Crisostomo Villarin and Aniano Latayada Vs.

People of the Philippines Published on March 1st, 2012 Leave your thoughts FIRST DIVISION G.R. No. 175289 CRISOSTOMO VILLARIN and ANIANO LATAYADA Petitioners - versus PEOPLE OF THE PHILIPPINES Respondent Promulgated: August 31, 2011 DECISION DEL CASTILLO, J.: Mere possession of timber without the legal documents required under forest laws and regulations makes one automatically liable of violation of Section 68, Presidential Decree (P.D.) No. 705,[1] as amended. Lack of criminal intent is not a valid defense. This petition for review on certiorari seeks to reverse the June 28, 2005 Decision[2] of the Court of Appeals (CA) in CA-G.R. CR No. 26720 which affirmed in all respects the Judgment[3] of the Regional Trial Court (RTC), Branch 38, Cagayan De Oro City, finding petitioners guilty beyond reasonable doubt of violation of Section 68, P.D. No. 705, as amended. Likewise Reconsideration.[5] Factual Antecedents In a Criminal Complaint[6] filed before the Municipal Trial Court in Cities, Branch 4, Cagayan de Oro City by Marcelino B. Pioquinto (Pioquinto), Chief of the Forest Protection and Law Enforcement Unit under the TL Strike Force Team of Department of Environment and Natural Resources (DENR), petitioner Aniano Latayada (Latayada) and three others namely, Barangay Captain Camilo Sudaria (Sudaria) of Tagpangi, Cagayan de Oro City, Marlon Baillo (Baillo) and Cipriano Boyatac (Boyatac), were charged with violation of Section 68, P.D. No. 705 as amended by Executive Order No. 277.[7] Subsequently, however, the Office of the City Prosecutor of Cagayan de Oro City issued a Resolution[8] dated March 13, 1996 recommending the filing of an Information for the aforesaid charge not only against Latayada, Baillo and Boyatac but also against petitioner Crisostomo Villarin (Villarin), then Barangay Captain of Pagalungan, Cagayan de Oro assailed in this petition is the September 22, 2006 Resolution[4] denying petitioners Motion for

City. The dismissal of the complaint against Sudaria was likewise recommended. Said Resolution was then approved by the Office of the Ombudsman-Mindanao through a Resolution[9] dated May 9, 1996 ordering the filing of the Information in the RTC of Cagayan de Oro City. Thus, on October 29, 1996, an Information[10] was filed against petitioners Villarin and Latayada and their co-accused Baillo and Boyatac, for violation of Section 68, P.D. No. 705 as follows: That on or about January 13, 1996, in Pagalungan, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, pursuant to RA 7975, the accused, Crisostomo Villarin, a public officer being the Barangay Captain of Pagalungan, this City, with salary grade below 27, taking advantage of his official position and committing the offense in relation to his office, and the other above-named accused, all private individuals, namely: Marlon Baillo, Cipriano Boyatac, and Aniano Latayada, confederating and mutually helping one another did then and there, willfully, unlawfully and feloniously gather and possess sixtythree (63) pieces flitches of varying sizes belonging to the Apitong specie with a total volume of Four Thousand Three Hundred Twenty Six (4,326) board feet valued atP108,150.00, without any authority and supporting documents as required under existing forest laws and regulation to the damage and prejudice of the government. CONTRARY TO LAW.[11] On January 14, 1997, Villarin, Boyatac and Baillo, filed a Motion for Reinvestigation.[12] They alleged that the Joint Affidavit[13]of the personnel of the DENR which became one of the bases in filing the Information never mentioned Villarin as one of the perpetrators of the crime while the accusations against Baillo and Boyatac were not based on the personal knowledge of the affiants. They also asserted that their indictment was based on polluted sources, consisting of the sworn statements of witnesses like Latayada and Sudaria, who both appeared to have participated in the commission of the crime charged. Instead of resolving the Motion for Reinvestigation, the RTC, in its Order[14] dated January 27, 1997, directed Villarin, Boyatac, and Baillo to file their Motion for Reinvestigation with the Office of the Ombudsman-Mindanao, it being the entity which filed the Information in Court. On March 31, 1997, only Villarin filed a Petition for Reinvestigation[15] but same was, however, denied by the Office of the Ombudsman-Mindanao in an Order[16] dated May 15, 1997 because the grounds relied upon were not based on newly discovered evidence or errors of fact, law or irregularities that are prejudicial to the interest of the movants, pursuant to Administrative Order No. 07 or the Rules of Procedure of the Office of the Ombudsman in Criminal Cases. The Office of the Ombudsman-Mindanao likewise opined that Villarin was directly implicated by Latayada, his co-accused.

The RTC thus proceeded with the arraignment of the accused who entered separate pleas of not guilty.[17] Thereafter, trial ensued. The Version of the Prosecution On December 31, 1995, at around five oclock in the afternoon, prosecution witness Roland Granada (Granada) noticed that a public utility jeep loaded with timber stopped near his house. The driver, petitioner Latayada, was accompanied by four to five other persons, one of whom was Boyatac while the rest could not be identified by Granada.[18] They alighted from the jeep and unloaded the timber 10 to 15 meters away from the Batinay bridge at Barangay Pagalungan, Cagayan De Oro City. Another prosecution witness, Pastor Pansacala (Pansacala), also noticed the jeep with plate number MBB 226 and owned by Sudaria, loaded with timber.[19] Being then the president of a community-based organization which serves as a watchdog of illegal cutting of trees,[20] Pansacala even ordered a certain Mario Bael to count the timber.[21] At six oclock in the evening of the same day, Barangay Captain Angeles Alarcon (Alarcon)[22]noticed that the pile of timber was already placed near the bridge. Since she had no knowledge of any scheduled repair of the Batinay bridge she was surprised to discover that the timber would be used for the repair. After inquiring from the people living near the bridge, she learned that Latayada and Boyatac delivered the timber.[23] Another prosecution witness, Ariel Palanga (Palanga), testified that at seven oclock in the morning of January 1, 1996, Boyatac bought a stick of cigarette from his store and requested him to cover the pile of timber near the bridge for a fee. Palanga acceded and covered the pile with coconut leaves.[24] On January 13, 1996, at around ten oclock in the morning, prosecution witness Juan Casenas (Casenas), a radio and TV personality of RMN-TV8, took footages of the timber[25] hidden and covered by coconut leaves. Casenas also took footages of more logs inside a bodega at the other side of the bridge. In the following evening, the footages were shown in a news program on television. On the same day, members of the DENR Region 10 Strike Force Team measured the timber which consisted of 63 pieces of Apitong flitches and determined that it totaled 4,326 board feet[26] and subsequently entrusted the same to Alarcon for safekeeping. Upon further investigation, it was learned that the timber was requisitioned by Villarin, who was then Barangay Captain of Pagulangan, Cagayan de Oro City. Villarin gave Sudaria the specifications for the requisitioned timber. Thereafter, Boyatac informed Villarin that the timber was already delivered on December 31, 1995.[27] On January 18, 1996, Felix Vera Cruz (Vera Cruz), a security guard at the DENR Region 10 Office, received and signed for the confiscated timber since the property custodian at that time was not around.

The filing of the aforestated Information followed. The Version of the Defense In response to the clamor of the residents of Barangays Tampangan, Pigsag-an, Tuburan and Taglinao, all in Cagayan De Oro City, Villarin, decided to repair the impassable Batinay bridge. The project was allegedly with the concurrence of the Barangay Council. Pressured to immediately commence the needed repairs, Villarin commissioned Boyatac to inquire from Sudaria about the availability of timber without first informing the City Engineer. Sudaria asked for the specifications which Villarin gave. Villarin then asked Baillo and Boyatac to attend to the same. When the timber was already available, it was transported from Tagpangi to Batinay. However, the timber flitches were seized by the DENR Strike Force Team and taken to its office where they were received by Vera Cruz, the security guard on duty. Ruling of the Regional Trial Court In its Memorandum filed before the trial court, the defense notified the court of Boyatacs demise.[28] However, the trial court did not act on such notice. Instead, it proceeded to rule on the culpability of Boyatac. Thus, in its Judgment, the trial court found herein petitioners and the deceased Boyatac guilty as charged. On the other hand, it found the evidence against Baillo insufficient. The dispositive portion of the Judgment reads: WHEREFORE, in view of the foregoing findings, judgment is hereby rendered finding the accused Crisostomo Villarin, Cipriano Boyatac and Aniano Latayada guilty beyond reasonable doubt of violating Section 68 of Presidential Decree No. 705 as amended, and hereby sentences each of them to suffer an indeterminate sentence of twelve (12) years of prision mayor as minimum to seventeen (17) years of reclusion temporal as maximum. Accused Marlon Baillo is hereby acquitted for lack of evidence. SO ORDERED.[29] In reaching said conclusions, the RTC noted that: Without an iota of doubt, accused Crisostomo Villarin, being then a Barangay Captain of Pagalungan, Cagayan de Oro City, was the one who procured the subject flitches, while accused Aniano Latayada and Cipriano Boyatac mutually helped him and each other by transporting the flitches from Sitio Batinay to the Pagalungan Bridge. The accused would like to impress upon the Court that the subject fltiches were intended for the repair of the Pagalungan Bridge and were acquired by virtue of Barangay Resolution No. 110 of Barangay Pagalungan. The Court is not impressed by this lame excuse. There is no dispute that the flitches were intended for the repair of the bridge. The Court finds it a laudable motive. The fact remains though that the said forest products were obtained without the necessary authority and legal documents required under existing forest laws and regulations.[30]

Petitioners filed a Motion for Reconsideration[31] which was denied by the RTC in its Order[32] dated August 20, 2002. Ruling of the Court of Appeals Petitioners filed an appeal which was denied by the CA in its Decision dated June 28, 2005. The dispositive portion of which reads: WHEREFORE, in view of all the foregoing, the judgment of the court a quo finding [d]efendant-[a]ppellants Crisostomo Villarin, Cipriano Boyatac and Aniano Latayada GUILTY beyond reasonable doubt for violating Sec. 68 of Presidential Decree 705 is hereby AFFIRMED in toto. No pronouncement as to cost. SO ORDERED.[33] Petitioners filed a Motion for Reconsideration[34] which the appellate court denied for lack of merit in its Resolution[35] promulgated on September 22, 2006. Issues Undeterred, petitioners filed the instant petition raising the following issues: 1. WHETHER X X X THE COURT OF APPEALS[,] ON [THE] MATTER OF INVESTIGATION[,] DECIDED NOT IN ACCORD WITH PRELIMINARY 2.

Certification[37] contained in the Information to the effect that a preliminary investigation was conducted in the case. Moreover, petitioners contend that the evidence was insufficient to prove their guilt beyond reasonable doubt since they had no intention to possess the timber and dispose of it for personal gain. They likewise claim that there was failure on the part of the prosecution to present the timber, which were the object of the offense. Our Ruling The petition is unmeritorious. Villarin was properly afforded his right to due process. Records show that the investigating prosecutor received a criminal complaint charging Sudaria, Latayada, Baillo and Boyatac with violation of Section 68 of P.D. No. 705, as amended.[38] The said complaint did not state the known addresses of the accused. Neither was the notarized joint-affidavit of the complainants attached thereto. The subpoena issued to the accused and the copy of their counter-affidavits were also not part of the record. Moreover, the complaint did not include Villarin as a respondent. However, said infirmities do not constitute denial of due process particularly on the part of Villarin. It is evidently clear from the Resolution dated March 13, 1996 of the Office of the City Prosecutor that Villarin and all the accused participated in the scheduled preliminary investigation that was conducted prior to the filing of the criminal case.[39] They knew about the filing of the complaint and even denied any involvement in the illegal cutting of timber. They were also given the opportunity to submit countervailing evidence to convince the investigating prosecutor of their innocence. Foregoing findings considered, there is no factual basis to the assertion that Villarin was not afforded a preliminary investigation. Accordingly, we find no grave abuse of discretion on the part of the Office of the Ombudsman-Mindanao in denying Villarins motion for reconsideration. It validly relied on the certification contained in the Information that a preliminary investigation was properly conducted in this case. The certification was made under oath by no less than the public prosecutor, a public officer who is presumed to have regularly performed his official duty.[40] Besides, it aptly noted that Villarin was implicated by x x x Latayada in his affidavit dated January 22, 1996 before Marcelino B. Pioquinto, Chief, Forest Protection and Law Enforcement Unit. The denial of Villarin cannot prevail over the declaration of witnesses.[41] Moreover, the absence of a proper preliminary investigation must be timely raised and must not have been waived. This is to allow the trial court to hold the case in abeyance and conduct its own investigation or require the prosecutor to hold a reinvestigation, which, necessarily involves a re-examination and re-evaluation of the evidence already submitted by the

