ABELARDO BAUTISTA AND ROBERTO TAN TING, PETITIONER-APPELLEES, VS. FEDERICO O. BORROMEO, INC., HONORABLE CESAR C. CRUZ, JUDGE OF THE MUNICIPAL COURT OF MANDALUYONG, RIZAL AND JES…

Respondents-appellants seek to overturn the decision of the Court
of First Instance of Rizal of January 6, 1966
granting petitioners-appellees’ petition for relief
from judgment, setting aside the July 23, 1965 decision of the Municipal Court
of Man­daluyong, Rizal, in
Civil Case 1365 and ordering a new trial.

The background facts are as follows:

On September 15, 1964,
the Ford truck of petitioner Roberto Tan Ting driven by Abelardo
Bautista, the other petitioner, and the Volkswagen delivery panel truck owned
by respondent Federico O. Borromeo, Inc. (hereinafter
called Borromeo) were involved in a traffic accident
along Epifanio de los Santos
Avenue.  In
said traffic accident, Quintin Delgado, a helper in Borromeo’s delivery panel truck, sustained injuries which
resulted in his instantaneous death.  Borromeo had to pay Delgado’s widow the sum of P4,444
representing the compensation (death benefit) and funeral expenses due Delgado
under the Workmen’s Compensation Act.

On June 17, 1965,
upon the averment that the said vehicular accident was caused by petitioners’
negligence, Borromeo started suit in the Municipal
Court of Mandaluyong, Rizal
to recover from petitioners the compensation and funeral expenses it paid to
the widow of Quintin Delgado.^[1]

At the scheduled hearing of the case on July 23, 1965, neither petitioners nor their
counsel appeared.  Borromeo
was thus allowed to present its evidence ex parte.  On the same day, July 23, 1965, the municipal court rendered
judgment in favor of Borromeo and against the
petitioners in the principal sum of P4,444, and P500 attorneys’ fees, and
costs.  Respondents aver that this
judgment has been executed and satisfied.

On August 6, 1965,
petitioners received copy of the municipal court’s decision.

On August 13, 1965,
petitioners moved to set aside the decision. 
On August 14, 1965,
this motion was denied.

On August 16, 1965,
copy of this order of denial was sent by registered mail to counsel of petitioners.  Said counsel did not receive this registered
mail and the mail matter was returned to the court unclaimed.  However, said counsel learned of this denial
on September 2, 1965
allegedly “in the course of his investi­gation.”

Petitioners filed a notice of appeal dated September 2, 1965. 
They, however, paid the appellate docket fee and deposited their cash
appeal bond only on September 28, 1965.  Their appeal was consequently turned down by
the municipal court, for the reason that the deposit of the bond and the
payment of the docket fee were done after the lapse of the reglementary
period.

Nothing was done by petitioners until October 26, 1965, when they lodged a petition for relief from the inferior
court’s judgment in the Court of First instance of Rizal.^[2]
They there claimed excusable negligence for the failure of petitioners’ counsel
to appear in the July 23, 1965
hearing at the municipal court and asserted that they had a good and
substantial defense in that “there was no contractual relationship between
the parties, whether ex­press or implied.” They sought preliminary
injunction, prayed for trial de novo on the merits.  A restraining order was at first issued by
the court; but the prayer for preliminary injunction was eventually denied.

Respondents’ answer contended that the petition for relief was
filed out of time; that petitioner’ counsel’s failure to attend the hearing of July 23, 1965 does not constitute
excusable negligence; and that the affidavits attached to the petition do not
show good and substantial defense.

Petitioners thereafter moved for judgment on the plead­ings.  No objection thereto was interposed by
respondents.  The lower court then
rendered the judgment mentioned in the first part of this opinion.

A move to reconsider failed. 
Hence, this appeal.

