11/3/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 018

690 SUPREME COURT REPORTS ANNOTATED

Bantoto vs. Bobis

No. L-18966. November 22, 1966.

VICENTE BANTOTO, ET AL., plaintiffs-appellees, vs.

SALVADOR BOBIS, ET AL., defendants. CRISPIN
VALLEJO, defendant-appellant.

Civil liability; Employer's subsidiary civil liability for crimes

committed by his servants or employees is not predicated upon the
latter's insolvency; When insolvency is required.— The master's
liability, under the Revised Penal Code, for the crimes committed
by his servants and employees in the discharge of their duties, is
not predicated upon the insolvency of the latter. Such insolvency
is required only when the liability of the master is being made
effective by execution levy, but not for the rendition of judgment
against the master. The subsidiary character of the employer's
responsibility merely imports that the latter's property is not to
be seized without first exhausting that of the servant. And by
analogy to a regular guarantor, the master may not demand prior
exhaustion of the servant's properties if he can not "point out to
the creditor available property of the debtor within Philippine
territory, sufficient to cover the amount of the debt" (Cf. Civil
Code, Article 1060). This rule is logical, for as between the
offended party (as creditor) and the culprit's master or employer,
it is the latter who is in a better position to determine the
resources and solvency of the servant or employee. Consequently,
in a complaint against the employer to enforce his subsidiary civil
liability, it is not necessary to allege that the employee is
insolvent.
Same; Conclusiveness of judgment sentencing servant or
employee to pay indemnity; Admissibility of writ of execution and
sheriff's return.—The writ of execution and the sheriff's return in
the criminal case against the employee are material and
admissible when the issuance of a writ of execution of the
appealed judgment is demanded. It is well to note that the
Supreme Court has ruled that, in the absence of collusion, the
judgment convicting and sentencing the servant to pay indemnity

http://www.central.com.ph/sfsreader/session/00000166d705ba0d83d15aed003600fb002c009e/t/?o=False 1/8
11/3/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 018

is conclusive in an action to enforce the subsidiary liability of the

master or employer (Martinez vs, Barredo, 81 Phil. 1).

691

VOL. 18, NOVEMBER 22, 1966 691

Bantoto vs. Bobis

Same; When award of exemplary damages is improper.—

Where the case was predicated upon the sentence of conviction in
the criminal case against the driver, the award of exemplary
damages would be improper if no such damages were imposed on
the driver. The master, as a person subsidiarily liable, can not
incur greater civil liability than his convicted employee, any more
than a guarantor can be held responsible for more than the
principal debtor (Cf. New Civil Code, Article 2064).
Same; Attorney's fees; When award of attorney's fees is proper.
—Attorney's fees were properly adjudged against the employer in
the action for the enforcement of his subsidiary civil liability. The
award could be doubled if the trial court's award contemplated
only the lawyer's services in the trial court.
Same; Award in separate civil action is allowed.—Article
2208, paragraph 8, of the Civil Code authorizes the award of
counsel fees "in a separate civil action to recover the civil liability
arising from a crime".

APPEAL from a decision of the Court of First Instance of

Occidental Negros.
The facts are stated in the, opinion of the Court.
     Arturo M. Glaraga for plaintiffs-appellees.
     Casiano P. Laquihon "for defendant-appellant.

REYES, J.B.L., J.:

Crispin Vallejo appeals from a decision rendered in Civil

Case No. 5422 of the Court of First Instance of Occidental
Negros, sentencing him to pay to Vicente Bantoto and
Florita Lanceta, parents of the late Damiana Bantoto, civil
indemnity in the sum of P3,000.00, plus P1,000.00
exemplary damages and the further sum of P500.00
attorneys' fees, without pronouncement as to costs.
The basic facts are not controverted. Appellant Crispin
Vallejo was the registered owner of a "jeepney" named
"Jovil 11", with plate TPU-20948, that was operated by him
in Bacolod City through driver Salvador Bobis. On 24
October 1948, through the driver's negligence, the
"jeepney" struck a 3-year old girl, Damiana Bantoto, a
http://www.central.com.ph/sfsreader/session/00000166d705ba0d83d15aed003600fb002c009e/t/?o=False 2/8
11/3/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 018

daughter of appellees, inflicting serious injuries that led to

her death a few days later. The City Fiscal of Bacolod filed
an information charging Bobis with homicide through
reckless imprudence, to which Bobis pleaded guilty. He
was, accordingly, sentenced to :& months and :& day of