JURISPRUDENCE OF THE SUPREME COURT; WHETHER X X X THE COURT OF APPEALS DEPARTED FROM WHAT THE SUPREME COURT HAS ALWAYS BEEN SAYING, THAT, TO CONVICT AN ACCUSED ALL ELEMENTS OF THE CRIME MUST BE PROVEN BEYOND REASONABLE DOUBT and; 3. WHETHER X X X THE COURT OF APPEALS[,] IN AFFIRMING THE PENALTY IMPOSED BY THE COURT A QUO[,] DEPARTED FROM JURISPRUDENCE THAT EVEN IN CRIMES [INVOLVING] VIOLATION OF SPECIAL LAWS[,] SPECIAL CONSIDERATION SHOULD BE GIVEN TO CIRCUMSTANCES THAT [CAN BE CONSIDERED AS MITIGATING HAD THE VIOLATION BEEN PENALIZED UNDER THE REVISED PENAL CODE, IN ORDER TO REDUCE PENALTY].[36] Petitioners argue that the refusal of the Ombudsman to conduct a reinvestigation is tantamount to a denial of the right to due process. As Villarin was indicted in the Information despite his not being included in the criminal complaint filed by Pioquinto of the TL Strike Force Team of the DENR, they claim that he was not afforded a preliminary investigation. They also bewail the fact that persons who appear to be equally guilty, such as Sudaria, have not been included in the Information. Hence, they argue that the Ombudsman acted with grave abuse of discretion in denying their petition for reinvestigation because it deprived Villarin of his right to preliminary investigation and in refusing and to equally prosecute the guilty. They contend that the Ombudsman should not have relied on the prosecutors

complainant and the accused, as well as the initial finding of probable cause which led to the filing of the Informations after the requisite preliminary investigation.[42] Here, it is conceded that Villarin raised the issue of lack of a preliminary investigation in his Motion for Reinvestigation. However, when the Ombudsman denied the motion, he never raised this issue again. He accepted the Ombudsmans verdict, entered a plea of not guilty during his arraignment and actively participated in the trial on the merits by attending the scheduled hearings, conducting cross-examinations and testifying on his own behalf. It was only after the trial court rendered judgment against him that he once again assailed the conduct of the preliminary investigation in the Motion for Reconsideration.[43] Whatever argument Villarin may have regarding the alleged absence of a preliminary investigation has therefore been mooted. By entering his plea, and actively participating in the trial, he is deemed to have waived his right to preliminary investigation. Petitioners also contend that Sudaria should also have been included as a principal in the commission of the offense. However, whether Sudaria should or should not be included as coaccused can no longer be raised on appeal. Any right that the petitioners may have in questioning the non-inclusion of Sudaria in the Information should have been raised in a motion for reconsideration of the March 13, 1996 Resolution of the Office of the City Prosecutor which recommended the dismissal of the complaint against Sudaria.[44] Having failed to avail of the proper procedural remedy, they are now estopped from assailing his non-inclusion. Two Offenses Penalized Under Sec. 68 of Presidential Decree No. 705. Section 68 of P.D. No. 705, as amended, provides: Section 68. Cutting, Gathering and/or Collecting Timber or Other Forest Products Without License. Any person who shall cut, gather, collect, remove timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, without any authority, or possess timber or other forest products without legal documents as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal Code: Provided, that in the case of partnerships, associations, or corporations, the officers who ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation. There are two distinct and separate offenses punished under Section 68 of P.D. No. 705, to wit: (1) Cutting, gathering, collecting and removing timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land without any authorization; and

(2)

Possession of timber or other forest products without the legal documents required under

existing forest laws and regulations.[45] The Information charged petitioners with the second offense which is consummated by the mere possession of forest products without the proper documents. We reviewed the records and hold that the prosecution had discharged the burden of proving all the elements of the offense charged. The evidence of the prosecution proved beyond reasonable doubt that petitioners were in custody of timber without the necessary legal documents. Incidentally, we note that several transcripts of stenographic notes (TSNs) were not submitted by the trial court. No explanation was provided for these missing TSNs. Notwithstanding the incomplete TSNs, we still find that the prosecution was able to prove beyond reasonable doubt petitioners culpability. The prosecution adduced several documents to prove that timber was confiscated from petitioners. It presented a Tally Sheet[46] to prove that the DENR Strike Force Team examined the seized timber on January 13, 1996. The number, volume and appraised value of said timber were also noted in the Tally Sheet. Seizure receipts were also presented to prove that the confiscated timber were placed in the custody of Alarcon[47] and eventually taken to the DENR Office.[48] There was a photograph of the timber taken by the television crew led by Casenas.[49] The prosecution likewise presented in evidence the testimonies of eyewitnesses Granada and Pansacala who testified that Latayada and Boyatac were the ones who delivered the timber.[50] More significantly, Villarin admitted that he was the one who commissioned the procurement of the timber[51] for the repair of the Batinay bridge. He even deputized Boyatac to negotiate with Sudaria and gave Latayada P2,000.00 to transport the logs. Boyatac later informed him of the delivery of timber. However, he could not present any document to show that his possession thereof was legal and pursuant to existing forest laws and regulations. Relevant portions of the testimony of Villarin are as follows: Q As Barangay Captain of Pagalungan, of course, you heard reports prior to the incident on December 31, 1995 that Barangay Captain Camilo Sudaria was also engaged in supplying forest products like forest lumber? A Q A Q A Yes, because I always go to Cagayan de Oro and I can always ride on his jeepney. And you were sure that information of yours was received by you and not only by Thats true because he even has a record with the police. And you learned [this] prior to January 1995? Yes, Sir.

one but several persons from Barangay Tagpangi even up to Barangay Pagalungan?

Q A Q A Q A Q

And your information was even to the effect that Sudaria was supplying illegally cut What I have noticed because I always ride on his jeep wherein lumber was being Even if there were already raids being conducted to the person of Camilo He slowed down after several arrest because maybe he was ashamed because he was And his arrest and the slackening of his activities of illegally cut lumber occurred Yes, sir. [In spite] of your knowledge that he is engaged [in] illegally cut[ting] forest products,

A Q A Q A Q A COURT: Q A Q A Q A Q A Q A

To Latayada. You have not given the amount to Camilo Sudaria? No, Sir. In fact, the money that you paid to Latayada was specifically for the transportation of Yes, Sir. And at that time, you paid Latayada P2,000 as payment of the lumber? Yes, Sir. Did you pay Latayada? Yes, Sir. How much? P2,000. And you gave this to the conductor? Yes, Sir. You told the conductor to pay the money to Latayada? Yes, sir. What did the conductor say? The conductor said that the money was for the payment for the transporting of

lumber regularly? loaded, the lumber will be taken when it arrived in Lumbia, kilometer 5. Sudaria, still he continued to load illegally cut lumber? the Barangay Captain of Tagpangi. prior to June 1995?

the lumber from Tagpangi to Batinay bridge? PROS. GALARRITA:

you as Barangay Captain of Pagalungan transacted with him for the purpose of acquiring lumber [for] the bridge at Pagalungan? A Q A Q A Q A Q Sudaria? A Q A Q A Q A Q When the specifications were given, we were informed that the lumber were already Who informed you that the lumber were already delivered? Boyatac. And he is referring to those lumber placed alongside the Batinay Bridge. Yes, Sir. And even without personally inspecting it, you immediately paid Latayada the There was already an advance payment for his delivery. To whom did you give the advance? there. So, it was delivered. As we rode together in his jeep, he informed me that he has some lumber to be used And because of that, in addition, you sent him the specifications of materials for the I let Boyatac go to him and [inquire] from him if he has those specifications. And he communicated to you that he has available lumber of those specification? Yes, because he sent to Boyatac some requirements of the specifications and he let And after that, you closed the [deal] with Sudaria? Yes, because I sent somebody to him and we did not talk anymore. And thereafter on December 31, 1995, according to your testimony before, Aniano to build his house and he told me he will sell it for the repair of the bridge in Pagalungan. repair of the bridge in Pagalungan?

lumber from Tagpangi.[52] (Underscoring ours.) Violation of Sec. 68 of Presidential Decree No. 705, as amended, is malum prohibitum. As a special law, the nature of the offense is malum prohibitum and as such, criminal intent is not an essential element. However, the prosecution must prove that petitioners had the intent to possess (animus possidendi) the timber.[53] Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the [object of the crime] is in the immediate physical control of the accused. On the other hand, constructive possession exists when the [object of the crime] is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found.[54] There is no dispute that petitioners were in constructive possession of the timber without the requisite legal documents. Villarin and Latayada were personally involved in its procurement, delivery and storage without any license or permit issued by any competent authority. Given these and considering that the offense is malum prohibitum, petitioners contention that the possession of the illegally cut timber was not for personal gain but for the repair of said bridge is, therefore, inconsequential.

me sign it.

Latayada delivered the lumber flitches you ordered on board the passenger jeep of Camilo

compensation for the delivery of those lumber?

Corpus Delicti is the Fact of the Commission of the Crime Petitioners argue that their convictions were improper because the corpus delicti had not been established. They assert that the failure to present the confiscated timber in court was fatal to the cause of the prosecution. We disagree. [C]orpus delicti refers to the fact of the commission of the crime charged or to the body or substance of the crime. In its legal sense, it does not refer to the ransom money in the crime of kidnapping for ransom or to the body of the person murdered[55] or, in this case, to the seized timber. Since the corpus delicti is the fact of the commission of the crime, this Court has ruled that even a single witness uncorroborated testimony, if credible, may suffice to prove it and warrant a conviction therefor. Corpus delicti may even be established by circumstantial evidence.[56] Here, the trial court and the CA held that the corpus delicti was established by the documentary and testimonial evidence on record. The Tally Sheet, Seizure Receipts issued by the DENR and photograph proved the existence of the timber and its confiscation. The testimonies of the petitioners themselves stating in no uncertain terms the manner in which they consummated the offense they were charged with were likewise crucial to their conviction. We find no reason to deviate from these findings since it has been established that factual findings of a trial court are binding on us, absent any showing that it overlooked or misinterpreted facts or circumstances of weight and substance.[57] The legal precept applies to this case in which the trial courts findings were affirmed by the appellate court.[58] The Proper Penalty Violation of Section 68 of P.D. No. 705, as amended, is penalized as qualified theft under Article 310 in relation to Article 309 of the Revised Penal Code (RPC). The pertinent portions of these provisions read: Art. 310. Qualified Theft The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding articles, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any calamity, vehicular accident or civil disturbance. Art. 309. Penalties. Any person guilty of theft shall be punished by: 1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total

of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. x x x The Information filed against the petitioners alleged that the 63 pieces of timber without the requisite legal documents measuring 4,326 board feet were valued at P108,150.00. To prove this allegation, the prosecution presented Pioquinto to testify, among others, on this amount. Tally Sheets and Seizure Receipts were also presented to corroborate said amount. With the value of the timber exceeding P22,000.00, the basic penalty is prision mayor in its minimum and medium periods to be imposed in its maximum, the range of which is eight (8) years, eight (8) months and one (1) day to ten (10) years. Since none of the qualifying circumstances in Article 310 of the RPC was alleged in the Information, the penalty cannot be increased two degrees higher. In determining the additional years of imprisonment, P22,000.00 is to be deducted fromP108,150.00, which results to P86,150.00. This remainder must be divided by P10,000.00, disregarding any amount less than P10,000.00. Consequently, eight (8) years must be added to the basic penalty. Thus the maximum imposable penalty ranges from sixteen (16) years, eight (8) months and one (1) day to eighteen (18) years of reclusion temporal. Applying the Indeterminate Sentence Law, the minimum imposable penalty should be taken anywhere within the range of the penalty next lower in degree, without considering the modifying circumstances. The penalty one degree lower from prision mayor in its minimum and medium periods isprision correccional in its medium and maximum periods, the range of which is from two (2) years, four (4) months and one (1) day to six (6) years. Thus, the RTC, as affirmed by the CA, erroneously fixed the minimum period of the penalty at twelve (12) years of prision mayor. Finally, the case against Boyatac must be dismissed considering his demise even before the RTC rendered its Judgment. WHEREFORE, the petition is DENIED. The assailed Decision dated June 28, 2005 and the Resolution dated September 22, 2006 in CA-G.R. CR No. 26720 are AFFIRMED with theMODIFICATIONS that petitioners Crisostomo Villarin and Aniano Latayada are each sentenced to suffer imprisonment of two (2) years, four (4) months, and one (1) day of prision correccional, as minimum, to sixteen (16) years, eight (8) months, and one (1) day of reclusion temporal, as maximum. The complaint against Cipriano Boyatac is hereby DISMISSED. SO ORDERED. G.R. NO. 147039 January 27, 2006

