The case is an appeal via certiorari from the amended decision1 [In CA-G. R. CR No. 14448, promulgated on January 6, 1997.] of the Court of Appeals2 [Ibay-Somera, J., ponente, Lipana-Reyes+, and Vasquez, JJ., concurring.] affirming the decision and supplemental decision of the trial court,3 [Dated June 6, 1992, and October 26, 1992, respectively, in Consolidated Criminal Case No. Br. 19-311 and Civil Case No. Br. 19-424, Regional Trial Court, Cauayan, Isabela, Judge Artemio R. Alivia, presiding.] as follows:

The facts are as follows:

On October 10, 1989, Provincial Prosecutor Patricio T. Durian of Isabela filed with the Regional Trial Court, Isabela, Branch 19, Cauayan an amended information charging Romeo Dunca y de Tumol with reckless imprudence resulting in double homicide and damage to property, reading as follows:

"(Sgd.) FAUSTO C. CABANTAC
"Third Assistant Provincial Prosecutor"

Upon arraignment on October 23, 1989, the accused entered a plea of not guilty. On the same occasion, the offended parties (Rosario P. Dy and minor children and Angelina M. Balcita and minor son Paolo) made a reservation to file a separate civil action against the accused arising from the offense charged.5 [See Manifestation, Rollo, p. 55.] On November 29, 1989, the offended parties actually filed with the Regional Trial Court, Isabela, Branch 19, Cauayan a complaint against petitioner Rafael Reyes Trucking Corporation, as employer of driver Romeo Dunca y de Tumol, based on quasi delict. The petitioner settled the claim of the heirs of Feliciano Balcita (the driver of the other vehicle involved in the accident). The private respondents opted to pursue the criminal action but did not withdraw the civil case quasi ex delicto they filed against petitioner. On December 15, 1989, private respondents withdrew the reservation to file a separate civil action against the accused and manifested that they would prosecute the civil aspect ex delicto in the criminal action.6 [Ibid., pp. 55-56.] However, they did not withdraw the separate civil action based on quasi delict against petitioner as employer arising from the same act or omission of the accused driver.7 [Civil Case No. Br. 19-424.]

Upon agreement of the parties, the trial court consolidated both criminal and civil cases and conducted a joint trial of the same.

The facts, as found by the trial court, which appear to be undisputed, are as follows:

On June 6, 1992, the trial court rendered a joint decision, the dispositive portion of which reads as follows:

"(Sgd.) ARTEMIO R. ALIVIA
"Regional Trial Judge"9
[Petition, Annex "F", Rollo, pp. 64-80.]

On September 3, 1992, petitioner and the accused filed a notice of appeal from the joint decision.10 [Rollo, pp. 81-82.]

On the other hand, private respondents moved for amendment of the dispositive portion of the joint decision so as to hold petitioner subsidiarily liable for the damages awarded to the private respondents in the event of insolvency of the accused.11 [It is not indicated when the motion for amendment of the trial court’s decision was filed, but this fact is mentioned in the trial court’s supplemental decision of October 26, 1992.]

On October 26, 1992, the trial court rendered a supplemental decision amending the dispositive portion by inserting an additional paragraph reading as follows:

On November 12, 1992, petitioner filed with the trial court a supplemental notice of appeal from the supplemental decision.13 [Rollo, pp. 85-86.]

During the pendency of the appeal, the accused jumped bail and fled to a foreign country. By resolution dated December 29, 1994, the Court of Appeals dismissed the appeal of the accused in the criminal case.14 [CA Record, pp. 92-94.]

On January 6, 1997, the Court of Appeals rendered an amended decision affirming that of the trial court, as set out in the opening paragraph of this decision.15 [Rollo, pp. 35-43.]

On January 31, 1997, petitioner filed a motion for reconsideration of the amended decision.16 [Petition, Annex "J", Rollo, pp. 87-91.]

On April 21, 1997, the Court of Appeals denied petitioner’s motion for reconsideration for lack of merit.17 [Rollo, p. 45.]

