WENCESLAO PASCUAL, PLAINTIFF, VS. PILAR BAUTISTA, ET AL., DEFENDANTS, PILAR BAUTISTA, THIRD PARTY PLAINTIFF AND APPELLEE, VS. MARIANO R. FLORES, THIRD PARTY DEFENDANT AND APPELL…

CONCURRING OPINION

BARREDO, J.:

I concur in the result.

I find myself
unable, however, to agree with the proposition impliedly, if not-directly,
upheld in the main opinion that even if the claim of plaintiff-appel­lee Pilar
Bautista is considered as a proper third-party complaint, the judgment in her
favor and against Flores would still have been enforceable even before the decision of this Court in G. R.
Nos. L-6569 and 6576 became final and executory, which, to be sure, is
unnecessary and, therefore, obiter dictum.

To start with, if it is true that the allegation of
defendant-appellant Mariano Flores under his contract with appellee Bautista was really entirely independent of any
liability of the latter to Wenceslao Pascual who had sued her, I cannot see how
a third-party complaint could have been filed by appellee.  To say that the ba­sis of Bautista’s claim against Flores
is completely
in­dependent of Pascual’s cause of
action against her and, in the same breath, hold that such claim of Bautista
against Flores is “in respect of” Pascual’s claim strikes me as lacking in consistency.  Even if
this point, as the main opinion holds, can no longer be rais­ed now, it is my considered
view that it is better that the true nature of the remedy in
question be determined, and thereby clearing any doubt as to the rights
of the parties before Us. 
I maintain, therefore, that the pleading filed by appellee Bautista
against appellant Flores was not a third-party complaint but an ordinary
complaint, mistakenly pleaded within the pending action between Pascual and
appellee.  Nonetheless, since judg­ment by default was actually rendered thereon by
the court, apparently without anybody being the wiser and because there was no objection from
anyone, the said judgment must be treated as an ordinary one, as contradistin­guished from a
judgment upon a third-party complaint. 
Accordingly, I concur in the result of the main opinion.  If, on the other hand, the pleading in
question were to be considered as a genuine third-party complaint, the
dispositive portion of this decision would not be, in my opinion, correct.

I
regret I have to disagree with the excessively broad concept of a third-party
complaint defined by the main opinion.  I
do not believe that the phrase “in re­spect of his opponent’s claim”
used in Section 12 of Rule 6 of the Rules of Court concerning third-party com­plaints,
can be equated with or has the same connotation as that of being merely “connected
with the plaintiff’s claim”, as the main opinion holds.  I realize that this quotation is from Capayas vs.
Court of First Instance of Albay, 77 Phil. 181, 183, but I am afraid it can be
out of context, for, precisely in that very decision, this Court held:

“Petitioner’s claim for indemnity against Lladoc and others
does neither arise out of the same transaction or the alleged petitioner’s
tortuous act on which plaintiff’s action is based, nor is it based on a
different transaction but connected with the plaintiff’s claim.  Plaintiff’s claim against petitioner and his
co-defend­ants is, according to the allegations in the complaint, (a) to recover from
them damages for the palay which have been illegally harvested from certain
lands belonging to the plaintiff, and (b) to enjoin them from entering said lands
and disturbing and molesting the plaintiff’s right of ownership and possession
thereof.  Whereas the peti­tioner’s claim
against Isidora Lladoc and others is to recover from the latter the value of
the three parcels of land and their fruits amounting to P3,200 plus legal interest, for
hav­ing said Isidora, as administratrix of the intestate estate of Ceferino
Cuanzon, sold said lands in 1927 without authority of the court to Domingo
Imperial, from whom said lands were 
acquired by the plaintiff.  And in
the
present case, it is clear that if the so-called third-party complaint be
allowed, Isidora Lladoc and others named therein as third-party defendants
could not assert any defense which the petitioner has or may have to the
plaintiff’s claim.”

Indeed, the true nature and concept of a third-party complaint
was more comprehensively stated in that Capayas case thus:

“Secondly.  Because the
respond­ent court would have committed an error if it had admitted the
so-called third-party complaint filed by the petitioner against Isidora Lladoc, Fulgencio
Lladoc and Gre­gorio Navera, since the facts al­leged therein do not show that
the petitioner is entitled to indemnity against them ‘in respect to plain­tiff’s
claim.’ The test to deter­mine whether the claim for indem­nity in a
third-party complaint, ‘in respect to plaintiff’s claim‘ is, whether it
arises out of the same transaction on which the plaintiff’s claim is based, or
the third-party’s claim, although aris­ing out of another or different contract
or transaction, is con­nected with the plaintiff’s claim.

