VIRGILIO OZOA, PETITIONER, VS. CARIDAD VDA. DE MADULA, HON. CELSO LARGO, ETC., AND PROVINCIAL SHERIFF OF BUKIDNON, RESPONDENTS.

In this special civil
action of certiorari and prohibition, we are
asked by the petitioner to annul and set aside the Order of respondent Judge
which denied his appeal — and his motion to recall a writ of execution for the
enforcement of his subsidiary civil liability under Article 103 of the Revised
Penal Code, i.e., to answer for his employee’s own liability arising from the
felony of which the latter had been convicted.^[1]

Petitioner Ozoa was the employer of Policarpio
Balatayo, who was convicted by the Court of First
Instance of Bukidnon of homicide with serious
physical injuries thru reckless imprudence, under an information^[2] pertinently reading as follows:

“That on or about the 9th day of February, 1976, in the
evening, at the * * municipality of Libona, province
of Bukidnon
** the accused, who was the driver of Weapons Carrier truck bearing Plate No.
T-528-73 owned by Virgilio Ozoa,
did then and there wilfully, unlawfully and
feloniously drive fast and operate the said vehicle in a negligent, careless
and imprudent manner in disregard of traffic rules and regulations and as a
result thereon ran over Arcadio Madula
Lagas, inflicting on his person ** (certain
specified) injuries ** which resulted
in his instantaneous death and inflicting serious physical injuries on Nenito Ayag y Regidor.”

Balatayo was convicted on the strength
of his plea of guilty, which he entered after withdrawing his initial plea of
not guilty.1 He was sentenced to
“undergo imprisonment ranging from SIX (6) MONTHS of arresto
mayor, as minimum, to THREE (3) YEARS, SIX (6) MONTHS and TWENTY-ONE (21) DAYS
of prision correccional, as
maximum.” He was further sentenced “to indemnify the heirs of the
deceased Arcadio Madula Lagas in the amount of P12,000.00 and Nenito
Ayag Y. Regidor, the amount
of P3,000.00 without subsidiary imprisonment in case of insolvency, to suffer
the accessory penalties provided by law, and to pay the costs.”2

The judgment of conviction having become final, a writ of
execution issued at the instance of the widow of the deceased (Caridad Madula, herein private respondent),
for the enforcement of the defendant’s civil liability.  The writ was however returned unsatisfied by
reason of the insolvency of the accused.

The widow Madula then moved for the
issuance of a writ of execution against the accused’s
employer, Ozoa. 
Ozoa opposed the motion.  He stated that the widow had executed an
“Affidavit of Desistance” acknowledging full satisfaction of civil
liability; and a separate civil case “should and must be ventilated ** in
order that the Court can acquire jurisdiction over ** (his) person ** so that
the employer-employee relationship could be established and to afford ** (him)
the opportunity to prove his defense.”3

The Court held a hearing on the motion.  It received evidence on the issues, presented
by the widow-movant as well as Ozoa.  In addition to the fact that execution
against the accused Balatayo had been returned
unsatisfied on account of his insolvency, not disputed, the Court found other
facts to have been adequately proven by the evidence adduced by both parties,
to wit:

1)   Ozoa was the
employer of Balatayo, and was a businessman engaged
in the hauling of corn, these being admitted by him in his affidavit marked
Exhibit “F”.

2)   Ozoa promised to
pay the widow Madula P6,000 and thus persuaded her to
sign an affidavit of desistance (marked Exhibit 1), but this amount was never
paid.  The only amount in fact given by Ozoa was P1,500.00, which was used to defray the burial
expenses.4

Upon these facts, the Court a
quo directed execution
against Ozoa. 
In support of its ruling the Court placed reliance on Article 103, in relation to Article 102, of the
Revised Penal Code, declaring the employer subsidiarily
responsible for the civil liability of his employee when the latter is
insolvent; to Miranda v. Malate Garage, etc., 99 Phil. 670, holding
that the conviction of the employee is binding and conclusive upon the employer
not only with regard to the civil liability but also as to its amount because
the employer’s liability is inseparable from and indeed follows that of the
employee; and to Pajarito v. Seneris, 87 SCRA 275, holding that in substance and in effect, the employer is a
party to the criminal action where his employee’s civil liability is adjudged.

