Case No.

6380
Reckless Imprudence Resulting to Homicide

DECISION

ISSUES TO BE RESOLVED:

1. Whether or not Joelil Eco Merenciano may be held criminally liable for Reckless
Imprudence resulting to Homicide as charged in the information.

2. Whether or not accused is civilly liable for damages for the death of Johnny
Diano

3. Whether or not accused is civilly liable for damages to the truck with plate no.
RKN 514

4. Whether or not accused is civilly liable for damages to the seven (7) Ducati
motorcycles which were the cargo of the truck

CONCLUSIONS/FINDINGS:

1. Elements of reckless imprudence are the following:

(1) That the offender does or fails to do an act

(2) That the doing or the failure to do that act is voluntary
(3) That it be without malice
(4) That material damage results from the reckless imprudence
(5) That there is inexcusable lack of precaution on the part of the offender,
taking into consideration his employment or occupation, degree of
intelligence, physical condition, and other circumstances regarding
persons, time and place

In this case, it was admitted by the accused that he drove the passenger
bus marked as Elavil Tours on 3 May 2017, he drove the same being an
employee, that the bus he was driving had a collision with the Elf Truck driven by
Johnny Diano causing the latter’s death. Thus, accused’s reckless imprudence or
negligence in driving the bus which resulted to death of Diano is certainly liable
beyond reasonable doubt. Consequently pursuant to Article 100 of the RPC he
shall also be adjudged civilly liable for the death of the victim.
 2. Accused was ordered to pay civil indemnity to the heirs of Johnny Diano (wife
and minor children) Php50, 000.00 for the loss of life of Johnny Diano and moral
damages in the amount of Php50, 000.00. Accused was also adjudged to pay
actual damages representing the loss of income of Diano in the amount of Php2,
460, 000.00.

3 – 4. The answer is in NEGATIVE. Damages to the truck and seven (7) Ducati
motorcycles were never part of the allegations in the information. Accused was
charged only with Reckless Imprudence Resulting to Homicide and nothing
more. Hence, accused cannot be made to answer for the damages sustained to
the aforesaid properties as the same are never part of the allegations in the
information otherwise accused’s constitutional right to be informed of the nature
and cause of the accusation against him will be violated.

DISPOSITION:

1. Php50,000.00 as civil indemnity for the loss of life of Diano

2. Php2,460,000.00 as actual damages representing loss of income of the
deceased
3. To pay NDC an amount of Php346,008.60 representing other actual damages
incurred for the medication, transportations, funeral and burial expenses of the
deceased which were defrayed by NDC.

Allan Estudillo
Presiding Judge, Gandara, Samar

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APPELLANT MEMORANDUM

The accused filed an Appellant Memorandum on 15 February 2019 and avers that on
15 February 2018, the accused was arraigned and entered a plea of not guilty. Trial
ensued and the decision was promulgated and the accused was convicted for the crime
of reckless imprudence resulting in homicide and ordered to pay civil damages as
follows:
 4. Php50,000.00 as civil indemnity for the loss of life of Diano
5. Php2,460,000.00 as actual damages representing loss of income of the
deceased
6. To pay NDC an amount of Php346,008.60 representing other actual damages
incurred for the medication, transportations, funeral and burial expenses of the
deceased which were defrayed by NDC

Accused-appellant assigned the following errors:

1. Erred in awarding moral damages despite absence of prayer and a clear proof of
mental anguish or suffering and the like
2. Erred in awarding Php2,460,000.00 representing loss of income of the deceased
despite absence of prayer and proof with reasonable degree of certainty,
premised upon competent proof or the best evidence obtainable

Discussion/Argument:

1. That to award moral damages, private complainant should pray of such award
and a proof of moral suffering, mental anguish fright and the like (Kierulf v. CA
G.R No. 99301, March 31, 1997)

That there must be clear testimony on the anguish and other forms of mental
suffering (Francisco vs. GSIS, 117 Phil. 586, 597)

2. Supreme Court held, in a catena of cases:

In addition to the fact that the amount of loss must be capable of proof, it must
also be actually proven with a reasonable degree of certainty, premised upon
competent proof or the best evidence obtainable like sales and delivery receipts,
cash and check vouchers and other pieces of documentary evidence of the same
nature. In the absence of corroborative evidence, it has been held that self-
serving statements of account are not sufficient basis for an award of actual
damages.

Private complainant failed to actually prove and present evidence as to the

earning of her husband. The testimony of Annaliza on the earning of her husband
was unsubstantiated by any documentary evidence and hence self-serving and
should not be a sufficient basis for an award of actual damages. Neither did she
presented any document or best evidence obtainable such as “pay slip” of loss of
income of the deceased. No other evidence presented, whether documentary or
testimonial, to substantiate the claim of P15, 000.00 monthly income of the
income.
 We emphasized that these damages cannot be presumed, and courts in making
an award must point out specific facts which can serve as basis for measuring
whatever compensatory or actual damages are borne. (Mariano Mendoza et al.,
vs. Spouses Leonora J. Gomez et al., G.R No. 160110, June 18, 2014)

Prayer:

1. That the award of moral and actual damages be DELETED and such other relief
and remedies which are just and equitable in the premise are likewise sought for.

