FIRST DIVISION

[G.R. No. 127934. August 23, 2000]

ACE HAULERS CORPORATION, petitioner, vs. THE HONORABLE COURT OF APPEALS AND EDERLINDA ABIVA, respondents.

D E C I S I O N

PARDO, J.:

The case is an appeal via certiorari seeking to set aside the decision of the Court of Appeals¹^[In CA-G.R. CV No. 49050, promulgated on January 17, 1997, Imperial, J., ponente, Guerrero and Agcaoili, JJ., concurring, , Rollo, pp. 28-41.] affirming that of the Regional Trial Court, Quezon City, Branch 106, except for the award of thirty thousand pesos (P30,000.00) as exemplary damages, which was deleted. The dispositive portion of the trial court's decision reads as follows:

“WHEREFORE, judgment is hereby rendered ordering the defendant to pay plaintiff:

“1. the amount of Two Hundred Thousand (P200,000.00) as actual damages;

“2. the amount of Fifty Thousand (P50,000.00) as moral damages;

“3. the amount of Thirty Thousand (P30,000.00) as exemplary damages;

“4. the amount of Thirty Thousand (P30,000.00) as attorney’s fees;

“5. Costs of suit.

“SO ORDERED.”²^[Petition, Annex “A”, Rollo, pp. 28-41.]

The facts, culled from the findings of the Court of Appeals, are as follows:

“The case was an action for damages arising from a vehicular mishap which took place on June 1, 1984, involving a truck owned by petitioner Ace Haulers Corporation and driven by its employee, Jesus dela Cruz, and a jeepney owned by Isabelito Rivera, driven by Rodolfo Parma. A third vehicle, a motorcycle, was bumped and dragged by the jeepney, and its rider, Fidel Abiva, was run over by the truck owned by petitioner Ace Haulers Corporation, causing his death. Upon his untimely demise, Fidel Abiva left behind a wife, respondent Erderlinda Abiva and their three (3) children.

“On July 27, 1984, a criminal information for reckless imprudence resulting in homicide was filed against the two drivers, Dela Cruz and Parma, docketed as Criminal Case No. Q-37248 before the RTC of Quezon City, Branch 103.

“While the criminal action was pending, on March 11, 1985, respondent Ederlinda Abiva filed with the Regional Trial Court, Quezon City, Branch 93, a separate civil action for damages against the two accused in the criminal case, as well as against Isabelito Rivera and petitioner Ace Haulers Corp., the owners of the vehicles involved in the accident and employers of the accused.

“In her complaint, respondent Abiva prayed that:

“1. A Writ of Preliminary Attachment be immediately issued against the properties of the defendants as security for the satisfaction of any judgment that may be recovered;

“2. Defendants in solidum, to pay plaintiff the amount of P200,000.00 as actual damage;

“3. Defendants, in solidum, to pay plaintiff the sum of P50,000.00 as attorney’s fees;

“4. Defendants, in solidum, to pay plaintiff the amount of moral and exemplary damages which this Court may reasonably assess.”

“On January 31, 1986, petitioner Ace Haulers Corp. and Jesus dela Cruz filed a motion to dismiss bringing to the trial court’s attention the fact that a criminal action was pending before another branch of the same court, and that under the 1985 Rules on Criminal Procedure, the filing of an independent civil action arising from a quasi-delict is no longer allowed. Furthermore, said defendants alleged that respondent’s private counsel actively participated in the criminal proceedings, showing that the respondent was in fact pursuing the civil aspect automatically instituted with the criminal case.

“On February 21, 1986, respondent filed an opposition to the motion arguing that she was not pursuing the civil aspect in the criminal case as she, in fact, manifested in open court in the criminal proceedings that she was filing a separate and independent civil action for damages against the accused and their employers, as allowed under Articles 2177 and 2180 of the Civil Code.

