FIRST DIVISION

[G.R. No. 143380. April 11, 2005]

OLIMPIO PANGONOROM and METRO MANILA TRANSIT

CORPORATION, petitioners, vs. PEOPLE OF THE
PHILIPPINES, respondent.

DECISION
CARPIO, J.:

The Case

This is a petition for review[1] to annul the Decision[2] dated 29 November

1999 of the Court of Appeals in CA-G.R. CR No. 14764, as well as its
Resolution[3] dated 5 May 2000 denying the motion for reconsideration. The
Court of Appeals affirmed in toto the 5 February 1993 Decision[4] of the
Regional Trial Court of Quezon City, Branch 79 in Criminal Case No. Q-90-
11397.

The Charge

On 21 March 1990, Assistant City Prosecutor Rosario U. Barias filed an

Information charging Olimpio Pangonorom (Olimpio) with reckless imprudence
resulting in damage to property with multiple slight physical injuries, committed
as follows:

That on or about the 10th day of July, 1989, in Quezon City, Philippines and within the
jurisdiction of this Honorable Court, the abovenamed accused, being then the driver
and person in charge of a motor vehicle (MMTC-passenger bus) with plate No. NVJ-
999 TB Pil. 89, did, then and there unlawfully and feloniously drive, manage and
operate the same along E. de los Santos Ave., Quezon Avenue this City, in a careless,
reckless and imprudent manner, by then and there driving the same without due regard
to traffic laws and regulations and without taking the necessary precautions to prevent
accident to person and damage to property, causing by such carelessness, recklessness
and imprudence said motor vehicle so driven by him to strike and collide with an
[I]suzu [G]emini car with plate No. NAR-865 L Pil. 89, belonging to Mary Berba and
driven by Carlos Berba y Remulla, thereby causing damages in the total amount
of P42,600.00, Philippine Currency; as a consequence thereof said Carlos Berba
sustained physical injuries for a period of less than nine (9) days and incapacitated
him from performing his customary labor for the same period of time and also his
passengers namely: Mary Berba y Matti and Amelia Berba y Mendoza sustained
physical injuries for a period of less than nine (9) days and incapacitated them from
performing their customary labor for the same period of time, thereafter, abandoned
said offended parties without aiding them, to the damage and prejudice of the said
offended parties in such amount as may be awarded to them under the provisions of
the Civil Code.

CONTRARY TO LAW.[5]

Arraignment and Plea

When arraigned on 26 June 1990, Olimpio, with the assistance of counsel,

entered a plea of not guilty.[6]

The Trial

The prosecution presented five witnesses: (1) Carlos R. Berba; (2) Mary M.
Berba; (3) Amelia Berba; (4) Edward Campos; and (5) Enrico B. Estupigan.
On the other hand, the defense presented three witnesses: (1) Olimpio
himself; (2) Milagros Garbo; and (3) Nenita Amado.
The facts, as summarized by the trial court, are as follows:

The evidence of the prosecution shows that on July 10, 1989 at around 9:00 P.M.
Carlos R. Berba was driving an Isuzu Gemini car bearing Plate No. NAR-865 L Pil.
89 belonging to his mother Mary Berba. With him inside the car were his mother
Mary Berba who was seated in front beside him and his auntie Amelia Berba who was
at the back seat. They were cruising along EDSA coming from the direction of Makati
and headed towards the intersection of EDSA and Quezon Boulevard but upon
nearing 680 Appliances along EDSA, Quezon City, their car was bumped from behind
by MMTC Passenger Bus bearing Plate No. NVJ-999 TB Pil. 89 driven by herein
accused Olimpio Pangonorom thereby causing damages to their car which was
estimated at P42,600.00 (Exhs. F, F-1). The front and rear portions of their car
incurred damages because by reason of the strong impact at the rear portion of their
car, it was pushed forward and bumped the car in front of it, then it rested near the
island. The bus driven by the accused still travelled a distance of 20 meters from the
point of impact. The accused left his bus but they came to know his name is Olimpio
Pangonorom. Their car was a total wreck as shown in its photographs (Exhs. B and
C).

