JOSE E. GENSON, PETITIONER, VS. SPS. EDUARDO ADARLE AND SHERLITA MARI-ON, AND INTERMEDIATE APPELLATE COURT, RESPONDENTS.

This is a petition for review which seeks to set aside the
decision in CA-G.R. No. 00783 on the ground that the findings of the respondent Court of Appeals are
based on misapprehension of facts and
conflict with those of the trial
court and that the conclusions drawn therefrom are based on speculations and
conjectures.

Arturo Arbatin was the successful bidder in the sale at public auction of junk and other unserviceable government property located at the compound of
the Highway District Engineer’s Office of Roxas City.  Private
respondent Eduardo Adarle was hired as a laborer by Arbatin to gather
and take away scrap iron from the said
compound with a daily wage of P12.00 or about P312.00 a month.

On September 8, 1979, at
4:00 o’clock in the morning, on a Saturday and a non-working day, while the
private respondent was tying a cable to a pile of scrap iron to be loaded on a
truck inside the premises of the compound, and while the bucket of the
payloader driven by Ramon Buensalido was being raised, the bucket suddenly fell
and hit Adarle on the right back portion of his head just below the nape of his
neck.  Adarle was rushed to the St. Anthony Hospital, Roxas City. 
According to the medical certificate issued by the attending physician,
the private respondent suffered the following injuries:

“1)  Comminuted fracture of the vertebral body of
13 with extreme Kyphosis of the segment by x-ray.

“2)  Cord compression 2nd to the injury with
paralysis of the lower extremity, inability to defecate and urinate.” (Exh. A, Exhibits for the plaintiff-appellant, Original
Records.)

The medical certificate
also reported that:

“The patient recovered the use of his urinary bladder and was able to
defecate 2 months after surgery.  He is
paralyzed from the knee down to his toes. 
He can only sit on a wheel
chair.  The above residual damage is
permanent 2nd to the injury incurred by Mr. Adarle.  He is still confined in the Hospital.” (idem.)

While still in the
hospital, the private respondent instituted the action below for damages against
Arbatin, his employer; Buensalido, the payloader
operator; Candelario Marcelino, the civil engineer; and petitioner, the Highway
District Engineer.

During the trial on the
merits, the petitioner put up the defense that he had no knowledge of or
participation in the accident and that,
when it happened, he was not present in the government
compound.  Apart from the fact that it
was a Saturday and a non-working day, he was in Iloilo.  As
part of his evidence, the petitioner presented a memorandum directed to a
certain Mr. Orlando Panaguiton ordering the latter to take charge of the
district until his return (Exh. 1).

The trial court found
that, with the exception of the petitioner, all of the defendants were present
at the Highway’s compound when the accident occurred.  However, it still adjudged the petitioner
liable for damages because the petitioner was supposed to know what his men do
with their government equipment within an area under his supervision.

Thus, on January
19, 1982, the trial
court rendered a decision finding all the defendants liable for damages
under Articles 1172 and 2176 of the New
Civil Code.  The dispositive portion of
the decision reads:

“WHEREFORE, this court orders the
defendants to pay to plaintiff the amounts
stated in the complainant’s prayer as follows:

“Ordering the defendants jointly and severally to pay the
plaintiff the sum of P312.00 monthly from September 8, 1979 until his release from the hospital.

“Ordering the defendants jointly and severally to pay the
plaintiff the sum of P7,410.63 for hospital expenses up to January 14, 1980 and an additional amount for
further hospitalization until the release of plaintiff from the hospital;

“Ordering the defendants jointly and severally to pay the
plaintiff the sum of at least P100,000.00 as actual and compensatory damages,
considering that plaintiff Eduardo Adarle is totally incapacitated for any
employment for life;

“Ordering the defendants jointly and severally to pay the
plaintiff the sum of P20,000.00 as moral
damages and another sum for exemplary damages which we leave to the sound
discretion of the Honorable Court;

“Ordering the defendants jointly and severally to pay the
plaintiff the sum of P5,000.00 as attorney’s
fees.” (pp. 129-130, Original Records).

The petitioner appealed
to the Intermediate Appellate Court which affirmed the decision of the trial
court and further ordered the defendants to pay P5,000.00
exemplary damages.  Defendant Candelario
Marcelino was, however, absolved from liability.

In its decision, the appellate court ruled:

“That payloader owned by the
Government, as found by the lower court, should not have been operated that Saturday, September 8, 1979, a
Saturday, a non-working holiday.  There
is no official order from the proper authorities authorizing Arbatin and plaintiff to work and Buensalido to operate
the payloader on that day inside the Highway
compound.  Thereabouts, we can logically
deduce that Arbatin and
plaintiff went to the compound to work with the previous knowledge and consent
of Highway District Engineer Jose E. Genson. 
And allowed him, probably upon the request of Arbatin.  We have noted that Genson testified that his
office does not authorize work on Saturdays.

