CORNELIO ALBA, PLAINTIFF AND APPELLANT, VS. FORTUNATO ACUÑA AND LAUREANO FRIAL, DEFENDANTS AND APPELLEES.

This is an appeal taken by Cornelio Alba from the order of the Court
of First Instance of Capiz dated May 3, 1928, sustaining the demurrers
filed against the reamended complaint, and ordering the plaintiff to
amend his complaint once more within the period prescribed in the
rules, with notice that should he fail to do so, the complaint would be
dismissed ipso facto.

In support of his appeal, the appellant assigns the following
alleged errors as committed by the trial court in said order, to wit:

“1. The trial court erred in sustaining the demurrer interposed by the defendants.

“2. The trial court erred in issuing the order dismissing this case.”

The complaint, to which the demurrer sustained by the trial court
was filed, is the reamended complaint of October 11, 1927, which reads
as follows:

“Come now the plaintiffs through their undersigned
attorneys, and with the permission of this Honorable Court, present the
following amended complaint:

“That both the plaintiffs and the
defendants are of age and residents of the municipality of Capiz,
Province of Capiz, Philippine Islands.

“That the plaintiffs are the father and mother, respectively, of the child Jose Rizal Alba y Aguiling.

“That
defendant Dr. Laureano Frial is a practising physician in the
municipality of Capiz, Province of Capiz, Philippine Islands.

“That
defendant Fortunato Acuña is a practising pharmacist in the
municipality of Capiz, Province of Capiz, Philippine Islands, and owner
of the drug store called Botica Filipino, established in said municipality of Capiz.

“That on and prior to July 30, 1926, plaintiffs had a son named Jose Rizal Alba y Aguiling, alive and in good health.

“That
on and prior to July 30, 1926, the defendants Laureano Frial and
Fortunato Acuña were already practising physician and pharmacist,
respectively, in the municipality of Capiz, Province of Capiz,
Philippine Islands.

“That on the 30th day of July, 1926, said
child Jose Rizal Alba y Aguiling was attacked by an illness called
diarrhea, and was for that reason submitted to medical treatment by the
defendant Dr. Laureano Frial.

“That said defendant Dr.
Laureano Frial prescribed a substance to be taken as medicine by the
child Jose Rizal Alba y Aguiling, which was prepared in the Botica Filipino, by the defendant Fortunato Acuña.

“That
said substance prescribed by defendant Dr. Laureano Frial and prepared
by the other defendant, Fortunato Acuña, was administered to the child
Jose Rizal Alba from 10 a. m. to 12 a. m, on July 30, 1926, at the rate
of one teaspoonful every ten minutes, who, after having taken said
substance during said time at the rate of one teaspoonful every ten
minutes, instead of improving, became worse, and died the following
morning as a result of said substance which he had taken.

“That
said substance taken by the child Jose Rizal Alba prescribed by Dr.
Laureano Frial and prepared at the Botica Filipina by the other
defendant, Fortunato Acuña was a poisonous substance called ‘Salicylate
of soda’ which, taken in quantities as taken by the child Jose Rizal
Alba, was more than enough to cause the death of a man, and much more
so that of said child Jose Rizal Alba.

“That owing to the
death of the boy Jose Rizal Alba, the plaintiffs as father and mother,
respectively, of said boy, have suffered damages estimated at twelve
thousand pesos, (P12,000) which should be paid to the defendants.

“Wherefore,
the plaintiffs respectfully pray this Honorable Court to render
judgment sentencing the defendants jointly and severally to pay to the
plaintiffs the amount of twelve thousand pesos (P12,000), besides the
costs of this trial.”

The demurrer interposed by defendant Fortunato Acuiia to the
reamended complaint quoted above is based on the contention that the
facts alleged therein do not constitute a cause of action against him;
and that interposed by the defendant Dr. Laureano Frial to the same
reamended complaint is based on the contention that said reamended
complaint is founded on the same cause of action, and alleges the same
facts alleged in the former amended complaint to which was filed the
demurrer sustained by the court, and that said reamended complaint
suffers from the same substantial defects as the former amended
complaint.