Calbayog, Samar, January 23, 2019

Atty. Anthony Singzon

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COMMENT AND OPPOSITION

(To Motion for Partial Reconsideration)

The complainant opposes the Motion for Partial Reconsideration on the following
grounds:

1. That an award of moral damages finds no application in the instant case because
the wife of the deceased neither alleged nor offered in evidence to prove
besmirched reputation or physical, mental or psychological suffering incurred by
her. Contention is misplaced.

2. In the case of Del Mundo vs. CA, although incapable of exactness and no proof
of pecuniary loss is necessary in order that moral damages may be awarded, the
amount indemnity being left to the discretion of the court, it is imperative,
nevertheless, that (1) injury must have been suffered by the claimant and (2)
such injury must have sprung from any of the cases expressed in Art. 2219 and
Art. 2220 of the Civil Code. A casual relation, in fine, must exist between the act
or omission referred to in the Code which underlies, or gives rise to, the case or
proceeding, on the one hand, and the resulting injury, on the other hand; the first
must be the proximate cause and the latter the direct consequence thereof.

3. That the amount claimed (50,000.00) as moral damages is reasonable

considering the amount of loss suffered by the Complainant was proper.
 4. That the contention of the accused that actual damages representing the loss of
income of deceased Diano has no evidence was not proven neither by testimony
nor by any documentary evidence; that the complainant miserably failed to
actually prove and present evidence as to the earning of her husband; and
neither did she present the pay slip of Johnny Diano nor any document to
substantiate her claim of actual damages do not hold water.

5. On clarificatory question by the Court, she was asked as to how much was his
husband’s daily income in open court. She answered that he was a minimum
wage earner. It was also undisputed that deceased Diano was an employee of
NDC at the time the accident occurred. Even the Court correctly acknowledged
the deceased’s employment status and his wage in its Decision, to wit:

“The court will presume that this Php15,000 is the monthly salary
of the deceased considering that he is an employee of NDC thus
at least earning minimum wage.”

6. In conclusion, the Honorable Court was correct in saying that the Complainant is
entitled to be paid actual damages representing the loss of income of Johnny
Diano.

Prayer:
1. That the Resolution dated September 3, 2018 be denied.

Atty. Crispin Simoun Cercado

Counsel for Complainant

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MOTION FOR RECONSIDERATION

Accused moves for reconsideration of the Decision and avers the following:

1. In modifying the amount of actual damages in the amount of Php1, 672, 800.00
with 6% legal interest per annum from the finality of the decision until fully paid.
 Other issues and awards for damages of the appealed court a quo’s decision are
affirmed.

2. In affirming the award of moral damages by relying heavily on moral suffering

being a state of mind which can be manifested by physical act or expression

3. In modifying the amount of actual damages representing the loss of earning

capacity of the victim from Php2, 460, 000.00 down to Php1, 672, 800.00 on the
basis of the minimum wage of Davao Region victim being an employee of NDC
which employer’s business address is in Davao City.

Assignment of errors:

1. Erred in affirming the award of moral damages for the crime of Reckless
Imprudence Resulting to Homicide without pleading and proof of moral suffering
2. Erred in awarding Php1, 672, 800.00 representing loss of income of deceased
Johnny M. Diano based on the minimum wage of Davao Region and despite
absence of prayer and proof with reasonable degree of certainty, premised upon
competent proof or the best evidence obtainable

DISCUSSION/ARGUMENTS

1. “That the courts cannot grant a relief not prayed for in the pleadings or in excess
of what is being sought by the party” (Diana vs. Balangue, 701 Phil. 19 31 (2013)

2. Accused reiterates that in awarding moral damages, private complainant should

pray of such award and a proof of moral suffering in accordance to the case of
Keirulf vs. CA G.R No. 99301, March 13, 1997.

“we observed that this Court cannot remind the bench and the bar often enough
that in order that moral damages may be awarded, there must be pleading and
proof of moral suffering, mental anguish, fright and the like”

“There must be clear testimony on the anguish and other forms of mental
suffering” (Francisco vs. GSIS, 117 Phil. 586, 597)

3. Article 2199 of the New Civil Code of the Philippines provides that “except as
provided by law or by stipulation, one is entitled to an adequate compensation
 only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.

4. “In addition to the fact that the amount of loss must be capable of proof, it must
also be actually proven with a reasonable degree of certainty, premised upon
competent proof or the best evidence obtainable. The burden of proof of the
damage suffered is, consequently, imposed on the party claiming the same who
should adduce the best evidence available in support thereof, like sales and
delivery receipts, cash and check vouchers and other pieces of documentary
evidence of the same nature.

5. The complainant failed to actually prove and present evidence as to the earning
of her husband. The alleged salary is unsubstantiated by any documentary
evidence and hence self-serving statements of account are not sufficient basis
for an award of actual damages.

