LEOPOLDO POBLETE, PLAINTIFF-APPELLANT, VS. DONATO FABROS AND GODOFREDO DE LA CRUZ, DEFENDANTS-APPELLEES.

This is an action for damages, arising from a vehicular accident,
filed by the plaintiff Godofredo Poblete as owner of the damaged taxicab,
against the driver and owner of the allegedly offending vehicle, Donato Fabros
and Godofredo de la Cruz, respectively.

After trial on the merits, and the case submitted for decision,
the trial court, the Court of First Instance of Davao, Judge Vicente Cusi, Jr.,
presiding, dismissed the case on the ground that from the allegation of the
complaint, the action is one to hold Donato Fabros, as the employer of the
allegedly negligent driver, Godofredo de la Cruz, subsi­diarily liable for the
damage caused the plaintiff, and is, therefore, premature, there having been no
criminal action filed against the driver who had died during the pendency of
the case at bar, and, in effect, states no cause of action.  A motion for reconsideration was filed to the
order of dis­missal, but to no avail. 
Hence, this appeal.

The question raised is whether on the basis of the allegation of
the complaint, the action is one to enforce the subsidiary liability of the
employer of the negligent driver as provided in Article 103 of the Revised
Penal Code, as held by the court a quo, or it is an action based on quasi­-delict.  In the first case, the action would be
premature and would, accordingly, be wanting in a cause of action before a
judgment of conviction has been rendered against the negligent driver, for,
while a separate civil action may be filed for damages arising from the
criminal offense of the accused for criminal negligence, upon proper
reservation of said action (Section 2, Rule 111, Rules of Court), the same may
not be heard separately in advance or ahead of the criminal action.  While in the second case, the action, being
for liability based on quasi-delict, not for liability arising from crime, may
proceed independently from the criminal action. 
It is also for a different purpose, the liability sought to be imposed
on the employer being a primary and direct not merely subsidiary.  Civil liability for quasi-delict and that
arising out of a crime are clearly different and distinct from each other, as
lucidly demonstrated and discussed in Barredo vs. Garcia, et al., 78 Phil. 607.

Examining the allegations of the complaints, to deter­mine what
is made the basis thereof for the relief sought, which is to impose a
“joint and several” liability on the defendants (p. 5 Record on
Appeal; Page 26, Rollo), there is absolutely no reason to exclude and rule out,
as the court a quo did, the fact that the action is one
based on quasi delict, and hold, as again the
court did, that the action is based on the criminal offense of negligence, as
defined in the Revised Penal Code, committed by the driver alone, and
concluding that the purpose of the action is to impose the subsidiary liability
on the employer as provided in the same Code.

The court a quo said:

“As it is, the complaint really states no cause of action
against Donato Fabros in his capacity as employer of Godofredo de la Cruz.  Stated differently, the complaint against
Donato Fabros is premature, because he is only subsidiarily liable under the
Penal Code.  His subsidiary liability
should not be litigated in the civil action against de la Cruz.  It follows that the third-party complaint
that he filed is also premature.”

From the above observation of the Court, it is crystal clear that
the court itself has found that the employer-employee relation of the two
defendants has been sufficiently alleged; otherwise, it would have no basis for
saying that the complaint is “against Donato Fabros in his capacity as employer of Godofredo de la Cruz.” The defendant Donato Fabros has
himself correctly perceived the basis of the com­plaint against him, as one
based on quasi-delict, for instead of filing a motion for a bill of particulars
if he deemed the allegations vague or ambiguous, he interposed in his answer
the defense of a “due diligence of a good father of a family in the
selection, employment and supervision of his driver.” (Page 8, Record on
Appeal; Page 26, Rollo).

In the second place, in alluding to the subsidiary lia­bility of
the employer, Donato Fabros, the court a quo has,
likewise, found sufficiently alleged negligence as the basis for the
action.  The complaint expressly and
clearly alleges that the accident was “due solely to the gross negligence,
carelessness and unskillful driving of
defendant Godofredo de la Cruz” (Page 3, Record on Appeal, Page 20,
Rollo).

With the allegation of
negligence against the driver, Godofredo de la Cruz, and that of an
employer-employee relation between him and his co-defendant, Donato Fabros, the
complaint clearly and unmistakably makes out a case based on quasi-delict, as
explicitly provided in Article 2180 of the Civil Code which, inter
alia, provides:

“x x x The owners and managers of an establishment or
enterprise are likewise responsible for damages caused by their employees in
the service of the branches in which the latter are employed or on the occasion
of their functions.”

What needs only to be
alleged under the aforequoted provision is that the employee (driver) has, by
his negligence (quasi-delict) caused damage to make the employer, likewise,
responsible for the tortious act of the employee, and his liability is, as
earlier observed, primary and solidary.  (Bachrach Motor Co. vs. Gamboa, L-10296, May
21, 1957; Malipol vs. Tan, 55 SCRA 202; Barredo vs. Garcia and Almario, 73
Phil. 607; Vinluan vs. Court of Appeals, et al., 16 SCRA 742; Anuran, et al.
vs. Buño, et al. 17 SCRA 224).

It is such a firmly
established principle as to have virtually formed part of the law itself, that
the negligence of the employee gives rise to the presumption of negligence on
the part of the employer.  This is the
presumed negligence in the selection and supervision of the employee.  The theory of presumed negligence, in
contrast with the American doctrine of respondent superior, where the negligence of the employee is conclusively
presumed to be the negligence of the
employer, is clearly deducible from the last paragraph of Article 2180 of the
Civil Code which provides that the responsibility therein mentioned shall cease
if the employers prove that they observed all the diligence of a good father of
a family to prevent damages (12 Manresa, 657; Balica vs. Litonjua and Leynes,
30 Phil. 624; Cangco vs. Manila Railroad Co., 38 Phil. 768), as observed in the
same cases just cited.

From what has been said,
the error of the court a quo in dismissing the case on his
mistaken notion that the action is based on crime, not quasi-delict,
becomes very patent.  How the court
concluded that the action is to enforce the subsidiary liability of Donato
Fabros as the employer of the negligent driver Godofredo de la Cruz is
inconceivable, with the plain and explicit prayer of the complaint to declare the
defendants “jointly and severally” liable for damages, a concept
antagonistic to that of subsidiary liability. 
The death of defendant, Godofredo de la Cruz, the driver, is therefore,
no hindrance to the present action, at least as against the employer, Donato
Fabros, taking its course to final judgment, which the court a quo
should have rendered, the trial of the
case having been terminated, instead of dis­missing the case, without even a
motion to dismiss, with the evidence, in all probability, supportive of an
action on quasi-delict, which the pleadings, both the complaint and the answer,
raised as the specific issue involved and as joined by said pleadings.

A word of advice, at least as a reminder, may be meet at this
juncture, for judges to give a deeper study and reflection in the disposition
of cases, so that undue delay which could very well be avoided, as in this
case, had the judge been more circumspect and analytical, would not cause
injustice to litigants, under the familiar maxim that justice delayed is
justice denied, which should constantly sound its stern warning to all
dispensers of justice.

WHEREFORE, the order of dismissal dated April 17, 1968 is
hereby set aside, and let this case be remanded to the court of origin for the
rendition of the judgment on the merits based on the evidence adduced during
the trial.  This judgment shall be
immediately executory upon its promulgation.

Teehankee, Acting C.J., (Chairman), Fernandez, Guerrero, and Melencio-Herrera, JJ., concur.

Makasiar, J., is on official
leave.