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DISSENTING OPINION

MENDOZA, J., dissenting:

The question in this case is whether petitioner, as employer of the driver found guilty of reckless imprudence resulting in homicide and damage to property, can be held subsidiarily liable for damages awarded in the criminal case considering that a separate civil action for quasi-delict had been filed against said petitioner, although the case was later dismissed. Based on the facts as stated in the majority opinion, the answer is yes. My reasons are twofold: first, because the filing of the case for quasi-delict against petitioner was without basis, the same being contrary to the reservation earlier made by the offended parties of their right to file a separate civil action arising from the crime against the driver, and, second, because the action for quasi-delict against petitioner was dismissed precisely because the civil action against petitioner's driver had been reinstituted in the criminal case against him. Let me explain.

As the records show, at the arraignment on October 23, 1989 of the driver Romeo Dunca, the heirs of Francisco Dy, Jr. and Feliciano Balcita reserved in Criminal Case No. Br. 19-311 their right "to institute a separate civil action arising from the offense charged against the herein accused."¹ In accordance with Rule 111, 1 of the 1985 Rules on Criminal Procedure,² such reservation of the right to file a civil action ex delicto was a waiver of the right to file any other civil action under Arts. 32, 33, 34 and 2176 of the Civil Code for recovery of damages for the same act or omission of the accused. Hence, the subsequent filing by private respondent Rosario P. Dy of a civil action for quasi-delict, based on Arts. 2176 and 2180 of the Civil Code, against petitioner Rafael Reyes Trucking Corporation was without any basis, the same having been waived by the reservation earlier made by her of the right to file a separate civil action arising from crime.

Be that as it may, the records further show that on December 15, 1989, private respondent filed a manifestation in the criminal case that she was withdrawing the previous reservation made by her to institute a separate civil action and that she was instead going to prosecute the civil action in the criminal case. Hence, she prayed "that the reservation to institute separate civil action in this case be ordered withdrawn and the Heirs of the victims be allowed to present evidence in support of the civil liability to the accused in this case."³ The trial court granted private respondent's motion and allowed her to intervene in the criminal case. Consequently, the civil action ex delicto was merged with the criminal prosecution.

The civil action for quasi-delict against petitioner, which had been docketed as Civil Case No. Br. 19-424, was subsequently consolidated andintly tried with the criminal case (Criminal Case No. Br. 19-311) against the driver. Then, on June 6, 1992, the trial court rendered judgment, which was amended on October 26, 1992-

(1) finding the driver Romeo Dunca guilty of double homicide through reckless imprudence and violation of the Motor Vehicle Law and sentencing him to two indeterminate penalties of 4 months and 1 day of arresto mayor to 3 years, 6 months and 20 days and to pay the heirs of Francisco Dy, Jr. in the total amount of P 5,030,000.00;

(2) ordering private respondent to pay P84,000.00 as damages for wrongful attachment of petitioner's trucks; and

(3) dismissing Civil Case No. Br. 19-424 but declaring petitioner subsidiarily liable to private respondent heirs of Francisco Dy, Jr. in the event of insolvency of the accused driver.

It is contended that, as the trial court had dismissed the action for quasi-delict (Civil Case No. Br. 19-424) and private respondent did not appeal, no award of damages can be made in her favor. This contention has no merit. The civil action for quasi-delict was dismissed precisely so that petitioner's liability for its driver's negligence could be determined in the criminal case. Thus, the trial court stated:

Since Civil Case No. Br. 19-424 was admittedly instituted after the criminal case was filed, the Court believes that the waiver made by the Heirs of Francisco Dy, Jr. on December 15, 1969 included their right to file a separate civil action against the Rafael Reyes Trucking Corporation, the accused's employer, for the reason that under Section 1, Rule 111, actions arising from Article 2176 of the Civil Code or quasi-delicts are deemed included in the waiver. As such, since the latter raised as an affirmative defense the defense that the plaintiffs cannot maintain Civil Case No. [Br.] 19-424, this Court must have to rule that the filing of said case was not proper. Nevertheless, inasmuch as the plaintiffs cannot recover damages twice for the offense committed by the accused, under Article 103 of the Revised Penal Code, in the event the accused will be insolvent, the Corporation could be held subsidiarily liable for the same damages.⁴cräläwvirtualibräry