Ozoa filed a notice of appeal, and a
motion to recall the writ of execution.  Madula opposed the appeal, and in turn moved for the
issuance of an alias writ of execution.

By Order dated May 12,
1982, the Trial Court denied Ozoas’s
appeal and his motion to recall writ. 
The Court declared that on account of Ozoa’s
failure to submit an appeal bond and a record on appeal, only a notice of
appeal having been filed by him, his appeal had not been perfected within the reglementary period of 30 days; and that, moreover, the
correct remedy was not appeal but the special civil action of certiorari.1 Ozoa moved
for reconsideration and for quashal of the execution
issued against him.  His motion was
denied.

This Order of May 12,
1982 is now challenged by Ozoa before
us.  He contends that the order should be
annulled because tainted by grave abuse of discretion.  He argues that –

1.  An employer may appeal
from an order finding him subsidiarily civilly liable
in the same criminal proceeding and in the same manner as in appeals in
criminal cases.

2.  It was error for the
Trial Court to deny his appeal for failure on his part to submit a record on
appeal and an appeal bond because in appeals in criminal cases, only a notice
of appeal need be filed to perfect the appeal; and he did file the requisite
notice of appeal within 15 days from notice of the order declaring him subsidiarily liable, i.e., within the period prescribed for
appeals in criminal cases.  An employer
should be allowed to appeal as regards the civil aspect of the criminal case,
since a new and different matter is involved, and the judgment declaring him
liable can not be deemed to have become final merely because the criminal
action has itself become final.

3.  It was beyond the power
of the Court a quo to issue an alias writ of execution after the
perfection of the appeal.  The perfection
of the appeal causes the Court to lose jurisdiction over the case.

To be sure, the correctness of the legal principles cited by the
Court a quo cannot be gainsaid.  A
person criminally liable is also civilly liable; and upon the institution of
the criminal action, the civil action
for the recovery of the civil liability arising from the crime is also
impliedly instituted unless waived, or the filing of a separate action therefor is reserved.1 The employer is subsidiarily
answerable for the adjudicated civil liability ex delito of his employee in the event of the latter’s
insolvency; and the judgment in the criminal action pronouncing the employee to
be also civilly liable is conclusive on the employer not only as to the
actuality of that liability but also as to its amount.

But the foregoing statement does not exhaust the entirety of the
rules relevant and applicable to the juridical situation under
consideration.  There is the additional
precept, of which sight should not be lost because essential to due process,
that before the employer’s subsidiary liability is exacted, there must be
adequate evidence establishing that (1) he is indeed the employer of the
convict; (2) that he is engaged in some kind of industry; (3) the crime was committed
by the employee in the discharge of his duties; and (4) execution against the
employee is unsatisfied.2 The
determination of these issues need not be done in a separate civil action.  But a determination there must be, on the
basis of evidence that the offended party and the employer may fully and freely
present; and this may be done in the same criminal action at which the
employee’s liability, criminal and civil, has been pronounced.  It may be done at a hearing set for that
precise purpose, with due notice to the employer, “as part of the
proceeding for the execution of the judgment.”3

It goes without saying that the determination thus made as
regards the employer’s subsidiary civil liability is not conclusive in the
sense of being non-reviewable by higher judicial
authority.  It may be appealed to a
higher court at the instance of the aggrieved party — either the offended
party or the employer — by writ of error seeking review of questions of fact
or mixed questions of fact and law,4 or
through a petition for review on certiorari, limited to a consideration only of
questions of law.5 Or review
may be sought by the institution of a special civil action of certiorari, upon the
theory that the determination was made by the Trial Court without or in excess
of its jurisdiction, or with grave abuse of discretion.6

Now, there is no explicit rule or law governing the situation
dealt with in the case at bar, at least as to the precise manner and time in
which an appeal may be taken from any adjudgment of
an employer’s subsidiary civil liabiity.  This is not surprising since the basic
proposition itself — that adjudication of the employer’s subsidiary civil
liability need not be done by separate suit against the employer but merely in the same criminal action which resulted in the
judgment declaring the employee liable both criminally and civilly — has not
been laid down by legislation, but by judicial construction of related
statutory provisions.  A party should not
therefore be strictly held to account for any mistake as to the proper mode of
appeal in such a situation which, as it were, is yet largely uncharted
territory.

