SO ORDERED.

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

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EN BANC

[G.R. No. 129029. April 3, 2000]

RAFAEL REYES TRUCKING CORPORATION, petitioner, vs. PEOPLE OF THE PHILIPPINES and ROSARIO P. DY (for herself and on behalf of the minors Maria Luisa, Francis Edward, Francis Mark and Francis Rafael, all surnamed Dy), respondents.

D E C I S I O N

PARDO, J.:

The case is an appeal via certiorari from the amended decision[1] of the Court of Appeals[2] affirming the decision and supplemental decision of the trial court,[3] as follows:

"IN VIEW OF THE FOREGOING, judgment is hereby rendered dismissing the appeals interposed by both accused and Reyes Trucking Corporation and affirming the Decision and Supplemental Decision dated June 6, 1992 and October 26, 1992 respectively.

"SO ORDERED."[4]

The facts are as follows:

On October 10, 1989, Provincial Prosecutor Patricio T. Durian of Isabela filed with the Regional Trial Court, Isabela, Branch 19, Cauayan an amended information charging Romeo Dunca y de Tumol with reckless imprudence resulting in double homicide and damage to property, reading as follows:

"That on or about the 20th day of June, 1989, in the Municipality of Cauayan, Province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused being the driver and person-in-charge of a Trailer Truck Tractor bearing Plate No. N2A-867 registered in the name of Rafael Reyes Trucking Corporation, with a load of 2,000 cases of empty bottles of beer grande, willfully, unlawfully and feloniously drove and operated the same while along the National Highway of Barangay Tagaran, in said Municipality, in a negligent, careless and imprudent manner, without due regard to traffic laws, rules and ordinances and without taking

the necessary precautions to prevent injuries to persons and damage to property, causing by such negligence, carelessness and imprudence the said trailer truck to hit and bump a Nissan Pick-up bearing Plate No. BBG-957 driven by Feliciano Balcita and Francisco Dy, Jr., @ Pacquing, due to irreversible shock, internal and external hemorrhage and multiple injuries, open wounds, abrasions, and further causing damages to the heirs of Feliciano Balcita in the amount of P100,000.00 and to the death of Francisco Dy, Jr.; @ Pacquing and damages to his Nissan Pick-Up bearing Plate No. BBG-957 in the total amount of P2,000,000.00.

"CONTRARY TO LAW.

"Cauayan, Isabela, October 10, 1989.

"(Sgd.) FAUSTO C. CABANTAC"Third Assistant Provincial Prosecutor"

Upon arraignment on October 23, 1989, the accused entered a plea of not guilty. On the same occasion, the offended parties (Rosario P. Dy and minor children and Angelina M. Balcita and minor son Paolo) made a reservation to file a separate civil action against the accused arising from the offense charged.[5] On November 29, 1989, the offended parties actually filed with the Regional Trial Court, Isabela, Branch 19, Cauayan a complaint against petitioner Rafael Reyes Trucking Corporation, as employer of driver Romeo Dunca y de Tumol, based on quasi delict. The petitioner settled the claim of the heirs of Feliciano Balcita (the driver of the other vehicle involved in the accident). The private respondents opted to pursue the criminal action but did not withdraw the civil case quasi ex delicto they filed against petitioner. On December 15, 1989, private respondents withdrew the reservation to file a separate civil action against the accused and manifested that they would prosecute the civil aspect ex delicto in the criminal action.[6] However, they did not withdraw the separate civil action based on quasi delict against petitioner as employer arising from the same act or omission of the accused driver.[7]

Upon agreement of the parties, the trial court consolidated both criminal and civil cases and conducted a joint trial of the same.

The facts, as found by the trial court, which appear to be undisputed, are as follows:

"The defendant Rafael Reyes Trucking Corporation is a domestic corporation engaged in the business of transporting beer products for the San Miguel Corporation (SMC for short) from the latters San Fernando, Pampanga plant to its various sales outlets in Luzon. Among its fleets of vehicles for hire is the white truck trailer described above driven by Romeo Dunca y Tumol, a duly licensed driver. Aside from the Corporations memorandum to all its drivers and helpers to physically inspect their vehicles before each trip (Exh. 15, pars. 4 & 5), the SMCs Traffic Investigator-Inspector certified the roadworthiness of this White Truck trailer prior to June 20, 1989 (Exh. 17). In addition to a professional drivers license, it also conducts a rigid examination of all driver applicants before they are hired.