DBP POOL OF ACCREDITED INSURANCE COMPANIES, Petitioner, vs. RADIO MINDANAO NETWORK, INC., Respondent. DECISION AUSTRIA-MARTINEZ, J.: This refers to the petition for certiorari under Rule 45 of the Rules of Court seeking the review of the Decision1dated November 16, 2000 of the Court of Appeals (CA) in CA-G.R. CV No. 56351, the dispositive portion of which reads: Wherefore, premises considered, the appealed Decision of the Regional Trial Court of Makati City, Branch 138 in Civil Case No. 90-602 is hereby AFFIRMED with MODIFICATION in that the interest rate is hereby reduced to 6% per annum. Costs against the defendants-appellants. SO ORDERED.2 The assailed decision originated from Civil Case No. 90-602 filed by Radio Mindanao Network, Inc. (respondent) against DBP Pool of Accredited Insurance Companies (petitioner) and Provident Insurance Corporation (Provident) for recovery of insurance benefits. Respondent owns several broadcasting stations all over the country. Provident covered respondents transmitter equipment and generating set for the amount ofP13,550,000.00 under Fire Insurance Policy No. 30354, while petitioner covered respondents transmitter, furniture, fixture and other transmitter facilities for the amount of P5,883,650.00 under Fire Insurance Policy No. F-66860. In the evening of July 27, 1988, respondents radio station located in SSS Building, Bacolod City, was razed by fire causing damage in the amount of P1,044,040.00. Respondent sought recovery under the two insurance policies but the claims were denied on the ground that the cause of loss was an excepted risk excluded under condition no. 6 (c) and (d), to wit: 6. This insurance does not cover any loss or damage occasioned by or through or in consequence, directly or indirectly, of any of the following consequences, namely: (c) War, invasion, act of foreign enemy, hostilities, or warlike operations (whether war be declared or not), civil war. (d) Mutiny, riot, military or popular rising, insurrection, rebellion, revolution, military or usurped power.3 The insurance companies maintained that the evidence showed that the fire was caused by members of the Communist Party of the Philippines/New Peoples Army (CPP/NPA); and consequently, denied the claims. Hence, respondent was constrained to file Civil Case No. 90602 against petitioner and Provident.

After trial on the merits, the Regional Trial Court of Makati, Branch 138, rendered a decision in favor of respondent. The dispositive portion of the decision reads: IN VIEW THEREOF, judgment is rendered in favor of plaintiff. Defendant Provident Insurance Corporation is directed to pay plaintiff the amount of P450,000.00 representing the value of the destroyed property insured under its Fire Insurance Policy plus 12% legal interest from March 2, 1990 the date of the filing of the Complaint. Defendant DBP Pool Accredited Insurance Companies is likewise ordered to pay plaintiff the sum of P602,600.00 representing the value of the destroyed property under its Fire Insurance Policy plus 12% legal interest from March 2, 1990. SO ORDERED.4 Both insurance companies appealed from the trial courts decision but the CA affirmed the decision, with the modification that the applicable interest rate was reduced to 6% per annum. A motion for reconsideration was filed by petitioner DBP which was denied by the CA per its Resolution dated January 30, 2001.5 Hence, herein petition by DBP Pool of Accredited Insurance Companies, 6 with the following assignment of errors: Assignment of Errors THE HONORABLE COURT OF APPEALS ERRED WHEN IT HELD THAT THERE WERE NO SUFFICIENT EVIDENCE SHOWING THAT THE APPROXIMATELY TENTY [sic] (20) ARMED MEN WHO CUSED [sic] THE FIRE AT RESPONDENTS RMN PROPERTY AT BACOLOD CITY WERE MEMBERS OF THE CPP-NPA. THE HONORABLE COURT OF APPEALS ERRED WHEN IT ADJUDGED THAT RESPONDENT RMN CANNOT BEHELD [sic] FOR DAMAGES AND ATTORNEYS FEES FOR INSTITUTING THE PRESENT ACTION AGAINST THE PETITIONER UNDER ARTICLES 21, 2208, 2229 AND 2232 OF THE CIVIL CODE OF THE PHILIPPINES.7 Petitioner assails the factual finding of both the trial court and the CA that its evidence failed to support its allegation that the loss was caused by an excepted risk, i.e., members of the CPP/NPA caused the fire. In upholding respondents claim for indemnity, the trial court found that: The only evidence which the Court can consider to determine if the fire was due to the intentional act committed by the members of the New Peoples Army (NPA), are the testimony [sic] of witnesses Lt. Col. Nicolas Torres and SPO3 Leonardo Rochar who were admittedly not present when the fire occurred. Their testimony [sic] was [sic] limited to the fact that an investigation was conducted and in the course of the investigation they were informed by bystanders that "heavily armed men entered the transmitter house, poured gasoline in (sic) it and then lighted it. After that, they went out shouting "Mabuhay ang NPA" (TSN, p. 12., August 2, 1995). The persons whom they investigated and actually saw the burning of the station were not presented as witnesses. The documentary evidence particularly Exhibits "5" and "5-C" do not satisfactorily prove that the author of the burning were members

of the NPA. Exhibit "5-B" which is a letter released by the NPA merely mentions some dissatisfaction with the activities of some people in the media in Bacolod. There was no mention there of any threat on media facilities.8 The CA went over the evidence on record and sustained the findings of the trial court, to wit: To recapitulate, defendants-appellants presented the following to support its claim, to wit: police blotter of the burning of DYHB, certification of the Negros Occidental Integrated National Police, Bacolod City regarding the incident, letter of alleged NPA members Celso Magsilang claiming responsibility for the burning of DYHB, fire investigation report dated July 29, 1988, and the testimonies of Lt. Col. Nicolas Torres and SFO III Leonardo Rochas. We examined carefully the report on the police blotter of the burning of DYHB, the certification issued by the Integrated National Police of Bacolod City and the fire investigation report prepared by SFO III Rochas and there We found that none of them categorically stated that the twenty (20) armed men which burned DYHB were members of the CPP/NPA. The said documents simply stated that the said armed men were believed to be or suspected of being members of the said group. Even SFO III Rochas admitted that he was not sure that the said armed men were members of the CPP-NPA, thus: In fact the only person who seems to be so sure that that the CPP-NPA had a hand in the burning of DYHB was Lt. Col. Nicolas Torres. However, though We found him to be persuasive in his testimony regarding how he came to arrive at his opinion, We cannot nevertheless admit his testimony as conclusive proof that the CPP-NPA was really involved in the incident considering that he admitted that he did not personally see the armed men even as he tried to pursue them. Note that when Lt. Col. Torres was presented as witness, he was presented as an ordinary witness only and not an expert witness. Hence, his opinion on the identity or membership of the armed men with the CPP-NPA is not admissible in evidence. Anent the letter of a certain Celso Magsilang, who claims to be a member of NPA-NIROC, being an admission of person which is not a party to the present action, is likewise inadmissible in evidence under Section 22, Rule 130 of the Rules of Court. The reason being that an admission is competent only when the declarant, or someone identified in legal interest with him, is a party to the action.9 The Court will not disturb these factual findings absent compelling or exceptional reasons. It should be stressed that a review by certiorari under Rule 45 is a matter of discretion. Under this mode of review, the jurisdiction of the Court is limited to reviewing only errors of law, not of fact.10 Moreover, when supported by substantial evidence, findings of fact of the trial court as affirmed by the CA are conclusive and binding on the parties,11 which this Court will not review unless there are exceptional circumstances. There are no exceptional circumstances in this case that would have impelled the Court to depart from the factual findings of both the trial court and the CA. Both the trial court and the CA were correct in ruling that petitioner failed to prove that the loss was caused by an excepted risk.

Petitioner argues that private respondent is responsible for proving that the cause of the damage/loss is covered by the insurance policy, as stipulated in the insurance policy, to wit: Any loss or damage happening during the existence of abnormal conditions (whether physical or otherwise) which are occasioned by or through in consequence directly or indirectly, of any of the said occurrences shall be deemed to be loss or damage which is not covered by the insurance, except to the extent that the Insured shall prove that such loss or damage happened independently of the existence of such abnormal conditions. In any action, suit or other proceeding where the Companies allege that by reason of the provisions of this condition any loss or damage is not covered by this insurance, the burden of proving that such loss or damage is covered shall be upon the Insured. 12 An insurance contract, being a contract of adhesion, should be so interpreted as to carry out the purpose for which the parties entered into the contract which is to insure against risks of loss or damage to the goods. Limitations of liability should be regarded with extreme jealousy and must be construed in such a way as to preclude the insurer from noncompliance with its obligations.13 The "burden of proof" contemplated by the aforesaid provision actually refers to the "burden of evidence" (burden of going forward).14 As applied in this case, it refers to the duty of the insured to show that the loss or damage is covered by the policy. The foregoing clause notwithstanding, the burden of proof still rests upon petitioner to prove that the damage or loss was caused by an excepted risk in order to escape any liability under the contract. Burden of proof is the duty of any party to present evidence to establish his claim or defense by the amount of evidence required by law, which is preponderance of evidence in civil cases. The party, whether plaintiff or defendant, who asserts the affirmative of the issue has the burden of proof to obtain a favorable judgment. For the plaintiff, the burden of proof never parts.15 For the defendant, an affirmative defense is one which is not a denial of an essential ingredient in the plaintiffs cause of action, but one which, if established, will be a good defense i.e. an "avoidance" of the claim.16 Particularly, in insurance cases, where a risk is excepted by the terms of a policy which insures against other perils or hazards, loss from such a risk constitutes a defense which the insurer may urge, since it has not assumed that risk, and from this it follows that an insurer seeking to defeat a claim because of an exception or limitation in the policy has the burden of proving that the loss comes within the purview of the exception or limitation set up. If a proof is made of a loss apparently within a contract of insurance, the burden is upon the insurer to prove that the loss arose from a cause of loss which is excepted or for which it is not liable, or from a cause which limits its liability.17 Consequently, it is sufficient for private respondent to prove the fact of damage or loss. Once respondent makes out a prima facie case in its favor, the duty or the burden of evidence shifts to petitioner to controvert respondents prima facie case.18 In this case, since petitioner alleged an excepted risk, then the burden of evidence shifted to petitioner to prove such exception. It is only when petitioner has sufficiently proven that the damage or loss was caused by an

excepted risk does the burden of evidence shift back to respondent who is then under a duty of producing evidence to show why such excepted risk does not release petitioner from any liability. Unfortunately for petitioner, it failed to discharge its primordial burden of proving that the damage or loss was caused by an excepted risk. Petitioner however, insists that the evidence on record established the identity of the author of the damage. It argues that the trial court and the CA erred in not appreciating the reports of witnesses Lt. Col Torres and SFO II Rochar that the bystanders they interviewed claimed that the perpetrators were members of the CPP/NPA as an exception to the hearsay rule as part of res gestae. A witness can testify only to those facts which he knows of his personal knowledge, which means those facts which are derived from his perception.19 A witness may not testify as to what he merely learned from others either because he was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned. The hearsay rule is based upon serious concerns about the trustworthiness and reliability of hearsay evidence inasmuch as such evidence are not given under oath or solemn affirmation and, more importantly, have not been subjected to cross-examination by opposing counsel to test the perception, memory, veracity and articulateness of the out-of-court declarant or actor upon whose reliability on which the worth of the out-of-court statement depends.20 Res gestae, as an exception to the hearsay rule, refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement. The rule in res gestae applies when the declarant himself did not testify and provided that the testimony of the witness who heard the declarant complies with the following requisites: (1) that the principal act, the res gestae, be a startling occurrence; (2) the statements were made before the declarant had the time to contrive or devise a falsehood; and (3) that the statements must concern the occurrence in question and its immediate attending circumstances. 21 The Court is not convinced to accept the declarations as part of res gestae. While it may concede that these statements were made by the bystanders during a startling occurrence, it cannot be said however, that these utterances were made spontaneously by the bystanders and before they had the time to contrive or devise a falsehood. Both SFO III Rochar and Lt. Col. Torres received the bystanders statements while they were making their investigations during and after the fire. It is reasonable to assume that when these statements were noted down, the bystanders already had enough time and opportunity to mill around, talk to one another and exchange information, not to mention theories and speculations, as is the usual experience in disquieting situations where hysteria is likely to take place. It cannot therefore be ascertained whether these utterances were the products of truth. That the utterances may be mere idle talk is not remote. At best, the testimonies of SFO III Rochar and Lt. Col. Torres that these statements were made may be considered as independently relevant statements gathered in the course of their investigation, and are admissible not as to the veracity thereof but to the fact that they had been thus uttered.22