692

692 SUPREME COURT REPORTS ANNOTATED

Bantoto vs. Bobis

arresto mayor and to indemnify the deceased girl's heirs

(appellees herein) in the sum of P3,000.00.
By amended complaint of 8, October 1959, appellees
Vicente Bantoto and Florita Lanceta, for themselves and
their other children, instituted the present action against
Salvador Bobis, Juan Maceda (later absolved) and Crispin
Vallejo in the court of first instance, pleading the foregoing
facts and seeking to have the three defendants declared
solidarily responsible for damages, consisting of the civil
indemnity required of the driver Bobis in the judgment of
conviction, plus moral and exemplary damages and
attorneys' fees and costs,
Vallejo moved to dismiss on the ground of failure to
state a cause of action against him, for the reason that the
amended complaint did not aver that the driver, Bobis, was
insolvent. The court overruled the motion to dismiss, and
on 20 February 1960 Vallejo answered the complaint,
setting up denials and affirmative defenses, specifically
averring that the brothers and sisters of the deceased were
not real parties in interest; that the complaint stated no
cause of action against Vallejo; that his liability was only
subsidiary; that the action was barred by; prior judgment;
and that the liability had been satisfied. Bobis was
declared in default,
At the trial, the court of origin (overruling Vallejo's
objections) admitted as Exhibit "A" for plaintiffs the writ of
execution against the driver, Salvador Bobis, issued in the
criminal case, and as Exhibit "B" the sheriff's return nulla
bona. Vallejo presented no evidence. Wherefore, the court
absolved defendant Maceda and rendered judgment against
Crispin Vallejo in the terms described at the start of this
opinion.
Vallejo appealed directly to this Supreme Court,
assigning three errors:

"I — The trial Court erred in not dismissing the

complaint for lack of a cause of action.
http://www.central.com.ph/sfsreader/session/00000166d705ba0d83d15aed003600fb002c009e/t/?o=False 3/8
11/3/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 018

II — The trial Court erred in admitting as evidence

Exhibits "A" and "B" of the appellees,
III — The trial Court erred in condemning the
defendants-ppellant to pay to the appellees the sum
of P3,000.00 as indemnity, F. 1,000.00 as moral
damages, P1,000.00 as exemplary damages, and
P500.00 as attorney's fee."

693

VOL. 18, NOVEMBER 22, 1966 693

Bantoto vs, Bobis

The first alleged error, predicated upon the lack of

allegation in the complaint that driver Bobis was insolvent,
is without merit. The master's liability, under the Revised
Penal Code, for the crimes committed by his servants and
employees in the discharge of their duties, is not predicated
upon the insolvency of the latter. Article 103 of the Penal
Code prescribes that:

"ART. 103. Subsidiary civil liability of other persons.—The

subsidiary liability established in the next preceding article shall
also apply to employees, teachers, persons, and corporations
engaged in any kind of industry for felonies committed by their
servants, pupils, workmen, apprentices, or employees in the
discharge of their duties."

The insolvency of the servant or employee is nowhere

mentioned in said article as a condition precedent. In truth,
such insolvency is required only when the liability of the
master is being made effective by execution levy, but not
for the rendition of judgment against the master. The
subsidiary character of the employer's responsibility
merely imports that the latter's property is not be seized
without first exhausting that of the servant. And by
analogy to a regular guarantor (who is the prototype. of
persons subsidiarily responsible), the master may not
demand prior exhaustion of the servant's (principal
obligor's) properties if he can not "point out to the creditor
available "property of the debtor within Philippine
territory, sufficient to cover the amount of the debt" (Cf.
Civil Code, Article 1060). This rule is' logical, for as
between the offended party (as creditor) and the culprit's
master or employer, it is the latter who is in a better
position to determine the resources and solvency of the
servant or employee.

http://www.central.com.ph/sfsreader/session/00000166d705ba0d83d15aed003600fb002c009e/t/?o=False 4/8
11/3/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 018

Appellant invokes the following passage in our decision

in Marquez vs. Castillo, 68 Phil. 571:

"The subsidiary liability of the master, according to the provisions

of Article 103 of the Revised Penal Code, arises and takes place
only when the servant, subordinate, or employee commits a
punishable criminal act while in the actual performance of his
ordinary duties and service, and he is insolvent thereby rendering
him incapable of satisfying by himself his own civil liability"

The underlined passage is, however, mere obiter because

694

694 SUPREME COURT REPORTS ANNOTATED

Bantoto vs. Bobis

the part immediately preceding the quotation shows that

the ratio decidendi of the case was that the accident
involved, unlike in the case at bar, did not occur in the
performance of the driver's assigned duties.

"It should be noted that in said stipulation, there is a provision

appearing in paragraph 3, thereof, which reads as follows:
'That the defendant Bernardo Castillo was not riding in the car
at the time of the accident, and he did not know that his car was
taken by -the chauffeur Mariano Capulong.'
"This fact decides the question because it clearly shows that
the accident did not occur in the course of the performance of the
duties or service for which said chauffeur Mariano Capulong had
been hired. The defendant did not hire him to do as he pleased,
using the defendant's car as if it were his own. His duties and
service were confined to driving his master's car as the latter
ordered him, and the accident did not take place under said
circumstances."

