Nicanor Jacinto, Petitioner vs. Hon. Rafael Amparo, as Judge of the Court of First Instance of Manila, Branch III, and Jose Cojuangco, Respondents, G. R. No. L-6096, August 25, 1953 [Supreme Court Decisions]

Media

Part of The Lawyers Journal

Title
Nicanor Jacinto, Petitioner vs. Hon. Rafael Amparo, as Judge of the Court of First Instance of Manila, Branch III, and Jose Cojuangco, Respondents, G. R. No. L-6096, August 25, 1953 [Supreme Court Decisions]
Language
English
Source
The Lawyers Journal XIX (5) May 31, 1954
Year
1954
Subject
Deposition
Discretion of the Court
Court of First Instance -- Manila
Rights
In Copyright - Educational Use Permitted
Abstract
[Nicanor Jacinto filed a complaint against Jose Cojuangco which refers to the accounting of the assets of a partnership they organized in 1939. The petition is denied with costs against the petitioner.]
Fulltext
senee Of ·ms father Isidro Rivera, his wife Dominga Camatos and Filomena CTeofila) de la Cruz. The party was commanded by a Japanese officer. Maximo Pacheco, armed with a rifle, tied the hand& of the prisoner. .Theredter the captive was marched to the 'J8.p8.nese garrison at Polo, Bulacan, followed by his near relatives already mentioned, The latter waited for him at the gate for two hours, but in vain. The next day, in the afternoon, they returned in time to see 'rum with three other Filipinos. all tied, walking to the Isla bridge, Polo, guarded by four Filipinos, one of them the appellant, plus one or two Japanese soldiers. Near the foot·.'of the bridge the Filipino captives were shot dead. Antonio lie Guzman, 'l\,'hose house stood about. thirty meters from the place beheld the 'massacre, which was also seen by Federico San Juan, 1'~er., 38, and Regino Galicia, employee, 37. Antonio de Guzman swore 'it was this appellant who shot Ceferino Rivera on that occasion. · Appellant's overt act of taking part in the appreh~nsion of Ceferi.no Rivera, as a guerrilla suspect waa testified to by Isidro Rivera and Dominga Camatoa. But the defense contends that the 'latter is un~-orthy of credit because whereas she stated in direct examination that her husband had been arrested by four Filipinos '(one of them Maximo Pacheco) yet on crosr:i examination she answered it was a Japanese who made the arrest Cp. 285 -n.) But on ·the same page this woman declared: · "P Y los otrcs cuatro filipinos eataban alli mirando en compania del japones, desde luego? R El que le ato era un filipino. P Quien de los filipinos ato a au esposo? R Maximo Pacheco.'" There is consequently no reason to doubt her veracity on tlda score. Other quotations of the testimony of these two witnesses are 'submitted by appellant's counse~, in an effort to destroy their credibility. The:y are either explainable, like the one above discussed, or refer to unsubstantial matters, That thiR appellant took active part in. the· arrest and execution of Ceferino Rivera, we have no rcaSonable doubt. His mere denial can not overcome the positiv<' assertion of the witnesses. And his claim that he was also a guerii.Ua, was held unfounded by the trial judge. Anyway, we have heretofore declared that such claim ia no defense acainst overt acts of treason. (People vs. Jose Fernando, SC-G.G. No. 1-1138, prom. Dec. 17, 1947; People vs. Carmr.lito Victoria1 SC-G. R. No. L-369, prom. Mar. 13, 1947; People vs Carlos Castillo, SC-G. R. No. L-240, prom. April 17, 1947>. . The second charge is also adequately proven by the testimony ·of Judge Eugeitio Aiiaeles, hia son Gregorio, and Dr. Ciriaco Santiago. . . On February 2, 1945 about 7:30 a..m., the three were on their way to Hermoso Drug Store near Divisoria Marbt, Manila. Crossing a bridge on Azcarraga Street they met Ricardo Urrutia ,)f Polo, friend of Judge ·"'-ngeles, who stopped to tell them "the Ame.. ricans were already in Malolos." Hardly had the p&rty crossed the bridge when Judge Angele;;i was surrounded by five young m•~n all armed. One of them wearing a mask ordered him to proceed to lhe Air Port studio nearby, which served as Headquarters of the Kempei Tai, dreaded Japanese