I.

Civil liability ex-delicto under Title V, Book I of the Revised Penal Code versus Civil

Liability arising from quasi-delict;

Article 100. Civil liability of a person guilty of felony. - Every person criminally liable for a felony is also
civilly liable.

Article 101. Rules regarding civil liability in certain cases. - The exemption from criminal liability
established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Article 11 of this Code
does not include exemption from civil liability, which shall be enforced subject to the following rules:

First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for acts committed by an imbecile
or insane person, and by a person under nine years of age, or by one over nine but under fifteen years of
age, who has acted without discernment, shall devolve upon those having such person under their legal
authority or control, unless it appears that there was no fault or negligence on their part.

Should there be no person having such insane, imbecile or minor under his authority, legal guardianship
or control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own
property, excepting property exempt from execution, in accordance with the civil law.

Second. In cases falling within subdivision 4 of Article 11, the persons for whose benefit the harm has
been prevented shall be civilly liable in proportion to the benefit which they may have received.

The courts shall determine, in sound discretion, the proportionate amount for which each one shall be
liable.

When the respective shares cannot be equitably determined, even approximately, or when the liability
also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events,
whenever the damages have been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or regulations.

Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons using violence or causing the
fears shall be primarily liable and secondarily, or, if there be no such persons, those doing the act shall
be liable, saving always to the latter that part of their property exempt from execution.

Civil liability ex delicto is the liability sought to be recovered in a civil action deemed instituted with the
criminal case

The civil liability established in Articles 100, 101, 102, and 103 of this Code includes:

Restitution;

Reparation of the damage caused;

Indemnification for consequential damages.

This civil liability ex delicto may be recovered through a civil action which, under our Rules of Court, is
deemed instituted with the criminal action. While they are actions mandatorily fused, they are, in truth,
separate actions whose existences are not dependent on each other. Thus, civil liability ex delicto
survives an acquittal in a criminal case for failure to prove guilt beyond reasonable doubt. However, the
Rules of Court limits this mandatory fusion to a civil action for the recovery of civil liability ex delicto. It,
by no means, includes a civil liability arising from a different source of obligation, as in the case of a
contract. Where the civil liability is ex contractu, the court hearing the criminal case has no authority to
award damages.

a. Prosecution of Civil Actions under Sections 1 to 3, Rule 111 of the Rules of Court;

Section 1. Institution of criminal and civil actions. — (a) When a criminal action is instituted, the civil
action for the recovery of civil liability arising from the offense charged shall be deemed instituted with
the criminal action unless the offended party waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal action.

The reservation of the right to institute separately the civil action shall be made before the prosecution
starts presenting its evidence and under circumstances affording the offended party a reasonable
opportunity to make such reservation.

When the offended party seeks to enforce civil liability against the accused by way of moral, nominal,
temperate, or exemplary damages without specifying the amount thereof in the complaint or
information, the filing fees thereof shall constitute a first lien on the judgment awarding such damages.

Where the amount of damages, other than actual, is specified in the complaint or information, the
corresponding filing fees shall be paid by the offended party upon the filing thereof in court.

Except as otherwise provided in these Rules, no filing fees shall be required for actual damages.

No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case,
but any cause of action which could have been the subject thereof may be litigated in a separate civil
action. (1a)

(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file such civil action separately shall be allowed.

Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing
fees based on the amount of the check involved, which shall be considered as the actual damages
claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal,
temperate or exemplary damages, the offended party shall pay additional filing fees based on the
amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently
awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the
judgment.

Where the civil action has been filed separately and trial thereof has not yet commenced, it may be
consolidated with the criminal action upon application with the court trying the latter case. If the
application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule
governing consolidation of the civil and criminal actions. (cir. 57-97)

Section 2. When separate civil action is suspended. — After the criminal action has been commenced,
the separate civil action arising therefrom cannot be instituted until final judgment has been entered in
the criminal action.

If the criminal action is filed after the said civil action has already been instituted, the latter shall be
suspended in whatever stage it may be found before judgment on the merits. The suspension shall last
until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is
rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the
criminal action in the court trying the criminal action. In case of consolidation, the evidence already
adduced in the civil action shall be deemed automatically reproduced in the criminal action without
prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended
party in the criminal case and of the parties to present additional evidence. The consolidated criminal
and civil actions shall be tried and decided jointly.