Hence, this petition for review.18 [Filed on June 13, 1997, Rollo, pp. 11-33.]

On July 21, 1997, the Court required respondents to comment on the petition within ten (10) days from notice.19 [Rollo, p. 96.]

On January 27, 1998, the Solicitor General filed his comment.20 [Rollo, pp. 114-120.] On April 13, 1998, the Court granted leave to petitioner to file a reply and noted the reply it filed on March 11, 1998.21 [Rollo, p. 133.]

We now resolve to give due course to the petition and decide the case.

Petitioner raises three (3) grounds for allowance of the petition, which, however, boil down to two (2) basic issues, namely:

We grant the petition, resolving under the circumstances pro hac vice to remand the cases to the trial court for determination of the civil liability of petitioner as employer of the accused driver in the civil action quasi ex delicto re-opened for the purpose.

In negligence cases, the aggrieved party has the choice between (1) an action to enforce civil liability arising from crime under Article 100 of the Revised Penal Code; and (2) a separate action for quasi delict under Article 2176 of the Civil Code of the Philippines. Once the choice is made, the injured party can not avail himself of any other remedy because he may not recover damages twice for the same negligent act or omission of the accused.23 [Rule 111, Section 1, paragraph 5, 1985 Rules on Criminal Procedure; Article 2177, Civil Code; Virata vs. Ochoa, 81 SCRA 472 (1978)] This is the rule against double recovery.

In other words, "the same act or omission can create two kinds of liability on the part of the offender, that is, civil liability ex delicto, and civil liability quasi delicto" either of which "may be enforced against the culprit, subject to the caveat under Article 2177 of the Civil Code that the offended party can not recover damages under both types of liability."24 [Jarantilla vs. Court of Appeals, 171 SCRA 429, 436 (1989)]

In the instant case, the offended parties elected to file a separate civil action for damages against petitioner as employer of the accused, based on quasi delict, under Article 2176 of the Civil Code of the Philippines. Private respondents sued petitioner Rafael Reyes Trucking Corporation, as the employer of the accused, to be vicariously liable for the fault or negligence of the latter. Under the law, this vicarious liability of the employer is founded on at least two specific provisions of law.

The first is expressed in Article 2176 in relation to Article 2180 of the Civil Code, which would allow an action predicated on quasi-delict to be instituted by the injured party against the employer for an act or omission of the employee and would necessitate only a preponderance of evidence to prevail. Here, the liability of the employer for the negligent conduct of the subordinate is direct and primary, subject to the defense of due diligence in the selection and supervision of the employee. The enforcement of the judgment against the employer in an action based on Article 2176 does not require the employee to be insolvent since the nature of the liability of the employer with that of the employee, the two being statutorily considered joint tortfeasors, is solidary.25 [Article 2194, Civil Code of the Philippines.] The second, predicated on Article 103 of the Revised Penal Code, provides that an employer may be held subsidiarily civilly liable for a felony committed by his employee in the discharge of his duty. This liability attaches when the employee is convicted of a crime done in the performance of his work and is found to be insolvent that renders him unable to properly respond to the civil liability adjudged.26 [Franco vs. Intermediate Appellate Court, 178 SCRA 331, 338 (1989)]

As regards the first issue, the answer is in the negative. Rafael Reyes Trucking Corporation, as employer of the accused who has been adjudged guilty in the criminal case for reckless imprudence, can not be held subsidiarily liable because of the filing of the separate civil action based on quasi delict against it. In view of the reservation to file, and the subsequent filing of the civil action for recovery of civil liability, the same was not instituted with the criminal action. Such separate civil action was for recovery of damages under Article 2176 of the Civil Code, arising from the same act or omission of the accused.27 [Maniago vs. Court of Appeals, 253 SCRA 674, 681(1996)]

Pursuant to the provision of Rule 111, Section 1, paragraph 3 of the 1985 Rules of Criminal Procedure, when private respondents, as complainants in the criminal action, reserved the right to file the separate civil action, they waived other available civil actions predicated on the same act or omission of the accused-driver. Such civil action includes the recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, and 34 of the Civil Code of the Philippines arising from the same act or omission of the accused.28 [Rule 111, Section 1, paragraph 2, 1985 Rules on Criminal Procedure.]

