CARMEN L. MADEJA, PETITIONER, VS. HON. FELIX T. CARO AND EVA ARELLANO-JAPZON, RESPONDENTS.

In Criminal Case No. 75-88 of the defunct Court of First Instance
of Eastern Samar, DR. EVA A. JAFZON is accused of
homicide through reckless imprudence for the death of Cleto
Madeja after an appendectomy.  The complaining witness is the widow of the
deceased, Carmen L. Madeja.  The information states that:  “The offended party Carmen L. Madeja reserving her right to file a separate civil action
for damages.” (Rollo, p. 36.)

The criminal case still pending, Carmen L. Madeja
sued Dr. Eva A. Japzon for damages in Civil Case No.
141 of the same court.  She alleged that
her husband died because of the gross negligence of Dr. Japzon.  The respondent judge granted the defendant’s
motion to dismiss which motion invoked Section 3 (a) of Rule III of the Rules
of Court which reads:

“Sec. 3.  Other civil actions
arising from offenses. – In all cases not included in the preceding
section the following rules shall be observed:

(a) Criminal and
civil actions arising from the same offense may be instituted separately, but
after the criminal action has been commenced the civil action can not be instituted
until final judgment has been rendered in the criminal action.” x x x

According to the respondent judge, “under
the foregoing Sec. 3(a), Rule III, New Rules of Court, the instant civil action
may be instituted only after final judgment has been rendered in the criminal
action.” (Rollo, p.
33.)

The instant petition which seeks to set aside the order of the
respondent judge granting the defendant’s motion to dismiss Civil Case No. 141
is highly impressed with merit.

Section 2, Rule III of the Rules of Court in relation to Article
33 of the Civil Code is the applicable provision.  The two enactments are quoted hereinbelow:

“Sec. 2.  Independent civil
action. – In the cases provided for in Articles 31, 32, 33, 34 and
2177 of the Civil Code of the Philippines,
an independent civil action entirely separate and distinct from the criminal
action, may be brought by the injured party during the pendency
of the criminal case, provided the right is reserved as required in the
preceding section.  Such civil action shall
proceed independently of the criminal prosecution, and shall require only a
preponderance of evidence.” (Rule III, Rules of Court.)

“Art. 33.  In cases of
defamation, fraud, and physical injuries, a civil action for damages, entirely
separate and distinct from the criminal action, may be brought by the injured
party.  Such civil action shall proceed
independently of the criminal prosecution, and shall require only a
preponderance of evidence.” (Civil Code.)

There are at least two things about Art. 33 of the Civil Code
which are worth noting, namely:

1. The civil action for damages which it allows to be instituted
is ex–delicto.  This is manifest from the provision which
uses the expressions “criminal action” and “criminal
prosecution.” This conclusion is supported by the comment of the Code
Commission, thus:

“The underlying purpose of the principle under consideration
is to allow the citizen to enforce his rights in a private action brought by
him, regardless of the action of the State attorney.  It is
not conducive to civic spirit
and to individual self-reliance and initiative to habituate the citizens to
depend upon the government for the vindication of their own private
rights.  It is true that in many of the
cases referred to in the provision cited, a criminal prosecution is proper, but
it should be remembered that while the State is the complainant in the criminal
case, the injured individual is the one most concerned because it is he who has
suffered directly.  He should be
permitted to demand reparation for the wrong which peculiarly affects him. ” (Report, p. 46.)

And Tolentino says:

“The general rule is that when a criminal action is
instituted, the civil action for recovery of civil liability arising from the
offense charged is impliedly instituted with the criminal action, unless the
offended party reserves his right to institute it separately; and after a
criminal action has been commenced, no civil action arising from the same offense can be
prosecuted.  The present articles creates an exception to this rule when the offense
is defamation, fraud, or physical injuries. 
In these cases, a civil action may be filed independently of the
criminal action, even if there has been no reservation made by the injured party;
the law itself in this article makes such reservation; but the claimant is not
given the right to determine whether the civil action should be scheduled or
suspended until the criminal action has been terminated.  The result of the civil action is thus
independent of the result of the criminal action.” (I Civil Code, p. 144.
[1974].)

2. The term “physical injuries” is used in a generic
sense.  It is not the crime of physical
injuries defined in the Revised Penal Code. 
It includes not only physical injuries but consummated, frustrated and attempted
homicide.

“The Article in question uses the words ‘defamation’, ‘fraud’
and ‘physical injuries.’ Defamation and fraud are used in their ordinary sense
because there are no specific provisions in the Revised Penal Code using these
terms as means of offenses defined therein, so that these two terms defamation
and fraud must have been used not to impart to them any technical meaning in
the laws of the Philippines,
but in their generic sense.  With this
apparent circumstance in mind, it is evident that the terms physical injuries’
could not have been used in its
specific sense as a crime defined in the Revised Penal Code, for it is
difficult to believe that the Code Commission would have used terms in the same
article – some in their general and another in its technical sense.  In other words, the term ‘physical injuries’
should be understood to mean bodily injury, not the crime of physical injuries,
because the terms used with the latter are general terms.  In any case the Code Commission recommended that
the civil action for physical injuries be similar to the civil action for
assault and battery in American Law, and this recommendation must have been
accepted by the Legislature when it approved the article intact as recommended.  If the intent has been to establish a civil
action for the bodily harm received by the complainant similar to the civil
action for assault and battery, as the Code Commission states, the civil action
should lie whether the offense committed is that of physical injuries, or frustrated
homicide, or attempted homicide, or even death.” (Carandang vs. Santiago, 97 Phil. 94, 96-97 [1955].)

Corpus vs. Paje, L-26737, July
31, 1969, 28 SCRA 1062, which states that reckless imprudence or criminal
negligence is not included in Article 33 of the Civil Code is not
authoritative.  Of eleven justices only
nine took part in the decision and four of them merely concurred in the result.

In the light of the foregoing, it is apparent that the civil
action against Dr. Japzon may proceed independently
of the criminal action against her.

WHEREFORE, the petition is hereby granted; the order
dismissing Civil Case No. 141 is hereby set aside; no special pronouncement as
to costs.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero, De Castro, and Escolin, JJ., concur.

Aquino, J., see
concurrence.