On the other hand, because of the subsequent withdrawal of the reservation to file a separate civil action the same was reinstituted in the criminal case, as though no reservation to file it separately had ever been made. The trial court, therefore, properly included in its decision in the criminal case a finding of the driver's civil liability, in addition to his criminal liability.

Petitioner and its driver, Romeo Dunca, appealed to the Court of Appeals. However, while the appeal was thus pending, Dunca jumped bail. The decision convicting him and imposing on him civil liability ex delicto thereby became final and executory. This circumstance allows for the application of Art. 103 of the Revised Penal Code, which provides:

Subsidiary civil liability of other persons. - 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 felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties.

To establish the subsidiary civil liability of the petitioner, the following must be shown: (1) that petitioner is engaged in an industry; (2) that its employee (Romeo Dunca) committed the offense in the discharge of his duties; and (3) that the employee is insolvent.⁵cräläwvirtualibräry

The first requisite has already been established considering that petitioner admitted in its answer in the trial court that it is engaged in an industry and that Dunca was its employee at the time of the accident.⁶cräläwvirtualibräry

The second requisite must likewise be deemed to have been established since it is settled that, in the absence of any collusion between the accused employee and the offended party, a judgment convicting the former is conclusive upon the party subsidiarily liable.⁷ Petitioner cannot claim that he has been deprived of due process on the ground that it was not a party to the suit. For as held in Miranda v. Malate Garage & Taxicab, Inc.:

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....⁸cräläwvirtualibräry

Indeed, Civil Case No. Br. 19-424 and Criminal Case No. Br. 19-311 wereintly tried. All the parties in the two cases - the prosecution and the defense in the criminal case, and the Dys and petitioner Rafael Reyes Trucking Corporation in the civil case - were duly heard, before the trial court, in itsint decision, rendered judgment dismissing the civil action for quasi delict against petitioner and finding it instead subsidiarily liable in the criminal case. Petitioner and its driver were in fact represented by the same counsel, who raised all possible defenses that petitioner could raise.⁹ The remand of this case to the trial court should, therefore, be solely for the purpose of determining, in the execution of the decision, whether Dunca, the accused driver, is insolvent.

The Court holds, however, that petitioner cannot be held liable in the criminal case on the ground that the right to file a civil action ex delicto has been waived and that instead its liability for its driver's negligence must be determined under Arts. 2176 and 2180 of the Civil Code. For this purpose, the Court orders the reopening of the action for quasi delict (Civil Case No. Br. 19-424). As basis for its decision, the Court states:

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... 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.¹⁰cräläwvirtualibräry

With due respect, it is not true that private respondent reserved the right to file a separate civil action based on quasi delict and thereby waived the right to recover from petitioner civil liability ex delicto in the event of the insolvency of the driver. The offended parties stated very clearly that what they were reserving was the right "to institute a separate civil action arising from the offense charged against the herein accused." It is, therefore, error to say that what was reserved was the right to bring a civil action based on quasi delict.

Following Rule 111, 1, the reservation of the right to file a separate civil action ex delicto against the driver was a waiver of the offended parties' right to institute a civil action based on quasi delict against petitioner. The filing of Civil Case No. Br. 19-424 against petitioner was, therefore, without basis, and itsdismissal by the trial court in its decision was in order. On the other hand, as the offended parties had withdrawn their reservation of the right to file a separate civil action against the driver so that they can pursue their action in the criminal case, the trial court correctly determined petitioner's subsidiary civil liability for its driver's negligence in the criminal case.