“According to the decision in the case of Crim. vs.
Lumberman’s Mutual Casualty Co. (26 Fed. Supp., 715 [1 Fed. Rules Service,
14a11, Case No. 1]), the test to determine when a third-party defendant may be impleaded
is whether he could have been joined originally as a defendant by the
plaintiff.  But this could be applied
only if there could be asserted against the defendant as the third-party defend­ant,
jointly and severally or in the alternatives,
any right to relief arising out of the same transaction.  For example in an action against the
surety on a bond, the surety may bring in as a third-party de­fendant, the
principal who had agreed to indemnify the surety, be­cause the surety’s claim
arises out of the same transaction. 
(United States vs. United States Fidelity & Guaranty Co. vs.
Kolling, U. S. Dist. Ct., D. Minn., February 1, 1940, 2 Fed. Rules Service
14a222, Case No. 1).  The above test does
not cover all cases in which im­pleading a third-party may be and have been
allowed, which are also covered by the
test we have laid down in the previous paragraph.  Under Rule 14 of Federal Rules of
Civil Procedure, which corresponds to our
Rule 12, the bringing in of a third-party defendant is proper if he would be liable to
the plain­tiff or to the defendant for all or part of the plaintiff’s claim
against the original defendant, although the third-party defendant’s liability arises out of
another transaction.  So in the case of
Carbola Chemical Co., Inc. vs. Trundle Engineering Co. (U.S. Dist. Ct., S.D.N.Y., December 26, 1942), it was held that in an action for breach of contract to render en­gineering services
and to survey a plant, the defendant was allowed to bring as a third-party defendant, the manufacturer
which sold defendant’s equipment to the
plaintiff (7 Fed. Rules Service, 14a11, Case No. 1).  And in a negligence action by the purchaser of a
confection in which it is
alleged that the confec­tion contained
a foreign object, the defendant may bring in the person who supplied him
with the constitu­ent containing the
foreign object, as a third-party defendant (Saunders vs. Southern Dairies, Inc. U.S. Dist. Ct., District of Columbia, November 6, 1939 [2 Fed. Rules Service, 14a.226, Case No. 3].

“Another test, provided for by section 4, Rule 12, of our
Rules of Court, is whether the third-party defendant may assert any defenses
which the third-party plaintiff has or may have to the plaintiff’s claim.  If he may properly assert such defenses, then
he is a proper third-party defendant; otherwise he is not and the claim against
him can not be considered as a third-party complaint.”

The way I understand the above-quoted
dissertation, it does not lay down one single test that can be utilized or
applied separately from the others.  To
determine whether a third-party complaint is proper or not, all the tests
mentioned must have to be satisfied.

There is no question that the purpose of a third-party complaint
is to avoid multiplicity of suits, but this principle cannot be so extensive as
to authorize the impleading of a party whose controversy with the implead­er
relates to a claim with which those already in the action have nothing to do,
even if the transactions involved in the controversy already in court may have
some connection, as when it is
part of the same series, with that to be involved in the third-party
complaint.  What justifies a unity of
proceedings is community of inter­est and issues, except as between parties
already con­tending with each other, in which all kinds of claims are
permissible to be pleaded against each other. 
I maintain there is a
distinction between related trans­actions and related claims, and the latter,
not the for­mer, are the ones that can be the subject of the third-party complaints.  In other words, the claims must be related to
the same transaction and not to merely related transactions.

In defining a compulsory counter-claim, Section 4 of Rule 9 uses
the phrase “necessarily connected with”.  Of course, the reference here is to
transaction or occurence and not to claims. 
My point, however, is that were it the intention of Section 12, Rule 6 to refer to
merely “connected” claims, it would have used that word instead of
the phrase “in respect of” as in Section 4, Rule 9, and thereby avoid
confusion.  If it is bad to give to the
same word used in the various parts of a single body of rules or laws different
meanings, since it must be presumed that the authors thereof must have intended
a uniform meaning for it throughout, conversely, it is just as bad to attribute
the same meaning to two different, if quite synonimous words therein, for it is
obvious that the use of a different
word, with a known somewhat different connotation, indicates that the mean­ing
intended to be conveyed is also
different.

It appears quite clear to me that in ordinary par­lance, to say
that one thing is “connected with” another does not convey the same
import as saying that it is “in respect of” it.
“Connected with” comprehends a much broader idea than “in respect
of”.  I am sure that, at least, these two phrases are not always
interchangeable.