During the pendency of the criminal action, the running of the period of prescription of the civil action
which cannot be instituted separately or whose proceeding has been suspended shall be tolled. (n)

The extinction of the penal action does not carry with it extinction of the civil action. However, the civil
action based on delict shall be deemed extinguished if there is a finding in a final judgment in the
criminal action that the act or omission from which the civil liability may arise did not exist. (2a)

b. Independent Civil Actions Rule 111

Section 3. When civil action may proceeded independently. — In the cases provided for in Articles 32,
33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the
offended party. It shall proceed independently of the criminal action and shall require only a
preponderance of evidence. In no case, however, may the offended party recover damages twice for the
same act or omission charged in the criminal action. (3a)

Section 4. Effect of death on civil actions. — The death of the accused after arraignment and during the
pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the
independent civil action instituted under section 3 of this Rule or which thereafter is instituted to
enforce liability arising from other sources of obligation may be continued against the estate or legal
representative of the accused after proper substitution or against said estate, as the case may be. The
heirs of the accused may be substituted for the deceased without requiring the appointment of an
executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted
within a period of thirty (30) days from notice.

A final judgment entered in favor of the offended party shall be enforced in the manner especially
provided in these rules for prosecuting claims against the estate of the deceased.
If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action
the offended party may file against the estate of the deceased. (n)

c. Articles 29, 30,31, 32, 33,34,35, Civil Code

Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not
been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be
instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the
court may require the plaintiff to file a bond to answer for damages in case the complaint should be
found to be malicious.

If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare.
In the absence of any declaration to that effect, it may be inferred from the text of the decision whether
or not the acquittal is due to that ground.

Art. 30. When a separate civil action is brought to demand civil liability arising from a criminal offense,
and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of
evidence shall likewise be sufficient to prove the act complained of.

Art. 31. When the civil action is based on an obligation not arising from the act or omission complained
of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of
the result of the latter.

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs,
defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another
person shall be liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property without due process of law;

(7) The right to a just compensation when private property is taken for public use;

(8) The right to the equal protection of the laws;

(9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and
seizures;

(10) The liberty of abode and of changing the same;

(11) The privacy of communication and correspondence;

(12) The right to become a member of associations or societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly to petition the government for redress of
grievances;

(14) The right to be free from involuntary servitude in any form;

(15) The right of the accused against excessive bail;

(16) The right of the accused to be heard by himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to
face, and to have compulsory process to secure the attendance of witness in his behalf;

(17) Freedom from being compelled to be a witness against one's self, or from being forced to confess
guilt, or from being induced by a promise of immunity or reward to make such confession, except when
the person confessing becomes a State witness;

(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or
inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

(19) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes
a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil
action for damages, and for other relief. Such civil action shall proceed independently of any criminal
prosecution (if the latter be instituted), and mat be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes
a violation of the Penal Code or other penal statute.

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.

Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to
any person in case of danger to life or property, such peace officer shall be primarily liable for damages,
and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized
shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to
support such action.

Art. 35. When a person, claiming to be injured by a criminal offense, charges another with the same, for
which no independent civil action is granted in this Code or any special law, but the justice of the peace
finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney
refuses or fails to institute criminal proceedings, the complaint may bring a civil action for damages
against the alleged offender. Such civil action may be supported by a preponderance of evidence. Upon
the defendant's motion, the court may require the plaintiff to file a bond to indemnify the defendant in
case the complaint should be found to be malicious.

If during the pendency of the civil action, an information should be presented by the prosecuting
attorney, the civil action shall be suspended until the termination of the criminal proceedings.
Art. 36.

Pre-judicial questions which must be decided before any criminal prosecution may be instituted or may
proceed, shall be governed by rules of court which the Supreme Court shall promulgate and which shall
not be in conflict with the provisions of this Code.