Furthermore, admissibility of evidence should not be equated with its weight and sufficiency.23 Admissibility of evidence depends on its relevance and competence, while the weight of evidence pertains to evidence already admitted and its tendency to convince and persuade.24 Even assuming that the declaration of the bystanders that it was the members of the CPP/NPA who caused the fire may be admitted as evidence, it does not follow that such declarations are sufficient proof. These declarations should be calibrated vis--vis the other evidence on record. And the trial court aptly noted that there is a need for additional convincing proof, viz.: The Court finds the foregoing to be insufficient to establish that the cause of the fire was the intentional burning of the radio facilities by the rebels or an act of insurrection, rebellion or usurped power. Evidence that persons who burned the radio facilities shouted "Mabuhay ang NPA" does not furnish logical conclusion that they are member [sic] of the NPA or that their act was an act of rebellion or insurrection. Additional convincing proof need be submitted. Defendants failed to discharge their responsibility to present adequate proof that the loss was due to a risk excluded.25 While the documentary evidence presented by petitioner, i.e., (1) the police blotter; (2) the certification from the Bacolod Police Station; and (3) the Fire Investigation Report may be considered exceptions to the hearsay rule, being entries in official records, nevertheless, as noted by the CA, none of these documents categorically stated that the perpetrators were members of the CPP/NPA.26 Rather, it was stated in the police blotter that: "a group of persons accompanied by one (1) woman all believed to be CPP/NPA more or less 20 persons suspected to be CPP/NPA,"27 while the certification from the Bacolod Police station stated that " some 20 or more armed menbelieved to be members of the New Peoples Army NPA,"28 and the fire investigation report concluded that "(I)t is therefore believed by this Investigating Team that the cause of the fire is intentional, and the armed mensuspected to be members of the CPP/NPA where (sic) the ones responsible "29 All these documents show that indeed, the "suspected" executor of the fire were believed to be members of the CPP/NPA. But suspicion alone is not sufficient, preponderance of evidence being the quantum of proof. All told, the Court finds no reason to grant the present petition. WHEREFORE, the petition is DISMISSED. The Court of Appeals Decision dated November 16, 2000 and Resolution dated January 30, 2001 rendered in CA-G.R. CV No. 56351 are AFFIRMED in toto.

CRISLYNDON T. SADAGNOT, Petitioner, vs

G.R. No. 152636

REINIER PACIFIC INTERNATIONAL SHIPPING, INC. and NEPTUNE SHIPMANAGEMENT SERVICES, PTE.,

Promulgated:

LTD. of SINGAPORE, Respondents. August 8, 2007

made several negative reports against him. On 2 March 1996, respondents repatriated petitioner to the Philippines.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

Upon his arrival, petitioner executed a release document in favor of respondents stating DECISION that he had received all the amounts due him and he has no cause of action against respondents. On 9 May 1996, petitioner filed an action for illegal dismissal, non-payment of allotment, termination pay, damages, and attorneys fees against respondents. Petitioner alleged that he was prematurely repatriated without being given the opportunity to avail of the The Case companys grievance procedure.

CARPIO, J.:

Before the Court is a petition for review[1] assailing the 15 March 2002 Decision[2] of the Court of Appeals in CA-G.R. SP No. 52310. The Court of Appeals affirmed the 14 September Respondents alleged that petitioner was repatriated because of his willful disregard of 1998 Decision and 10 February 1999 Resolution of the National Labor Relations Commission (NLRC). obey the order constituted insubordination and was a direct affront to the authority of the Master. The Antecedent Facts The Rulings of the Labor Arbiter and the NLRC Reinier Pacific International Shipping, Ltd. as Inc. of Third and its foreign principal In a Decision[3] dated 28 April 1998, the Labor Arbiter ruled in favor of petitioner, thus: WHEREFORE, premises considered, respondents, REINIER PACIFIC INTERNATIONAL SHIPPING, INC., Neptune Shipmanagement Services Pte., Ltd./Singapore, are jointly and solidarily liable to pay complainant, CRISLYNDON T. SADAGNOT, the following: a) US$1,950.00 in its peso equivalent at the time of payment, representing three (3) months of unexpired term (US$650 x 3) in accordance with Sec. 10 of RA 8042. b) P5,000.00 by way of penalty for non-observance of due process, and c) 10% attorneys fees on top of the total award. Neptune Shipmanagement Services Pte., hired Crislyndon T.Sadagnot (petitioner) Singapore Officer of (respondents) the vessel and failure to obey the Masters lawful orders. Respondents alleged that petitioners refusal to

MV Baotrans. Petitioners contract was for ten months with basic monthly salary of US$650. Petitioner boarded MVBaotrans on 19 August 1995.

Petitioner alleged that while on board MV Baotrans, the vessels Master ordered him to perform hatch stripping, a deck work. Petitioner refused the order on the ground that it was not related to his duties as Third Officer. Petitioner alleged that when the order was issued, he was on watch standing duty and was doing nautical publications as required by standard maritime practice. Petitioner alleged that because of his refusal to obey the order, the Master

SO ORDERED.[4] WHEREFORE, premises considered, the instant petition is DENIED DUE COURSE and accordingly DISMISSED for lack of merit. The assailed decision dated September 14, 1998 and the Resolution dated February 10, 1999 of the National Labor Relations Commission in NLRC NCR OCW CN 00-05-1856-96 (CA NO. 015582-98) are hereby AFFIRMED in toto. set aside the Labor Arbiters SO ORDERED.[8]

Respondents filed an appeal before the NLRC.

On

14

September

1998,

the

NLRC

Decision. The dispositive portion of the NLRC Decision[5] reads: WHEREFORE, the decision appealed from is SET ASIDE. Respondents Reinier Pacific International Shipping, Inc. and Neptune Shipmanagement Services Pte., Singapore are hereby ordered to jointly and severally liable to pay (sic) complainant Crislyndon T. Sadagnat (sic) the sum of TEN THOUSAND PESOS (P10,000.00) as indemnity for non-observance of due process in effecting his dismissal for cause. SO ORDERED.[6] Petitioner raises the following issues before the Court: 1. Whether the Court of Appeals erred in adopting the logbook entry as evidence of petitioners misconduct; 2. Whether petitioner was validly dismissed from employment; and Petitioner filed a petition for certiorari with the Court of Appeals. 3. Whether there is legal basis for the award of P10,000 indemnity to petitioner.

Petitioner filed a petition for review before this Court.

The Issues

Petitioner filed a motion for reconsideration. NLRC denied petitioners motion.

In its 10 February 1999 Resolution,[7] the

The Ruling of the Court of Appeals

The Ruling of this Court

In its 15 March 2002 Decision, the Court of Appeals affirmed the NLRC Decision. The Court of Appeals ruled that petitioners act of not following the Masters order is a serious misconduct or willful disobedience under Article 282 of the Labor Code. The Court of Appeals noted that petitioners repatriation was based on a report in the logbook duly signed by the Master and the Chief Officer.

The petition is partly meritorious.

Petitioner alleges that the Court of Appeals erred in adopting the Masters logbook entry as evidence of his supposed misconduct. Petitioner also alleges that the Court of Appeals erred in interpreting his actions as serious misconduct or willful disobedience under Article 282 of the Labor Code. Petitioner further alleges that the indemnity awarded to him for

The dispositive portion of the Decision of the Court of Appeals reads:

respondents non-observance of due process has no legal basis and is not commensurate to the damage caused by respondents.

Petitioner alleges that the Court of Appeals erred in giving credence to the logbook entry instead of the Joint Statement[11] by his crew mates attesting, among other things, to the fact that there were 12 deck crews on deck at the time who would be able to handle the hatch

On Petitioners Signature on Verification of the Petition

stripping if they were ordered to do so.

Respondents allege that petitioners signature on the verification of the petition is a poor facsimile of the signature of petitioner, as appearing in the records

The ships logbook is the official record of a ships voyage which its captain is obligated by law to keep.[12] It is where the captain records the decisions he has adopted, a summary of the performance of the vessel, and other daily events.[13] The entries made in the ships logbook by a person performing a duty required by law are prima facie evidence of the facts stated in the logbook.[14]

ofReinier Pacific.[9] Respondents submitted to the Court an undated contract signed by petitioner. Hence, respondents allege that the petition should be dismissed outright unless petitioner could prove that he really signed the verification.

Even if we assume that the undated contract submitted by respondents was the contract signed by petitioner in August 1995, respondents allegation must fail. The petition was filed on 6 May 2002. There was a lapse of almost seven years between the signing of the two documents. There is no sufficient proof that petitioners signature on the verification was forged just because it was not exactly the same as petitioners signature on the contract. Hence, the Court finds no reason to dismiss the petition on this ground.

Petitioner failed to prove that the entry was fabricated by the Master. While petitioner claimed that the Master entered untruthful reports in the logbook, he also admitted that he did not obey the Masters order and even suggested that it would be better if the hatch stripping shall be performed, as it should, by an able-bodied seaman.[15] Hence, we sustain the Court of Appeals in giving weight to the logbook entry.

Willful Disobedience as Ground for Dismissal from the Service Evidentiary Value of the Entry in the Logbook Petitioner alleges that his act does not constitute serious misconduct or willful On 10 February 1996, the Master entered the following in the vessels logbook: Mr. Crislyndon T. Sadagn[o]t, Third Officer[,] was instructed by the Master to hand over watch to Master and go on deck to assist Chief Officer in trying out hatch stripping actions as vessel received instructions from NOL-CD to keep every equipment ready for next voyage in tanker mode. Against the Master[s] instructions he argued that he had lots of corrections to do in the list of lights and sailing directions. He was told to give priority to deck work in order to prepare the vessel for tanker mode prior to loading at Richards bay on 22 February 1996 x x x.[10] disobedience that warrants his dismissal. Petitioner alleges that the Master wanted him to perform work that was not related to his contracted services as a Third Officer. He alleges that hatch stripping is the duty of an able seaman, and at the time that the Master ordered him to perform hatch stripping, there were able-bodied seamen on the deck who could do the job. Petitioner emphasizes that he was on watch duty when the Master commanded him to a job that was not included in his duties as a Third Officer.

Petitioners duties as a Third Officer are as follows:

2.2.4

INSTRUCTIONS TO THE THIRD OFFICER (3/0) The Third Officer reports to the Master on navigational matters and the Chief Officer on cargo, maintenance and operational matters.

relieving officer and acknowledged Master.[16] (Emphasis supplied)

by

the

2.2.4.1 The Third Officer shall be directly responsible to the Chief Officer who will assign him to duties both at sea and in port. 2.2.4.2 His duties and responsibilities will include the efficient maintenance and upkeep of: a) All Life Saving appliances (LSA) and lifeboats. b) Fire Fighting Appliances (FFA). c) Manual fog and emergency signaling equipment. d) Visual communication gear and equipment and the keeping of complete records on the above. 2.2.4.3 The Third Officer shall be responsible for ensuring that the courtesy ensigns for the countries that the vessel will call at, are on board well before reaching those countries and that the vessel is dressed overall on Singapores National Day or any other occasion when notified by the local Port authority. 2.2.4.4 The Third Officer shall be directly responsible to the Chief Officer for the efficient management of cargo operations and the ships safety during the working periods assigned to his charge. While on cargo watch or deck duty he shall ensure that all equipment and working gears are correctly rigged and being worked in a safe manner that are conducive to the safe working limits, state, and age of that equipment. Comply with duties of 0.0.W. in port and anchor defined in OPM. 2.2.4.5 The Third Officer with superior certificate shall spend some time correcting charts and maintaining bridge equipment and publications and be familiar with the duties and responsibilities of the 2/0. Satisfactory performance of this training shall be recorded in the TPRB.

Petitioners duties clearly indicate that he shall carry out duties assigned by the Master. Petitioner cannot claim that the order to assist in hatch stripping was beyond his duties as a Third Officer because it is covered under duties assigned by the Master. The Court of Appeals, citing the NLRC, also ruled that petitioners work as desk officer necessarily entails responsibility over the deck crew and includes supervision of their work and maintenance of deck equipment.[17]

Petitioner insists that there was no urgent need to perform deck work at the time the Master issued the order since loading was still 12 days from the time he was ordered to do hatch stripping. He also alleges that the fact that the vessel was not ready for the next cargo loading should not be attributed to him and only the Master was to blame for any delay. The urgency of the work to be done is within the sound discretion of the Master and is not for petitioner to decide. Petitioners attitude only emphasized his disposition to disobey the Master.