6. Erred in applying the minimum wage of Davao region in awarding the actual
damages for income loss of earning;

1. That the prosecution failed to prove that deceased Diano is an employee of

NDC.

2. That it is the burden of the prosecution to present evidence that the victim is a
regular employee of NDC.

3. That the court a quo inadvertently failed to incorporate the stipulation on the
victim status as employee of NDC.

4. That if the prosecution failed to present evidence that Johnny Diano, the
victim, was an employee of NDC, they should at least presented documentary
evidence to support the testimony otherwise the testimony would be self-
serving in the instant case

5. Neither the Chief Operating Officer, Daniel Sunga testified to corroborate the
claim of the wife that the victim’s income is indeed php15, 000.00 nor has
testified that the victim is a regular employee of the company.
Prayer:

That Decision dated 26 March 2019 be RECONSIDERED and the award for actual
damages representing the loss of income of deceased Johnny M. Diano and the moral
damages be DELETED.
Atty. Anthony U. Singzon
Counsel for the Accused-Appellant

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COMMENT AND OPPOSITION

(To the Motion for Reconsideration)

Complainant opposes the said Motion for Reconsideration on the following

grounds:

1. Accused-Appellant reiterates his claim that proof of moral suffering and

prayer of the same is needed in awarding moral damages. We do not
agree.

“In crimes in which death of the victim results, civil indemnity is granted
even in the absence of allegation and proof. Similarly, moral damages are
allowed even without allegation and proof, it being a certainty that the
victims’ heirs were entitled thereto as a matter of law” (People vs.
Oandasan, Jr.)

2. That the Court decision is correct when it pointed out that the judicial
affidavit which was offered as Annaliza Diano’s direct testimony, no other
explanation but a showing of mental anguish, anxiety and mental torture
for the uncertain future of her children considering the victim was their sole
bread winner. Clear as daylight, that such mental anguish and suffering
has been proven to the satisfaction of the Court.

3. Complainant- Appellee need not prove or allege moral damages in the

Complaint. The family is entitled to the award after having lost a father
figure and a breadwinner of the family.

4. That the Court was correct in assenting to the findings of the court a quo
in its Decision when it relied on the statement of the wife of the victim that
the latter was earning a Php15, 000.00 monthly income as a minimum
wage earner. The Court agrees with the pronouncement of the court a
 quo that proof of loss of income need not always be proven through
documentary evidence, as it can be proven through testimonial evidence.
(Philippines vs. Jorie Wahiman y Ramos, G.R No. 200942, June 16,
2015)

5. The Prosecution presented testimonial evidence to prove the income of

the deceased for an award of loss of earning capacity and met the
requisite quantum of evidence, preponderance of evidence, for civil
actions.

Nothing in the Rules of Court requires that only documentary evidence is

allowed in civil cases. All that is required is the satisfaction of the quantum
of evidence, that is, preponderance of evidence. In addition, the Civil Code
does not prohibit a claim for loss of earning capacity on the basis that it is
not proven by documentary evidence.

Testimonial evidence, if not questioned for credibility, bears the same

weight as documentary evidence. Testimonies given by the deceased’s
spouse, parent, or child should be given weight because these individuals
are presumed to know the income of their spouse, child or parent.

6. That Johnny Diano is an employee of NDC when an employee of the

corporation positively identified the deceased as a co-employee and driver
of NDC. In fact, the company shouldered the funeral, burial and other
incidental expenses resulting from the death of Johnny Diano. The
defense presented no evidence to refute the same, in its absence, the
award of actual damages for loss of earning of income of the deceased is
correctly given.

Prayer:

That the Motion for Reconsideration filed by the accused-appellant be dismissed

and the award for actual damages and moral damages be upheld. Other just and
equitable are also prayed for.

Atty. Crispin Simoun Cercado

Counsel for Complainant-Appellee

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RESOLUTION

A resolution for the Partial Motion for reconsideration of the civil aspect was received by
MCTC, Gandara, Samar dated on 28 November 2018.

1. That the award of moral damages in this case is certainly proper.

The claim of the accused-movant that Annaliza Diano did not allege nor offer
evidence to prove mental or psychological suffering is also misplaced. The
judicial affidavit of Annaliza Diano which constituted her direct testimony
sufficiently, clearly and certainly showed the inconsolable, shocking, horrifying if
not depressing feelings she suffered upon learning the death of her husband, the
only bread winner of their family, if that was not mental suffering certainly that
would constitute psychological suffering on her part which no person would dare
wish to experience. Her testimony alone will clearly justify the moral damages.

2. That the accused-movant claimed that private complainant failed to actually

prove and present evidence as to the earning of her husband as her testimony
was unsubstantiated by documentary evidence. Such claim of accused has also
no merit. While the testimony of Annaliza was not supported by documentary
evidence was not rebutted by the accused. It was not even denied by the
accused. No evidence was presented by the accused to question or discredit
such testimonial evidence of the prosecution through the private complainant.

Allan Estudillo
Presiding Judge, Gandara, Samar

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