In order to justly and properly decide the procedural question
raised in this ca^e, it is necessary to ascertain first of all whether
the damages claimed in the complaint arose from a felony or
misdemeanor, or are the result of acts or omissions when guilt or
negligence’ not penalized by law has been present, in order to
determine whether they come under the provisions of the Penal Code, as
provided in article 1092 of the Civil Code, or under the provisions of
Chapter II of Title XVI of Book IV of the latter Code, and especially
under article 1902 thereof as provided in article 1903 of said Code.

Paragraphs IX and X of the reamended complaint read:

“That said substance prescribed by defendant Dr.
Laureano Frial and prepared by the other defendant, Fortunato Acuiia,
was administered to the child Jose Rizal Alba from 10 a. m. to 12 a. m,
on July 30, 1926, at the rate of one teaspoonful every ten minutes,
who, after having taken said substance during said time at the rate of
one teaspoonful every ten minutes, instead of improving, became worse,
and died the following morning as a result of said substance which he
had taken.

“That said substance taken by the child Jose Rizal
Alba prescribed by Dr. Laureano Frial and prepared at the Botica
Filipina by the other defendant, Fortunato Acuña, was a poisonous
substance called ‘Salicylate of Soda’ which, taken in quantities as
taken by the child Jose Rizal Alba, was more than enough to cause the
death of a man, and much more so that of said child Jose Rizal Alba,”

If the medicine prescribed by the defendant Dr. Laureano Frial for
the boy Jose Rizal Alba was poisonous, and the dose given according to
said physician’s instructions, was enough to kill not only a child but
an adult, the defendant Dr. Laureano Frial acted if not with
imprudence, with negligence in prescribing said medicine to be taken as
indicated ; and there being no allegation that he had intended to cause
the evil he did cause, such an imprudent or negligent voluntary act,
which produced the death of the boy Jose Rizal Alba, and which, had it
been intentional, would have constituted the crime of murder, as
provided for in articles 568 and 590 of the Penal Code.

The damages claimed in the present civil action having arisen out of
a felony or misdemeanor, the case comes under the Penal Code, according
to article 1092 of the Civil Code.

Article 17 of the Penal Code of the Philippines reads:

“ART. 17. Every person criminally liable for a felony or misdemeanor is also civilly liable.”

Now then, when and how may the civil liability arising from a criminal liability be enforced?

Article 111 of the Law of 1882, known as the Law of Criminal
Procedure, whose application is impliedly recognized by section 107 of
General Orders, No. 58, as supplementing the provisions of said General
Orders, No. 58, provides:

“ART. 111. All actions arising from a felony or
misdemeanor may be brought jointly or separately; but the civil action
shall not be instituted separately during the pendency of the criminal
action until the latter has been, decided by final judgment, * * *

The legal provision quoted above authorizes the joint or separate
prosecution of the criminal action and the civil action arising from a
felony or misdemeanor, with the sole limitation that during the
pendency of the criminal action, the civil action shall not be
prosecuted until the former has been decided by final judgment.

Article 112 of said Law of 1882 provides as follows:

“ART. 112. When the criminal action is instituted,
the civil action shall be deemed included therein, unless the party
injured or prejudiced waives it, or expressly reserves it to be brought
after the criminal action has been decided, should it lie.

“If
only the civil action arising from one of those crimes which cannot be
prosecuted save upon private complaint is instituted, the criminal
action shall forthwith be extinguished.”

This article speaks of the institution of the criminal action before
the civil suit, and of its consequences. The second paragraph thereof
states that if only the civil action arising from one of those crimes
which cannot be prosecuted save upon private information is instituted,
the criminal action shall forthwith be deemed extinguished.

Article 114 of said Law of Criminal Procedure reads as follows:

“ART. 114. Upon the institution of criminal
proceedings for a felony or misdemeanor, no civil suit on the same act
shall be prosecuted; and should it have been instituted, it shall be
suspended, pending final judgment in the criminal case.

“It
shall not be necessary for the prosecution of the criminal action that
the civil suit arising from the same felony or misdemeanor should have
been previously instituted”

In prescribing, that upon the institution of criminal proceedings
for a felony or misdemeanor, the suit or civil action that may have
been brought upon the same act be suspended pending final judgment in
the criminal action, the law again gives us to understand that the suit
or civil action may be filed before the criminal action.