The intention of private respondents to proceed primarily and directly against petitioner as employer of accused truck driver became clearer when they did not ask for the dismissal of the civil action against the latter based on quasi delict.

Consequently, the Court of Appeals and the trial court erred in holding the accused civilly liable, and petitioner-employer of the accused subsidiarily liable for damages arising from crime (ex delicto) in the criminal action as the offended parties in fact filed a separate civil action against the employer based on quasi delict resulting in the waiver of the civil action ex delicto.

It might be argued that private respondents as complainants in the criminal case withdrew the reservation to file a civil action against the driver (accused) and manifested that they would pursue the civil liability of the driver in the criminal action. However, the withdrawal is ineffective to reverse the effect of the reservation earlier made because private respondents did not withdraw the civil action against petitioner based on quasi delict. In such a case, the provision of Rule 111, Section 1, paragraph 3 of the 1985 Rules on Criminal Procedure is clear that the reservation to file or the filing of a separate civil action results in a waiver of other available civil actions arising from the same act or omission of the accused. Rule 111, Section 1, paragraph 2 enumerated what are the civil actions deemed waived upon such reservation or filing, and one of which is the civil indemnity under the Revised Penal Code. Rule 111, Section 1, paragraph 3 of the 1985 Rules on Criminal Procedure specifically provides:

The rationale behind this rule is the avoidance of multiple suits between the same litigants arising out of the same act or omission of the offender. The restrictive phraseology of the section under consideration is meant to cover all kinds of civil actions, regardless of their source in law, provided that the action has for its basis the same act or omission of the offender.29 [Pamaran, The 1985 Rules on Criminal Procedure Annotated, 1998 edition, pp. 128-129.]

However, petitioner as defendant in the separate civil action for damages filed against it, based on quasi delict, may be held liable thereon. Thus, the trial court grievously erred in dismissing plaintiff’s civil complaint. And the Court of Appeals erred in affirming the trial court’s decision. Unfortunately private respondents did not appeal from such dismissal and could not be granted affirmative relief.30 [Policarpio vs. Court of Appeals, 269 SCRA 344, 357 (1997)]

The Court, however, in exceptional cases has relaxed the rules "in order to promote their objectives and assist the parties in obtaining just, speedy, and inexpensive determination of every action or proceeding"31 [Nerves vs. Civil Service Commission, 276 SCRA 610, 617 (1997)] or exempted "a particular case from the operation of the rules."32 [Blanco vs. Bernabe, 63 Phil. 124 (1936)]

Invoking this principle, we rule that the trial court erred in awarding civil damages in the criminal case and in dismissing the civil action. Apparently satisfied with such award, private respondent did not appeal from the dismissal of the civil case. However, petitioner did appeal. Hence, this case should be remanded to the trial court so that it may render decision in the civil case awarding damages as may be warranted by the evidence.33 [Guaring, Jr. vs. Court of Appeals, 336 Phil. 274, 283 (1997)]

With regard to the second issue, the award of damages in the criminal case was improper because the civil action for the recovery of civil liability was waived in the criminal action by the filing of a separate civil action against the employer. As enunciated in Ramos vs. Gonong,34 [72 SCRA 562, 566 (1976)] "civil indemnity is not part of the penalty for the crime committed." The only issue brought before the trial court in the criminal action is whether accused Romeo Dunca y de Tumol is guilty of reckless imprudence resulting in homicide and damage to property. The action for recovery of civil liability is not included therein, but is covered by the separate civil action filed against the petitioner as employer of the accused truck-driver.

In this case, accused-driver jumped bail pending his appeal from his conviction. Thus, the judgment convicting the accused became final and executory, but only insofar as the penalty in the criminal action is concerned. The damages awarded in the criminal action was invalid because of its effective waiver. The pronouncement was void because the action for recovery of the civil liability arising from the crime has been waived in said criminal action.