As to the second error assigned, the same is, non-

prejudicial, if at all committed, Supposing, in gratia,
argumenti, that Exhibits ."A" and "B", the execution and
the sheriff's return, in the criminal case were not
admissible at the trial of the case against the master, they
would certainly be material and admissible when issuance
of a writ of execution of the appealed judgment is
demanded. It is well to move here that this, Court has
ruled that in the absence of collusion the judgment
convicting and sentencing the servant to pay indemnity is
conclusive in an action to enforce the subsidiary liability of
the master or employer (Martinez vs. Barredo, 81 Phil. 1).
Anyway, since Bobis, the driver, was also a defendant, the
http://www.central.com.ph/sfsreader/session/00000166d705ba0d83d15aed003600fb002c009e/t/?o=False 5/8
11/3/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 018

writ of execution issued in the criminal case to enforce the

civil indemnity, and its return without satisfaction, are not
irrelevant evidence in the action against him and his
employer.
Anent the third error, we agree with appellant, that, as
the case was predicated upon the sentence of conviction in
the criminal case, the award of exemplary damages was
improper. No such damages were imposed on the driver,
and the master, as person subsidiarily liable, can not incur
greater civil liability than his convicted employee, any
more than a guarantor can be held responsible for more
than the principal debtor (Cf. Civil Code, Article 2064).
695

VOL. 18, NOVEMBER 22, 1966 695

Bantoto vs. Bobis

But we do not agree that the award of attorney's fees

should be disallowed. Appellant had reason to know that
his driver could not pay the P3,000.00 indemnity imposed
in the criminal case, because if he could, or if he had money
or leviable property worth that much, Bobis would be
operating his own jeepney instead of another's. In fact,
Article 2208, paragraph 9, authorizes the award of
counsel's fees "in a separate civil action to recover the civil
liability arising from a crime."
As in awarding only P500.00 attorney's fees the court
below could envisage only the services of counsel up to the
date of its judgment, and it could not know then that the
decision would be appealed, we are of the opinion that
counsel fees should now be at least doubled.
For the foregoing reasons, the decision under appeal is
modified by eliminating the award of P1,000.00 exemplary
damages and doubling the award for counsel fees, with the
result that appellant shall pay the indemnity of P3,000.00,
with interest at 6% from the filing of the complaint, plus ?
1,000.00 attorney's fees,. In all other respects, said decision
is affirmed. No costs.

          Concepcion, C.J., Barrera, Dizon, Regala,

Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro,
JJ., concur.

Decision modified.

ANNOTATION

http://www.central.com.ph/sfsreader/session/00000166d705ba0d83d15aed003600fb002c009e/t/?o=False 6/8
11/3/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 018

Employer's subsidiary civil liability.—The employee's

insolvency may be shown by the circumstance that the writ
of execution issued against him was returned unsatisfied
(Manalo vs. Robles Transportation Co., Inc., 99 Phil. 729;
Quiambao vs. Mora, L-12690, May 25, 1960) or by the
certificate of the Director of Prisons that the employee is
serving, or has served, subsidiary imprisonment by reason
of insolvency and by the certificate of the Sheriff that the
employee has not satisfied his pecuniary liability and that
no properties were "f ound registered in his name
(Nagrampa vs. Mulvaney, McMillan & Co., Inc., 97 Phil.
724; Martinez vs. Barredo, 81 Phil. 1).
The subsidiary civil liability of the employer is coexten-
696

696 SUPREME COURT REPORTS ANNOTATED

Tse Viw vs. Republic

sive with that of the judgment rendered against the

employee in the criminal case (Gonzales vs. Halili, 104
Phil. 1059). If the employer's liability cannot be
diminished, neither can it be increased (Arambulo vs.
Manila Electric Company, 55 Phil. 75).
The rule in Bantoto vs. Bobis, supra (the case under
annotation), that the employer's subsidiary civil liability
does not include exemplary damages was announced in
Rotea vs. Halili, 60 O.G. 7549, where it was held:

"The rule is that exemplary damages are imposed primarily upon

the wrongdoer as a deterrent in the commission of similar acts in
the future. Such punitive damages cannot be applied to his
master or employer except only to the extent of his participation
or ratif fication of the act because they are penal in character.
Moreover, in this jurisdiction, exemplary damages may only be
imposed when the crime is committed with one or more
aggravating circumstances (Art. 2230, New Civil Code),
"According to the rule adopted by many courts, a principal or
master can be liable 'for exemplary damages or punitive damages
based upon the wrongful act of his agent or servant only where he
participated in the doing of such wrongful act or has previously
authorized or subsequently ratified it with full knowledge of the
facts. Reasons given for this rule are that, since such damages are
penal in character, the motive authorizing their infliction will not
be imputed by presumption to the principal when the act is
committed by an agent or servant, and that since they are
awarded, not by way 01 compensation, but as a punishment to the
offender and as a warning to others, they can only be awarded

http://www.central.com.ph/sfsreader/session/00000166d705ba0d83d15aed003600fb002c009e/t/?o=False 7/8
11/3/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 018

against one who has participated in the offense, and the principal
therefore cannot be held liable for them merely by reason of
wanton, oppressive, or malicious intent on the part of the agent."
(15 Am. Jur. 730).

As to attorney's fees see annotation under Firestone Tire &

Rubber Company of the Philippines vs. Ines Chaves :& Co.,
Ltd., L- 17106, Oct. 19, 1966, ante.

______________

© Copyright 2018 Central Book Supply, Inc. All rights reserved.

http://www.central.com.ph/sfsreader/session/00000166d705ba0d83d15aed003600fb002c009e/t/?o=False 8/8