"In the early morning of June 20, 1989, the White Truck driven by Dunca left Tuguegarao, Cagayan bound to San Fernando, Pampanga loaded with 2,000 cases of empty beer "Grande" bottles. Seated at the front right seat beside him was Ferdinand Domingo, his truck helper ("pahinante" in Pilipino). At around 4:00 oclock that same morning while the truck was descending at a slight downgrade along the national road at Tagaran, Cauayan, Isabela, it approached a damaged portion of the road covering the full width of the trucks right lane going south and about six meters in length. These made the surface of the road uneven because the potholes were about five to six inches deep. The left lane parallel to this damaged portion is smooth. As narrated by Ferdinand Domingo, before approaching the potholes, he and Dunca saw the Nissan with its headlights on coming from the opposite direction. They used to evade this damaged road by taking the left lance but at that particular moment, because of the incoming vehicle, they had to run over it. This caused the truck to bounce wildly. Dunca lost control of the wheels and the truck swerved to the left invading the lane of the Nissan. As a

result, Duncas vehicle rammed the incoming Nissan dragging it to the left shoulder of the road and climbed a ridge above said shoulder where it finally stopped. (see Exh. A-5, p. 8, record). The Nissan was severely damaged (Exhs. A-7, A-8, A-9 and A-14, pp. 9-11, record), and its two passengers, namely: Feliciano Balcita and Francisco Dy, Jr. died instantly (Exh. A-19) from external and internal hemorrhage and multiple fractures (pp. 15 and 16, record).

"For the funeral expenses of Francisco Dy, Jr. her widow spent P651,360.00 (Exh. I-3). At the time of his death he was 45 years old. He was the President and Chairman of the Board of the Dynamic Wood Products and Development Corporation (DWPC), a wood processing establishment, from which he was receiving an income of P10,000.00 a month (Exh. D). In the Articles of Incorporation of the DWPC, the spouses Francisco Dy, Jr. and Rosario Perez Dy appear to be stockholders of 10,000 shares each with par value of P100.00 per share out of its outstanding and subscribed capital stock of 60,000 shares valued at P6,000,000.00 (Exhs. K-1 & 10-B). Under its 1988 Income Tax Returns (Exh. J) the DWPC had a taxable net income of P78,499.30 (Exh. J). Francisco Dy, Jr. was a La Salle University graduate in Business Administration, past president of the Pasay Jaycees, National Treasurer and President of the Philippine Jaycees in 1971 and 1976, respectively, and World Vice-President of Jaycees International in 1979. He was also the recipient of numerous awards as a civic leader (Exh. C). His children were all studying in prestigious schools and spent about P180,000.00 for their education in 1988 alone (Exh. H-4).

"As stated earlier, the plaintiffs procurement of a writ of attachment of the properties of the Corporation was declared illegal by the Court of Appeals. It was shown that on December 26, 1989, Deputy Sheriff Edgardo Zabat of the RTC at San Fernando, Pampanga, attached six units of Truck Tractors and trailers of the Corporation at its garage at San Fernando, Pampanga. These vehicles were kept under PC guard by the plaintiffs in said garage thus preventing the Corporation to operate them. However, on December 28, 1989, the Court of Appeals dissolved the writ (p. 30, record) and on December 29, 1989, said Sheriff reported to this Court that the attached vehicles were taken by the defendants representative, Melita Manapil (Exh. O, p. 31, record). The defendants general Manager declared that it lost P21,000.00 per day for the non-operation of the six units during their attachment (p. 31, t.s.n., Natividad C. Babaran, proceedings on December 10, 1990)."[8]

On June 6, 1992, the trial court rendered a joint decision, the dispositive portion of which reads as follows:

"WHEREFORE, in view of the foregoing considerations judgment is hereby rendered:

"1. Finding the accused Romeo Dunca y de Tumol guilty beyond reasonable doubt of the crime of Double Homicide through Reckless Imprudence with violation of the Motor Vehicle Law (Rep. Act No. 4136), and appreciating in his favor the mitigating circumstance of voluntary surrender without any aggravating circumstance to offset the same, the Court hereby sentences him to suffer two (2) indeterminate penalties of four months and one day of arresto mayor as minimum to three years, six months and twenty days as maximum; to indemnify the Heirs of Francisco Dy. Jr. in the amount of P3,000,000.00 as compensatory damages, P1,000,000.00 as moral damages, and P1,030,000.00 as funeral expenses;

"2. Ordering the plaintiff in Civil Case No. Br. 19-424 to pay the defendant therein actual damages in the amount of P84,000.00; and

"3. Ordering the dismissal of the complaint in Civil Case No. Br. 19-424.

"No pronouncement as to costs.

"SO ORDERED.

"Cauayan, Isabela, June 6, 1992.

"(Sgd.) ARTEMIO R. ALIVIA"Regional Trial Judge"[9]

On September 3, 1992, petitioner and the accused filed a notice of appeal from the joint decision.[10]

On the other hand, private respondents moved for amendment of the dispositive portion of the joint decision so as to hold petitioner subsidiarily liable for the damages awarded to the private respondents in the event of insolvency of the accused.[11]

On October 26, 1992, the trial court rendered a supplemental decision amending the dispositive portion by inserting an additional paragraph reading as follows:

"2:A Ordering the defendant Reyes Trucking Corporation subsidiarily liable for all the damages awarded to the heirs of Francisco Dy, Jr., in the event of insolvency of the accused but deducting therefrom the damages of P84,000.00 awarded to said defendant in the next preceding paragraph; and x x x"[12]

On November 12, 1992, petitioner filed with the trial court a supplemental notice of appeal from the supplemental decision.[13]

During the pendency of the appeal, the accused jumped bail and fled to a foreign country. By resolution dated December 29, 1994, the Court of Appeals dismissed the appeal of the accused in the criminal case.[14]

On January 6, 1997, the Court of Appeals rendered an amended decision affirming that of the trial court, as set out in the opening paragraph of this decision.[15]

On January 31, 1997, petitioner filed a motion for reconsideration of the amended decision.[16]

On April 21, 1997, the Court of Appeals denied petitioners motion for reconsideration for lack of merit.[17]

Hence, this petition for review.[18]

On July 21, 1997, the Court required respondents to comment on the petition within ten (10) days from notice.[19]

On January 27, 1998, the Solicitor General filed his comment.[20] On April 13, 1998, the Court granted leave to petitioner to file a reply and noted the reply it filed on March 11, 1998.[21]

We now resolve to give due course to the petition and decide the case.

Petitioner raises three (3) grounds for allowance of the petition, which, however, boil down to two (2) basic issues, namely:

1.....May petitioner as owner of the truck involved in the accident be held subsidiarily liable for the damages awarded to the offended parties in the criminal action against the truck driver despite the filing of a separate civil action by the offended parties against the employer of the truck driver?

2.....May the Court award damages to the offended parties in the criminal case despite the filing of a civil action against the employer of the truck driver; and in amounts exceeding that alleged in the information for reckless imprudence resulting in homicide and damage to property?[22]

We grant the petition, resolving under the circumstances pro hac vice to remand the cases to the trial court for determination of the civil liability of petitioner as employer of the accused driver in the civil action quasi ex delicto re-opened for the purpose.

In negligence cases, the aggrieved party has the choice between (1) an action to enforce civil liability arising from crime under Article 100 of the Revised Penal Code; and (2) a separate action for quasi delict under Article 2176 of the Civil Code of the Philippines. Once the choice is made, the injured party can not avail himself of any other remedy because he may not recover damages twice for the same negligent act or omission of the accused.[23] This is the rule against double recovery.