Article 282 of the Labor Code provides: ART. 282. Termination by employer. - An employer may terminate an employment for any of the following causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; 2.2.4.6 The Third Officer shall carry out duties assigned by the Master other than those mentioned herewith. 2.2.4.7 The Third Officer shall prepare a handing/taking over report containing his general duties and other special requirements that are special to the vessel prior to being relieved. This report shall be given to the xxxx

Willful disobedience requires the concurrence of two requisites:

(a) the employees

informs the employee of the employers decision to dismiss him. [20] There is nothing in the records showing that respondents complied with the two-notice requirement.

assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (b) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge. [18]

In Agabon v. NLRC,[21] we ruled that if the dismissal is for a just cause, the lack of statutory due process should not nullify the dismissal, or render it illegal or ineffectual. The

Again, petitioner does not deny that he refused to obey the Masters order. The Masters order was not unreasonable or unlawful as he received instructions to prepare the vessel for the next voyage in tanker mode. Petitioners allegation that there were able-bodied seamen willing to do the work was not substantiated. Petitioner submitted a Joint Statement executed by some officers of the vessel but not one of the seamen he referred to executed any affidavit to prove the allegation. As regards petitioners objection that he was on duty, the Master instructed petitioner to hand over the watch to him. Finally, since petitioners duties include duties assigned by the Master, we cannot sustain petitioners allegation that the order is not part of his duties as a Third Officer.

violation of petitioners right to due process only warrants the payment of indemnity in the form of nominal damages, the amount of which is addressed to the sound discretion of the Court, taking into consideration the relevant circumstances.[22] However, we agree with petitioner that the amount of indemnity awarded to him is insufficient. Considering the circumstances in this case and in line with prevailing jurisprudence, we deem it proper to increase the amount of nominal damages from P10,000 to P30,000.[23]

WHEREFORE, we AFFIRM the 15 March 2002 Decision of the Court of Appeals in CA-G.R. SP No. 52310 with MODIFICATION by increasing the amount of nominal damages awarded to petitioner Crislyndon T. Sadagnot to P30,000.

Since petitioner was dismissed from employment for a valid cause, he in not entitled to any salary for the unexpired portion of his employment contract. [19] G.R. No. 169204 March 23, 2007

Observance of Due Process

ADELAIDA ESCOBAR and LOLITA ESCOBAR, Petitioners, vs. LIGAYA OLIGARIO LUNA, CLARITA LUNA, EMMA LUNA, TERESITA AMBROSIO LUNA, OMER LUNA, EFREN LUNA, PATRIA LUNA, PINKY LUNA, and PACQUING and PORTIA LUNA as heirs of deceased Clodualdo Luna, Respondents. DECISION QUISUMBING, J.: This is an appeal from the Decision1 dated May 19, 2005 of the Court of Appeals in CA-G.R. CV No. 66548 and its Resolution2 dated August 4, 2005 denying reconsideration. The appellate court reversed the June 25, 1999 Decision3 of the Regional Trial Court (RTC) of Tagaytay City, Branch 18 that dismissed the complaint to nullify Transfer Certificates of Title (TCT) Nos. (T-21294) T-13361 and (T-21295) T-13362. The facts as found by the trial court and adopted by the Court of Appeals are as follows.

Petitioner alleges that he was not afforded his right to due process. He further alleges that the indemnity awarded to him by the NLRC and the Court of Appeals is not commensurate to the damage caused by respondents.

Respondents failed to observe the necessary procedural safeguards. In termination cases, the employer must furnish the employee with two written notices before termination of employment can be legally effected: (a) a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought, and (b) the subsequent notice which

Petitioners Adelaida Escobar and Lolita Escobar separately bought two parcels of land located in Barrio Tolentino, Tagaytay City on February 28, 1979 and were issued TCT Nos. (T21294) T-13361 and (T-21295) T-13362, respectively, on the same date. Eleven years later, on September 11, 1990, Clodualdo Luna filed a complaint before the RTC of Tagaytay City, Branch 18, seeking to nullify TCT Nos. (T-21294) T-13361 and (T-21295) T-13362 of the Escobars. Luna claimed that he had been in actual, public, adverse, continuous, and notorious physical possession of an unregistered parcel of land located in Barrio Tolentino, Tagaytay City since March 21, 1941, as shown in Tax Declaration No. GR-0190173, which was issued to him in 1985.4 Sometime in 1990, when he engaged the services of a geodetic engineer to survey the same parcel of land to have his title confirmed under the provisions of Act No. 496, 5 as amended by Presidential Decree No. 1529,6 he alleged that he discovered that the land had been illegally and fraudulently titled in the names of the Escobars by the use of fictitious and simulated documents and court records. The Escobars allegedly made it appear that the two titles originated from Original Certificate of Title (OCT) No. 5483, which however, did not exist in the records of the Registry of Deeds of the Province of Batangas per certification7 of Atty. Eva Cainza-Valenton, Acting Register of Deeds, issued on June 11, 1990. Additionally, Decree No. 3465,8 on which OCT No. 5483 appeared to have been issued, pertained to a parcel of land located in San Juan, Batangas, not to the subject properties located in Tagaytay City. Similarly, Survey Plan Psu-24039, which supposedly technically described the land mentioned in OCT No. 5483, did not pertain to the subject properties but to a different parcel of land located in Urdaneta, Pangasinan, per letter of Privadi JG. Dalire, Chief of the Geodetic Surveys Division of the Lands Management Bureau, DENR.9 Luna further alleged that the Escobars acted with knowledge of the infirmity and defect of OCT No. 5483 as nonexistent and knew that he was in actual possession of the subject land in the concept of an owner for 50 years. On October 9, 1990, the Escobars filed a motion to dismiss. They alleged that the complaint was barred by prior judgment or by statute of limitations; that the complaint stated no cause of action; and that the claim set forth in the complaint had been paid, waived, abandoned, or otherwise extinguished. On February 1, 1991, Luna filed an amended complaint which the trial court admitted on February 5, 1991. However, on February 22, 1991, the trial court, upon reiteration by the Escobars of their motion, dismissed the amended complaint on the ground that it was insufficient in form and substance and that certain indispensable parties were not impleaded. Luna filed a motion for reconsideration and a second amended complaint impleading as party defendants the Administrator of the Land Registration Authority, the Director of the Bureau of Lands, the National Treasurer, the Registry of Deeds and City Assessor of Tagaytay City. 10 Said amended complaint was admitted on May 28, 1991. But, on June 28, 1991, the trial court granted a subsequent motion to dismiss by the Escobars and dismissed the second amended complaint without hearing. The trial court held that the titles issued to the Escobars had acquired incontrovertibility and indefeasibility by mandate of Act No. 496.11

Aggrieved, Luna filed an appeal to the Court of Appeals, which rendered a decision on May 18, 1995 reversing the dismissal. The appellate court held that the trial court should have conducted a hearing on the motion to dismiss considering that Lunas complaint alleged that OCT No. 5483, from which the TCTs of the Escobars were derived, was nonexistent. The appellate court ruled: WHEREFORE, based on the foregoing, the Order dated June 28, 1991, is hereby SET ASIDE. Civil Case No. TG-1155 is ordered REINSTATED and REMANDED to the court of origin for further proceedings. SO ORDERED.12 The Escobars elevated the appellate courts decision to the Supreme Court, but the petition was denied in a Minute Resolution dated February 12, 1996. The case was then remanded to the trial court on October 8, 1996. During trial, Luna died and was substituted by his heirs, herein respondents. 13 They submitted the case on the basis of the documentary evidence, arguing that, allegedly, the Court of Appeals had already ruled on the first appeal that the Escobars titles were void. On June 25, 1999, the RTC of Tagaytay City, Branch 18, rendered its decision. It rejected respondents argument that the appellate courts ruling in the first appeal constituted the law of the case, and proceeded to find the Escobars as purchasers in good faith and for value who were accordingly entitled to the benefits of the principle of indefeasibility of title. The trial court further ruled that respondents failed to prove their case for cancellation of TCT Nos. (T21294) T-13361 and (T-21295) T-13362 since the documentary evidence they submitted, not being supported by testimonial evidence, were hearsay. The dispositive portion of the trial courts decision reads: WHEREFORE, in the light of the foregoing premises and considerations, judgment is hereby rendered dismissing the complaint filed in the instant case for utter lack of merit, with costs against the plaintiffs.14 The trial court also denied respondents subsequent motion for reconsideration. 15 On appeal, the Court of Appeals held: WHEREFORE, premises considered, the trial courts June 25, 1999 Decision is hereby REVERSED and SET ASIDE and Transfer Certificate of Title Nos. (T-21294) T13361 and (T-21295) T-13362 are hereby DECLARED VOID AB INITIO. The Register of Deeds of Tagaytay City is hereby DIRECTED to cancel said Transfer Certificate of Title Nos. (T-21294) T-13361 and (T-21295) T-13362 and all titles derived therefrom. SO ORDERED.16 The appellate court ruled that the trial court should have resolved the issue framed in the decision in the first appeal, that is, whether OCT No. 5483 was valid. It was error for the court a quo to resolve the question of whether the Escobars were purchasers in good faith,

which would be irrelevant if said OCT was found invalid. The appellate court added that respondents documentary evidence, having been issued by government offices and duly certified by the appropriate personnel, were competent evidence and sufficiently proved that OCT No. 5483 was fictitious.17 Hence, this petition. In the petitioners Memorandum, the following issues were presented for our disposition: I. WHETHER OR NOT THE RULING OF THE COURT OF APPEALS IN THE FIRST APPEAL THAT THE TRIAL COURT MUST ASCERTAIN THE TECHNICAL AUTHENTICITY OF OCT [NO.] 5483 AMOUNTED TO THE "LAW OF THE CASE" WHICH BARS THE TRIAL COURT FROM CONSIDERING THE DEFENSE OF THE ESCOBARS THAT THEY WERE PURCHASERS OF THE PROPERTIES IN GOOD FAITH AND FOR VALUE; II. WHETHER OR NOT THE COURT OF APPEALS WAS RIGHT IN ADMITTING IN EVIDENCE THE CERTIFICATIONS LUNA SUBMITTED AT THE TRIAL AND IN DRAWING A CONCLUSION FROM THEM THAT OCT [NO.] 5483 WAS NONEXISTENT AND FICTITIOUS; III. WHETHER OR NOT THE ESCOBARS ARE ENTITLED TO PROTECTION FROM SUITS TO ANNUL THEIR TITLES, THEY BEING PURCHASERS IN GOOD FAITH AND FOR VALUE; AND IV. WHETHER OR NOT LUNA HAS THE RIGHT TO FILE THE SUIT TO ANNUL A REGISTERED TITLE ON THE GROUND OF FRAUD IN ITS ISSUANCE.18 Simply, the issues before us are: First, what is the law of the case here? Second, are respondents evidence admissible to prove the nullity of the TCTs in question? And third, are petitioners, being purchasers in good faith, entitled to protection from suits to annul their titles? On the first issue, petitioners state that the law of the case is that Luna had a cause of action based on his allegation that OCT No. 5483, the source of the titles of the Escobars, did not exist.19 Respondents counter that the law of the case is the determination of the intrinsic validity of the titles.20 In Kabankalan Catholic College v. Kabankalan Catholic College Union-PACIWUTUCP,21 we said that under the principle of the law of the case, whatever is irrevocably established as the controlling legal rule or decision between the same parties in the same case

continues to be the law of the case, so long as the facts on which the decision was predicated continues. Otherwise stated, the principle holds that once an appellate court has declared the law in a case, that declaration continues to hold even in a subsequent appeal. Reasons of public policy, judicial orderliness and economy require such stability in the final judgments of courts or tribunals of competent jurisdiction.22 In Baes v. Lutheran Church in the Philippines,23 we reiterated that the law of the case is the opinion delivered on a former appeal. It applies to an established rule that when an appellate court passes on a question and remands the case to the lower court for further proceedings, the question there settled becomes the law of the case upon subsequent appeal. As a rule, a decision on a prior appeal of the same case is held to be the law of the casewhether that question is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing.24 In this instance, the records show that the Court of Appeals in CA-G.R. CV No. 37139, the first appeal, resolved only the issue of whether the Order dated June 28, 1991 dismissing the second amended complaint was valid or not. The appellate court did not resolve any issue bearing on the merits of the cancellation case. As regards the merits of the case, therefore, there is no law of the case to speak of. The appellate court in CA-G.R. CV No. 37139 merely ordered the trial court to determine the intrinsic validity of the titles by probing into the technical data of OCT No. 5483, Decree No. 3465, and Survey Plan Psu-24039 among others. The appellate court said: Hence, an extensive investigation on this matter should have been pursued by the trial court. If it turns out that OCT No. 5483 is really non-existent, then the subject land could not be considered as having been covered by a Torrens Certificate of Title. Such being the case, it follows that the protection of the Land Registration Law given to purchasers in good faith of parcels of land covered by a Torrens Certificate of Title does not apply to the subject land. The rule is well settled that the Torrens System of land registration should not be used as a means to perpetrate fraud against the rightful owner of the real property. The defense of indefeasibility of a certificate of title will be disregarded when the transferee who took it had notice of the flaws in the transferors title. No right passed to a transferee from a vendor who did not have any in the first place. Likewise, it can be said that the action filed by plaintiff-appellant is not barred by prescription and laches, if it will be proven that OCT No. 5483 is void ab initio, for actions seeking for the annulment or cancellation of said fraudulent title do not prescribe. 25 With regard to the second issue, petitioners state that respondents evidence are inadmissible for being hearsay.26 Respondents counter that they constitute exceptions to the hearsay rule.27 We rule for respondents. Respondents evidence are competent evidence, having been issued by government offices, certified to by authorized personnel who were clothed with authority and duty to issue such certifications. In the case of People v. Lazaro,28 we held that the certification, without testimony of the person giving the certification, is sufficient and competent evidence which is an exception to the hearsay rule as provided in Section 44, 29 Rule