Carlos Berba noticed this bus following them closely at Nepa Q-Mart up to the point
of collision. His car was running along the second lane of EDSA from the island. The
MMTC bus driven by the accused was running very fast, kept on switching lane until
it finally occupied the second lane and bumped his car. Carlos Berba sustained cuts on
his shoulder and back because of broken glasses and was treated at East Avenue
Medical Center. He incurred P1,000.00 for medication (Exhs. G to G-3). Mary Berba
sustained contusion, hematoma and abrasion (Exh. H). Amelia Berba sustained
abrasion on his right elbow (Exh. K). Both were also treated at East Avenue Medical
Center.

Edward Campos and Enrico Bantique Estupigan, passengers of MMTC Bus driven by
the accused explained that their bus was running at 70-80 kph when it swerved to the
right to avoid hitting a van stranded at the left side of the island but in the process it
hit and bumped an Isuzu Gemini car in front of it. The rear portion of the Isuzu
Gemini car was smashed and the front part was also damaged as it hit the Lancer car
running ahead. The bus driver, herein accused, fled from the scene.

It was a rainy day, road was slippery, the rain had just stopped but was still drizzling.

The defense on the other hand presented accused Olimpio Pangonorom, Milagros
Garbo, Nenita Amado and documents marked as Exhs. 1 to 15 with sub-markings.

Accused Olimpio Pangonorom testified that he was a driver since 1976, having
worked as a truck driver in Mindanao, then employed as driver of Silangan Transit up
to 1981 and from 1981 up to the present is a driver of Metro Manila Transit. He is a
holder of professional drivers license with OR No. 15160307 (Exhs. 1, 1-A). On July
10, 1989 he drove MMTC bus from Monumento to Baclaran and vice-versa. He was
driving MMTC bus between 7:00 8:00 P.M. along EDSA headed towards Monumento
when upon reaching infront of 680 Appliances his bus was involved in a vehicular
accident. It was drizzling, his bus was running at a speed of 70 kph along the third
lane of EDSA going to Monumento and an Isuzu Gemini car ahead of him was on his
left side running along the second lane of EDSA at a distance of 30 meters away.
When the car was at a distance of 20 meters away and before reaching the stalled
vehicle, it swerved to the right without signal light, so he blew his horn, stepped on
his brakes, but since the street was downgrade, it was raining and slippery, his brakes
failed to control his bus, thus hit and bumped the Isuzu Gemini car. He identified the
Isuzu Gemini car and damages sustained by the car in the photograph marked as Exh.
C. His bus slided after he applied his brakes because the street was slippery. He
reported at their garage after the accident, left his vehicle and went back at the scene
with a wrecker. The passengers of the Isuzu car were brought to the hospital.

The training officer of MMTC, Milagros Garbo, testified on the procedure of the
company in hiring an applicant driver and the requirements to be submitted by the
applicant. An applicant for a driver of MMTC as what had been done to the accused
before he was admitted as company driver of MMTC must pass an interview,
seminars, written examination, actual driving test, psycho-physical test, road test, line
familiarization test, defensive driving seminar, drivers familiarization seminar, and
traffic rules and environment seminar. Documents they required to be submitted by an
applicant driver were NBI Clearance, Residence Certificate, Professional Drivers
License, and Official Receipts of payment of required fees for drivers license (Exhs. 1
to 15).

