DE LEON BROKERAGE CO., INC., PETITIONER, VS. THE COURT OF APPEALS, ET AL., RESPONDENTS.

Review of the decision of the Court of Appeals affirming the
decision of the court of first instance of Manila which ordered
petitioner and its employee, Augusto Luna, to pay jointly and severally
to respondent Angeline Steen P12,183.70 as actual and moral damages,
and attorney’s fees.

The awards were for injuries said respondent suffered as a result of
the collision between the passenger jeepney in which she was riding,
and petitioner’s cargo truck recklessly driven by its employee, Luna,
and for which the latter had been prosecuted and convicted of the crime
of homicide with physical injuries thru reckless imprudence. In the
criminal action against Luna (and the driver of the passenger jeepney,
who was, however, acquitted), respondent had reserved her right to file
a seperation civil action.

After a judgment of conviction had been rendered, respondent filed
in the Court of First Instance of Manila an action for recovery of
damages against Luna and petitioner. As proof of Luna’s negligence, she
presented during the hearing the judgment of conviction in the criminal
case, Exh. B; and likewise established her claim for actual, moral and
exemplary damages. Defendants, that is, Luna and petitioner, sought to
prove by means of the former’s testimony that he was not engaged in the
performance of his duties at the time of the accident.

Said court rendered judgment—which on appeal was affirmed by the
Court of Appeals—holding petitioner and Luna solidarity liable to
respondent for the sums of P1,183.70 for actual expenses; P3,000.00 for
unpaid medical fees; P7,000.00 as moral damages; and P1,000.00 as
attorney’s fees; all amounts to earn legal interest from the filing of
the complaint, plus costs.

Seeking reversal of such affirmance by the Appellate Court, De Leon
Brokerage claims that: (1) the allegations in respondent’s complaint
were so ambiguous that it was not clear whether she was suing for
damages resulting from a quasi-delict or for civil liability arising
from crime, but since the averments therein are more characteristic of
an action of the latter nature, the same, as against petitioner, is
premature for failure to allege the insolvency of its employee; (2) the
judgment of conviction, Exh. B, is not admissible against it as
evidence of a quasi-delict; (3) its employee, Luna, was not in the
discharge of his duties at the time of the accident; and (4) it cannot
be held solidarity liable with Luna for damages.

The court of origin and the appellate court correctly considered
respondent’s complaint to be based on a quasi-delict. She alleged that
she suffered injuries because of the carelessness and imprudence of
petitioner’s chauffeur, who was driving the cargo truck TH-776
belonging to petitioner, which truck collided with the passenger
jeepney wherein she was riding. Since averment had been made of the
employer-employee relationship and of the damages caused by the
employee on occasion of his function, there is a clear statement of a
right of action under Article 2180 of the Civil Code. The complaint
does not, and did hot have to allege that petitioner did not exercise
due diligence in choosing and supervising Luna, because this is a
matter of defense.

Contrary to petitioner’s view, respondent is holding it liable for
its own lack of care. Her allegation “that the acts of the defendants
above described constitute gross negligence and recklessness”, plainly
refers to petitioner’s act of employing Luna as driver of its cargo
truck, and to Luna’s careless manner of driving it.

Whatever doubts remain as to the nature of respondent’s action are
resolved by her prayer that petitioner ¦and its employee be held
solidarity liable.

According to petitioner, what causes confusion as to the nature of
respondent’s action are the allegations of Luna’s conviction (a copy of
the judgment of conviction was attached to the complaint), and the
express reservation by respondent of her civil action—circumstances,
petitioner argues, which infallibly characterize an action for civil
indemnity under the criminal code.

But respondent clearly did not base her suit on the criminal
conviction. This fact, it is true, was alleged in a paragraph separate
from her allegation of Luna’s negligence as having been the cause of
her injuries; but mention of the criminal conviction merely tended to
support her claim that Luna had been recklessly negligent in driving
the truck. Being evidentiary, the allegation could have been
disregarded.

Respondent neither had to wait for the termination of the criminal
proceeding nor to reserve in the same her right to file a separate
civil action.^[1] She waited
for the results of the criminal action because she wanted to be sure
which driver and respective employer she could rightly sue, since both
Luna and the driver of the passenger jeepney were prosecuted. And she
reserved because, otherwise, the court in the criminal proceeding would
have awarded her indemnity, since the civil action for recovery of
civil liability arising from the offense is deemed instituted with the
criminal action.^[2] In such
event, she would no longer be able to file the separate civil action
contemplated by the civil code, not because of failure to reserve the
same but because she would have already received indemnity for her
injuries.^[3]

Plainly, the reservation made in the criminal action does not
preclude a subsequent action based on a quasi-delict. It cannot be
inferred therefrom that respondent had chosen to file the very civil
action she had reserved. The only conclusion that can reasonably be
drawn is that she did not want the question of damages threshed out in
the criminal action, but preferred to have this issue decided in a
separate civil action.

At any rate, if respondent’s complaint, which was clear enough, had
created confusion in petitioner’s mind as to the foundation of her
cause of action, then it should have moved for a more definite
statement of the same before the trial.