130 of the Revised Rules of Court. Section 44 should be read in conjunction with Section 28,30 Rule 132 of the same Rules which allows the admission of the said document. 31 Thus, applying People v. Lazaro to this case, the certification dated June 11, 1990 issued by Atty. Cainza-Valenton, who was duly authorized to issue the certification, stating that OCT No. 5483 was not existing in the files of the Registry of Deeds of the Province of Batangas and which confirmed that OCT No. 5483 was fictitious, making the titles derived from it spurious, is sufficient evidence for the stated purpose. The Register of Deeds of the Province of Batangas is the repository of all records regarding OCTs issued in that province, and the certification is therefore competent and admissible evidence to prove that the titles of the Escobars derived from it are from a fictitious source. The same holds true for (1) the certification32 of Mr. Felino M. Cortez, Chief of the Ordinary and Cadastral Decree Division, Land Registration Authority, stating that per CLR Record No. 3995, Decree No. 3465 was issued on February 23, 1909; and a copy of Decree No. 3465 which states that it was issued by the Court of First Instance of Batangas in Case No. 29, G.L.R.O. Record No. 2379 and that the subject matter of that Case No. 29 was the land situated in San Juan, Batangas not the land situated in Barrio Tolentino, Talisay, Batangas; (2) the reply-letter of Mr. Privadi JG. Dalire addressed to Engr. Ruperto T. del Carmen, stating that plan Psu-24039 was a survey of property located at Pinmaludpod, Urdaneta, Pangasinan, which is a long way from the Barrio Tolentino, Talisay, Batangas property; (3) the certification33 dated August 6, 1993 issued by Mr. Jose C. Mariano, Chief of the Records Management Division, Lands Management Bureau, DENR, certifying to the fact that his office has no available record of the alleged plan Psu-24039, which shows that Psu-24039 does not exist and it cannot serve as basis for the two titles; and (4) the certification 34 dated July 29, 1993 issued by Mr. Felino M. Cortez, certifying to the true and correct reproduction of page 140 of Survey Record Book No. 3, that there appears to be no entry corresponding to plan Psu-24039 indicating that said plan does not appear to have been the subject of an application for original registration under Act No. 496 as amended by P.D. No. 1529, which shows that the titles are spurious, having had spurious sources. Most significantly, these documents, which constitute certifications from government officials who are responsible for safeguarding the TCTs and OCTs in their possession because of their official capacity, have not been controverted as to their existence and due execution. Their existence was also never denied under oath.35 On the third issue, petitioners state that the law insulates registered titles obtained under the Torrens system from the dangers of frivolous suits.36 Respondents did not even bother to discuss the issue, and for good reason. Even if petitioners were innocent purchasers for value and in good faith, no right passed to a transferee from a vendor who did not have any right in the first place. Void ab initio land titles issued cannot ripen into private ownership.37A spring cannot rise higher than its source.38 WHEREFORE, the instant petition is DENIED for lack of merit. The Decision dated May 19, 2005 and Resolution dated August 4, 2005 of the Court of Appeals are AFFIRMED. Costs against petitioners. SO ORDERED.

THIRD DIVISION

SALES vs. SABINO x-----------------------------------------------------------------------------------x DECISION

GARCIA, J.:

Assailed and sought to be set aside in this petition for review on certiorari under Rule 45 of the Rules of Court are the following issuances of the Court of Appeals (CA) in CA-G.R. SP No. 44078, to wit: 1. Decision[1] dated January 20, 1998, affirming an earlier order of the Regional Trial Court, Branch 152, National Capital Judicial Region, which admitted the deposition of one Buaneres Corral as part of respondents evidence in an action for damages; and Resolution[2] dated March 22, 1998, denying petitioners motion for reconsideration.

2.

Briefly, the facts may be stated as follows: On February 20, 1995, in the Regional Trial Court (RTC) at Pasig City, Metro Manila, herein respondent Cyril A. Sabino filed an amended complaint [3] for damages against, among others, herein petitioner Jowel Sales, driver of the vehicle involved in the accident which ultimately caused the death of respondents son, Elbert.

Before any responsive pleading could be filed, respondent, as plaintiff a quo, notified the defendants that he will take the deposition of one Buaneres Corral before the Clerk of Court, RTC- Pasig City.

On December 27, 1995 and resumed on January 3, 1996, the deposition on oral examination of Buaneres Corral was taken before the Clerk of Court of Pasig, in the presence and with the active participation of petitioners counsel, Atty. Roldan Villacorta, who even

lengthily cross-examined the deponent. In the course of trial, respondent had the deposition of Buaneres Corral marked as her Exhibits DD[4] and EE[5], with submarkings.

1. Whether or not the requirements of Section 4, Rule 24 (now Section 3) of the Revised Rules of Court were satisfied by the respondent when it presented a certification attesting to the fact that deponent has left the country but silent as to whether or not at the time his deposition was offered in evidence is in the Philippines 2. Whether or not the petitioner in cross-examining the deponent during the taking of his deposition waived any and all objections in connection therewith.[12]

Upon conclusion of her evidentiary presentation, respondent made a Formal Offer of Exhibits,
[6]

among which are Exhibits DD and EE. Likewise offered in evidence as

Exhibit BB[7] is a certification from the Bureau of Immigration attesting to the May 28, 1996 departure for abroad of Buaneres Corral via Flight No. PR 658. The petition lacks merit.

Petitioner opposed the admission of Exhs. DD and EE and even asked that they be expunged from the records on the ground that the jurisdictional requirements for their admission under Section 4, Rule 23 of the Rules of Court, infra, were not complied with. He also downplayed the evidentiary value of Exhibit BB for reasons he would repeat in this petition.

Section 4, Rule 23[13] of the Rules of Court, upon which petitioner mounts his challenge to the admission in evidence of the subject deposition, pertinently reads: SEC. 4. Use of depositions.- At the trial . . . any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any of the following provisions: xxx xxx xxx

In its order of February 3, 1997,[8] the trial court admitted, among other evidence, respondents Exhibits DD, EE and BB. With his motion for reconsideration been denied by the court in its subsequent order of March 25, 1997,
[10] [9]

having

petitioner went

on certiorari to the Court of Appeals in CA-G.R. SP No. 44078, imputing grave abuse of discretion on the part of the trial court in admitting in evidence the deposition in question (Exhibits DD and EE).

As stated at the threshold hereof, the appellate court, in the herein assailed decision dated January 20, 1998,[11] upheld the trial court and effectively denied due course to and dismissed petitioners recourse, explaining, inter alia, that petitioners active participation, through counsel, during the taking of subject deposition and adopting it as his own exhibits, has thereby estopped him from assailing the admissibility thereof as part of respondents evidence. His motion for reconsideration having been denied by the appellate court in its equally assailed resolution of March 22, 1998, petitioner is now with us via the instant petition, raising the following issues of his own formulation:

(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exception circumstances exist and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. (Emphasis supplied).

It is petitioners posture that none of the above conditions exists in this case to justify the admission in evidence of respondents Exhibits DD and EE. Hence, it was error for the appellate court to have upheld the admission thereof by the trial court. Discounting the probative value of the certification from the Bureau of Immigration (Exh. BB) that deponent Buaneres Corral departed for abroad on May 28, 1996, petitioner argues that said certification

merely proves the fact of Corral having left the country on the date therein mentioned. It does not, however, establish that he has not returned since then and is unavailable to be present in court to personally testify.

it to state that, as a rule, the inadmissibility of testimony taken by deposition is anchored on the ground that such testimony is hearsay, i.e., the party against whom it is offered has no opportunity to cross-examine the deponent at the time his testimony is offered. But as jurisprudence teaches, it matters not that opportunity for cross-examination was afforded

While depositions may be used as evidence in court proceedings, they are generally not meant to be a substitute for the actual testimony in open court of a party or witness. Stated a bit differently, a deposition is not to be used when the deponent is at hand.
[14]

during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at the time the testimonial evidence is actually presented against him during the trial or hearing.[16] In fine, the act of cross-examining the deponent during the taking of the deposition cannot, without more, be considered a waiver of the right to object to its admissibility as evidence in the trial proper. In participating, therefore, in the taking of the deposition, but objecting to its admissibility in court as evidence, petitioner did not assume inconsistent positions. He is not, thus, estopped from challenging the admissibility of the deposition just because he participated in the taking thereof.

Indeed, any

deposition offered during a trial to prove the facts therein set out, in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground of hearsay. However, depositions may be used without the deponent being called to the witness stand by the proponent, provided the existence of certain conditions is first satisfactorily established. Five (5) exceptions for the admissibility of a deposition are listed in Section 4, Rule 23, supra, of the Rules of Court. Among these is when the witness is out of the Philippines.

Lest it be overlooked, Section 29, Rule 23 of the Rules of Court, no less, lends support to the conclusion just made. In gist, it provides that, while errors and irregularities in

The trial court had determined that deponent Bueneres Corral was abroad when the offer of his deposition was made. This factual finding of absence or unavailability of witness to testify deserves respect, having been adequately substantiated. As it were, the certification by the Bureau of Immigration Exh. BB- provides that evidentiary support. Accordingly, the attribution of grave abuse of discretion on the part of the trial court must be struck down. It has been said to be customary for courts to accept statements of parties as to the unavailability of a witness as a predicate to the use of depositions.[15] Had deponent Buaneres Corral indeed returned to the Philippines subsequent to his departure via Flight No. PR 658, petitioner could have presented evidence to show that such was the case. As it is, however, the petitioner does not even assert the return as a fact, only offering it as a possibility since no contrary proof had been adduced.

depositions as to notice, qualifications of the officer conducting the deposition, and manner of taking the deposition are deemed waived if not objected to before or during the taking of the deposition, objections to the competency of a witness or the competency, relevancy, or materiality of testimony may be made for the first time at the trial and need not be made at the time of the taking of the deposition, unless they could be obviated at that point.[17]

While perhaps a bit anti-climactic to state at this point, certiorari will not lie against an order admitting or rejecting a deposition in evidence, the remedy being an appeal from the final judgment.[18] For this singular reason alone, the appellate court could have had already dismissed herein petitioners invocation of its certiorari jurisdiction.

