[ G.R. No. 20874. October 23, 1923 ] 45 Phil. 314
[ G.R. No. 20874. October 23, 1923 ]
WISE & COMPANY, PLAINTIFF AND APPELLANT, VS. GREGORIO C. LARION, DEFENDANT AND APPELLEE. D E C I S I O N
STREET, J.:
This action was instituted in the Court of First Instance of the Province of Iloilo by Wise & Co. to recover a sum of money from the defendant, Gregorio C. Larion, alleged to have been converted and misappropriated by him while acting in the capacity of cashier of the plaintiff’s Iloilo branch. As an incident to the prosecution of the case the plaintiff obtained an order for writ of attachment against the defendant and said attachment was levied upon certain personal property; but this attachment was subsequently dissolved. The defendant answered generally, denying the allegations of the complaint and alleging as a special defense that the defendant had been criminally prosecuted for estafa, in four separate actions, founded upon the misappropriation of the moneys sued for in this action, in one of which actions the defendant had been acquitted and in the other three the informations had been dismissed; wherefore the defendant relied upon said criminal prosecution as res judicata in this case. By way of counterclaim the defendant sought to recover the sum of P5,000, as damages alleged to have been incurred by him by reason of the wrongful and unlawful suing out of the attachment which had been obtained by the plaintiff.
At the hearing the trial judge found favorably to the accused upon the issue presented by his special plea of acquittal in one prior criminal action and the dismissal of three other criminal causes against him,—all founded upon an alleged estafa of the moneys here sued for. He therefore absolved the defendant from the complaint and gave judgment in favor of the defendant (plaintiff in the cross-complaint) for the amount of P710, as damages incurred by reason of the attachment already mentioned. From this judgment Wise & Co. appealed, and it has assigned errors, not only to the action of the court in absolving the defendant from the complaint, but also to the action of the court in awarding damages to the plaintiff for the wrongful attachment of the defendant’s property.
It appears in evidence that the house of Wise & Co., with its principal office in Manila, has a branch in the city of Iloilo, of which one F. W. Whiteley was manager, and the defendant, Gregorio C. Larion, was an assistant to the manager and acting cashier, during the time of the transactions which gave origin to this litigation. It further appears that the said F. W. Whiteley was unfaithful to his trust and an admitted embezzler. On November 29, 1920, the firm of Hong Guan & Co., of Iloilo, issued a check, No. 31538C (Exhibit A), drawn upon the Philippine National Bank at Iloilo, and payable to bearer for the sum of P1,270, the amount of its indebtedness on that date to Wise & Co. This check was delivered by Hong Guan & Co. to the collector of Wise & Co. and in return therefor Hong Guan & Co. received a receipt (Exhibit B) for the amount of P1,270, signed by G. C. Larion, the defendant herein, showing that the indebtedness indicated in the receipt had been paid. The check which had been delivered to the collector appears to have passed directly into the hands of Whiteley who was then, for some reason or other, hard pressed for money; and he determined to appropriate the proceeds of the check. To this end he instructed Larion to deposit this check in his (Larion’s) own personal account in the Philippine National Bank. At the same time Whiteley told Larion that he (Whiteley) needed money and directed that the proceeds of the check be turned over to himself. Larion was fully aware that Whiteley was bent on the misappropriation of the money but nevertheless, after some hesitation, proceeded to do as told. He accordingly indorsed his own name on the back of the check and deposited it to his own personal account in the bank. The money concerned in this irregular transaction was not entered in the books of Wise & Co. by Larion; but Whiteley gave to Larion a signed statement in writing to the effect that what Larion had done with this check was by Whiteley’s instructions. (Exhibit 2.)
