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SEPARATE OPINION

VITUG, J.:

An early established rule under our law is that an act or omission, extra-contractual in nature, causing damage to another, there being fault or negligence can create two separate civil liabilities on the part of the offender, i.e., civil liability ex delicto and civil liability ex quasi delicto. Either one of these two possible liabilities may be sought to be enforced against the offender subject, however, to the caveat under Article 2177 of the Civil Code that the offended party cannot "recover damages twice for the same act or omission" or under both causes.¹ Outside of this proscription, the two civil liabilities are distinct and independent of each other; thus, and conversely against the rule on double recovery, the failure of recovery in one will not necessarily preclude recovery in the other.

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

"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 civil 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 the filing thereof in court for trial.

"Sec. 2. Institution of separate civil action. - Except in the cases provided for in Section 3 hereof, after the criminal action has been commenced, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action.

"(a) Whenever the offended party shall have instituted the civil action as provided for in the first paragraph of Section 1 hereof before the filing of the criminal action and the criminal action is subsequently commenced, the pending civil action shall be suspended, in whatever stage before final judgment it may be found, until final judgment in the criminal action has been rendered. However, if no final judgment has been rendered by the trial court in the civil action, the same may be consolidated with the criminal action upon application with the court trying the criminal action. If the application is granted, the evidence presented and admitted in the civil action shall be deemed automatically reproduced in the criminal action, without prejudice to the admission of additional evidence that any party may wish to present. In case of consolidation, both the criminal and the civil actions shall be tried and decidedintly.

"(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.

"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."

In the recently decided case of San Ildefonso Lines, Inc., vs. Court of Appeals, et a1.,² the Supreme Court has ruled that, notwithstanding the independent nature of civil actions falling under Articles 32, 33, 34 and 2176 of the Civil Code, the right to institute the action must still have to be reserved. In the stern words of the Court: The "past pronouncements that view the reservation requirement as an unauthorized amendment to substantive law, i.e., the Civil Code, should no longer be controlling." Essentially, I share this view although I also understand San lldefonso as merely fortifying a procedural rule that unless a reservation is made, the court trying the criminal case would not, for instance, be precluded from taking cognizance of the civil aspect of the litigation and that, upon the other hand, the other court in the civil case might, motu proprio or at the instance of a party, hold in abeyance the consideration thereof pending the outcome of the criminal case. In Maniago vs. Court of Appeals,³ the Court has said that the requirement of reservation is not incompatible with the distinct and separate character of independent civil actions. Indeed, there is no incongruence between allowing the trial of civil actions to proceed independently of the criminal prosecution and mandating that, before so proceeding, a reservation to do so should first be made.

In fine -

First - The civil action is deemed instituted together with the criminal case except when the civil action is reserved.⁴ The reservation should be made at the institution of the criminal case.⁵ In independent civil actions, not being dependent on the criminal case, such reservation would be required not for preserving the cause of action but in order to allow the civil action to proceed separately from the criminal case in interest of good order and procedure.⁶ Indeed, independent civil actions already filed and pending may still be sought to be consolidated in the criminal case before final judgment is rendered in the latter case.⁷ When no criminal proceedings are instituted, a separate civil action may be brought to demand the civil liability, and a preponderance of evidence is sufficient to warrant a favorable judgment therefor.⁸ The same rule applies if the information were to be dismissed upon motion of the fiscal.⁹cräläwvirtualibräry

Second - The pendency of the criminal case suspends the civil action, except-

(1) When properly reserved, in independent civil actions, such as those cases (a) not arising from the act or omission complained of as a felony (e.g. culpa contractual under Art. 31,¹⁰ intentional torts under Arts. 32¹¹ and 34,¹² and culpa acquiliana under Art. 2176¹³ of the Civil Code); or (b) where the injured party is granted a right to file an action independent and separate from the criminal action (e.g. Art. 33,¹⁴ Civil Code); and

(2)....In the case of pre-judicial questions which must be decided before any criminal prosecution may be instituted or may proceed (Art. 36, Civil Code).

In the above instances, the civil case may proceed independently and regardless of the outcome of the criminal case.