It is contended that the offended parties did not appeal from the decision of the trial court insofar as it dismissed their complaint for quasi delict. That is because, as they had previously manifested in withdrawing their reservation of the right to file a separate civil action against the driver, they intended to pursue their action in the criminal case. That included the action to enforce the subsidiary civil liability of petitioner, as employer, in the event of the driver's insolvency.

To relieve petitioner from its subsidiary liability, the Court has to declare the award of damages ex delicto void because, by filing a civil action based on quasi delict, the offended parties allegedly waived the right to bring action ex delicto. As already stated, it was the right to bring an action for quasi delict which was waived as a result of the reservation to file a civil action ex delicto. Hence, as a consequence of the driver's jumping bail, the judgment finding him liable not only criminally but also civilly became final. As under Art. 103 of the Revised Penal Code the employer is subsidiarily liable, there is no way by which petitioner may be absolved from such liability except upon a showing that the driver is not insolvent.

Even assuming that the right of the offended parties to recover damages ex delicto had been waived, the award of such damages by the trial court simply constitutes an error of judgment. Hence, the award of damages ex delicto to the offended parties is not void and is now final. The Court has not only set aside a final disposition by declaring it void; it has likewise ordered the reopening of a case already dismissed with finality on the simplistic reasoning that rules of procedure may be relaxed "in order to promote their objectives and assist the parties in obtaining just, speedy, and inexpensive determination of every action or proceedings." There is no reason for doing so in this case since, as already stated, all the parties herein had been duly heard before the trial court rendered its decision.

Indeed, for what purpose is this case to be remanded to the trial court? So that petitioner can present evidence in its defense? But it has already done so. For the trial court to re-determine the amount of damages? But even under Arts. 2176 and 2180, the employer is liable for the same amount the employee is liable, as the only difference between its liability ex delicto and its liability based on quasi delict is that the former is subsidiary or secondary to that of the driver while its liability for quasi delict is primary.

I do not think it is worth sacrificing legal rules to reach the judgment the majority arrives at in this case. The award of damages ex delicto in the decision of the trial court is final, just as the dismissal of the case for quasi delict is final. To ignore this fact is to set at naught the policy behind the finality of judicial decisions and deprive adjudication of stability.

Apparently realizing the cost to basic rules of its decision today, the majority says that it is ordering the determination of petitioner's liability for quasi delict only pro hac vice. Apparently, the majority is not willing to apply its ruling in this case to similar situations should they arise in the future. For that is what pro hac vice means - "for this turn; for this one particular occasion" only.¹¹ But adjudication cannot be limited to the immediate parties and declared to have no precedential value. Adjudication, such as this, is like a restricted or one-way railroad ticket, good for this day and train only.¹²cräläwvirtualibräry

For the foregoing reasons, I dissent and vote to affirm the decision of the Court of Appeals with the modification that this case should be remanded to the trial court for the sole purpose of determining the subsidiary civil liability of petitioner in the event of insolvency of its driver, the accused Romeo Dunca.

¹ Rollo, p. 55.

² Rule 111, 1 provides in pertinent parts:

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.

³ Rollo, p. 55.

⁴ Emphasis added.

⁵ Baza Marketing Corp. v. Bolinao Security and Investigation Service, Inc., 117 SCRA 156 (1982)

⁶ Rollo, p. 57.

⁷ Manalo v. Robles Trans. Co., Inc., 99 Phil. 729 (1956)

⁸ 99 Phil. 670, 675 (1956)

⁹ Rollo, p. 69.

¹⁰ Citing Maniago v. Court of Appeals, 253 SCRA 674 (1996)

¹¹ BLACKS LAW DICTIONARY 1212 (6th ed. 1990)

¹² Compare CIVIL CODE, ART. 8: Judicial decisions applying or interpreting the laws or be Constitution shall form part of the legal system of the Philippines.