According to Senator Vicente Francisco, a distin­guished
authority in procedural law, “The rule on third-party complaint requires
that the claim of the defendant be ‘in respect of the plaintiff’s claim.’
Unlike permis­sive counter-claim, the third-party complaint must be founded
on the claims in the original action.” (The Re­vised Rules of Court in
the Philippines, Annotated and Commented by Vicente Francisco, Vol. I, p.
351.  Emphasis supplied.) In this
connection, he cites United States
vs. Jollimore vs. Holland Furnace Co., 5 Federal Rules Service 205, thus:  “A third-party defendant may not be
impleaded if the effect would be to introduce a new and separate controversy
into the action.  The test to determine
whether a third-party may be impleaded is whe­ther he could have been joined
originally as a defendant by the plaintiff or whether he is liable as a guarantor, surety, insurer, or
indemnifier of the principal defend­ant.” Further, the same author opines:

“2.  Purpose of third-party com­plaint.  – The purpose of third-party complaint is to
avoid two actions which should be tried together to save time and cost of
reduplication of evidence, to obtain consistent results from identical or
similar evidence, and to do away with the serious handicap to a defendant
of a time difference between a judg­ment against him, and a judgment in his
favor against the third-party defendant. 
(Moore’s Federal Practice, 740; Tullgreen vs. Jasper, 1939, 27 F. Supp.
413.)

“The purpose of the rule is to avoid delay and circuity of
actions and to enable the controversy to be disposed of in one suit, that is,
to permit the determination in a single suit of not only the original claim, but the added
party’s liability therefor.  (67 C.J.S.,
1934; The purpose
of third-party procedure is to avoid circuity
of action and permits the determination in a single action of the rights and
liabilities of parties growing out of facts that relate to the same transaction.  – Carbola Che­mical Co., Inc. Trundle
Engineer­ing Co., 7 Federal Rules Service, 269; The primary object of the civil
procedure rule permitting a defendant to bring in a third-party defendant is to
avoid cir­cuity of action and to dispose, in one litigation, of an entire
subject matter arising from a parti­cular set of facts.  – Tullgreen vs. Jasper, (1939) 27 F. Supp.
413.)

“3.  Nature of third-party com­plaint.  – Third-party complaint is merely a
device by which the de­fendant can bring into the original suit a party against
whom he will have a claim for indemnity or remuneration as a result of a liability
established against him in the ori­ginal suit. 
It is a species of joinder of actions where the
second action accrues only as a result of the first action.  All liabilities are determined in the one
action and the use of third-party complaint is discretionary with the court.
(Univ. of Cincinnati Rev. Vol. 13, No. 1, pp. 92-93).”

I submit that a fourth-party complaint is nothing more nothing less than a
third-party complaint, except that it is only in respect of the claim of the
third-party plaintiff against the third-party defendant.  Now, Section
13 of Rule 6 defines a fourth-party complaint as follows:

“SEC. 13.  Fourth, etc.,
parties.  – A third-party defendant may
proceed under this rule against any person not a party to the action who is or may
be liable to him or to the third-party plaintiff for all or part of the claim
made in the action against the third-party defendant.”

I am convinced that these simple words
applied mutatis mutandis to the definition of
a third-party complaint convey the true concept of such pleading.  I simply cannot see why a plaintiff can be
made to saddle the time, inconvenience and expenses of attending to a
third-party complaint wherein the fate of his own claim against the defendant is absolutely
independent of the claim of the defendant against the third-party defend­ant
just because the transaction involved in the third-party complaint happens to
be related somehow to the transaction subject of his complaint, specially if
the plaintiff has not taken part nor is he mentioned or re­ferred to in such
transaction.  My fear is that such an
amplification of the concept of third-party complaints which the main opinion
seems to sanction will not serve the purpose of “assisting the parties in
obtaining just, speedy and inexpensive determination of every action or
proceeding” as envisioned in Section 2 of Rule 1.  On the contrary, it is bound to create confusion, unneces­sary
delay and expense for the plaintiff without any corresponding benefit to the
interests of justice.

Applying these views to this case, I reiterate that if the claim
of Bautista were a real third-party complaint, the effect would be that the
judgment, even by the default, against Flores did not become executory until
after the claim against Bautista had been finally determined, for in my
concept, as explained above, of a real third-party complaint, the
third-party defendant is never liable to the defendant unless the latter is
liable to the plaintiff.