The second paragraph of said article 114 quoted above, which states
that “it shall not be necessary for the prosecution of the criminal
action that the civil suit arising from the same felony or misdemeanor
should have been previously instituted,” also indicates that the civil
action may be filed before the criminal action, but that the
institution of the former is not a prerequisite to the institution of
the latter.

The same conclusion clearly follows from the second paragraph of
article 117 of the said Law of Criminal Procedure, which states:

“Art 117 * * * * * * *

“A final judgment of absolution rendered in the civil action shall be no bar to the proper criminal action.

* * * * * *

Furthermore, article 123 of the Penal Code provides the following:

“ART. 123. The obligation to make restoration or
reparation for damages and indemnification for losses or consequential
damages devolves upon the heirs of the person liable.

* * * * * *

And article 115 of the aforesaid Law of Criminal Procedure provides the following:

“ART. 115. The criminal action is extinguished by
the death of the guilty party; but in such cases the civil action
subsists against his heirs or successors in interest, being enforceable
civilly only.”

If it were indispensable to institute the criminal action before or
together with the civil action, and to determine beforehand the guilty
party’s criminal liability, in case the latter dies before the
determination of his criminal liability, the party prejudiced would be
unable to obtain indemnity for damages caused by the crime.

As we have seen, in none of the legal provisions cited above
relevant to the question of law raised herein is there any definite and
categorical prohibition from filing a civil action for indemnity of
damages arising from a felony or misdemeanor before the criminal
action; on the contrary, it may be gathered from all these provisions
taken together that said civil action may be instituted before the
criminal action. This court so understood it in holding in the case of
Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil., 359), that:

“CIVIL LIABILITY FOR DAMAGES.—In order to
enforce the liability of an employer for injuries to his employee, it
is not necessary that a criminal action be first prosecuted against the
employer or his representative primarily chargeable with the accident.
No criminal proceeding having been taken, the civil action may proceed
to judgment.”

This construction is more congruent with the spirit of the law,
equity and justice, and more in harmony with modern progress. Both the
French (Code of Criminal Instruction, art. 3, par. 2), and the Porto
Rican (Guzman vs. Vidal, 19 D. P. R., 841) legislation and jurisprudence have adopted the same meaning.

Considering the present state of our law of civil and criminal
procedure, an interpretation contrary to the pertinent provisions of
the Law of Criminal Procedure would hardly be just or equitable, and
would seriously prejudice parties injured by a felony or misdemeanor.

If the doctrine were laid down that the criminal action for a felony
or misdemeanor must be instituted before the civil action for damages
arising from the same felonious act, the right of the injured party to
indemnity would be a myth, and justice a farce, for the guilty party
would be able to dispose of his property or of the article robbed,
stolen, or embezzled, pending judgment of condemnation in the criminal
case, this court having held the following in the case of United States
vs. Namit (38 Phil., 926) :

“ATTACHMENT; CIVIL LIABILITY INCIDENT TO CRIME.—In
the prosecution of a person accused of murder the heirs of the person
slain intervened immediately before the judgment of condemnation was
entered and obtained from the court an order for the attachment of the
property of the accused on the ground that he was fraudulently
disposing of his property to evade the civil liability to which he
would be subject in case of conviction. Held: That the
attachment could not be sustained, either under article 589 of the
Spanish Law of Criminal Procedure or under sections 424 and 412 of the
Code of Civil Procedure.”

In view of the foregoing, we are of opinion and so hold, that the
civil action for damages arising from a felony or a misdemeanor may be
brought before the criminal action for said felony or misdemeanor, but
in case the latter is instituted, the former shall be suspended pending
final judgment in the criminal action.

Wherefore, the order appealed from is revoked, and it is ordered
that the proceeding be remanded to the court of origin so that the
demurrers interposed by the respective defendants to the reamended
complaint may be overruled, and the latter ordered to answer said
reamended complaint within the period prescribed in the rules, with
costs against the appellees. So ordered.

Avanceña, C. J., Johnson, Street, Villamor, and Romualdez, JJ., concur.

Johns, J., concurs in the result.