With respect to the issue that the award of damages in the criminal action exceeded the amount of damages alleged in the amended information, the issue is de minimis. At any rate, the trial court erred in awarding damages in the criminal case because by virtue of the reservation of the right to bring a separate civil action or the filing thereof, "there would be no possibility that the employer would be held liable because in such a case there would be no pronouncement as to the civil liability of the accused.35 [Maniago vs. Court of Appeals, supra, at p. 686.]

As a final note, we reiterate that "the policy against double recovery requires that only one action be maintained for the same act or omission whether the action is brought against the employee or against his employer.36 [Maniago vs. Court of Appeals, supra, at p. 687.] The injured party must choose which of the available causes of action for damages he will bring.37 [Barredo vs. Garcia, 73 Phil. 607 (1942), reiterated in Maniago vs. Court of Appeals, supra.]

Parenthetically, the trial court found the accused "guilty beyond reasonable doubt of the crime of Double Homicide Through Reckless Imprudence with violation of the Motor Vehicle Law (Rep. Act No. 4136)." There is no such nomenclature of an offense under the Revised Penal Code. Thus, the trial court was misled to sentence the accused "to suffer two (2) indeterminate penalties of four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, six (6) months and twenty (20) days of prision correccional, as maximum." This is erroneous because in reckless imprudence cases, the actual penalty for criminal negligence bears no relation to the individual willful crime or crimes committed, but is set in relation to a whole class, or series of crimes.38 [Quizon vs. The Justice of the Peace of Pampanga, 97 Phil. 342, 346 (1955)]

Unfortunately, we can no longer correct this judgment even if erroneous, as it is, because it has become final and executory.

Under Article 365 of the Revised Penal Code, criminal negligence "is treated as a mere quasi offense, and dealt with separately from willful offenses. It is not a question of classification or terminology. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. Much of the confusion has arisen from the common use of such descriptive phrase as ‘homicide through reckless imprudence’, and the like; when the strict technical sense is, more accurately, ‘reckless imprudence resulting in homicide’; or ‘simple imprudence causing damages to property’."39 [Quizon vs. The Justice of the Peace of Pampanga, supra, at p. 345.]

There is need, therefore, to rectify the designation of the offense without disturbing the imposed penalty for the guidance of bench and bar in strict adherence to precedent.

WHEREFORE, the Court GRANTS the petition and SETS ASIDE the amended decision and resolution of the Court of Appeals in CA-G. R. CR No. 14448, promulgated on January 6, 1997, and the joint decision of the Regional Trial Court, Isabela, Branch 19, Cauayan, in Criminal Case No. Br. 19-311 and Civil Case No. Br. 19-424, dated June 6, 1992.

IN LIEU THEREOF, the Court renders judgment as follows:

(1) In Criminal Case No. Br. 19-311, the Court declares the accused Romeo Dunca y de Tumol guilty beyond reasonable doubt of reckless imprudence resulting in homicide and damage to property, defined and penalized under Article 365, paragraph 2 of the Revised Penal Code, with violation of the automobile law (R. A. No. 4136, as amended), and sentences him to suffer two (2) indeterminate penalties of four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, six (6) months and twenty (20) days of prision correccional, as maximum,40 [This was the penalty imposed by the trial court, which has become final and executory.] without indemnity, and to pay the costs, and

(2) In Civil Case No. Br. 19-424, the Court orders the case re-opened to determine the liability of the defendant Rafael Reyes Trucking Corporation to plaintiffs and that of plaintiffs on defendant’s counterclaim.

No costs in this instance.

Bellosillo, Melo, Kapunan, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Davide, Jr., C.J. see dissenting opinion.

Puno, J., concur but pro hac vice.

Vitug, J., see separate opinion.

Mendoza, J., see dissenting opinion.

Panganiban, J., in the result.

Quisumbing. J., concur in separate opinion of J. Vitug.

Purisima, J., join Justice Mendoza’s dissenting opinion.