“Genson testified that he was in Iloilo
from September 9 and 10, 1979.  The accident
occurred on September 8, in the morning. 
In his answer, Genson did not allege his presence in Iloilo
on September 9 and 10.  x x x.

“We fully concur with the lower court’s conclusions regarding
the physical presence of appellants inside the compound on that fateful day,
pursuant to a previous understanding with Arbatin for plaintiff to work on the
scrap iron and for Buensalido to operate the payloader
inside the compound.  Arbatin and
plaintiff would not go to the compound on that Saturday, if there was no previous understanding with Genson and
Buensalido.

“The liability of Genson is based on fault, intentional and
voluntary or negligent (Elcano v. Hill, 77 SCRA 106; Jimena v. Lincallo, 63
O.G. 1115, 8 C. A.R. 2567).  He gave
permission to Arbatin, plaintiff and Buensalido to work on Saturday, a
non-working day, in contravention of his office’ rules and regulations
outlawing work on Saturdays.” (pp. 29-30, Rollo)

In this present petition,
the petitioner contends that the appellate court committed a palpable error
when it ruled that the petitioner was present when the accident happened and
that he had given permission to the other defendants to work on a Saturday, a
non-working day.  The petitioner argues
that considering these were the facts relied upon by the said court in holding that he was negligent and thus liable for damages, such a conclusion, is without basis.

The petitioner further
contends that the appellate court erred in not holding that the suit against
the petitioner was, in effect, a suit against
the government and, therefore, should be dismissed under the principle
of non-suability of the state.

As regards the
petitioner’s second contention, we hold that the petitioner’s identification as
the Highway District Engineer in the complaint
filed by the private respondent did not result in the said complaint’s becoming
a suit against the government or state.

In
Belizar v. Brazas, (2 SCRA 526), we ruled that “the fact that the
duties and positions of the defendants are indicated does not mean that they are being sued in their official
capacities, especially as the present action is not one against the
Government”.  Furthermore, the
accident in the case at bar
happened on a non-working day and there was no showing that the work performed on
that day as authorized by the
government.  While the equipment used
belongs to the Government, the work was
private in nature, for the benefit of a purchaser of junk.  As we have held in the case of Republic v. Palacio (23 SCRA 899, 906):

xxx                               xxx                               xxx

“The ISU liability thus arose from
tort and not from contract; and it is a well-entrenched rule in this
jurisdiction, embodied in Article 2180 of the Civil Code of the Philippines,
that the State is liable only for torts
caused by its special agents, specially commissioned to carry out the acts
complained of outside of such agent’s regular duties (Merritt v. Insular
Government, supra; Rosete v. Auditor General, 81 Phil. 453).  There being no proof that the making of the
tortious inducement was authorized, neither the State nor its funds can be made
liable therefor.”

Therefore,
the defense of the petitioner that he cannot be made liable under the principle
of non-suability of the state cannot be sustained.

With regard to the main contention of the petitioner that the
appellate court based its conclusions on an erroneous finding of fact, we agree
with him that the appellate court’s finding that he was present within the
premises when the accident happened is not supported by evidence indisputably
showing that he was indeed there.

Since the evidence fails to establish petitioner Genson’s
presence when the payloader’s bucket
fell on the head of Mr. Adarle, any liability on his part would be based only on his alleged failure to exercise
proper supervision over his subordinates (See Umali v. Bacani, 69 SCRA 263,
267-268).

According to the trial court, Mr. Genson authorized work on a
Saturday when no work was supposed to be done. 
It stated that the petitioner should know what his men do with their
government equipment and he should neither be lax nor lenient in his
supervision over them.

The petitioner contends that:

“1.     No evidence on record
exists that Genson gave authority to Adarle and Arbatin, either verbally or in
writing, to enter and work inside the Highways Compound on September 8, 1979;

“2.     Genson never knew or
met Arbatin until the trial of the case. 
This fact was never denied by Arbatin nor rebutted by Adarle.  How then
could Genson have ordered or allowed Arbatin to enter the Highways Compound
with Adarle?

“3.     Adarle himself
repeatedly admitted that Arbatin, his employer, gave him the instructions to
enter the compound, thus:

“Q.  Now particularly on September 8, 1979, did Arbatin ask you to go to the compound in the Highway?

“A.   Yes sir.