PILAR JOAQUIN, ET AL., vs FELIX ANICETO, G.R. No. L-18719 October 31, 1964

Should the injured party choose to prosecute his action under Article 100 of the Revised Penal Code, he
can hold the employer subsidiarily liable only upon prior conviction of the employee. While a separate
and independent civil action for damages may be brought against the employee under Article 33 of the
Civil Code, no such action may be filed against the employer on the latter’s subsidiary civil liability
because such liability is governed not by the Civil Code but by the Penal Code, under which conviction of
the employee is a condition sine qua non for the employer’s subsidiary liability.

PEOPLE OF THE PHILIPPINES vs. ROMEO ANTIDO, G.R. No. 208651 March 14, 2018

Thus, upon accused-appellant's death pending appeal of his conviction, the criminal action is
extinguished inasmuch as there is no longer a defendant to stand as the accused; the civil action
instituted therein for the recovery of the civil liability ex delicto is ipso facto extinguished, grounded as it
is on the criminal action. However, it is well to clarify that accused-appellant's civil liability in connection
with his acts against the victim, AAA,7 may be based on sources other than delicts; in which case, AAA
may file a separate civil action against the estate of accused-appellant, as may be warranted by law and
procedural rules.

BATANGAS LAGUNA TAYABAS BUS COMPANY, INC. and ANDRES I. ILAGAN, vs. COURT OF APPEALS, G.R.

Nos. L-33138-39 June 27, 1975

In February 1963, Andres Ilagan was driving a bus owned by Batangas Laguna Tayaban Bus Company,
Inc. (BLTB) along Manila South Super Highway. He sped pass a big cargo truck thereby taking the
opposite lane and he hit the car driven by a certain Ricardo de los Reyes which resulted in the latter’s
death and the latter’s niece’s death and causing serious injuries to the other car passengers. Ilagan was
sued for homicide through reckless imprudence and while the case was pending in the Court of Appeals
the victims sued Ilagan and BLTB for damages via an independent civil action based on Article 2180.
BLTB assailed the suit as it invoked the opinion penned by Justice Capistrano in Corpus vs Paje which
states that under Article 33 of the Civil Code it excludes criminal negligence as one of those which an
independent civil action can be filed, hence homicide through reckless imprudence or criminal
negligence comes under the general rule that the acquittal of the defendant in the criminal action is a
bar to his civil liability based upon the same criminal act notwithstanding that the injured party reserved
his right to institute a separate civil action; and based on this, BLTB wanted the dismissal of the civil suits
pending the criminal suit in the CA.
ISSUE: Whether or not a civil suit can be filed independently of the criminal negligence case pending
before the CA.

HELD: Yes. The opinion of Justice Capistrano in Corpus vs Paje is not controlling because it is not
doctrinal – this is because the majority of the court did not agree with it. Also, the Corpus case was
different because the damages claimed there were based on the same criminal negligence. But in the
case at bar, the damages sought to be recovered were based on quasi-delict or Article 2176 and 2180 of
the Civil Code which is an independent civil action.

BERMUDEZ v. MELENCIO-HERRERA, G.R. No. L-32055 2/26/1988

Facts:

A cargo truck, driven by Domingo Pontino and owned by Cordova Ng Sun Kwan, bumped a jeep on
which Rogelio, a six-year old son of plaintiffs-appellants, was riding. The boy sustained injuries which
caused his death

Criminal Case No. 92944 for Homicide Through

Reckless Imprudence was filed against Domingo Pontino

Plaintiffs-appellants filed on July 27, 1969 in the said criminal case "A Reservation to File Separate Civil
Action."... the plaintiffs-appellants filed a civil case for damages with the Court of First Instance

Finding that the plaintiffs instituted the action "on the assumption that defendant Pontino's negligence
in the accident of May 10, 1969 constituted a quasi-delict," the trial court stated that plaintiffs had
already elected to treat the accident as a "crime" by... reserving in the criminal case their right to file a
separate civil action. That being so, the trial court decided to order the dismissal of the complaint
against defendant Cordova Ng Sun Kwan and to suspend the hearing of the case against Domingo
Pontino until after the... criminal case for Homicide Through Reckless Imprudence is finally terminated.