“On February 28, 1986, the trial court dismissed the action for damages on the ground that “no civil action shall proceed independently of the criminal prosecution in a case for reckless imprudence resulting in homicide”. Respondent Abiva’s motion for reconsideration of the order of dismissal was also denied by the trial court. She then elevated the case before the Intermediate Appellate Court (IAC) by way of a petition for certiorari, docketed as Civil Case No. 09644. The appellate court reversed the dismissal order of the trial court. It was then petitioner Ace Haulers Corporation and Jesus dela Cruz’s turn to appeal the judgment of the IAC before the Supreme Court. On August 3, 1988, the Supreme Court issued a resolution denying the petition for review of Ace Haulers Corp. and Jesus dela Cruz for failure “to sufficiently show that the Court of Appeals had committed any reversible error in the questioned error”. The case was remanded to the trial court for further proceedings.

“In the meantime that the petition for review was pending before the Supreme Court, fire razed the portion of the Quezon City Hall building which housed the trial courts and the records of the case were among those that the fire reduced to ashes. It was not until March 26, 1992 that the records of the case was reconstituted by the trial court.

“While the pre-trial proceedings in the civil action for damages was still being set and reset upon motion of the opposing parties, on July 6, 1992, the RTC, Quezon City, Branch 83 rendered judgment in the criminal case, finding as follows:

“WHEREFORE, the prosecution having established beyond reasonable doubt the guilt of both accused Rodolfo Parma and Jesus dela Cruz for the offense of Reckless Imprudence Resulting in Homicide, this Court finds them guilty of said offense charged and hereby sentences each of them to suffer and undergo imprisonment of ONE (1) YEAR AND ONE (1) DAY of prision correccional as minimum to FOUR (4) YEARS, NINE (9) MONTHS and TEN (10) DAYS also of prision correccional as maximum, and to pay the costs.

“Accused Rodolfo Parma and Jesus dela Cruz are hereby ordered to pay the heirs of the deceased Fidel O. Abiva, jointly or pro rata, the amount of FIFTY THOUSAND PESOS (P50,000.00) as indemnification for his death and the amount of FOUR THOUSAND PESOS (P4,000.00) by way of actual damages.

“SO ORDERED.”

“On March 9, 1993, the pre-trial conference of the civil case was finally set on April 6, 1993, and notices thereof were sent to the parties and their respective counsel. On the appointed date, however, no representative nor counsel for petitioner Ace Haulers Corporation appeared. Consequently, upon motion of respondent Abiva, the petitioner was declared as in default. Furthermore, defendants Jesus dela Cruz, Isabelito Rivera and Rodolfo Parma were discharged as defendants, and the case against them dismissed.

“On June 30, 1993, the trial court rendered a decision, ruling against petitioner Ace Haulers Corporation. The trial court summarized its findings thus:

“Hence, Mrs. Ederlinda Abiva as part of plaintiff’s evidence, testified that she is 43 years old, a widow and housekeeper, residing at Cefels Subdivision, Deparo, Novaliches, Quezon City. She told the Court that she is the widow of Fidel Abiva, who died on June 1, 1984 after he was ran over by Isuzu Cargo Truck Plate No. NWY-T Phil 93 owned and operated by the defendant Ace Haulers Corporation, then driven by Jesus dela Cruz and that because of the death of her husband, she suffered damages, among which, moral, exemplary and actual damages for her expenses and attorney’s fees. She claimed that she is lawfully married to the late Fidel Abiva as evidenced by their Marriage Contract (Exhibits ‘A’ and ‘A-1’). Out of their wedlock, (sic) they begot three (3) children, namely: Noel, Gina and Argentina with ages 25, 21 and 15, respectively. Her husband died on June 1, 1984 at around 11:45 p.m. (Exhibits ‘B’, ‘B-1’ and ‘B-2’), because of the vehicular accident which involved the wheeler truck of Ace Haulers Corporation driven by Jesus dela Cruz, a jeepney owned by Isabelito Rivera, then driven by Rodolfo Parma and a motorcycle driven by her husband. Her husband, after his death, was autopsied, as reflected in an Autopsy Report (Exhibit ‘C’) and by the Postmortem Finding (Exhibit ‘C-1’). This was also covered by a police report (Exhibit ‘D’) which shows that Jesus dela Cruz is the driver of the defendant (Exhibit ‘D-1’). This fact is reiterated in a sworn statement which she executed relative to this vehicular accident (Exhibit ‘E’) wherein the said driver mentioned and confirmed the name of his employer (Exhibit ‘E-1’). A criminal case was lodged against the drivers of the two vehicles and a Decision was rendered thereon in Criminal Case No. Q-37248 entitled ‘People of the Philippines versus Jesus dela Cruz and Rodolfo Parma’ finding both of them guilty beyond reasonable doubt of the crime charged. (Exhibits ‘F’, ‘F-1’, ‘F-2’, ‘F-3’, ‘F-4’ and ‘F-5’). This decision has now acquired finality as no appeal was taken by the accused. It is established, however, that prior to the filing of the instant case, Mrs. Abiva pleaded to Ace Haulers to compensate her for the death of her husband. But her plea went (sic) to deaf ears. She was thus constrained to file this case for damages.