The deposit of check 31538C was effected on December 2,1920; and it appears that a few days prior thereto Larion had deposited two other similar checks, belonging to Wise & Co. to his own account, one for P1,270 and another for P1,630. On December 5 he likewise deposited a fourth check belonging to Wise & Co. to his own personal account, in the amount of P1,000. It does not appear by any documentary evidence that the three checks last above referred to were deposited by Larion in his own personal account upon the instructions of Whiteley, but Larion says that they were so deposited by Whiteley’s direction; and on December 6, 1920, Whiteley signed the document (Exhibit 1) to the following effect:
“Received from Gregorio Larion the sum of Philippine Pesos five thousand one hundred seventy (P5,170) this being the total amount of cheques Nos. 195843 for P1,630, No. 31525C for P1,270, No. 31538C for P1,270 and No. 31546C for P1,000, paid by Hong Guan & Co. for which I accept entire responsibility.
“Iloilo, December 6, 1920.
(Sgd.) “F. W. WHITELEY”
Larion states that shortly prior to the transactions mentioned he had let Whiteley have the sum of P500 upon personal account, and that on December 1, 1920, he delivered the sum of P1,000 to Whiteley and on December 6, the further sum of P3,670, making a total of P5,170, in conformity with the statement of the foregoing receipt. Larion says that he knew very well that Whiteley was stealing from his house and that he (Larion) had scruples about making himself a party to the transactions above stated but that out of deference to Whiteley’s superior rank, and disliking to incur his illwill, he acquiesced in the transactions.
About four months later Hawkins, a director of Wise & Co., came to Iloilo from Manila as representative of the house in order to investigate the conditions in the Iloilo branch; and on April 4, one Strickland arrived to relieve Whiteley as manager of that branch; and during April, Hawkins and Strickland were investigating discrepancies in Whiteley’s accounts. While these investigations were going on Larion was called upon more than once for information, but he observed silence and refused to reveal anything detrimental to Whiteley.
The upshot of the matter was that when the defalcation of Whiteley was revealed Larion was involved in suspicion with his employers as an accomplice of Whiteley. What happened to Whiteley does not appear in the record, but four separate prosecutions for estafa were instituted in the criminal court of Iloilo against Larion. Only one of these actions ever came to trial, and that was the prosecution founded upon the estafa alleged to have been committed in the misappropriation of the proceeds of check 31538C for the sum of P1,270 already referred to. The defendant pleaded not guilty in that case and the cause was heard upon proof submitted by both parties; after which the court acquitted the defendant. In the other three cases Larion had not yet been arraigned at the time of his acquittal in the first case; and the fiscal, upon the announcement of the decision of the court in the first case absolving Larion from criminal responsibility, suggested to the court that the other cases were of an identical character and he asked that the prosecutions be dismissed. That action was accordingly taken.
There can be no question that the defendant, Gregorio C. Larion, made himself civilly liable to Wise & Co. by cooperating in the manner above stated with Whiteley in the embezzlement of the checks already referred to. It may be that Larion is innocent, as he claims to be, of any participation in the criminal design of Whiteley and that he merely followed Whiteley’s directions out of pure complaisance. The situation, however, looks exceedingly suspicious in any point of view and as to his civil liability we think there can be no question—apart of course from the question of res judicata based upon the criminal proceedings, presently to be considered.
Speaking from the standpoint of civil liability purely, the defendant knowingly participated in acts which constituted a fraud upon his employer; and although he relied upon Whiteley to stand between him and the house of Wise & Co., the undertaking of Whiteley does not absolve the defendant from responsibility to the house. Civilly speaking, Larion made himself an accomplice in the misappropriation of these checks, or their proceeds, by Whiteley; and the circumstance that Larion may have yielded to the persuasions of Whiteley out of mere complaisance does not change the situation.