The internal control relative to the supervision of their drivers was explained by
witness Nenita Amado, a transport supervisor of MMTC. She supervises and gives
instructions and recommendations on bus rules and regulations to their drivers. They
have ten (10) comptrollers, thirty-six (36) dispatchers, seven (7) field supervisors,
sixty (60) inspectors and four (4) service wreckers who helped in the supervision of
the drivers and conductors of MMTC. They have centralized radio that monitor the
activities of their drivers during their travel. Her instructions to the drivers were to
avoid accident, obey traffic rules and regulations and to be courteous to passengers. [7]

On 5 February 1993, the trial court rendered its Decision with the following
dispositive portion:

PREMISES CONSIDERED, the Court finds accused Olimpio Pangonorom guilty

beyond reasonable doubt of the crime of reckless imprudence resulting in multiple
slight physical injuries and sentences him to suffer an imprisonment of thirty (30)
days of arresto menor, to indemnify the offended parties of the damages incurred by
their Isuzu Gemini car in the sum of P42,600.00 and to reimburse the medical
expenses of Carlos R. Berba in the sum of P182.50, Amelia Berba in the sum of
P217.50 and Mary Berba in the sum of P45.00.

SO ORDERED.[8]

Petitioners appealed the trial courts decision to the Court of Appeals.[9]

 The Ruling of the Court of Appeals

The Court of Appeals ruled that the finding that Olimpio drove the passenger
bus in a negligent manner, considering the circumstances of weather and road
condition, is a finding of fact of the trial court that is entitled to respect. The
Court of Appeals stated that it is a settled rule that factual findings of trial courts
are accorded great respect unless it can be shown that they overlooked some
circumstances of substance which, if considered, will probably alter the result.
The Court of Appeals held that no such circumstance was overlooked in this
case.
The Court of Appeals ruled that even if it were true, as Olimpio claimed, that
the car Carlos Berba (Carlos) was then driving occupied Olimpios lane while
the car was 20 meters away, it is a safe distance for a vehicle to switch lanes.
The Court of Appeals held that if only Olimpio did not drive very fast and
considered that the street was downgrade and slippery, he could have easily
avoided the accident by applying his brakes.
The Court of Appeals also ruled that the testimonies of Edward Campos
(Edward) and Enrico Bantigue, who were passengers of the MMTC bus, are
worthy of credence. The Court of Appeals stated that they are neutral witnesses
who had no motive to testify against Olimpio. They testified that: (1) the MMTC
bus was running at 70-80 kilometers per hour; (2) the bus swerved to the right
to avoid hitting a van stranded at the left side of the island; and (3) in the
process, the bus hit and bumped the Gemini car ahead of it. Edward further
testified that Olimpio earlier overtook another bus. Edward stated that it was for
this reason that the MMTC bus went into the lane where the stalled van was
located. The Court of Appeals held that the MMTC bus was the one switching
lanes.
The dispositive portion of the decision of the Court of Appeals reads:

WHEREFORE, the judgment herein appealed from is hereby AFFIRMED in toto.

SO ORDERED.[10]

On 28 December 1999, petitioners filed with the Court of Appeals a motion

for reconsideration of the assailed decision. Petitioners asserted that the Court
of Appeals erred in finding Olimpio negligent in driving the subject bus.
Petitioners also asserted that Carlos was the one switching lanes and was
therefore the one negligent in driving his car. Petitioners stated that the Court
of Appeals erred in not holding that the MMTC was not subsidiarily liable for
Olimpios civil liability in the instant case. Petitioners stated that the testimonies
of witnesses Milagros Garbo and Nenita Amado, as well as Exhibits 1 to 15,
proved that the MMTC exercised due diligence in the selection and supervision
of its drivers.[11]
On 5 May 2000, the Court of Appeals issued a Resolution[12] denying the
motion for reconsideration. With the assailed decision having amply discussed,
considered and ruled upon the issues that petitioners raised in their motion for
reconsideration, the Court of Appeals held that there was no cogent reason for
it to reverse the assailed decision. The Court of Appeals also held that the
MMTC was already estopped in assailing the trial courts decision considering
that the MMTC never appealed the decision within the reglementary period.

The Issues

Petitioners have presented the following for our consideration:

1. The Court of Appeals gravely abused its discretion in sustaining the trial courts findings
of facts instead of considering certain facts and circumstance raised by petitioners
that properly cast an element of reasonable doubt.
2. Whether Estoppel applies to MMTC.[13]

The Ruling of the Court

The petition is without merit.