orgp..nization. One of the young men was the herein accused. Dr. $anti.ago and G1-egorio Angeles were Mt molested. In the studio Judge .Angeles was brought to a room wherein he saw seven Filipinos (including this appellant> headed by one Santos residing in Polo. The latter asked Judge Angeles if he was a guerrilla., and 1!fhen he replied in the negative he was struck with a piece of lumber. Then he was subjected to several forms of torture. Ue was boxed and kicked and given the water cure. But he stoutly denied connection With the underground resistance. This accused was in the room and informed the investigators that he (Judge Angeles) was the chief of the guerrillas of Polo. In view of this imputation the tortures continued. Fortunately for Judge Angeles, the Japanese began their retrea.t from Manila on February 3, the gaTrison was vacated, and ·he ma.naged to escape together with other ·prisoners. lt may be true, as contended by defense counsel that the ·tortures uiidergcne by Judge Angeles' were described. by him as the sole witness; but his apprehension BB a guerrilla was witnessed and related in open court by Dr. Santiago all:d his son Gregorio, compliance with the two-witnesa rule being thereby effected. Wherefore, after reviewing the whole record we find no hesita.. tion in finding this appellant cuilty of treason. And as th~ penalty meted aut to him aceords with section 114 of the Revised J>enal Code, the a.ppealed decision should be, and it is hereby, affirmed with coats. So ordered. Patra8, Pablo, Padilla, Tuason, Montema710t", Reyes, Jugo, Bautista. Angelo and Labnulo,-, J.J., concur. Mr. Juatice Feria took no part. vm Nica7UW Jacinto, Petitioner os. Hon. Raf"l Amparo, aa Judge of tM. Court of First Instance of Manila, Branch III, and Jose CojHangco, Respondents, G. R. No. L-6096, August 26, 1953. DEPOSITION; DISCRETION OF THE COURT.-ln the case of Frank & Co. vs. Clemente (44 Phil. SO>, it was held that the taking of a deposition rests largely in the epund discretion of the court. Although that decision waa rendered under the provisions of the old Code of Civil P~dure (Act No. 190), it is also applicable In the present case, in view of ·the P,rovisiona of section 16 of Rule 18. Jose P. Lau,.el for petitioner. Lo,-enzo Sumulong for ~dent.a. DECISION JUGO, J.: On November 26, 1961, Nicanor Jacinto petitioner herein, filed1 a complalnt against Jase Cojuangco, respondent herein, before the Court of First Instance of Manila, presided over by Judge Amparo, co-respondent herein, in Civil Case No. 16199 of said court, pray~ ing for an accounting o'f the assets of a partnership organized by Nicanor ·Jacinto and Jose Cojuangeo in 1939. Cojuangco filed an answer with a counterclaim, to which Jacinto in his turn filed an answer. Upon motion of Jacinto, the case was set for trial on February 22, 1962. On February 8, Jacinto served on Cojuangeo a notice for the taking of the latter's deposition by. oral examination on February 12, befbre a Deputy Clerk of the Court of First Instance of Manila. In the morning of February 12, 1962, the date set for the taking of the deposition o:i Cojuangco, the latter's counsel, attorney Lorenzo Sumulong, conferred with attorney Fernando Jaeinto, son and counsel of Nicanor .Jacinto, regarding the possibility of an amicable settlement. In view of this, the taking of the deposition was postponed. to February 1&, and then to Feb~ary 18, at 2:00 p.m. At one o'clock iii the a~ternoon of February 18 or on• hour before the time set for the deposition of Cojuangco, the latter served on Jacinto notice of this motion asking the court to order that the deposition be not taken at all, setting said motion for hearing on February 22, the date fixed for the trial. At the s&Dle time, Cojuangco served on Jacinto notice that he would take Jacinto's oral deposition at one o'clock p.m. on February 22. Ja-einto did not object to the taking of his deposition by Cojuangeo, but moved that the hour of thB taking be changed ·for the convenience of both parties. At the hearing of Cojuan&'CQ'S motion, Jacinto's counsel argued. against it. The respondent Judge dictated in open court the following resolution_: "The Court takes exception to the allegation that the taking of a deposition is a matter .of absolute right after the answer is filed. See section 16 of the• rules. The case is now ready' for trial, why don)t we proceed? 