“Further testimony of Mrs. Abiva revealed that before the death of her husband, he was employed with Philippine Airlines (PAL) earning P4,600.00.00 a month, as evidenced by the Pay Statement covering the period of 4-15-84 in the amount of P2,065.00 (Exhibits ‘G’, ‘G-1’, ‘G-2’ and ‘G-3’); that when he died, he was only 40 years old and healthy, and that based on the life history and pedigree of his family where some of its members lived up to 100 years, she expects her husband to live for no less than 15 years more and could have earned no less than P828,000.00 for the family. But this, her family was deprived, because his life was snatched away by this accident while her husband was riding in a motorcycle which he bought for P11,850.00 (Exhibits ‘H’ and ‘H-1’) which was also totally wrecked.

“Resulting from her husband’s death, Mrs. Abiva told the Court that she incurred expenses for his burial and funeral in the total amount of no less than P30,000.00 and for his wake of six days, in the amount of about P40,600.00 (Exhibits ‘J’, ‘J-1’, ‘J-2’, ‘J-3’, ‘J-4’, ‘J-5’, and ‘J-6’). She also spent around P80,000.00 as litigation expenses, in her quest for justice since she has to engage the services of four (4) counsels from the time of the filing of this case before the Hon. Miriam Defensor-Santiago, then Presiding Judge of this Court who once dismissed this case, and which led eventually to an appeal by certiorari which was later elevated up to the Supreme Court. (Exhibits ‘K’, ‘K-1’, ‘K-2’, ‘K-3’, ‘K-4’, ‘K-5’ and ‘K-6’). Blaming the defendant, Mrs. Abiva claimed that had Ace Haulers exercised diligence, care and prudence in the selection and supervision of its employees, her husband would have been spared from this accident. Hence, her prayer for the award of P200,000.00 for the death of her husband, who by now, could have risen in the promotional ladder to a senior Executive of PAL and could be earning about P30,000.00 salary per month by now. She further prays for award of moral damages in the amount of P200,000.00 exemplary damages of P100,000.00, attorney’s fees of P50,000.00 and litigation expenses of P50,000.00.

“After the testimony of Mrs. Abiva as the lone witness for the plaintiff, counsel formally offered his exhibits and rested his case.

“Gathered from the evidence presented, testimonial and documentary, the Court finds enough legal and factual basis to grant the claim for damages by the plaintiff. The insinuations of negligence on the part of defendant’s driver is amply shown as one, who drove his vehicle fast, impervious to the safety of life and property of others, his utter lack of care and caution and his unmitigated imprudence, rolled into one, all these predicated the occurrence of this accident which took away a precious human life.

“‘Whoever by act or omission causes damages to another, there being fault or negligence, is obliged to pay for the damages done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict x x x’ (Article 2176, New Civil Code).

“Corollary to this, is the civil law concept that:

“‘The obligations imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those persons for whom one is responsible’ (Art. 2180, 1^st paragraph, New Civil Code)

‘x x x x x x

“‘Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, x x x’ (Article 2180 paragraph 5, New Civil Code).

“Taken in their appropriate context, and predicated on the evidence adduced which has not been evidentiarily traversed by the defendant, this Court is left to (sic) no other recourse but to grant the remedies and reliefs which in her complaint plaintiff prays for, all of them having been by her adduced evidence, preponderantly shown and established and out of which, she has shown herself to be completely deserving.”³^[Petition, Annex "A", Rollo, pp. 28-41.3

On September 13, 1993, petitioner appealed to the Court of Appeals.⁴^[Docketed as CA-G. R. CV No. 49050. RTC Record, p. 212.]