In criminal cases, an appeal throws the entire case wide open for review
and the reviewing tribunal can correct errors, though unassigned in the
appealed judgment, or even reverse the trial courts decision based on grounds
other than those that the parties raised as errors.[14]
Petitioners fault the Court of Appeals for having sustained the trial courts
findings of fact. Petitioners assert that the Court of Appeals failed to consider
certain circumstances that would warrant a reversal of the factual findings of
the trial court.
Petitioners claim that Carlos negligence in switching lanes to avoid hitting a
stranded van caused the collision. Petitioners assert that Carlos was negligent
because he transferred to the lane where Olimpio was then driving along
without first blinking his signal light and with his car only 20 meters away from
the bus. This being so, petitioners assert that they should not be held
responsible for Carlos negligence.
 Petitioners assertions have no merit. The issue of whether a person is
negligent is a question of fact.[15] Findings of fact of the Court of Appeals, when
they affirm the findings of fact of the trial court, are binding on this Court, unless
the findings of the trial and appellate courts are palpably unsupported by the
evidence on record or unless the judgment itself is based on misapprehension
of facts.[16] We hold that the Court of Appeals committed no reversible error in
upholding the factual findings of the trial court.
Article 365 of the Revised Penal Code states that reckless imprudence
consists in voluntarily, but without malice, doing or failing to do an act from
which material damage results by reason of inexcusable lack of precaution on
the part of the person performing or failing to perform such act, taking into
consideration (1) his employment or occupation; (2) his degree of intelligence;
(3) his physical condition; and (4) other circumstances regarding persons, time
and place.
Olimpio is a professional driver who has been in the employ of the MMTC
since 1984.[17] As a public utility driver, Olimpio should have as his primary
concern the safety not only of himself or of his passengers, but, also the safety
of his fellow motorists. Considering that it had just rained, it was still drizzling
and the road was slippery when the subject incident took place, [18] Olimpio
should have been more cautious and prudent in driving his passenger bus.
Based on Olimpios testimonial admission, he was driving at 70 kilometers
per hour. He testified he was familiar with the road.[19] Therefore, he ought to
have known the downhill slope coming from the Nepa-Q Mart.[20] As the bus
was moving downhill, Olimpio should have slowed down since a downhill drive
would naturally cause his vehicle to accelerate. However, instead of slowing
down, Olimpio admitted he was running very fast. Thus, Olimpio testified:

Atty. ANTONIO:

Q It was nighttime Mr. Witness, will you tell us whether you were able to see
this vehicle you were following?

A Yes, sir.

Q Will you tell us how did you notice this vehicle?

A Because I saw its tail light, sir.

Q Before this vehicle you were following reached the place where this stalled
vehicle was, do you know where was this vehicle proceeded?
FISCAL:

I think he is incompetent, Your Honor.

COURT:

Sustained.

Atty. ANTONIO:

Q Before your vehicle reached the place where this stalled vehicle was, what
did you notice if any?

A I noticed that the vehicle I was following Isuzu Gemini before reaching the
stalled vehicle suddenly swerved to the right and I was already
approaching, sir.

Q Before this Isuzu Gemini car you were following suddenly swerved to the
right, how far were you?

A About twenty (20) meters, sir. It suddenly swerved to the right and I was
running very fast because it was downward.

Q And when you noticed this Isuzu Gemini suddenly swerved to the right,
what if any did you do?

A I blew my horn and stepped on my brakes, sir. Considering that it was

raining and slippery I cannot control.

Q And after your were not able to control your vehicle despite the precaution
you made, what happened?