WHEREFORE, the instant petition is hereby DENIED. Given the foregoing perspective, the second issue of whether or not petitioner is estopped from objecting to the use of Corrals deposition as part of respondents evidence is really no longer determinative of the outcome of this case, and need not detain us long. Suffice G.R. No. 150157 January 25, 2007

MAURICIO MANLICLIC and PHILIPPINE RABBIT BUS LINES, INC., Petitioners, vs. MODESTO CALAUNAN, Respondent. DECISION CHICO-NAZARIO, J.: Assailed before Us is the decision1 of the Court of Appeals in CA-G.R. CV No. 55909 which affirmed in toto the decision2 of the Regional Trial Court (RTC) of Dagupan City, Branch 42, in Civil Case No. D-10086, finding petitioners Mauricio Manliclic and Philippine Rabbit Bus Lines, Inc. (PRBLI) solidarily liable to pay damages and attorneys fees to respondent Modesto Calaunan. The factual antecedents are as follows: The vehicles involved in this case are: (1) Philippine Rabbit Bus No. 353 with plate number CVD-478, owned by petitioner PRBLI and driven by petitioner Mauricio Manliclic; and (2) owner-type jeep with plate number PER-290, owned by respondent Modesto Calaunan and driven by Marcelo Mendoza. At around 6:00 to 7:00 oclock in the morning of 12 July 1988, respondent Calaunan, together with Marcelo Mendoza, was on his way to Manila from Pangasinan on board his owner-type jeep. The Philippine Rabbit Bus was likewise bound for Manila from Concepcion, Tarlac. At approximately Kilometer 40 of the North Luzon Expressway in Barangay Lalangan, Plaridel, Bulacan, the two vehicles collided. The front right side of the Philippine Rabbit Bus hit the rear left side of the jeep causing the latter to move to the shoulder on the right and then fall on a ditch with water resulting to further extensive damage. The bus veered to the left and stopped 7 to 8 meters from point of collision. Respondent suffered minor injuries while his driver was unhurt. He was first brought for treatment to the Manila Central University Hospital in Kalookan City by Oscar Buan, the conductor of the Philippine Rabbit Bus, and was later transferred to the Veterans Memorial Medical Center. By reason of such collision, a criminal case was filed before the RTC of Malolos, Bulacan, charging petitioner Manliclic with Reckless Imprudence Resulting in Damage to Property with Physical Injuries, docketed as Crim. Case No. 684-M-89. Subsequently on 2 December 1991, respondent filed a complaint for damages against petitioners Manliclic and PRBLI before the RTC of Dagupan City, docketed as Civil Case No. D-10086. The criminal case was tried ahead of the civil case. Among those who testified in the criminal case were respondent Calaunan, Marcelo Mendoza and Fernando Ramos. In the civil case (now before this Court), the parties admitted the following: 1. The parties agreed on the capacity of the parties to sue and be sued as well as the venue and the identities of the vehicles involved;

2. The identity of the drivers and the fact that they are duly licensed; 3. The date and place of the vehicular collision; 4. The extent of the injuries suffered by plaintiff Modesto Calaunan and the existence of the medical certificate; 5. That both vehicles were going towards the south; the private jeep being ahead of the bus; 6. That the weather was fair and the road was well paved and straight, although there was a ditch on the right side where the jeep fell into.3 When the civil case was heard, counsel for respondent prayed that the transcripts of stenographic notes (TSNs)4of the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case be received in evidence in the civil case in as much as these witnesses are not available to testify in the civil case. Francisco Tuliao testified that his brother-in-law, respondent Calaunan, left for abroad sometime in November, 1989 and has not returned since then. Rogelio Ramos took the stand and said that his brother, Fernando Ramos, left for Amman, Jordan, to work. Rosalia Mendoza testified that her husband, Marcelo Mendoza, left their residence to look for a job. She narrated that she thought her husband went to his hometown in Panique, Tarlac, when he did not return after one month. She went to her husbands hometown to look for him but she was informed that he did not go there.1awphil.net The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos, Bulacan, the court where Criminal Case No. 684-M-89 was tried, to bring the TSNs of the testimonies of respondent Calaunan,5 Marcelo Mendoza6 and Fernando Ramos7 in said case, together with other documentary evidence marked therein. Instead of the Branch Clerk of Court, it was Enrique Santos Guevara, Court Interpreter, who appeared before the court and identified the TSNs of the three afore-named witnesses and other pertinent documents he had brought.8 Counsel for respondent wanted to mark other TSNs and documents from the said criminal case to be adopted in the instant case, but since the same were not brought to the trial court, counsel for petitioners compromised that said TSNs and documents could be offered by counsel for respondent as rebuttal evidence. For the defendants, petitioner Manliclic and bus conductor Oscar Buan testified. The TSN9 of the testimony of Donato Ganiban, investigator of the PRBLI, in Criminal Case No. 684-M-89 was marked and allowed to be adopted in the civil case on the ground that he was already dead. Respondent further marked, among other documents, as rebuttal evidence, the TSNs 10 of the testimonies of Donato Ganiban, Oscar Buan and petitioner Manliclic in Criminal Case No. 684-M-89. The disagreement arises from the question: Who is to be held liable for the collision?

Respondent insists it was petitioner Manliclic who should be liable while the latter is resolute in saying it was the former who caused the smash up. The versions of the parties are summarized by the trial court as follows: The parties differed only on the manner the collision between the two (2) vehicles took place. According to the plaintiff and his driver, the jeep was cruising at the speed of 60 to 70 kilometers per hour on the slow lane of the expressway when the Philippine Rabbit Bus overtook the jeep and in the process of overtaking the jeep, the Philippine Rabbit Bus hit the rear of the jeep on the left side. At the time the Philippine Rabbit Bus hit the jeep, it was about to overtake the jeep. In other words, the Philippine Rabbit Bus was still at the back of the jeep when the jeep was hit. Fernando Ramos corroborated the testimony of the plaintiff and Marcelo Mendoza. He said that he was on another jeep following the Philippine Rabbit Bus and the jeep of plaintiff when the incident took place. He said, the jeep of the plaintiff overtook them and the said jeep of the plaintiff was followed by the Philippine Rabbit Bus which was running very fast. The bus also overtook the jeep in which he was riding. After that, he heard a loud sound. He saw the jeep of the plaintiff swerved to the right on a grassy portion of the road. The Philippine Rabbit Bus stopped and they overtook the Philippine Rabbit Bus so that it could not moved (sic), meaning they stopped in front of the Philippine Rabbit Bus. He testified that the jeep of plaintiff swerved to the right because it was bumped by the Philippine Rabbit bus from behind. Both Mauricio Manliclic and his driver, Oscar Buan admitted that the Philippine Rabbit Bus bumped the jeep in question. However, they explained that when the Philippine Rabbit bus was about to go to the left lane to overtake the jeep, the latter jeep swerved to the left because it was to overtake another jeep in front of it. Such was their testimony before the RTC in Malolos in the criminal case and before this Court in the instant case. [Thus, which of the two versions of the manner how the collision took place was correct, would be determinative of who between the two drivers was negligent in the operation of their respective vehicles.] 11 Petitioner PRBLI maintained that it observed and exercised the diligence of a good father of a family in the selection and supervision of its employee, specifically petitioner Manliclic. On 22 July 1996, the trial court rendered its decision in favor of respondent Calaunan and against petitioners Manliclic and PRBLI. The dispositive portion of its decision reads: WHEREFORE, judgment is rendered in favor of the plaintiff and against the defendants ordering the said defendants to pay plaintiff jointly and solidarily the amount of P40,838.00 as actual damages for the towing as well as the repair and the materials used for the repair of the jeep in question; P100,000.00 as moral damages and another P100,000.00 as exemplary damages and P15,000.00 as attorneys fees, including appearance fees of the lawyer. In addition, the defendants are also to pay costs.12 Petitioners appealed the decision via Notice of Appeal to the Court of Appeals.13 In a decision dated 28 September 2001, the Court of Appeals, finding no reversible error in the decision of the trial court, affirmed it in all respects.14

Petitioners are now before us by way of petition for review assailing the decision of the Court of Appeals. They assign as errors the following: I THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURTS QUESTIONABLE ADMISSION IN EVIDENCE OF THE TSNs AND OTHER DOCUMENTS PRESENTED IN THE CRIMINAL CASE. II THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURTS RELIANCE ON THE VERSION OF THE RESPONDENT ON HOW THE ACCIDENT SUPPOSEDLY OCCURRED. III THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURTS UNFAIR DISREGARD OF HEREIN PETITIONER PRBLs DEFENSE OF EXERCISE OF DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF ITS EMPLOYEES. IV THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURTS QUESTIONABLE AWARD OF DAMAGES AND ATTORNEYS FEE. With the passing away of respondent Calaunan during the pendency of this appeal with this Court, we granted the Motion for the Substitution of Respondent filed by his wife, Mrs. Precila Zarate Vda. De Calaunan, and children, Virgilio Calaunan, Carmelita Honeycomb, Evelyn Calaunan, Marko Calaunan and Liwayway Calaunan.15 In their Reply to respondents Comment, petitioners informed this Court of a Decision 16 of the Court of Appeals acquitting petitioner Manliclic of the charge17 of Reckless Imprudence Resulting in Damage to Property with Physical Injuries attaching thereto a photocopy thereof. On the first assigned error, petitioners argue that the TSNs containing the testimonies of respondent Calaunan,18Marcelo Mendoza19 and Fernando Ramos20 should not be admitted in evidence for failure of respondent to comply with the requisites of Section 47, Rule 130 of the Rules of Court. For Section 47, Rule 13021 to apply, the following requisites must be satisfied: (a) the witness is dead or unable to testify; (b) his testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (c) the former case involved the same subject as that in the present case, although on different causes of action; (d) the issue testified to by the witness in the former trial is the same

issue involved in the present case; and (e) the adverse party had an opportunity to crossexamine the witness in the former case.22 Admittedly, respondent failed to show the concurrence of all the requisites set forth by the Rules for a testimony given in a former case or proceeding to be admissible as an exception to the hearsay rule. Petitioner PRBLI, not being a party in Criminal Case No. 684-M-89, had no opportunity to cross-examine the three witnesses in said case. The criminal case was filed exclusively against petitioner Manliclic, petitioner PRBLIs employee. The cases dealing with the subsidiary liability of employers uniformly declare that, strictly speaking, they are not parties to the criminal cases instituted against their employees.23 Notwithstanding the fact that petitioner PRBLI was not a party in said criminal case, the testimonies of the three witnesses are still admissible on the ground that petitioner PRBLI failed to object on their admissibility. It is elementary that an objection shall be made at the time when an alleged inadmissible document is offered in evidence; otherwise, the objection shall be treated as waived, since the right to object is merely a privilege which the party may waive. Thus, a failure to except to the evidence because it does not conform to the statute is a waiver of the provisions of the law. Even assuming ex gratia argumenti that these documents are inadmissible for being hearsay, but on account of failure to object thereto, the same may be admitted and considered as sufficient to prove the facts therein asserted.24 Hearsay evidence alone may be insufficient to establish a fact in a suit but, when no objection is made thereto, it is, like any other evidence, to be considered and given the importance it deserves.25 In the case at bar, petitioner PRBLI did not object to the TSNs containing the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case when the same were offered in evidence in the trial court. In fact, the TSNs of the testimonies of Calaunan and Mendoza were admitted by both petitioners.26Moreover, petitioner PRBLI even offered in evidence the TSN containing the testimony of Donato Ganiban in the criminal case. If petitioner PRBLI argues that the TSNs of the testimonies of plaintiffs witnesses in the criminal case should not be admitted in the instant case, why then did it offer the TSN of the testimony of Ganiban which was given in the criminal case? It appears that petitioner PRBLI wants to have its cake and eat it too. It cannot argue that the TSNs of the testimonies of the witnesses of the adverse party in the criminal case should not be admitted and at the same time insist that the TSN of the testimony of the witness for the accused be admitted in its favor. To disallow admission in evidence of the TSNs of the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case and to admit the TSN of the testimony of Ganiban would be unfair. We do not subscribe to petitioner PRBLIs argument that it will be denied due process when the TSNs of the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case are to be admitted in the civil case. It is too late for petitioner PRBLI to raise denial of due process in relation to Section 47, Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of the TSNs. For failure to object at the proper time, it waived its right to object that the TSNs did not comply with Section 47. In Mangio v. Court of Appeals,27 this Court, through Associate Justice Reynato S. Puno,28 admitted in evidence a TSN of the testimony of a witness in another case despite therein petitioners assertion that he would be denied due process. In admitting the TSN, the

Court ruled that the raising of denial of due process in relation to Section 47, Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of the TSN was belatedly done. In so doing, therein petitioner waived his right to object based on said ground. Petitioners contend that the documents in the criminal case should not have been admitted in the instant civil case because Section 47 of Rule 130 refers only to "testimony or deposition." We find such contention to be untenable. Though said section speaks only of testimony and deposition, it does not mean that documents from a former case or proceeding cannot be admitted. Said documents can be admitted they being part of the testimonies of witnesses that have been admitted. Accordingly, they shall be given the same weight as that to which the testimony may be entitled.29 On the second assigned error, petitioners contend that the version of petitioner Manliclic as to how the accident occurred is more credible than respondents version. They anchor their contention on the fact that petitioner Manliclic was acquitted by the Court of Appeals of the charge of Reckless Imprudence Resulting in Damage to Property with Physical Injuries. To be resolved by the Court is the effect of petitioner Manliclics acquittal in the civil case. From the complaint, it can be gathered that the civil case for damages was one arising from, or based on, quasi-delict.30 Petitioner Manliclic was sued for his negligence or reckless imprudence in causing the collision, while petitioner PRBLI was sued for its failure to exercise the diligence of a good father in the selection and supervision of its employees, particularly petitioner Manliclic. The allegations read: "4. That sometime on July 12, 1988 at around 6:20 A.M. plaintiff was on board the above-described motor vehicle travelling at a moderate speed along the North Luzon Expressway heading South towards Manila together with MARCELO MENDOZA, who was then driving the same; "5. That approximately at kilometer 40 of the North Luzon Express Way, the abovedescribed motor vehicle was suddenly bumped from behind by a Philippine Rabbit Bus with Body No. 353 and with plate No. CVD 478 then being driven by one Mauricio Manliclic of San Jose, Concepcion, Tarlac, who was then travelling recklessly at a very fast speed and had apparently lost control of his vehicle; "6. That as a result of the impact of the collision the above-described motor vehicle was forced off the North Luzon Express Way towards the rightside where it fell on its drivers side on a ditch, and that as a consequence, the above-described motor vehicle which maybe valued at EIGHTY THOUSAND PESOS (P80,000) was rendered a total wreck as shown by pictures to be presented during the pre-trial and trial of this case; "7. That also as a result of said incident, plaintiff sustained bodily injuries which compounded plaintiffs frail physical condition and required his hospitalization from July 12, 1988 up to and until July 22, 1988, copy of the medical certificate is hereto attached as Annex "A" and made an integral part hereof;