Issues:

The main issue brought before this Honorable Court is whether the present action is based on quasi-
delict under the Civil Code and therefore could proceed independently of the criminal case for homicide
thru reckless imprudence

The second question of law is whether the lower court could properly suspend the hearing of the civil
action against Domingo Pontino and dismissed the civil case against his employer Cordova Ng Sun Kwan
by reason of the fact that a criminal case for homicide... thru reckless imprudence is pending in the
lower court against Domingo Pontino.
whether the suspension of the civil action against Domingo Pontino and the dismissal of the civil case
against his employer Cordova Ng Sun Kwan by reason of the pending criminal case against Domingo
Pontino for homicide thru... reckless imprudence in the lower court could be validly done considering
that the civil case against said defendants-appellees also sought to recover actual damages to the jeep
of plaintiffs-appellants.

The heart of the issue involved in the present case is whether the civil action filed by the plaintiffs-
appellants is founded on crime or on quasi-delict.

Ruling:

The trial court treated the case as an action based on a crime in view of the reservation made by the
offended party in the... criminal case (Criminal Case No. 92944), also pending before the court, to file a
separate civil action.

In Criminal Case No. 92944 of... this Court, plaintiffs had already appeared as complainants. While that
case was pending, the offended parties reserved the right to institute a separate civil action. If, in a
criminal case, the right to file a separate civil action for damages is reserved, such civil... action is to be
based on crime and not on tort.

We do not agree. The doctrine in the case cited by the trial court is inapplicable to the instant case

It is now settled that for an employer to be subsidiary liable, the following requisites must be present:
(1) That an employee has committed a crime in the discharge of his duties; (2) that said employee is
insolvent and has not satisfied his civil liability; (3) that the... employer is engaged in some kind of
industry

Without the conviction of the employee, the employer cannot be subsidiary liable.

In cases of negligence, the injured party or his heirs has the choice between an action to enforce the civil
liability arising from crime under Article 100 of the Revised Penal Code and an action for quasi-delict
under Article 2176-2194 of the Civil Code. If a party chooses the... latter, he may hold the employer
solidarily liable for the negligent act of his employee, subject to the employer's defense of exercise of
the diligence of a good father of the family.

In the case at bar, the action filed by appellant was an action for damages based on quasi-delict.[1] The
fact that appellants reserved their right in the criminal case to file an independent civil action did not
preclude them from choosing to file a... civil action for quasi-delict.

The appellants invoke the provisions of Sections 1 and 2 of Rule 111 of the Rule of Court

The appellant precisely made a reservation to file an independent civil action in accordance with the
provisions of Section 2 of Rule 111, Rules of Court. In fact, even without such a reservation, we have
allowed the injured party in the criminal case which resulted in the... acquittal of the accused to recover
damages based on quasi-delict.
In People vs. Ligon, G.R. No. 74041, we held:

"However, it does not follow that a person who is not criminally liable is also free from civil liability.
While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt,
only a preponderance of evidence is required in a civil... action for damages (Article 29, Civil Code). The
judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration
that the facts from which the civil liability might arise did not exist

ROSALIO MARQUEZ, ET AL., vs. BERNARDO CASTILLO, G.R. No. 46237 Sep. 27, 1939

VIRGILIO OZOA, vs. CARIDAD VDA. DE MADULA, HON. CELSO LARGO, etc., and PROVINCIAL SHERIFF OF

BUKIDNON, G.R. No. L-62955 December 22, 1987

NARVASA, J.:

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.

MARIA BENITA A. DULAY, vs. THE COURT OF APPEALS, G.R. No. 108017 April 3, 1995 – altercation

FACTS:

On December 7, 1988, an altercation between Benigno Torzuela and Atty. Napoleon Dulay occurred at
the "Big Bang sa Alabang," Alabang Village, Muntinlupa as a result of which Benigno Torzuela, the
security guard on duty at the said carnival, shot and killed Atty. Napoleon Dulay.

Herein petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, in her own behalf and
in behalf of her minor children, filed on February 8, 1989 an action for damages against Benigno
Torzuela and herein private respondents Safeguard Investigation and Security Co., Inc., ("SAFEGUARD")
and/or Superguard Security Corp. ("SUPERGUARD"), alleged employers of defendant Torzuela. The
complaint, docketed as Civil Case No. Q-89-1751.