'l'he granting of the taking of a deposition is discretionary: to the Court under Section 16. And taking the circumstances, the eourt finds 228 LA WY~RS JOURN>AL May Sl, 1964 no necessity for the taking of the deposition. It will simply delay the proceedings. The court will deny 01· set aside the taking of the deposition and the counsel for the plaintiffs can test the validity of the_ ruling of the court in the ap.. pellate court. x x x x As the court $ted from the beginning, the court will issue a formal order directing that no deposition will be taken because that will not be necessary. The court finds that such taking of the deposition will lead the parties or the court to ~o practical result. I will have the order made in due form." Cojuangco moved for the rec'Onsideration of said order, but hia motion was denied. Section 16, of Rule. 18, provides that "after notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the actien is operate his taxi cab eight hours, or less than eight hours or in excess of 8 hours, 01· even for 24 hours on Saturdays, Sundays and holidays, with no limit or restriction other than his desire, inclination and state of health 8-nd physical endurance. He could drive continuously or intermittently, systematically or haphazardly, fast or slow, etc. depending upon his exclusive wish or inclination. One day when he feels strong, active and enthusiastic he works long, continuously, with diligence and industry and makes considerable . gross returns and receives much as his 20% commission. Another day when he feels despondent, run down, weak or lazy and wants to :rest between tl"ips and works for a less number of hours, his gross returns are less and so is his conuniSsion. In other words, his compensation :(or the day depends upon the result ·of his work, wllich in turn depends on the amount of industry, intelligence and experience applied to it, rather than the period of time employed. In short, he has no fixed salary or wages. pending micy- make an order that the deposition shall not be taken, S. IBID; IBIDi IBID.-ln an opinion dated July 1, 1939 (Opinion etc." It is clear from this section that the taking of a deposi- No. 115) modified by Opinion No. 22, series 1940, dated Jantion is discretionary with the trial court. We do not find that uary 11, 1940, the Secretary of Justice held that chauffeurs of the court abused its discretion in ordering that the deposition be the Manila Yellow Taxicab Co. who "observed in a loose· way not taken, the reasons given by it being plausible and cOgent. ln certain working hours. daily.'' and "the time they report for certain cases, there may be sufficient grounds for taking the de- work as well as the time they leave work was left to. their di&positibn Qf a party or witness, such as his impending departure cretion," :receiving no fixed saJary but only 20% of their gross frem .the country, or that certain pertinent facts could not .be earnings, may be considered as piece workers and therefore not elicited except by means of a deposition. No such grounds exist _yve:red by the provisions of the Eight Hour Labor Law. ;ee~~ ~::n!ii:a:.uni~er;r i:ru:to h?~:i~: ;:::es~~:n r:~p::~en;a~ ~ IBID; IBID i IBID.