"8. That the vehicular collision resulting in the total wreckage of the abovedescribed motor vehicle as well as bodily (sic) sustained by plaintiff, was solely due to the reckless imprudence of the defendant driver Mauricio Manliclic who drove his Philippine Rabbit Bus No. 353 at a fast speed without due regard or observance of existing traffic rules and regulations; "9. That defendant Philippine Rabbit Bus Line Corporation failed to exercise the diligence of a good father of (sic) family in the selection and supervision of its drivers; x x x"31 Can Manliclic still be held liable for the collision and be found negligent notwithstanding the declaration of the Court of Appeals that there was an absence of negligence on his part? In exonerating petitioner Manliclic in the criminal case, the Court of Appeals said: To the following findings of the court a quo, to wit: that accused-appellant was negligent "when the bus he was driving bumped the jeep from behind"; that "the proximate cause of the accident was his having driven the bus at a great speed while closely following the jeep"; x x x We do not agree. The swerving of Calaunans jeep when it tried to overtake the vehicle in front of it was beyond the control of accused-appellant. xxxx Absent evidence of negligence, therefore, accused-appellant cannot be held liable for Reckless Imprudence Resulting in Damage to Property with Physical Injuries as defined in Article 365 of the Revised Penal Code.32 From the foregoing declaration of the Court of Appeals, it appears that petitioner Manliclic was acquitted not on reasonable doubt, but on the ground that he is not the author of the act complained of which is based on Section 2(b) of Rule 111 of the Rules of Criminal Procedure which reads: (b) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In spite of said ruling, petitioner Manliclic can still be held liable for the mishap. The aforequoted section applies only to a civil action arising from crime or ex delicto and not to a civil action arising from quasi-delict or culpa aquiliana. The extinction of civil liability referred to in Par. (e) of Section 3, Rule 111 [now Section 2 (b) of 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 a 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.33

A quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart and independent from a delict or crime a distinction exists between the civil liability arising from a crime and the responsibility for quasi-delicts or culpa extra-contractual. The same negligence causing damages may produce civil liability arising from a crime under the Penal Code, or create an action for quasi-delicts or culpa extra-contractual under the Civil Code.34 It is now settled that acquittal of the accused, even if based on a finding that he is not guilty, does not carry with it the extinction of the civil liability based on quasi delict. 35 In other words, if an accused is acquitted based on reasonable doubt on his guilt, his civil liability arising from the crime may be proved by preponderance of evidence only. However, if an accused is acquitted on the basis that he was not the author of the act or omission complained of (or that there is declaration in a final judgment that the fact from which the civil might arise did not exist), said acquittal closes the door to civil liability based on the crime or ex delicto. In this second instance, there being no crime or delict to speak of, civil liability based thereon or ex delicto is not possible. In this case, a civil action, if any, may be instituted on grounds other than the delict complained of. As regards civil liability arising from quasi-delict or culpa aquiliana, same will not be extinguished by an acquittal, whether it be on ground of reasonable doubt or that accused was not the author of the act or omission complained of (or that there is declaration in a final judgment that the fact from which the civil liability might arise did not exist). The responsibility arising from fault or negligence in a quasi-delict is entirely separate and distinct from the civil liability arising from negligence under the Penal Code.36 An acquittal or conviction in the criminal case is entirely irrelevant in the civil case 37 based on quasi-delict or culpa aquiliana. Petitioners ask us to give credence to their version of how the collision occurred and to disregard that of respondents. Petitioners insist that while the PRBLI bus was in the process of overtaking respondents jeep, the latter, without warning, suddenly swerved to the left (fast) lane in order to overtake another jeep ahead of it, thus causing the collision. As a general rule, questions of fact may not be raised in a petition for review. The factual findings of the trial court, especially when affirmed by the appellate court, are binding and conclusive on the Supreme Court.38 Not being a trier of facts, this Court will not allow a review thereof unless: (1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellant and appellees; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said findings of fact are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and (10) the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.39 After going over the evidence on record, we do not find any of the exceptions that would warrant our departure from the general rule. We fully agree in the finding of the trial court, as

affirmed by the Court of Appeals, that it was petitioner Manliclic who was negligent in driving the PRBLI bus which was the cause of the collision. In giving credence to the version of the respondent, the trial court has this say: x x x Thus, which of the two versions of the manner how the collision took place was correct, would be determinative of who between the two drivers was negligent in the operation of their respective vehicle. In this regard, it should be noted that in the statement of Mauricio Manliclic (Exh. 15) given to the Philippine Rabbit Investigator CV Cabading no mention was made by him about the fact that the driver of the jeep was overtaking another jeep when the collision took place. The allegation that another jeep was being overtaken by the jeep of Calaunan was testified to by him only in Crim. Case No. 684-M-89 before the Regional Trial Court in Malolos, Bulacan and before this Court. Evidently, it was a product of an afterthought on the part of Mauricio Manliclic so that he could explain why he should not be held responsible for the incident. His attempt to veer away from the truth was also apparent when it would be considered that in his statement given to the Philippine Rabbit Investigator CV Cabading (Exh. 15), he alleged that the Philippine Rabbit Bus bumped the jeep of Calaunan while the Philippine Rabbit Bus was behind the said jeep. In his testimony before the Regional Trial Court in Malolos, Bulacan as well as in this Court, he alleged that the Philippine Rabbit Bus was already on the left side of the jeep when the collision took place. For this inconsistency between his statement and testimony, his explanation regarding the manner of how the collision between the jeep and the bus took place should be taken with caution. It might be true that in the statement of Oscar Buan given to the Philippine Rabbit Investigator CV Cabading, it was mentioned by the former that the jeep of plaintiff was in the act of overtaking another jeep when the collision between the latter jeep and the Philippine Rabbit Bus took place. But the fact, however, that his statement was given on July 15, 1988, one day after Mauricio Manliclic gave his statement should not escape attention. The one-day difference between the giving of the two statements would be significant enough to entertain the possibility of Oscar Buan having received legal advise before giving his statement. Apart from that, as between his statement and the statement of Manliclic himself, the statement of the latter should prevail. Besides, in his Affidavit of March 10, 1989, (Exh. 14), the unreliability of the statement of Oscar Buan (Exh. 13) given to CV Cabading rear its "ugly head" when he did not mention in said affidavit that the jeep of Calaunan was trying to overtake another jeep when the collision between the jeep in question and the Philippine Rabbit bus took place. xxxx If one would believe the testimony of the defendant, Mauricio Manliclic, and his conductor, Oscar Buan, that the Philippine Rabbit Bus was already somewhat parallel to the jeep when the collision took place, the point of collision on the jeep should have been somewhat on the left side thereof rather than on its rear. Furthermore, the jeep should have fallen on the road itself rather than having been forced off the road. Useless, likewise to emphasize that the Philippine Rabbit was running very fast as testified to by Ramos which was not controverted by the defendants.40 Having ruled that it was petitioner Manliclics negligence that caused the smash up, there arises the juris tantum presumption that the employer is negligent, rebuttable only by proof of observance of the diligence of a good father of a family. 41 Under Article 218042 of the New Civil Code, 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. 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. 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.43 In the case at bar, petitioner PRBLI maintains that it had shown that it exercised the required diligence in the selection and supervision of its employees, particularly petitioner Manliclic. In the matter of selection, it showed the screening process that petitioner Manliclic underwent before he became a regular driver. As to the exercise of due diligence in the supervision of its employees, it argues that presence of ready investigators (Ganiban and Cabading) is sufficient proof that it exercised the required due diligence in the supervision of its employees. In the selection of prospective employees, employers are required to examine them as to their qualifications, experience and service records. In the supervision of employees, the employer must formulate standard operating procedures, monitor their implementation and impose disciplinary measures for the breach thereof. To fend off vicarious liability, employers must submit concrete proof, including documentary evidence, that they complied with everything that was incumbent on them.44 In Metro Manila Transit Corporation v. Court of Appeals,45 it was explained that: Due diligence in the supervision of employees on the other hand, includes the formulation of suitable rules and regulations for the guidance of employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his or its employees and the imposition of necessary disciplinary measures upon employees in case of breach or as may be warranted to ensure the performance of acts indispensable to the business of and beneficial to their employer. To this, we add that actual implementation and monitoring of consistent compliance with said rules should be the constant concern of the employer, acting through dependable supervisors who should regularly report on their supervisory functions. In order that the defense of due diligence in the selection and supervision of employees may be deemed sufficient and plausible, it is not enough to emptily invoke the existence of said company guidelines and policies on hiring and supervision. As the negligence of the employee gives rise to the presumption of negligence on the part of the employer, the latter has the burden of proving that it has been diligent not only in the selection of employees but also in the actual supervision of their work. The mere allegation of the existence of hiring procedures and supervisory policies, without anything more, is decidedly not sufficient to overcome such presumption. We emphatically reiterate our holding, as a warning to all employers, that "the formulation of various company policies on safety without showing that they were being complied with is not sufficient to exempt petitioner from liability arising from negligence of its employees. It is incumbent upon petitioner to show that in recruiting and employing the erring driver the recruitment procedures and company policies on efficiency and safety were followed." x x x.

The trial court found that petitioner PRBLI exercised the diligence of a good father of a family in the selection but not in the supervision of its employees. It expounded as follows: From the evidence of the defendants, it seems that the Philippine Rabbit Bus Lines has a very good procedure of recruiting its driver as well as in the maintenance of its vehicles. There is no evidence though that it is as good in the supervision of its personnel. There has been no iota of evidence introduced by it that there are rules promulgated by the bus company regarding the safe operation of its vehicle and in the way its driver should manage and operate the vehicles assigned to them. There is no showing that somebody in the bus company has been employed to oversee how its driver should behave while operating their vehicles without courting incidents similar to the herein case. In regard to supervision, it is not difficult to observe that the Philippine Rabbit Bus Lines, Inc. has been negligent as an employer and it should be made responsible for the acts of its employees, particularly the driver involved in this case. We agree. The presence of ready investigators after the occurrence of the accident is not enough to exempt petitioner PRBLI from liability arising from the negligence of petitioner Manliclic. Same does not comply with the guidelines set forth in the cases above-mentioned. The presence of the investigators after the accident is not enough supervision. Regular supervision of employees, that is, prior to any accident, should have been shown and established. This, petitioner failed to do. The lack of supervision can further be seen by the fact that there is only one set of manual containing the rules and regulations for all the drivers of PRBLI. 46 How then can all the drivers of petitioner PRBLI know and be continually informed of the rules and regulations when only one manual is being lent to all the drivers? For failure to adduce proof that it exercised the diligence of a good father of a family in the selection and supervision of its employees, petitioner PRBLI is held solidarily responsible for the damages caused by petitioner Manliclics negligence. We now go to the award of damages. The trial court correctly awarded the amount of P40,838.00 as actual damages representing the amount paid by respondent for the towing and repair of his jeep.47 As regards the awards for moral and exemplary damages, same, under the circumstances, must be modified. The P100,000.00 awarded by the trial court as moral damages must be reduced to P50,000.00.48 Exemplary damages are imposed by way of example or correction for the public good.49 The amount awarded by the trial court must, likewise, be lowered to P50,000.00.50 The award of P15,000.00 for attorneys fees and expenses of litigation is in order and authorized by law.51 WHEREFORE, premises considered, the instant petition for review is DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 55909 is AFFIRMED with the MODIFICATION that (1) the award of moral damages shall be reduced to P50,000.00; and (2) the award of exemplary damages shall be lowered to P50,000.00. Costs against petitioners. SO ORDERED.