However, it seems that petitioner understood quite well that it was
being held liable under the civil code. In its answer, it alleged as an
affirmative defense that in the selection and supervision of its
employees and drivers, it had exercised the diligence of a good father
of a family— a defense available only to an employer being sued for a
quasi-delict. Petitioner argues that, not knowing the nature of
respondent’s action and deciding to play it safe, it put up defenses
both against a suit for quasi-delict and against an action for civil
liability arising from crime.

Yet, it did not aver that the complaint failed to allege that its
employee was insolvent—the defense consistent with an action against an
employer for subsidiary liability under the criminal code. What it
alleged was that the complaint failed to state a cause of action as
against it, which could not be sustained since the complaint
sufficiently alleges an action based on quasi-delict and the court
could validly have granted respondent’s prayer for relief.^[4]

Considering that the judgment of conviction, Exh. B, had been
admitted without objection, its competency can no longer be questioned
on appeal.^[5] It
established the fact of Luna’s negligence, giving rise to the
presumption that petitioner had been negligent in the selection and
supervision of its employee.^[6] And petitioner failed to prove that it had exercised such requisite care and diligence as would relieve it from responsibility.

But, was Luna in the performance of his duties at the time of the
collision? He testified that on the day of the accident he had been
instructed to go to Pampanga, from there to proceed to Nueva Ecija, but
that after unloading his cargo in Pampanga, he at once returned to
Manila. However, his reason for immediately returning to Manila is not
clear. He could have returned for purposes of repair. It does not
appear that he was on an errand of his own. In the absence of
determinative proof that the deviation was so complete as would
constitute a cessation or suspension of his service, petitioner should
be held liable.^[7] In fact, the Court of Appeals disbelieved the alleged violation of instructions.

Since both Luna and petitioner are responsible for the quasi-delict, their liability is solidary,^[8] although the latter can recover from the former whatever sums it pays to respondent.^[9]

Petitioner invites attention to Art. 2184 of the Civil Code, and
insists that it is only in the instance covered thereby—when the owner
of the motor vehicle is riding therein at the time of the mishap that
the employer becomes solidarily liable with the driver for any accident
resulting from the latter’s negligence. That article refers to owners
of vehicles who are not included in the terms of Art. 2180 “as owners
of an establishment or enterprise.”

As alternative remedy, petitioner asks that the damages awarded be
reduced. The moral damages of P7,000 is amply justified by the pain and
disfigurement suffered by respondent, a pretty girl of sixteen (at the
time of the accident), whose left arm had been Scraped bare of flesh
from shoulder to elbow because of the accident. As a result, she had to
undergo seven operations which cost P3,000—a reasonable enough sum.
Attorney’s fees of P1,000 is not unconscionable considering that the
case was appealed to this Court.

In view of the foregoing, the judgment of the Court of Appeals is hereby affirmed with costs.

Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Paredes, Dizon, and De Leon, JJ., concur.

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^[1] Art. 33 Civil Code

^[2] Par. (a), Sec. 1, Rule 107, Rules of Court.

^[3] Art. 2177, Civil Code.

^[4] Thus,
even if the allegations in a complaint are ambiguous or indefinite, but
a cause of action can be made therefrom, and recovery can be based on
the facts or combination of facts proven, then the motion to dismiss
should be denied. (Pangan vs. Evening News Publishing Co., L-13308, Dec. 29, 1960, citing 71 Corpus Juris Secundum 932.)

Even granting petitioner’s claim that the complaint can be
understood for either kind of action, the fact that the allegations for
a cause of action under the criminal code are insufficient (although as
has been said, these allegations are merely statements of evidentiary
matter) does not render the complaint defective inasmuch as the cause
of action based on a quasi-delict had been sufficiently alleged. (Sec.
7, Rule 15, Rules of Court.) * * * “Where a complaint presents two
apparent theories the theory adopted should be the one which is more
clearly authorized or intended by the facts pleaded.” (71 Corpus Juris
Secundum 230-231).

^[5] Hodges vs. Salas, 63 Phil. 567.

^[6] Bahia vs. Litonjua, 30 Phil. 624; Cangco vs. Manila Railroad Co., 38 Phil. 768.

^[7] The
American concept of an employer’s liability for his driver’s
negligence, while based on a different theory—that of “respondent
superior”—nevertheless illuminates the point.

While, as stated, the owner of an automobile is not liable for
injuries or damages caused by the negligent operation of his automobile
while it is being used by an employee for his own business or pleasure,
the servant must have abandoned and turned aside completely from the
master’s business, to engage in some purpose wholly his own, before the
master ceases to be liable for his act; it is not every deviation from
the direct line of his duties on the part of an employee that
constitutes a turning aside from, and an abandonment of, his master’s
business. A slight deviation by the servant in charge of a motor
vehicle, for his own purposes, when he is on business for his master,
does not affect the liability of the master for an injury resulting
from the negligent operation of the automobile by the servant. (5 Am.
Jur. 714-715.)

^[8] Art. 2194, Civil Code

^[9] Art. 2181, Civil Code