THE PROVINCE OF PANGASINAN, REPRESENTED BY GOVERNOR CONRADO F. ESTRELLA AND JORGE SORIANO, PLAINTIFFS AND APPELLEES, VS. PEDRO PALISOC, JUAN AQUINO, PASCUAL LOMBOY, GENOVEVA AQU…

On August 27, 1956, the Provincial Government of Pangasinan,
represented by its Highway District Engineer, and Jorge Soriano,
entered into a written contract of lease for the operation of the
Bocboc Ferry along the Agno River, between the municipalities of San
Carlos and Aguilar, same province, in consideration of P150.00 for a
period of one calendar year, unless revoked for cause.

On September 1, 1956, the lessee Jorge Soriano began the operation
of the ferry business, carrying passengers and cargo to and from the
Agno River between Aguilar and San Carlos with the rate of fee fixed by
the government.

On September 2, 1956, defendants put up a ferry and began carrying
passengers and cargo through the same route as that operated by the
lessee, charging fees of 5 centavos per passenger and fifty centavos on
cargo, without authority from the provincial government. On February
11, 1957, defendants constructed a bamboo bridge over the same route,
against the protest and objection of the lessee. Plaintiff Soriano
asked the Provincial government to stop the defendant from ferrying and
carrying passengers, but the government was unable to do so.

On February 26, 1957, Jorge Soriano filed a complaint against the
Province of Pangasinan and Pedro Palisoc, Juan Aquino, Pascual Lomboy,
Genoveva Aquino and Andres de los Santos. The province of Pangasinan,
upon its motion, was allowed to join the plaintiff Soriano, as party
plaintiff and an amended complaint was filed on April 29, 1957. The
other defendants filed their answer. The original as well as the
amended complaint prayed for damages against the defendants and a writ
of preliminary prohibitory injunction which was issued by the trial
court on May 21, 1957.

A pre-trial conference was set by the trial court on July 29, 1959
which was postponed upon petition of parties to August 29, 1959. On
motion of counsel for defendants, the pre-trial hearing was postponed
to September 24, 1959, with due notice to Atty. Dominador Soriano for
the defendants and the counsel for plaintiffs. On September 24, 1959,
in view of the non-appearance of the defendants and their counsel on
motion of plaintiffs counsel, the trial court allowed the
plaintiffs-appellees to present their evidence, before the special
deputy clerk of court. On September 30, 1959, the trial court rendered
its decision which is now the subject of the appeal. The decision made
ttye writ of preliminary injunction issued, definite and permanent;
ordered the defendants to demolish the bridge at their own expense, to
pay jointly and severally to the plaintiff Jorge Soriano, the sum of
P1,755.00 as damages and the sum of P300.00 as attorney’s fees.

Defendants-appellants moved for a reconsideration of the decision on
the following grounds: (1) that they had been deprived of their day in
court; (2) that their failure to appear at the pre-trial conference was
due to excusable negligence; and (3) that they have a meritorious
defense. The plaintiff-appellee countered that (1) the non-appearance
of defendants and their counsel was deliberate, to delay the
disposition of the cases; (2) that the pre-trial is a part of the trial
itself; (3) that the sickness of Pedro Palisoc one of the defendants is
not a valid ground for the rest of the defendants in not appearing in
court; (4) that the medical certificate of Palisoc was obtained
illegally; and (5) that the municipal resolution of the municipalities
of Aguilar and San Carlos, as to the necessity of a bridge over the
Agno River is not a meritorious defense. The motion having been denied,
defendants appealed and now claim in their brief that the trial court
erred: (1) In allowing the plaintiffs-appellees to present their
evidence, upon defendants’ failure to appear at the pre-trial
conference (2) In appointing the deputy clerk of court to receive the
evidence of the plaintiffs-appellees; (3) In rendering judgment on the
basis of the evidence received by the deputy clerk of court; and (4) In
denying the motion for reconsideration.