Third-An acquittal in the criminal case may bar any further separate civil action, except-

(1).... In independent civil actions, unless the complainant, not having reserved a separate action, has actively participated and intervened in the criminal case.¹⁵ Such active participation and intervention can only be deemed to be an unequivocal election by the complainant to sue under ex-delictu rather than on another cause of action (arising from the same act or omission complained of as being ex-delictu). If, however, the acquittal is predicated on the ground that guilt has not been proven beyond reasonable doubt, and not upon a finding that the "fact from which the civil (action) might arise did not exist," an action for damages can still be instituted.¹⁶cräläwvirtualibräry

(2) In dependent civil actions where the acquittal is premised on a failure of proof beyond reasonable doubt, which the court shall so declare as its basis, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Where acquittal is thus based on the fact that the crime did not exist or that the offender did not commit the crime, and not on mere quantum of proof, a civil action based on such ex delictu of which the accused is already acquitted would be improper.¹⁷cräläwvirtualibräry

The vicarious liability of an employer for the fault or negligence of an employee 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 in order 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 for 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 consideredint tortfeasors, is solidary.¹⁸ The second, predicated on Article 103 of the Revised Penal Code, provides that an employer may be held subsidiarily 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.¹⁹cräläwvirtualibräry

Normally, the judgment in the criminal case concludes the employer not only with regard to the civil liability but likewise with regard to its amount since the liability of an employer follows that of the employee.²⁰ Nevertheless, due process demands that the employer be accorded full opportunity to be heard to dispute the basic thesis upon which that liability is premised, i.e., the existence of an employer-employee relationship, engagement in an industry by the employer, and commission of the felony by the employee in carrying on his tasks. In highly meritorious cases, the extent of the liability of the employer himself, including the amount of damages, although final and conclusive on the accused, may be shown by the employer to be clearly unwarranted or unconscionable to be a valid measure of his own subsidiary liability. In such an instance, there is little excuse for not allowing the employer due process and to be given a chance to be heard thereon. The right of the employer to his own day in court, in no way, would amend or nullify the final judgment rendered by the court which stands unaffected insofar as the accused himself is concerned. It bears stressing that the employer takes no active role in the criminal proceedings, nor entitled to take such role, up until he suddenly finds himself open to a possible subsidiary liability following the judgment of conviction.

Finally, it may not be amiss to repeat that in independent civil actions only a successful recourse in one would foreclose recovery in the other.

I concur, therefore, with the majority in remanding the case to the court a quo for the determination and extent of the subsidiary liability of the employer conformably with the foregoing opinion.

¹ Barredo v. Garcia, 73 Phil 607; Mendoza v. Arrieta, 91 SCRA 113; Padilla v. Court of Appeals, 129 SCRA 558.

² 289 SCRA 568.

³ 253 SCRA 674; Emerencia v. Gonzales,104 Phil. 1059.

⁴ Sec. 1, Rule 111, Revised Rules of Court; see also Art. 100, Revised Penal code.

⁵ Abellana v. Marave, 57 SCRA 106.

⁶ See Reyes v. Sempio-Diy, 141 SCRA 208; Jarantilla v. Court of Appeals, 171 SCRA 429; Castillo v. Court of Appeals, 176 SCRA 591.

⁷ Cojuangco, Jr. v. CA, 203 SCRA 619.

⁸ Art. 30. When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complaint of.

⁹ See Calalang v. IAC, 194 SCRA 514.

¹⁰ ART. 31. When the civil action is based on an obligation not arising form the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter.

¹¹ ART. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

(1)....Freedom of religion;

(2)....Freedom of speech;

(3)....Freedom to write for the press or to maintain a periodical publication;

(4)....Freedom from arbitrary or illegal detention;

(5)....Freedom of suffrage;

(6)....The right against deprivation of property without due process of law;

(7)....The right to a just compensation when private property is taken for public use;

(8)....The right to the equal protection of the laws;

(9)....The right to be secure in ones person, house, papers, and effects against unreasonable searches and seizures;

(10)....The liberty of abode and of changing the same;

(11)....The privacy of communication and correspondence;

(12)....The right to become a member of associations or societies for purposes not contrary to law;

(13)....The right to take part in a peaceable assembly to petition the Government for redress of grievances;

(14)....The right to be free from involuntary servitude in any form;

(15)....The right of the accused against excessive bail;

(16)....The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf;

(17)....Freedom from being compelled to be a witness against ones self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness;

(18)....Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

(19)....Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendants act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or the penal statute.

¹² ART. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall e subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.

¹³ 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.

¹⁴ ART. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct form the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.

¹⁵ Mendoza v. Arietta, 91 SCRA 113, Ruiz v. Ucol, 153 SCRA 14; see also Diong Bi Chu v. CA, 192 SCRA 554.

¹⁶ ART. 29. When the accused in a criminal prosecution 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. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious.

If in a criminal case the judgement of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground.

See also Art. 31, Civil Code; Gula v. Dianala, et al., 132 SCRA 245.

¹⁷ People v. Amistad, 108 SCRA 601.

¹⁸ Article 2194, Civil Code of the Philippines.

¹⁹ Franco v. Intermediate Appellate Court, 178 SCRA 333.

²⁰ Miranda v. Malate Garage and Taxicab, Inc., 99 Phil. 670.