DECISION OF LOWER COURTS:

(1) RTC: the complaint against the alternative defendants Superguard Security Corporation and
Safeguard Investigation and Security Co., Inc., must be and (sic) it is hereby dismissed.

ISSUE:

Whether Superguard is liable

RULING:

The case is remanded to the Regional Trial Court for trial on the merits.

The complaint sufficiently alleged an actionable breach on the part of the defendant Torzuela and
respondents SUPERGUARD and/or SAFEGUARD. It is enough that the complaint alleged that Benigno
Torzuela shot Napoleon Dulay resulting in the latter's death; that the shooting occurred while Torzuela
was on duty; and that either SUPERGUARD and/or SAFEGUARD was Torzuela's employer and
responsible for his acts. This does not operate however, to establish that the defendants below are
liable. Whether or not the shooting was actually reckless and wanton or attended by negligence and
whether it was actually done within the scope of Torzuela's duties; whether the private respondents
SUPERGUARD and/or SAFEGUARD failed to exercise the diligence of a good father of a family; and
whether the defendants are actually liable, are questions which can be better resolved after trial on the
merits where each party can present evidence to prove their respective allegations and defenses.

It is well-settled that the filing of an independent civil action before the prosecution in the criminal
action presents evidence is even far better than a compliance with the requirement of an express
reservation (Yakult Philippines v. Court of Appeals, 190 SCRA 357 [1990]). This is precisely what the
petitioners opted to do in this case. However, the private respondents opposed the civil action on the
ground that the same is founded on a delict and not on a quasi-delict as the shooting was not attended
by negligence. What is in dispute therefore is the nature of the petitioner's cause of action.

Well-entrenched is the doctrine that Article 2176 covers not only acts committed with negligence, but
also acts which are voluntary and intentional. As far back as the definitive case of Elcano v. Hill (77
SCRA 98 [1977]), this Court already held that: ". . . Article 2176, where it refers to 'fault or negligence,'
covers not only acts 'not punishable by law' but also acts criminal in character, whether intentional
and voluntary or negligent. Consequently, a separate civil action lies against the offender in a criminal
act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the
offended party is not allowed, if he is actually charged also criminally, to recover damages on both
scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the
awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par.
(e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised
Penal Code, whereas the civil liability for the same act considered as quasi-delict only and not as a
crime is not extinguished even by a declaration in the criminal case that the criminal act charged has
not happened or has not been committed by the accused. Briefly stated, We here hold, in reiteration
of Garcia, that culpa aquiliana includes voluntary and negligent acts which may be punishable by law."
The same doctrine was echoed in the case of Andamo v. Intermediate Appellate Court (191 SCRA 195
[1990]), wherein the Court held: "Article 2176, whenever it refers to "fault or negligence," covers not
only acts "not punishable by law" but also acts criminal in character, whether intentional and
voluntary or negligent. Consequently, a civil action lies against the offender in a criminal act, whether
or not he is prosecuted or found guilty or acquitted, provided that the offended party is not allowed,
(if the tortfeasor is actually also charged criminally), to recover damages on both scores, and would be
entitled in such eventuality only to the bigger award of the two, assuming the awards made in the
two cases vary." [Citing Virata v. Ochoa, 81 SCRA 472]

Under Article 2180 of the New Civil Code as aforequoted, when an injury is caused by the negligence of
the employee, there instantly arises a presumption of law that there was negligence on the part of the
master or employer either in the selection of the servant or employee, or in supervision over him after
selection or both (Layugan v. Intermediate Appellate Court, 167 SCRA 363 [1988]). The liability of the
employer under Article 2180 is direct and immediate; it is not conditioned upon prior recourse against
the negligent employee and a prior showing of the insolvency of such employee (Kapalaran Bus Lines v.
Coronado, 176 SCRA 792 [1989]). Therefore, it is incumbent upon the private respondents to prove that
they exercised the diligence of a good father of a family in the selection and supervision of their
employee.