In other words, "the same act or omission can create two kinds of liability on the part of the offender, that is, civil liability ex delicto, and civil liability quasi delicto" either of which "may be enforced against the culprit, subject to the caveat under Article 2177 of the Civil Code that the offended party can not recover damages under both types of liability."[24]

In the instant case, the offended parties elected to file a separate civil action for damages against petitioner as employer of the accused, based on quasi delict, under Article 2176 of the Civil Code of the Philippines. Private respondents sued petitioner Rafael Reyes Trucking Corporation, as the employer of the accused, to be vicariously liable for the fault or negligence of the latter. Under the law, this vicarious liability of the employer is founded on at least two specific provisions of law.

The first is expressed in Article 2176 in relation to Article 2180 of the Civil Code, which would allow an action predicated on quasi-delict to be instituted by the injured party against the employer for an act or omission of the employee and would necessitate only a preponderance of evidence to prevail. Here, the liability of the employer for the negligent conduct of the subordinate is direct and primary, subject to the defense of due diligence in the selection and supervision of the employee. The enforcement of the judgment against the employer in an action based on Article 2176 does not require the employee to be insolvent since the nature of the liability of the employer with that of the employee, the two being statutorily considered joint tortfeasors, is solidary.[25] The second, predicated on Article 103 of the Revised Penal Code, provides that an employer may be held subsidiarily civilly liable for a felony committed by his employee in the discharge of his duty. This liability attaches when the employee is convicted of a crime done in the performance of his work and is found to be insolvent that renders him unable to properly respond to the civil liability adjudged.[26]

As regards the first issue, the answer is in the negative. Rafael Reyes Trucking Corporation, as employer of the accused who has been adjudged guilty in the criminal case for reckless imprudence, can not be held subsidiarily liable because of the filing of the separate civil action based on quasi delict against it. In view of the reservation to file, and the subsequent filing of the civil action for recovery of civil liability, the same was not instituted with the criminal action. Such separate civil action was for recovery of damages under Article 2176 of the Civil Code, arising from the same act or omission of the accused.[27]

Pursuant to the provision of Rule 111, Section 1, paragraph 3 of the 1985 Rules of Criminal Procedure, when private respondents, as complainants in the criminal action, reserved the right to file the separate civil action, they waived other available civil actions predicated on the same act or omission of the accused-driver. Such civil action includes the recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, and 34 of the Civil Code of the Philippines arising from the same act or omission of the accused.[28]

The intention of private respondents to proceed primarily and directly against petitioner as employer of accused truck driver became clearer when they did not ask for the dismissal of the civil action against the latter based on quasi delict.

Consequently, the Court of Appeals and the trial court erred in holding the accused civilly liable, and petitioner-employer of the accused subsidiarily liable for damages arising from crime (ex delicto) in the criminal action as the offended parties in fact filed a separate civil action against the employer based on quasi delict resulting in the waiver of the civil action ex delicto.

It might be argued that private respondents as complainants in the criminal case withdrew the reservation to file a civil action against the driver (accused) and manifested that they would pursue the civil liability of the driver in the criminal action. However, the withdrawal is ineffective to reverse the effect of the reservation earlier made because private respondents did not withdraw the civil action against petitioner based on quasi delict. In such a case, the provision of Rule 111, Section 1, paragraph 3 of the 1985 Rules on Criminal Procedure is clear that the reservation to file or the filing of a separate civil action results in a waiver of other available civil actions arising from the same act or omission of the accused. Rule 111, Section 1, paragraph 2 enumerated what are the civil actions deemed waived upon such reservation or filing, and one of which is the civil indemnity under the Revised Penal Code. Rule 111, Section 1, paragraph 3 of the 1985 Rules on Criminal Procedure specifically provides:

"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 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. The restrictive phraseology of the section under consideration is meant to cover all kinds of civil actions, regardless of their source in law, provided that the action has for its basis the same act or omission of the offender.[29]

However, petitioner as defendant in the separate civil action for damages filed against it, based on quasi delict, may be held liable thereon. Thus, the trial court grievously erred in dismissing plaintiffs civil complaint. And the Court of Appeals erred in affirming the trial courts decision. Unfortunately private respondents did not appeal from such dismissal and could not be granted affirmative relief.[30]

The Court, however, in exceptional cases has relaxed the rules "in order to promote their objectives and assist the parties in obtaining just, speedy, and inexpensive determination of every action or proceeding"[31] or exempted "a particular case from the operation of the rules."[32]

