G.R. No.

71137 October 5, 1989

Topic:
 Civil Liability with QD is direct and primary; action can be direct w/o impleading employee
[employee died in this case]
 In Civil Liability arising from RPC conviction is sine qua non for action to subsidiary liable

Doctrines:
1. CIVIL PROCEDURE; ACTION FOR DAMAGES; SUBSIDIARY LIABILITY OF THE EMPLOYEE
UNDER THE PRC AND THE EMPLOYER’S PRIMARY LIABILITY UNDER THE CIVIL CODE,
DISTINGUISHED. — Distinction should be made between the subsidiary liability of the
employer under the Revised Penal Code and the employer’s primary liability under the Civil
Code which is quasi-delictual or tortious in character. The first type of liability is governed
by Articles 102 and 103 of the Revised Penal Code while the second kind is governed
by the provisions of the Civil Code.

2. EMPLOYER’S SUBSIDIARY LIABILITY UNDER THE R.P.C. DEPENDENT UPON THE EMPLOYEE’S
ACTUAL LIABILITY FOR CRIMINAL NEGLIGENCE. — Under Article 103 of the Revised Penal
Code, liability originates from a delict committed by the employee who is primarily liable
therefor and upon whose primary liability his employer’s subsidiary liability is to be based.
Before the employer’s subsidiary liability may be proceeded against, it is imperative that there
should be a criminal action whereby the employee’s criminal negligence or delict and
corresponding liability therefor are proved. If no criminal action was instituted, the
employer’s liability would not be predicated under Article 103. The conviction of the
employee primarily liable is a condition sine qua non for the employer’s subsidiary
liability. There can be no automatic subsidiary liability of defendant employer under
Article 103 of the Revised Penal Code where his employee has not been previously
criminally convicted.

3. LIABILITY BASED ON CULPA AQUILIANA. — Under Articles 2176 and 2180 of the Civil Code,
liability is based on culpa aquiliana which holds the employer primarily liable for tortious acts
of its employees subject, however, to the defense that the former exercised all the diligence of
a good father of a family in the selection and supervision of his employees.

FACTS:

 The instant petition for review of a decision of the Court of Appeals deals mainly with the
nature of an employer's liability for his employee's negligent act.
  At about 7:30 in the evening of October 18, 1974, Macario Yuro swerved the northbound
Franco Bus with Plate No. XY320-PUB he was driving to the left to avoid hitting a
truck with a trailer parked facing north along the cemented pavement of the
MacArthur Highway at Barrio Talaga, Capas Tarlac, thereby taking the lane of an
incoming Isuzu Mini Bus bearing Plate No. YL-735 being driven by one Magdaleno
Lugue and making a collision between the two (2) vehicles an unavoidable and
disastrous eventuality.
 Dragged fifteen (15) meters from the point of impact (midway the length of the parked truck
with trailer), the mini bus landed right side down facing south in the canal of the highway, a
total wreck. The Franco Bus was also damaged but not as severely. The collision resulted in
the deaths of the two (2) drivers, Macario Yuro and Magdaleno Lugue, and two (2) passengers
of the mini bus, Romeo Bue and Fernando Chuay.
 Consequently, Antonio Reyes, the registered owner of the Isuzu Mini Bus, Mrs. Susan
Chuay, the wife of victim Fernando Chuay, and Mrs. Lolita Lugue, the wife of driver-victim
Magdaleno Lugue, filed an action for damages through reckless imprudence before the
Court of First Instance of Pampanga in Angeles City, Branch IV, docketed as Civil Case No.
2154 against Mr. & Mrs. Federico Franco, the owners and operators of the Franco
Transportation Company.
 The complaint alleged that: (a) the recklessness and imprudence of the Franco Bus driver
caused the collision which resulted in his own death and that of the mini bus driver and two
(2) other passengers thereof
 In answer to the complaint, defendants set up, among others, the affirmative defense that
as owners and operators of the Franco Transportation Company, they exercised
due diligence in the selection and supervision of all their employees , including the
deceased driver Macario Yuro.
RTC
 Said defense was, however, rejected by the trial court in its decision dated May 17,
1978, for the reason that the act of the Franco Bus driver was a negligent act punishable by
law resulting in a civil obligation arising from Article 103 of the Revised Penal Code and not
from Article 2180 of the Civil Code. It said: "This is a case of criminal negligence out of which
civil liability arises, and not a case of civil negligence and the defense of having acted like a
good father of a family or having trained or selected the drivers of his truck is no defense to
avoid civil liability." On this premise, the trial court ruled as follows
 WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs,
Antonio Reyes, Lolita Lugue, and Susan Chuay, and against the defendants Mr. and Mrs.
Federico Franco, ordering the latter:

CA
 On appeal by herein petitioners as defendants-appellants, respondent appellate court,
agreeing with the lower court, held that defendants-appellants' driver who died instantly
in the vehicular collision, was guilty of reckless or criminal imprudence punishable by law in
driving appellants' bus;
  that the civil obligation of the appellants arises from Article 103 of the Revised
Penal Code resulting in the subsidiary liability of the appellants under the said
provisions, that the case subject of appeal is one involving culpable negligence out of which
civil liability arises and is not one of civil negligence; 5 and that there is nothing in Articles 102
and 103 of the Revised Penal Code which requires a prior judgment of conviction of the erring
vehicle driver and his obligation to pay his civil liability before the said provisions can be
applied. 6 Respondent appellate court increased the award of damages granted

ISSUE
Hence, the instant petition raising two (2) legal questions:
 first, whether the action for recovery of damages instituted by herein private
respondents was predicated upon crime or quasi-delict; and
 second, whether respondent appellate court in an appeal filed by the defeated parties, herein petitioners, may properly
increase the award of damages in favor of the private respondents Chuay and Lugue, prevailing parties in the lower court,
who did not appeal said court's decision. [I only focused on first question]

Ruling
 No
 Petitioners contend that the allegations in paragraph 9 of the Amended Complaint of herein
private respondents as plaintiffs in Civil Case No. 2154 unequivocally claim that the former as
the employers of Macario Yuro, the driver of the Franco Bus who caused the vehicular mishap,
are jointly and severally liable to the latter for the damages suffered by them which thus
makes Civil Case No. 2154 an action predicated upon a quasidelict under the Civil Code subject
to the defense that the employer exercised all the diligence of a good father of a family in the
selection and supervision of their employees.
 We find merit in this contention. Distinction should be made between the subsidiary
liability of the employer under the Revised Penal Code and the employer's primary liability
under the Civil Code which is quasi-delictual or tortious in character.
 The first type of liability is governed by Articles 102 and 103 of the Revised Penal Code which
provide as follows:
Art. 102. Subsidiary civil liability of innkeepers, tavern-keepers and proprietors of
establishments. — In default of the persons criminally liable, innkeepers, tavern-keepers, and any
other persons or corporations shall be civilly liable for crimes committed in their establishments, in all
cases where a violation of municipal ordinances or some general or special police regulations shall
have been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within
their houses from guests lodging therein, or for the payment of the value thereof, provided that such
guests shall have notified in advance the innkeeper himself, or the person representing him, of the
deposits of such goods within the inn; and shall furthermore have followed the directions which such
innkeeper or his representative may have given them with respect to the care and vigilance over such
goods. No liability shall attach in case of robbery with violence against or intimidation of persons
unless committed by the innkeeper's employees.
Art. 103. Subsidiary civil liability of other persons. — The subsidiary liability established in the
next preceding article shall also apply to employers, teachers, persons, and corporations engaged in
any kind of industry for felonies committed by the servants, pupils, workmen, apprentices, or
employees in the discharge of their duties;
while the second kind is governed by the following provisions of the Civil Code:
Art. 2176. 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 .
Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and
distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the defendant.
Art. 2180. The obligations imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
xxx xxx xxx
Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry,
xxx xxx xxx
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.
Under Article 103 of the Revised Penal Code, liability originates from a delict committed by the
employee who is primarily liable therefor and upon whose primary liability his employer's
subsidiary liability is to be based. Before the employer's subsidiary liability may be proceeded
against, it is imperative that there should be a criminal action whereby the employee's
criminal negligence or delict and corresponding liability therefor are proved. If no criminal
action was instituted, the employer's liability would not be predicated under Article 103.
In the case at bar, no criminal action was instituted because the person who should stand
as the accused and the party supposed to be primarily liable for the damages suffered by
private respondents as a consequence of the vehicular mishap died. Thus, petitioners'
subsidiary liability has no leg to stand on considering that their liability is merely
secondary to their employee's primary liability. Logically therefore, recourse under this
remedy is not possible.
On the other hand, under Articles 2176 and 2180 of the Civil Code, liability is based on culpa
aquiliana which holds the employer primarily liable for tortious acts of its employees subject,