Appellants claim that under the circumstances, the scheduled
pre-trial conference on September 24, 1959, was in effect, turned into
a trial on the merits, a purpose for which no notice was given to the
appellants and such hearing, consequently, virtually amounted to a
denial to the said appellants of their day in court. They further
claim, that section 1 of Rule 25 of the Rules of Court which governs
pre-trial conferences in this jurisdiction, does not authorize the
reception of evidence on the merits of the case upon failure
of the defendants to appear at the pre-trial conference. It should be
noted, however, that the rule does not also prohibit such procedure to
be followed. In a pre-trial conference, the parties to the case are
notified of the date of the pre-trial hearing and are obliged to obey
the orders of the court to that effect. It is recognized right of the
trial court that where a plaintiff failed to appear at a pre-trial
conference, the case could or might be dismissed (Wisdom vs. Texas Co.
IFRS 278, 72 F. Supp; 992). This being the case, applying the rule, a converso
where a defendant and his counsel refuse without justifiable reasons,
to appear in the pre-trial hearing, the court, as a matter of equity
and impartiality, may or can also order the plaintiff to present his
evidence on the merits of the case. Once jurisdiction has been acquired
over the person and the subject of the case, the trial court has the
full control and disposition thereof. To allow a defendant to appear or
not in a pre-trial hearing “would be to submit a pre-trial conference
to the whims and caprice of the defendant without any corresponding
sanction and action against him in Court”. A pre-trial hearing should
not be left to the will and wishes of the defendants, to cause
disadvantage to the complaining party and hamper the court in its duty
to implement the language and spirit of the pre-trial, which is the
beginning and a part of the trial itself.

The procedure of designating the clerk of court as commissioner to
receive and report evidence to the court is sanctioned by sections 2
& 3 of Rule 34, Rules of Court. When the parties do not consent,
the court, may, upon the application of either or of its own motion,
direct a reference to a commissioner when a question of fact other than
upon the pleadings, arises upon motion or otherwise, in any stage of a
case or of carrying a judgment or order into effect (Section 2(c) Rule
34). Among other powers or duties, the commissioner may be directed to
report only upon particular issues, or to do or perform particular acts
or to receive and report evidence only and the trial or hearing before
him shall proceed in all respects as though the same had been before
the court (Sec. 3, same rule). After all, the duty to decide the case
on the merits rests on the judge who shall write personally and
directly prepare and sign the decision, based upon the evidence
reported by the commissioner (Rule 35). This is what has been done in
the present case.

The damages claimed by the plaintiff-appellees have been proven by a
preponderance of evidence and at this stage of the proceedings, we are
not prepared to alter the trial court’s findings, to this effect. The
exemption provided by section 2134 Adm. Code, cited by appellants, for
travelers on foot or mounted animals from toll or ferriage fees is not
applicable in the present situation of plaintiff Jorge Soriano, because
the enterprise is a private leased right. The law only allows the
exemption in bridges or ferries constructed at the expense of and
maintained by the government. Defendants-appellants contend that Jorge
Soriano, did not suffer any damage because he did not secure a
certificate of public convenience (Sec. 15, C. Act No. 146). This Act,
however, does not cover Jorge Soriano who used bancas of small sizes
for transportation, and the lease was only for one year duration.

The motion for reconsideration of the trial court’s decision, was
correctly denied. The respondent Court found as a fact that Atty.
Soriano’s failure to attend the pre-trial was due to an unexcusable
negligence, and the non-appearance of defendant Pedro Palisoc at the
pre-trial was not due to illness. The trial court found a culpable
omission on the part of defendants and their counsel “to cooperate with
the Court in the prompt disposal of the cause”. Moreover, the evidence
sought to be introduced, by the movants, is of such character, that
even if adduced, same will not alter the decision.

In view hereof, the decision of September 30, 1959, sought to be
aside, is affirmed, with costs against the defendants-appellants.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, Regala and Makalintal, JJ., concur.