Invoking this principle, we rule that the trial court erred in awarding civil damages in the criminal case and in dismissing the civil action. Apparently satisfied with such award, private respondent did not appeal from the dismissal of the civil case. However, petitioner did appeal. Hence, this case should be remanded to the trial court so that it may render decision in the civil case awarding damages as may be warranted by the evidence.[33]

With regard to the second issue, the award of damages in the criminal case was improper because the civil action for the recovery of civil liability was waived in the criminal action by the filing of a separate civil action against the employer. As enunciated in Ramos vs. Gonong,[34] "civil indemnity is not part of the penalty for the crime committed." The only issue brought before the trial court in the criminal action is whether accused Romeo Dunca y de Tumol is guilty of reckless imprudence resulting in homicide and damage to property. The action for recovery of civil liability is not included therein, but is covered by the separate civil action filed against the petitioner as employer of the accused truck-driver.

In this case, accused-driver jumped bail pending his appeal from his conviction. Thus, the judgment convicting the accused became final and executory, but only insofar as the penalty in the criminal action is concerned. The damages awarded in the criminal action was invalid because of its effective waiver. The pronouncement was void because the action for recovery of the civil liability arising from the crime has been waived in said criminal action.

With respect to the issue that the award of damages in the criminal action exceeded the amount of damages alleged in the amended information, the issue is de minimis. At any rate, the trial court erred in awarding damages in the criminal case because by virtue of the reservation of the right to bring a separate civil action or the filing thereof, "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.[35]

As a final note, we reiterate that "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.[36] The injured party must choose which of the available causes of action for damages he will bring.[37]

Parenthetically, the trial court found the accused "guilty beyond reasonable doubt of the crime of Double Homicide Through Reckless Imprudence with violation of the Motor Vehicle Law (Rep. Act No. 4136)." There is no such nomenclature of an offense under the Revised Penal Code. Thus, the trial court was misled to sentence the accused "to suffer two (2) indeterminate penalties of four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, six (6) months and twenty (20) days of prision correccional, as maximum." This is erroneous because in reckless imprudence cases, the actual penalty for criminal negligence bears no relation to the individual willful crime or crimes committed, but is set in relation to a whole class, or series of crimes.[38]

Unfortunately, we can no longer correct this judgment even if erroneous, as it is, because it has become final and executory.

Under Article 365 of the Revised Penal Code, criminal negligence "is treated as a mere quasi offense, and dealt with separately from willful offenses. It is not a question of classification or terminology. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. Much of the confusion has arisen from the common use of such descriptive phrase as homicide through reckless imprudence, and the like; when the strict technical sense is, more accurately, reckless imprudence resulting in homicide; or simple imprudence causing damages to property."[39]

There is need, therefore, to rectify the designation of the offense without disturbing the imposed penalty for the guidance of bench and bar in strict adherence to precedent.

WHEREFORE, the Court GRANTS the petition and SETS ASIDE the amended decision and resolution of the Court of Appeals in CA-G. R. CR No. 14448, promulgated on January 6, 1997, and the joint decision of the Regional Trial Court, Isabela, Branch 19, Cauayan, in Criminal Case No. Br. 19-311 and Civil Case No. Br. 19-424, dated June 6, 1992.

IN LIEU THEREOF, the Court renders judgment as follows:

(1) In Criminal Case No. Br. 19-311, the Court declares the accused Romeo Dunca y de Tumol guilty beyond reasonable doubt of reckless imprudence resulting in homicide and damage to property, defined and penalized under Article 365, paragraph 2 of the Revised Penal Code, with violation of the automobile law (R. A. No. 4136, as amended), and sentences him to suffer two (2) indeterminate penalties of four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, six (6) months and twenty (20) days of prision correccional, as maximum,[40] without indemnity, and to pay the costs, and

(2) In Civil Case No. Br. 19-424, the Court orders the case re-opened to determine the liability of the defendant Rafael Reyes Trucking Corporation to plaintiffs and that of plaintiffs on defendants counterclaim.

No costs in this instance.

SO ORDERED.

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