however, to the defense that the former exercised all the diligence of a good father of a family in the
selection and supervision of his employees.
Respondent appellate court relies on the case of Arambulo, supra, where it was held that the defense
of observance of due diligence of a good father of a family in the selection and supervision of
employees is not applicable to the subsidiary liability provided in Article 20 of the Penal Code (now
Article 103 of the Revised Penal Code). By such reliance, it would seem that respondent appellate
court seeks to enforce the subsidiary civil liability of the employer without a criminal conviction of the
party primarily liable therefor. This is not only erroneous and absurd but is also fraught with
dangerous consequences. It is erroneous because the conviction of the employee primarily liable is a
condition sine qua non for the employer's subsidiary liability 10 and, at the same time, absurd
because we will be faced with a situation where the employer is held subsidiarily liable even without
a primary liability being previously established. It is likewise dangerous because, in effect, the
employer's subsidiary liability would partake of a solidary obligation resulting in the law's amendment
without legislative sanction.
The Court in the aforecited M.D. Transit case went further to say that there can be no automatic
subsidiary liability of defendant employer under Article 103 of the Revised Penal Code
where his employee has not been previously criminally convicted.
Having thus established that Civil Case No. 2154 is a civil action to impose the primary liability of the
employer as a result of the tortious act of its alleged reckless driver, we confront ourselves with the
plausibility of defendants-petitioners' defense that they observed due diligence of a good father of a
family in the selection and supervision of their employees.
On this point, the appellate court has unequivocally spoken in affirmation of the lower court's
findings, to wit:
Anyway, a perusal of the record shows that the appellants were not able to establish the defense of a
good father of a family in the supervision of their bus driver. The evidence presented by the
appellants in this regard is purely self-serving. No independent evidence was presented as to the
alleged supervision of appellants' bus drivers, especially with regard to driving habits and reaction to
actual traffic conditions. The appellants in fact admitted that the only kind of supervision given the
drivers referred to the running time between the terminal points of the line (t.s.n., September 16,
1976, p. 21). Moreover, the appellants who ran a fleet of 12 buses plying the Manila-Laoag line, have
only two inspectors whose duties were only ticket inspection. There is no evidence that they are
really safety inspectors. 11
Basically, the Court finds that these determinations are factual in nature. As a painstaking review
of the evidence presented in the case at bar fails to disclose any evidence or
circumstance of note sufficient to overrule said factual findings and conclusions, the
Court is inclined to likewise reject petitioners' affirmative defense of due diligence. The
wisdom of this stance is made more apparent by the fact that the appellate court's conclusions are
based on the findings of the lower court which is in a better position to evaluate the testimonies of
the witnesses during trial. As a rule, this Court respects the factual findings of the appellate and trial
courts and accord them a certain measure of finality. 12 Consequently, therefore, we find
petitioners liable for the damages claimed pursuant to their primary liability under the
Civil Code.
On the second legal issue raised in the instant petition, we agree with petitioners' contention that the Intermediate Appellate Court
(later Court of Appeals) is without jurisdiction to increase the amount of damages awarded to private respondents Chuay and Lugue,
neither of whom appealed the decision of the lower court. While an appellee who is not also an appellant may assign error in his brief if
his purpose is to maintain the judgment on other grounds, he cannot ask for modification or reversal of the judgment or affirmative
relief unless he has also appealed. 13 For failure of plaintiffs-appellees, herein private respondents, to appeal the lower court's
judgment, the amount of actual damages cannot exceed that awarded by it. 14

Furthermore, the records 15 show that plaintiffs-private respondents limited their claim for actual and compensatory damages to the
supposed average income for a period of one (1) year of P6,000.00 for the driver Magdaleno Lugue and P12,000.00 for the Chinese
businessman Fernando Chuay. We feel that our award should not exceed the said amounts .16

However, the increase in awards for indemnity arising from death to P30,000.00 each remains, the same having been made in
accordance with prevailing jurisprudence decreeing such increase in view of the depreciated Philippine currency. 17

WHEREFORE, the decision of the Court of Appeals is hereby modified decreasing the award to
private respondents of actual and compensatory damages for loss of average income for the period
of one year to P6,000.00 for the deceased Magdaleno Lugue and P12,000.00 for the deceased
Fernando Chuay. The rest of the judgment appealed from is hereby affirmed. Costs against the
private respondents. This decision is immediately executory.
SO ORDERED.
Feliciano, Bidin and Cortes, JJ., concur.
Gutierrez, Jr., J., is on leave