-"The provisions of this bulletin on crverwhich may not be Obtained_.from-him at the trial itself, with the ~ compenaation s~all l\pply to all ~ersons employed .in any same coerceive remedies at the disposal of the petitioner. mdu~ or occupation, whether pu~lic or priva~ with tAe As there has been no excess of jurisdiction or abuse of dis- ez:oeptum of farm laborers.' non-agricultural labor~rs, or emcfetion on the part of the respondent court, the remedy of cer- plo~s ~ho ai: paid on .piece work, contract, pak~ao, task or tlorari does not lie; nor may the writ of mandamus be issued, for citmmiasi~ basia, domestic servantf and ~erson~ m the perthe reason that this remedy is available only to compel the per- sonal service of another and members of tile family otf the emfom:iance of a mandatory and ministePial act_ on the part of fin ployer working for him." officer. Manansala and Manansala for appellants. Ramon L. Resurreccion for appellee. DECISION In the case of F'rank & Co. vs. Clemente, (44 Phil., ·ao), it was held that the taking of a deposition rests largely· in -the sound discretion of the court, Although that decision was rendered Under the provisions of the old Code of Civil Procedure (Act No. 190), ft is also applicable in- the present case, in view of the provisions MONTEMAYOR. J,: of section 16 of Rule 18. In view of the foregoing, the petition is denied with costs against the petitioner. It is so ordered. PMas, Pablo, Bengzon, Padilla, Tuason, MontemayOf', Reyes, and Lf.ibrador, J. J., concur. Mr. Justice Bautista Angelo takes -no part. IX Manuel La!ra, et aL, Plaintiffs.Appellants, vs. Petfonilo del Rosario, Jr., Defendcmt-Appellee, G. R. No. L-6339, April 20, .1954, 1. EMPLOYER AND EMPLOYEE; SECTION 3 OF COMMONWEALTH ACT 444 COMMONLY KNOWN AS THE EIGHT HOUR LABOR LAW CONSTRUED.-The last part of Section S of Commonwealth Act 444 provides for extra compensation for overtime work "at the· same rate as their regula., wages Of' sala#-g, plus at least twenty-five per centum additional," and that section 2 of the same act excludes from the application thereof labo1·ers who preferred to be oJJ,· "pie~e WOf'k basis. This connotes that a laborer or employee with 'hi> fixed :..alary, we.ges or remuneration but :receiving as compensation from his employer an uncertain and variable amount depending upon the work done or the :result of said work (piece work) irrespective of the amount of time employed, is not covered by the Eight Hour Labor Law and is not entitled to extra compensation should he work in excess of 8 hours a day. 2. IBID; IBID; DRIVER IN TAXI BUSINESS NOT ENTITLED TO OVERTIME COMPENSATION.-A driver in the tu.xi busitte!!IS of the defendant, like the plaintiffs, .in one day could In 1950 defendant PETRONILO DEL ROSARIO, Jr., owner of twenty-fin taxi cabs or cara, operated a taxi business under the name of "WAVAL TAXI." He employed ainong others three mechanics and 49 chauffeurs or drivers, the latter having worked for periods railging from 2 to 3'1 months. on- September 4, 1950, with bv.t givlng said mechanics and chauffeurs 30 da}'B advance notice, Del Rosario sold his 25 units or cabs to LA MALLORCA, a ~ans­ portation company, as a result of which, according to the mechanics and chauffeurs abovementioned they lost their jobs because the La ldalloua failed to continue them in their employment. They brought this action against Del Rosario to recover compensation for overtime work reildered beyond eight hours and on Sundays and legal holidays, and one month salli.ry (mesada) provided for in Article 302 of the Code of Commerce because of the faliu1·e of their former employer to give them one month notice. Subsequently, the three mechanics unconditionally withdrew their claims. So, only the 49 drivers remained as plaintiffs, The defendant filed a motion for the dismissal of the complaint on the ground that it stated no cause of action and the trial court for the time being denied the motion saying that it will be considered when the case was heard on the merits. After trial the complaint was dismissed. Plaintiffs appealed from the order of dismissal to the Court of Appeals which Tribunal after finding that only questions of law are involved, certified the case to us. The ·parties are agreed that the plaintiffs as chauffeurs received no fixed compensation based on the hours or the period or time that they worked. Rather, they were pd.id on the commission basis, that is to say, each driver received 20% of the gross returns or earnings from the operation of his taxi cab. Plaintiffs claim tliat as a rule, eaeh driver operated a t.azi 12 hours a day Mat 31, 1954 LAWYERS JOURNAL
pages
228-229