DIONISIO CARPIO, PETITIONER, VS. HON. SERGIO DOROJA, (PRESIDING JUDGE, MTC, BRANCH IV, ZAMBOANGA CITY) AND EDWIN RAMIREZ Y WEE, RESPONDENTS.

Before Us is a petition to review by certiorari the
decision of the Municipal Trial Court of Zamboanga
City, Branch IV, which denied petitioner’s motion for subsidiary writ of
execution against the owner-operator of the vehicle which figured in the
accident.

The facts of the case are undisputed.

Sometime on October 23, 1985, accused-respondent Edwin Ramirez,
while driving a passenger Fuso Jitney owned and operated by Eduardo Toribio, bumped Dionisio Carpio, a pedestrian crossing the street, as a consequence
of which the latter suffered from a fractured left clavicle as reflected in the
medico-legal certificate and sustained injuries which required medical
attention for a period of (3) three months.

An information for Reckless Imprudence
Resulting to Serious Physical Injuries was filed against Edwin Ramirez with the
Municipal Trial
Court of Zamboanga City,
Branch IV.  On January 14, 1987, the accused voluntarily pleaded
guilty to a lesser offense and was accordingly convicted for Reckless
Imprudence Resulting to Less Serious Physical Injuries under an
amended information punishable under Article 365 of the Revised Penal
Code.  The dispositive
portion of the decision handed down on May
27, 1987 reads as follows:

“WHEREFORE, finding the accused EDWIN RAMIREZ y WEE guilty as
a principal beyond reasonable doubt of the Amended Information to which he
voluntarily pleaded guilty and appreciating this mitigating circumstance in his
favor, hereby sentences him to suffer the penalty of One (1) month and One (1)
day to Two (2) months of Arresto Mayor in its minimum
period.  The accused is likewise ordered
to indemnify the complainant Dionisio A. Carpio the amount of P45.00 representing the value of the
1/2 can of tomatoes lost; the amount of P200.00 which complainant paid to the Zamboanga General Hospital,
to pay complainant the amount of P1,500.00 as
attorney’s fees and to pay the cost of this suit.

“SO ORDERED.” (p. 7, Rollo)

Thereafter, the accused filed an
application for probation.

At the early stage of the trial, the private prosecutor
manifested his desire to present evidence to establish the civil liability of
either the accused driver or the owner-operator of the vehicle.  Accused’s counsel moved that the court summon the owner of
the vehicle to afford the latter a day in court, on the ground that the accused
is not only indigent but also jobless and thus cannot answer any civil
liability that may be imposed upon him by the court.  The private prosecutor, however, did not move
for the appearance of Eduardo Toribio.

The civil aspect of the above-quoted decision was appealed by the
private prosecutor to the Regional Trial Court Branch XVI, appellant praying
for moral damages in the amount of P10,000.00, compensatory damages at
P6,186.40, and attorney’s fees of P5,000.00. 
The appellate court, on January 20, 1988, modified the trial court’s
decision, granting the appellant moral damages in the amount of Five Thousand
Pesos (P5,000.00), while affirming all other civil liabilities.

Thereafter, a writ of execution dated March 10, 1988 was duly served upon the accused
but was, however, returned unsatisfied due to the insolvency of the accused as
shown by the sheriff’s return.  Thus,
complainant moved for a subsidiary writ of execution against the subsidiary
liability of the owner-operator of the vehicle. 
The same was denied by the trial court on two grounds, namely, the
decision of the appellate court made no mention of the subsidiary liability of
Eduardo Toribio, and the nature of the accident falls
under “culpa-aquiliana” and not “culpa-contractual.”
A motion for reconsideration of the said order was disallowed for the reason
that complainant having failed to raise the matter of subsidiary liability with
the appellate court, said court rendered its decision which has become final
and executory and the trial court has no power to alter or modify such decision.

Hence,
the instant petition.

Petitioner relies heavily
on the case of Pajarito v. Seneris,
87 SCRA 275, which enunciates that “the subsidiary liability of the
owner-operator is fixed by the judgment, because if a case were to be filed
against said operator, the court called upon to act thereto has no other function than to render a decision
based on the indemnity award in the criminal case without power to amend or modify it even if in his
opinion an error has been committed in the decision.” Petitioner maintains
that the tenor of the aforesaid decision implies that the subsidiary liability
of the owner-operator may be enforced in the same proceeding and a separate
action is no longer necessary in order to avoid undue delay, notwithstanding
the fact that said employer was not made a party in the criminal action.

It is the theory of
respondent that the owner-operator cannot be validly held subsidiarily
liable for the following reasons, namely:  (a) the matter of subsidiary liability was
not raised on appeal; (b) contrary to the case of Pajarito
v. Seneris, the injuries sustained by the complainant
did not arise from the so-called
“culpa-contractual” but from “culpa-aquiliana“;
(c) the judgments of appellate courts may not be altered, modified, or changed
by the court of origin; and (d) said owner was never made a party to the
criminal proceedings.

Thus, the underlying
issue raised in this case is:  whether or
not the subsidiary liability of the owner-operator may be enforced in the same
criminal proceeding against the driver where the award was given, or in a
separate civil action.