The trial judge apparently recognized the prima facie civil liability of Larion to Wise & Co., as the judgment absolving the defendant from such liability was placed exclusively upon the supposed effects of the disposition made of the criminal cases. And in this connection his Honor cited the case, decided by the Supreme Court of the United States, of Almeida Chantangco and Lete vs. Abaroa (40 Phil., 1056). It there appeared that the defendant had been accused of the malicious and unlawful burning of a storehouse and its contents but he had been acquitted of the crime of arson in a criminal prosecution. Later a civil action was instituted to recover of the same person the damage resulting to the owner of the storehouse from the fire. The defendant in the said civil action pleaded his acquittal in the criminal case as a bar; and upon appeal to the Supreme Court of the United States it was held that, under the law prevailing in the Philippine Islands, said acquittal in the criminal case operated as a bar to the civil action. In the opinion in that case the Supreme Court of the United States reached the conclusion that civil liability does not exist where a defendant has been absolved from criminal liability for the act or acts upon which civil liability is based; but it was pointed out that if the burning instead of being malicious and unlawful, as was alleged in that case, had been due to some fault or negligence of a character that could not give rise to criminal liability the result would have been different. We do not propose in this opinion to undertake to analyze the decision of the Supreme Court of the United States and point out the possibility that the language there used may be too broad. It is enough for our present purposes to say that where, as here, the facts on which civil liability is based are of such nature as inevitably to constitute a crime, if anything, acquittal in a criminal prosecution is an insuperable obstacle to the civil proceeding. In the case before us the act of Larion in appropriating check No. 31538C was designedly done, even though done under Whiteley’s directions; and that act constituted a misappropriation of the employer’s money in which was necessarily involved both a criminal and civil liability. In this connection it should be noted that the estafa consisted of the misappropriation by an employee of funds belonging to his employer, in violation of subsection 5 of article 535 of the Penal Code; and the only thing necessary to establish either civil or criminal liability is the mere fact of misappropriation with intent to deprive the employer of the property. It results that the plaintiff cannot recover in this action for the misappropriation of check 31538C.
The case with respect to the three other checks is different, since the dismissal of the criminal actions based on the misappropriation of those checks, before the accused had been arraigned, could not constitute res judicata in any sense (U. S. vs. Madlangbayan, 2 Phil., 426); and it is established doctrine in this jurisdiction that the prosecution of a criminal action to a successful conviction of the accused is not a condition precedent to the bringing of a civil action (Rakes vs. Atlantic, Gulf & Pacific Co., 7 Phil., 359), especially in estafa cases.
With respect to the alleged wrongful suing out of the attachment by the plaintiff against the defendant, it appears that the order for this attachment was signed by the justice of the peace of Iloilo, acting in the absence of the Judge of the Court of First Instance. As the order was made on May 5, 1921, we take judicial knowledge of the fact that this was vacation time and that the regular court was not then in session in Iloilo. Moreover, it appears that Honorable Fermin Mariano, a resident of another province, had been appointed to act as vacation judge for his own district and also for the province and district of Iloilo. The presumption therefore is, and we take the fact to be, in the absence of proof to the contrary, that Judge Fermin Mariano was not personally jpresent in Iloilo on the date that the justice of the peace signed the order for the attachment. It results that said order must be attributed to the justice of the peace in the exercise of the jurisdiction of a Judge of First Instance pursuant to section 1 of Act No. 2131. Moreover, inasmuch as the order for the attachment purports to be signed by the justice of the peace “in the absence of the Judge of First Instance,” it must be assumed that said justice of the peace was lawfully acting in the exercise of the jurisdiction which pertains to him under the conditions stated. (Sec. 334 [15], Code of Civ. Proc.) It follows that the order for the attachment was valid, notwithstanding the fact that the attachment was for a sum in excess of P2,000, and therefore beyond the ordinary jurisdiction of a justice of the peace; and we are unable to agree to the conclusion of the court below that the attachment was issued without legal authority.
From what has been said it will be seen that the plaintiff had a good cause of action upon at least three of the checks, and the writ of attachment was issued by competent authority. As the sufficiency of the ground of attachment has not been drawn in question, the attachment was in all respects valid; and a necessary conclusion is that the defendant is not entitled to recover the damages which were awarded to him under the cross-complaint for the alleged wrongful suing out of the attachment.
The judgment appealed from will be reversed, and judgment will be entered in favor of the plaintiff to recover of the defendant the sum of P3,900, with interest from May 4, 1921, and the plaintiff will be absolved from the cross-complaint. So ordered, without special pronouncement as to costs.
Johnson, Malcolm, Avanceña, and Romualdez, JJ., concur.