A I bumped him, sir.[21] (Emphasis supplied)

The only conclusion that we can draw from the factual circumstances is that
Olimpio was negligent. He was hurrying to his destination and driving faster
than he should have. The fact that after Olimpio stepped on the brake, the bus
still traveled a distance of 20 meters before it finally stopped, and the car, after
it was hit, was thrown 10 to 15 meters away,[22] only prove that Olimpios bus
was running very fast.
Olimpios claim that Carlos suddenly transferred to his lane to avoid hitting
a van stranded at the left side of the island could hardly carry the day for him.
Olimpio says that the distance between the car and the bus before the car
allegedly swerved to the bus lane was 20 meters. Therefore, at that point,
Olimpio still had the opportunity to avoid the collision by slowing down or by
stepping on the brake. However, what Olimpio did was to continue running very
fast.
Another telling proof of Olimpios negligence is the testimony of Edward, a
passenger of the MMTC bus who was seated at the right front seat nearest to
the door of the bus.[23] Edward recounted the incident, thus:

Q You said that there was a van parked which the Metro Manila Transit tried
to avoid. Where was that van parked?

A It was stranded above the middle island of the road, sir.

COURT:

Q When you said of the road you are referring to EDSA?

A Yes, Your Honor.

FISCAL:

Q So when it swerved to avoid hitting the parked van, what happened?

A It was too late, sir, when he noticed that there was a car slowly cruising
EDSA so when he swerved he was very fast so it was too late to avoid
the car. He just braked, the road was slippery so he could not swerve
because the bus might turn over.

xxx

Q Mr. Witness, did you notice this stalled vehicle before you reached the
place where it was stalled?

A No, sir.

Q Even when the lights of the Metro Manila Transit were on, you did not
notice it?

A Actually, sir, he was overtaking another bus so thats why he did not
notice this stalled van.
Q Who was overtaking another bus?

A MMTC bus, sir, because it stopped at the MMC office near Timog and then
it overtook another moving bus. He went to the left side overtaking that
bus.

xxx

Atty. ANTONIO:

Q Are you a driver?

A Yes, sir.

Q And if circumstances similar to that incident that happened, it would be

prudent for you to swerve also, is it not?

A At that condition, sir, Id rather brake than swerve, it is slippery.

Q Mr. Witness, will you tell how far was this MMTC bus when it swerved in
relation to the place where the stalled vehicle was?

A I guess, sir, it was a few seconds before too late because when it swerved
the bus was already tilting, so it is a matter of seconds.

Atty. ANTONIO:

Q It was a matter of seconds?

A Yes, sir.

Q So if you were in this position stopping would not be sufficient

precautionary measure, was it not?

A Before that, sir, he overtook that bus so if he did not overtake that bus
he would have seen the parked van. Being a driver myself the way he
overtook was dangerous, it was so close that you could not see the
other lane.

xxx

Q Will you please explain Mr. Witness, how this MMTC bus hit the car when
you claimed that the car was running ahead of the bus?
 A There was this stalled van and there was this bus, now this was the Gemini
car, this slowed down to avoid also the stalled van, it swerved so the bus
was here running very fast and then noticed the van so it swerved also
and the Gemini here was of course slowed down to avoid that van, the
bus was still running fast then after swerving it was too late for him to
notice that there was this car running slowly by the bus, he stepped on the
brake.

Q Do you mean to say Mr. Witness, that both the Isuzu vehicle and the
MMTC bus were running on the same course?

A Yes, sir.[24] (Emphasis supplied).

Edwards declarations that the bus was running very fast and that Olimpio
did not see the stranded van because he earlier overtook another bus are clear
and categorical. There is no evidence of any ill or improper motive on Edwards
part that would discredit his testimony. He was not in any way related to the
complainants. Neither was the defense able to show that some form of
consideration induced Edward to testify for the prosecution. The defense did
not even try to rebut Edwards testimony.
When there is nothing to indicate that a witness was actuated by improper
motives, his positive and categorical declarations on the witness stand under
solemn oath deserve full faith and credit.[25]
Petitioners likewise fault the Court of Appeals for having ruled that the
MMTC is already estopped from assailing the trial courts decision considering
that the MMTC never appealed the same within the reglementary period.
We have carefully gone over the records of this case and found that when
petitioners filed their Notice of Appeal with the trial court on 8 March 1993, the
MMTC already appealed the civil aspect of this case. We quote petitioners
Notice of Appeal:

The ACCUSED and his employer, Metro Manila Transit Corporation, by their
undersigned counsel, unto this Honorable Court, most respectfully give notice that
they are appealing, as they hereby appeal, the Decision dated February 5, 1993, which
was received on February 23, 1993, to the Court of Appeals on the ground that the
Decision is contrary to the facts, law and settled jurisprudence.

Metro Manila Transit Corporation likewise interposes an appeal with respect to the
civil aspect of this case because of its subsidiary liability as employer of the accused
under the Revised Penal Code.[26]
 It is therefore not correct for the Court of Appeals to state in its
Resolution[27] dated 5 May 2000 that the MMTC failed to appeal seasonably the
issue of its alleged non-subsidiary liability[28] as Olimpios employer.
However, due diligence in the selection and supervision of employees is not
a defense in the present case. The law involved in the present case is Article
103 of the Revised Penal Code, in relation to Articles 100[29] and 102[30] of the
same Code, which reads thus:

Art. 103. Subsidiary civil liability of other persons. The subsidiary liability established
in the next preceding article shall also apply to employers, teachers, persons, and
corporations engaged in any kind of industry for felonies committed by their servants,
pupils, workmen, apprentices, or employees in the discharge of their duties.

Pursuant to Article 103, an employer may be subsidiarily liable for the

employees civil liability in a criminal action when there is adequate evidence
establishing (1) that he is indeed the employer of the convicted employee; (2)
that he is engaged in some kind of industry; (3) that the employee committed
the offense in the discharge of his duties; and (4) that the execution against the
employee has not been satisfied due to insolvency.[31]
The provisions of the Revised Penal Code on subsidiary liability Articles 102
and 103 are deemed written into the judgments in cases to which they are
applicable. Thus, in the dispositive portion of its decision, the trial court need
not expressly pronounce the subsidiary liability of the employer.[32]
The subsidiary liability of the employer arises only after conviction of the
employee in the criminal action.[33] In the present case, there exists an
employer-employee relationship between petitioners, the MMTC is engaged in
the transportation industry,[34] and Olimpio has been adjudged guilty of a
wrongful act and found to have committed the offense in the discharge of his
duties.[35] However, there is no proof here of Olimpios insolvency. The judgment
of conviction against Olimpio has not attained finality. This being so, no writ of
execution can issue against him to satisfy his civil liability. Only after proof of
the accused-employees insolvency may the subsidiary liability of his employer
be enforced.[36]
In short, there is as yet no occasion to speak of enforcing the employers
subsidiary civil liability unless it appears that the accused-employees primary
liability cannot in the first instance be satisfied because of insolvency. This fact
cannot be known until some time after the verdict of conviction shall have
become final. And even if it appears prima facie that execution against the
employee cannot be satisfied, execution against the employer will not issue as
a matter of course.[37] The procedure for the enforcement of a judgment will
have to be followed. Once the judgment of conviction against Olimpio becomes
final and executory, and after the writ of execution issued against him is
returned unsatisfied because of his insolvency, only then can a subsidiary writ
of execution be issued against the MMTC after a hearing set for that precise
purpose. It is still too early to hold the MMTC subsidiarily liable with its accused-
employee considering that there is no proof yet of Olimpios insolvency.
WHEREFORE, we DENY the instant petition. The Decision dated 29
November 1999 of the Court of Appeals in CA-G.R. CR No. 14764 finding
petitioner Olimpio Pangonorom GUILTY beyond reasonable doubt of reckless
imprudence resulting in multiple slight physical injuries, as well as its Resolution
dated 5 May 2000 denying the motion for reconsideration, are AFFIRMED. No
pronouncement as to costs.
SO ORDERED.