The law involved in the
instant case is Article 103 in relation to Article 100, both of the Revised
Penal Code, which reads thus:

“Art. 103.  Subsidiary
civil liability of other persons.  The
subsidiary liability established in the next preceding article shall apply to
employers, teachers, persons, and corporations engaged in any kind of industry
for felonies committed by their servants, pupils, workmen, apprentices, or employees in the
discharge of their duties.”

Respondent
contends that the case of Pajarito v. Seneris cannot be applied to the present case, the former
being an action involving culpa-contractual, while the latter being one of culpa-aquiliana.  Such a
declaration is erroneous.  The subsidiary liability in
Art. 103 should be
distinguished from the primary liability of employers, which is quasi-delictual in character as provided in Art. 2180 of the New
Civil Code.  Under
Art. 103, the
liability emanated from a delict.  On the other hand, the
liability under Art. 2180 is founded on culpa aquiliana.  The present case is neither an action for
culpa?contractual nor for culpa-aquiliana.  This is
basically an action to enforce the civil liability arising from crime under
Art. 100 of the Revised Penal Code.  In no case can this be regarded as a civil
action for the primary liability of the employer under Art. 2180
of the New Civil Code, i.e.,
action for culpa aquiliana.

In order that an employer may be held subsidiarily
liable for the employee’s civil liability in the criminal action, it should be shown (1) that the
employer, etc. is engaged in any kind of industry, (2) that the employee committed the offense in the discharge of
his duties and (3) that he is insolvent (Basa
Marketing Corp. v. Bolinao, 117 SCRA 156).  The subsidiary liability of the employer,
however, arises only after conviction of the employee in the criminal
action.  All these
requisites present, the employer becomes ipso facto subsidiarily
liable upon the employee’s conviction and upon proof of the latter’s
insolvency.  Needless to say, the case at
bar satisfies all these requirements.

Furthermore, we are not convinced that the owner-operator has
been deprived of his day in court, because the case before us is not one
wherein the operator is sued for a primary liability under the Civil Code but
one in which the subsidiary civil liability incident to and dependent upon his
employee’s criminal negligence is sought to be enforced.  Considering the subsidiary liability imposed
upon the employer by law, he is in substance and in effect a party to the
criminal case.  Ergo, the employer’s
subsidiary liability may be determined and enforced in the criminal case as
part of the execution proceedings against the employee.  This Court held in the earlier case of Pajarito v. Seneris, supra, that
“The proceeding for the enforcement of the subsidiary civil liability may
be considered as part of the proceeding for the execution of the judgment.  A case in which an execution has been issued
is regarded as still pending so that all proceedings on the execution are
proceedings in the suit.  There is no
question that the court which rendered the judgment has a general supervisory
control over its process of execution, and this power carries with it the right
to determine every question of fact and law which may be involved in the execution.”

The argument that the
owner-operator cannot be held subsidiarily liable because the matter of subsidiary
liability was not raised on appeal and in like manner, the
appellate court’s decision made no mention of such subsidiary liability is of
no moment.  As already discussed, the
filing of a separate complaint against the operator for recovery of
subsidiary liability is not necessary since his liability is clear from the
decision against the accused.  Such being
the case, it is not indispensable for the question of subsidiary liability to
be passed upon by the appellate court. 
Such subsidiary liability is already implied from the appellate court’s
decision.  In the
recent case of Vda. de Paman
v. Seneris, 115 SCRA 709, this Court reiterated the
following pronouncement: “A judgment of conviction sentencing a defendant
employer to pay an indemnity in the absence of any collusion between the
defendant and the offended party, is conclusive upon the employer in an action for the enforcement of the latter’s subsidiary liability not only with
regard to the civil liability, but also with regard to its amount.” This
being the case, this Court stated in Rotea v. Halili, 109 Phil. 495, that the court has no other function
than to render decision based upon the indemnity awarded in the criminal case
and has no power to amend or modify it even if in its opinion an error
has been committed in the decision.  A separate and independent action is, therefore, unnecessary and would
only unduly prolong the agony of the heirs of the victim.”

Finally, the position
taken by the respondent appellate court that to grant the motion for subsidiary
writ of execution would in effect be to amend its
decision which has already become final and executory
cannot be sustained.  Compelling the
owner-operator to pay on the basis of his subsidiary liability does not
constitute an amendment of the judgment because in an action under Art. 103 of
the Revised Penal Code, once all the requisites as earlier discussed are met,
the employer becomes ipso facto subsidiarily
liable, without need of a separate action. 
Such being the case, the subsidiary liability can be enforced in
the same case where the award was given, and this does not constitute an act of amending the decision.  It becomes incumbent upon the court to grant
a motion for subsidiary writ of execution (but only after the employer has been
heard), upon conviction of the employee and after execution is returned unsatisfied due to the employee’s
insolvency.

WHEREFORE, the order of respondent court disallowing
the motion for subsidiary writ of execution is hereby SET ASIDE.  The
Court a quo is directed to
hear and decide in the same proceeding the subsidiary
liability of the alleged owner?operator of the passenger
jitney.  Costs against
private respondent.

SO ORDERED.

Padilla, Sarmiento, and Regalado, JJ., concur.

Melencio-Herrera, J., on leave.