We vote to reverse the lower court’s judgment for the following
reasons:

1.  The petition for relief
from judgment under Rule 38 of the Rules of Court is unavailable to
petitioners.

A basic precept is that when another remedy at law is open to a
party, he cannot sue out a petition for relief under Rule 38.^[3]
Thus, a petition for relief is not a substitute for appeal.  It has been held that where a defendant could
have appealed – but did not appeal – from the decision of the inferior court to
the Court of First Instance but instead filed a petition for relief, his
petition was inappropriate as it “would amount to reviving his right to
appeal which he had irretrievably lost through the gross inaction of his
counsel.”^[4]

Here, petitioners learned of the municipal court judgment on August 6, 1965, when they received a
copy of its decision.  They moved to set
aside that judgment on August 13, 1965.  At that time, a petition for relief could not
be availed of because the judgment of the municipal court had not yet become
final.^[5]
But, on September 2, 1965,
petitioners learned of the court’s order of August 14, 1965 denying their motion to set aside.  They could have appealed.  Because, nothing in the record
suggests that the notices to peti­tioners to take delivery of the
registered envelope – containing the inferior court’s resolution denying
petitioners’ motion to set aside the decision – were ever served
on said petitioners.  On the contrary, Teresita Roxas, secretary of
petitioners’ counsel, in her affidavit dated October 23, 1965, Annex E of the
petition for relief, categorically denied receipt of any such notice,
thus:  “That I have not received any
registry notice corresponding
to a registered mail at the Manila Post Office containing an order by the
Municipal Court of Mandaluyong, Rizal,
dated August 14, 1965.”^[6]

But petitioners did not perfect their appeal to the Court of
First Instance on time – they paid the appellate docket fee and deposited their
appeal bond only on September 28, eleven (11) days late.  Clearly, their failure to seasonably appeal
was through their own fault.

And, when they did file a petition for relief on October 26,
1965, it was way beyond the sixty-day period from August 6, 1965, the time they
first learned of the judgment to be set aside, as required by Section 3, Rule
38 of the Rules of Court.

We, accordingly, rule that petitioners’ petition for relief must
fail.

2.  Petitioners failed to
make out a case of excusable neg­ligence for counsel’s non-attendance at the July 23, 1965 hearing.

Their counsel, Atty. Leopoldo V. Repotente, Jr., explains his failure to attend the hearing
in this wise – “he relied on the assurance of his associate, Atty. Lucenito N. Tagle, that the latter will attend to the
case for him since on that same date he (Atty. Repotente)
had another case before the City Court of Quezon
City.” In his sworn statement, Atty.
Tagle in turn stated that he was unable to
attend the hearing despite his promise to do so because, in his own words,
“when I transferred to my new office at A & T Building Escolta, Manila, the record of this case was misplaced,
mislaid or otherwise lost by my helpers and was not among those turned over to
my possession” and “it was only a few days after the date of hearing
on July 23, 1965, that I found the record of this case in one of the drawers of
my table in my former office
and it was only then that I realized my failure to attend the hearing on July
23, 1965, x x x.”

We cannot view such negligence of petitioners’ two attorneys as
excusable.  There was no plausible reason
for Repotente to entrust the hearing of the case to
another lawyer.  His lame excuse was that
he requested Tagle to attend the hearing of said case
for him because he had another hearing at the City Court of Quezon
City.  This is unworthy of serious
consideration.  For, as respondents aver
– and this is not denied by petitioners – the hearing of July 23, 1965 before the municipal court was set
in open court during the initial date of hearing held on July 1, 1965 after Atty. Repotente consulted his calendar.  When Repotente
agreed in open court to set the
trial of the case for July 23, 1965,
it may very well be presumed that his other case in Quezon City was not yet calendared
for hearing.  He could not have, in good
faith, agreed to set the case for hearing on the day on which he had another
previously scheduled trial.  Further, he
failed to notify his clients of the hearing set for July 23, 1965; they also failed to appear
thereat.  Certainly, Repotente’s
inadvertence cannot be labeled as excusable.

Nor may Atty. Tagle offer as excuse the
fact that the record of the case “was misplaced, mislaid or otherwise
lost”.  This is a stereotyped
excuse.  It is resorted to by lawyers in
order to win new trial of the case and thereby move farther away the day of
reckoning.  To be remembered is that the
life of each case is in its record.  If
the record of the case was misplaced, mislaid or lost, he should have nevertheless
attended the scheduled hearing and requested for a postponement by reason
thereof.  But he did not.  Appropriate it is to recall here that a
prudent lawyer keeps a separate record or diary
of hearings of cases he handles and of his professional
engagements.  A lawyer’s schedules of
hearings – intended as a reminder – are not noted by the lawyer in his record
of the case.  That would be useless for
the purpose.

There is then no excusable negligence to which the peti­tion for
relief can cling.