“Q.  Are you sure of
that?

“A.   Yes,
sir.

“Q.  Where did he say
that to you?

“A.   We went to the
Highway compound for many times already and that was the time when I met the
incident.

“Q.  The particular day
in question September 8, 1979,
did you see Arturo Arbatin and he asked you to go to the compound on that day?

“A.   That date was
included on the first day when ‘he instructed us
to gather scrap iron until that
work could be finished.’ (pp. 25-26, tsn., October 10, 1980) (Emphasis supplied)

“Q.  Who told
you to work there?

“A.   ‘Through the instruction of Arturo Arbatin.’ (p. 32, tsn., Oct.
10, 1980) (Emphasis supplied) (pp. 12­-13, Rollo).

Insofar as work on a
Saturday is concerned, and assuming Mr. Genson verbally allowed it, we see
nothing wrong in the petitioner’s authorizing work on that day.  As a matter of fact, it could even be
required that the hauling of junk and unserviceable equipment sold at public
auction must be done on non-working days.  The regular work of the District Engineer’s
office would not be disturbed or prejudiced by a private bidder bringing in his
trucks and obstructing the smooth flow of traffic and the daily routine within
the compound.  Obviously, it would also
be safer for all concerned to effect the clearing of
the junk pile when everything is peaceful and quiet.

There is no showing from
the records that it is against regulations to use government cranes and
payloaders to load items sold at public auction on the trucks of the
winning bidder.  The items were formerly
government property.  Unless the contract
specifies otherwise, it may be presumed that all the parties were in agreement
regarding the use of equipment already there for that purpose.  Of course, it would be different if the junk
pile is in a compound where there is no equipment for loading or unloading and
the cranes or payloaders have to be brought there.

There is likewise no
sufficient basis for the “master-servant” doctrine in tort law to
apply.  Buensalido was not working
overtime as a government
employee.  It is doubtful if the district engineer can be considered an
“employer” for
purposes of tort liability who may be liable even if he was not there.  No evidence was presented to show that an
application for overtime work or a claim for overtime pay from the district
engineer’s office was ever filed.  It is
more logical to presume that Buensalido, the operator of the payloader,
was trying to earn a little money on the side from the junk buyer and that his
presence in the compound on that Saturday was a purely private
arrangement.  From the records of this case, we are not disposed to
rule that a supervisor who tolerates his subordinates to moonlight on a non-working day in their office premises can be held liable for
everything that happens on that day.  It
would have been preferable if Mr. Arbatin brought his own payloader
operator and perhaps, his own equipment but we are not dealing with sound
office practice in this case.  The issue
before us is subsidiary liability for tort committed by a government employee
who is moonlighting on a non-working day.

This Court ruled in Dumlao v. Court of Appeals (114 SCRA 247, 251):

“Nevertheless, it is a well-settled principle of law that a
public official may be liable in his personal private capacity for whatever
damage he may have caused by his act done with malice and in bad faith,
(Mindanao realty Corp. v. Kintanar, 6 SCRA 814) or beyond the scope of his
authority or jurisdiction.  (the Philippine
Racing Club v. Bonifacio, G.R. No. L-11844, August 31, 1960) The question,
therefore, is whether petitioner
did act in any of the manner aforesaid.

“Petitioner contends that, contrary to the holding of the
respondent Court of Appeals, he was not sued in his personal capacity, but in
his official capacity.  Neither was
malice or bad faith alleged against him in the complaint, much less proven by
the evidence, as the respondent court made no such finding of malice or bad
faith.

Examining the allegations of the complaint and reviewing the
evidence it would indeed be correct to say that petitioner was sued in his
official capacity, and that the most that was imputed to him is act of culpable neglect, inefficiency and gross
indifference in the performance of his official duties.  Verily, this is not imputation of bad faith
or malice, and what is more was not convincingly proven.”

According to the respondent court, “Genson and Buensalido
divested themselves of their public positions and privileges to accommodate an
acquaintance or probably for inordinate gain.” (p. 31,
Rollo).

There is no showing from the records that Genson received
anything which could be called “inordinate gain”.  It is possible that he permitted work on a
Saturday to accommodate an acquaintance but it is more plausible that he simply
wanted to clear his compound of junk and the best time for the winning bidder
to do it was on a non-working day.

At any rate, we see no malice, bad faith, or gross negligence on
the part of Genson to hold him liable for the acts of Buensalido and Arbatin.

WHEREFORE, the decision of the Intermediate Appellate
Court is hereby REVERSED and SET ASIDE. 
The complaint against Jesus Genson is DISMISSED.

SO ORDERED.

Fernan, (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.