On January 17, 1997, the Court of Appeals promulgated its decision, the dispositive portion of which reads as follows:

“WHEREFORE, except for the award of thirty thousand (P30,000.00) as exemplary damages, which is hereby set aside, the Decision appealed from is hereby AFFIRMED in all other respect.

“SO ORDERED.”

Hence, this appeal.⁵^[Petition for Review on Certiorari, filed on March 17, 1997, Rollo, pp. 8-27.]

The issues raised are whether or not in an action for damages arising from a vehicular accident plaintiff may recover damages against the employer of the accused driver both in the criminal case (delict) and the civil case for damages based on quasi delict, but not recover twice for the same act; (2) whether the Court of Appeals erred in not lifting the order declaring petitioner as in default for failure to appear at the pre-trial conference; and (3) whether the damages awarded in the civil case were excessive, much more than the previous award in the criminal case.

In Padua v. Robles,⁵^[66 SCRA 485 [1975]; Virata v. Ochoa, 81 SCRA 472 [1978].] we held that “Civil liability coexists with criminal responsibility. In negligence cases, the offended party (or his heirs) has the option between an action for enforcement of civil liability based on culpa criminal under Article 100 of the Revised Penal Code and an action for recovery of damages based on culpa aquiliana under Article 2176 of the Civil Code. x x x Article 2177 of the Civil Code, however, precludes recovery of damages twice for the same negligent act or omission.”⁶^[Virata v. Ochoa, 81 SCRA 472 [1978].]

Consequently, a separate civil action for damages lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary.⁷^[Elcano v. Hill, 77 SCRA 98, 105-107 [1977]; Jarantilla v. Court of Appeals, 171 SCRA 429 [1989].]

Hence, in this case, respondent Abiva shall have the choice which of the awards to take, naturally expecting that she would opt to recover the greater amount. It has not been shown that she has recovered on the award in the criminal case, consequently, she can unquestionably recover from petitioner in the civil case.

As to the second issue raised, we find that petitioner was rightly declared as in default for its failure to appear during the pre-trial conference despite due notice. This is a factual question resolved by the Court of Appeals which we cannot review.⁸^[Valgosons Realty, Inc. v. Court of Appeals, 295 SCRA 449, 461 [1998]; Acebedo Optical Co., Inc. v. Court of Appeals, 320 Phil. 506 [1995].]

As to the third issue regarding the award of damages to respondent Abiva, we find the award of actual damages to be supported by preponderant evidence. “Basic is the rule that to recover actual damages, the amount of loss must not only be capable of proof but must actually be proven with reasonable degree of certainty, premised upon competent proof or best evidence obtainable of the actual amount thereof.”⁹^[Luxuria Homes, Inc. v. Court of Appeals, 302 SCRA 315, 327 [1999]; PNOC Shipping and Transport Corp. v. Court of Appeals, G. R. No. 107518, October 8, 1998.] However, there is no basis for the award of moral damages, which is hereby deleted. The person claiming moral damages must prove the existence of bad faith by clear and convincing evidence for the law always presumes good faith. It is not enough that one merely suffered sleepless nights, mental anguish, serious anxiety as the result of the actuations of the other party. Invariably such action must be shown to have been willfully done in bad faith or with ill motive.¹⁰^[Audion Electric Co., Inc. v. NLRC, 308 SCRA 340, 355 [1999]; Ford Philippines, Inc. v. CA, 267 SCRA 320 [1997].]

The attorney's fees awarded is reduced to P20,000.00 which is ten (10%) percent of the amount of actual damages.

WHEREFORE, the Court DENIES the petition for review on certiorari and AFFIRMS the decision of the Court of Appeals,¹¹ [In CA-G. R. CV No. 49050.] with modification. The Court deletes the award of fifty thousand pesos (P50,000.00) as moral damages, and reduces the attorney fees to twenty thousand pesos (P20,000.00).

No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.