It does not seem reasonable to apply the rules on appeal in civil
actions.  The proceeding in question was
not after all a civil action, but one considered a part or a continuation of
the criminal action.  The more logical
step then is to apply the corresponding rules in criminal cases, which provide
that an appeal is taken simply by filing a notice of appeal within fifteen (15)
days from notice or promulgation of the judgment.1

The private respondent’s theory, on the other hand, that this
fifteen-day period for appeal should be reckoned from the time the accused
pleaded guilty and commenced to serve sentence, on May 17, 1978, and not from
the issuance of the Order for the execution of the judgment against Ozoa on May 12, 1982, is obviously incorrect.  There is no occasion to speak of enforcing
the employer’s subsidiary civil liability until and unless it appears that the
employee’s primary liability cannot in the first instance be satisfied by
reason of insolvency.  This fact cannot,
in the very nature of things, be known until some time after the verdict of
conviction shall have become final.  And
even if it appear prima facie that execution against the employee
cannot be satisfied, execution against the employer will not issue as a matter
of course.  There must first be, as above
pointed out, a determination that the convict was in truth in the employ of the
employer, that the latter is engaged in some kind of industry, and the employee
committed the crime to which civil liability attaches while in the performance
of his duties as such.  It is from this
Court order embodying that determination that an appeal should be taken; and it
is from notice of this order that the 15-day period of appeal must be counted.

The Trial Court’s view that the remedy against an order of
execution is not appeal but the special civil action of certiorari, is not correct
either.  As already above declared, the
appropriate remedy is either an appeal by writ of error or by certiorari, depending on the nature of the questions sought to be
raised.  Exceptionally, the special civil
action of certiorari may be resorted to as a vehicle for
review if the claim be of lack or excess of jurisdiction, or the attendance of
grave abuse of discretion, in the issuance of the order of execution.  Parenthetically, even if the appeal were
mistakenly directed to the Court of Appeals despite raising only questions of
law, the mistake would not be fatal.  The
appeal would not be dismissed but referred to the Supreme Court “with a
specific and clear statement of the grounds therefor.”2

It was therefore error for the Trial Court to have declined to
give due course to Ozoa’s appeal.  Under ordinary circumstances, this error
should suffice to justify reinstatement of Ozoa’s
appeal and directing its referral to the Court of Appeals in due course.  To do so however would only prolong the
litigation to no valid purpose, and to the prejudice of the parties entitled to
execution of judgment.

There is in fact no need for any further proceedings in this
case.  We have gone over the record quite
carefully and are convinced that Ozoa’s subsidiary
civil responsibility has been duly established by the evidence.  That evidence was presented at a hearing at
which Ozoa was given opportunity to submit, as he did
submit proofs in his behalf.  We agree
that the facts proven adequately demonstrate the existence of the requisites
for holding Ozoa subsidiarily
liable as an employer under Article 103 of the Revised Penal Code, specified
earlier in this opinion.

WHEREFORE, the petition is dismissed.  The case is remanded to the Trial Court which
is hereby directed forthwith to cause execution against the properties of
petitioner Ozoa for the satisfaction of his
subsidiary civil liability in accordance with its decision dated May 7, 1978.  No pronouncement as to costs.

Teehankee, C.J., Cruz, Paras, and Gancayco, JJ., concur.

^[1]
Criminal Case No. 1812; Order dated May
12, 1982, infra

^[2]
Rollo, p. 28

1 He subsequently moved to
withdraw the plea of guilty and substitute it for one of not guilty; but this
was denied.

2 Id.,
pp. 28-30

3 Id.,
p. 23

4 Id.,
pp. 24-25

1 Id.,
p. 21

1 Sec. 1, Rule 111 of the Rules of
Court of 1964, in force at the time

2 Article 103, Revised Penal Code;
Pajarito v.
Seneris, 87 SCRA 275, 284

3 Pajarito
v. Seneris,
87 SCRA 275, 283, supra.  N.B.  Such a proceeding is
analogous to that designed to hold sureties on a bond for attachment,
injunction, receivership or writ of seizure, liable upon their bond (Sec. 20,
Rule 57; Sec. 9, Rule 58; Sec. 9, Rule 59; Sec. 10, Rule 60).

4 Rule 41, Rules of Court

5 Rule 45, Rules of Court

6 Rule 65, Rules of Court

1 Secs. 3 and 6, Rule 122

2 Sec. 3, Rule 50