3.  Even on the merits,
petitioners’ case must fall.

Borromeo paid the widow of its
employee, Quintin Delgado, compensation (death
benefit) and funeral expenses for the latter’s death while in the course of
employment.  This obligation arises from
law – Section 2 of the Workmen’s Compensation Act.^[7]
The same law in its Section 6 also provides that “[i]n
case an employee suffers an injury for which compensation is due under this Act
by any other person besides his employer, it shall be optional with such
injured employee either to claim compensation from his employer, under this
Act, or sue such other person for damages, in accordance with law; and in
case compensation is claimed and allowed
in accordance with this Act, the employer
who paid such compensation or was found
liable to pay the same, shall succeed
the injured employee to the right of
recovering from such person what he paid:  x x x.”^[8]

It is evident from the foregoing that “if compensation is
claimed and awarded, and the employer pays it, the employer becomes subrogated to and acquires, by
operation of law, the worker’s rights against the tortfeasor.”^[9]

No need then there is to establish any contractual rela­tionship
between Quintin Delgado and herein petitioners.  Indeed, there is none.  The cause of action of respondent corporation
is one which does not spring from a creditor-debtor relationship.  It arises by virtue of its subrogation to the right of Quintin Delgado to sue the guilty party.  Such subrogation is sanctioned by the
Workmen’s Compensation Law aforesaid.  It
is as a subrogee to the rights of its deceased
employee, Quintin Delgado, that Borromeo
filed a suit against petitioners in the Municipal Court of Mandaluyong,
Rizal.^[10]

For the reasons given, the appealed decision of January 6, 1966 under review is hereby
reversed and the petition for relief is hereby dismissed.

Costs against petitioners-appellees.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee,
and Barredo,
JJ., concur.

^[1]
Civil Case 1365, entitled “Federico O. Borromeo,
Inc., Plaintiff, versus Abelardo Bautista and
Roberto Tan Ting, Defendants.”

^[2]
Civil Case 8976, entitled “Abelardo Bautista and
Roberto Tan Ting, Petitioners, versus Federico O. Borromeo,
inc., Honorable Cesar C. Cruz, Judge of the Municipal Court of Mandaluyong, Rizal and Jesus
Bautista, Deputy Sheriff of Manila
as Special Sheriff, Respondents.”

^[3]
Fajardo vs. Bayona,
98 Phil, 659, 662, citing Palomares vs.
Jimenez, 90 Phil. 773, 775-776; Alquesa vs. Cavada (1961), 3 SCRA 428, 430-431.

^[4]
Javellana vs. Lutero
(1967), 20 SCRA 717, 722.  See also:  Palomares vs.
Jimenez, supra, at p. 776; Smith, Bell & Co.,
Ltd. vs. Philippine Milling Co., L-12827, February 29, 1960.

^[5]
Quirino vs. Philippine National Bank, 101 Phil.
705, 706-708.  See also:  Anuran vs. Aquino,
38 Phil. 29, 34-37; Veluz vs. Justice of the
Peace of Sariaya, 42 Phil. 557, 562-563; Prudential
Bank & Trust Company vs. Macadaeg, 105
Phil. 791, 794; Punzalan vs. Papica, L-13804, February 29, 1960; Suzara
vs. Caluag (1962), 4 SCRA 1060, 1062;
Concurring Opinion of Mr. Justice Dizon in Balite vs. Cabangon
(1967), 20 SCRA 122, 125.

^[6]
R.A., p. 18.

^[7]
“SEC. 2.  Grounds for compensation.  – When an employee suffers personal injury
from any accident arising out of and in the course of his employment, or
contracts tuberculosis or other illness directly caused by such employment, or
either aggravated by or the result of the nature of such employment, his
employer shall pay compensation in the sums and to the person hereinafter
specified.  x x
x.”

^[8]
Emphasis supplied.

^[9]
Esguerra vs. Muñoz,
104 Phil. 582, 585.  See also:  Clareza vs.
Rosales (1961), 2 SCRA 455, 457-458.

^[10]
See also:  Article 2176, Civil Code, which
reads:  “Whoever by act or omission
causes damage to another, there being fault or negligence, is obliged to pay
for the damage done.  Such fault or
negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by
the provisions of this Chapter”.  (i.e., Chapter 2, Title XVII, Book IV, Civil Code).