G.R. No. L-17085




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-17085 October 31, 1963 LUZON BROKERAGE COMPANY, petitioner, vs. LUZON LABOR UNION, respondent. R E S O L U T I O N LABRADOR, J.: The second motion for reconsideration raises the question, previously raised in the first motion for reconsideration, as to whether or not the claimants are entitled to back wages during the war, for a period of two or three years. The motion is predicated on the alleged statements of fact made in the original and subsequent proceedings in this case, especially the "Reclamacion Enmendada" of April 7, 1951 presented by the petitioners in Civil Case No. 397-V (7), in which it was then alleged that the company "esta obligada a pagar con los reclamantes por el servicio prestado en Bataan." Our decision of this same case in G.R. No. L-17086, when it was brought to Us for the first time is as follows: Manager Myers may have expressed his belief that the employees could soon come back to work as he did not expect that the war would last so long and so expected that the employees could then go back to work. But there is no definite and positive promise that the employees would receive pay even if the war would last for a long time, such as would justify the present claim. The award of back wages is based on an erroneous conclusion of law made by the lower court in Civil Case No. 397-V(7). We had assumed that the finding or conclusion of the Court of Industrial Relations in the original case could not be reviewed as a finding of fact. But as we will presently show, no positive finding of fact was made in the trial court's decision that the promises for back pay was proved by preponderance of evidence. We have taken pains to study the findings of fact made by the Court of industrial Relations in the original case, Civil Case No. 397-V(7), entitled "Luzon Labor Union vs. Luzon Brokerage Company" and We note that the claim of claimants for back pay for two or three years was granted by the Court of Industrial Relations in the following manner: Respondent union tried to prove that before the claimants left Manila for Bataan in the later part of December, 1941, Tom Myers and his father F. H. Myers promised to give them 2 to 3 years backpay for services rendered to the U.S. Army in Bataan. This contention is contradicted by the company on these grounds: a) Mateo C. Cornelio, Vice-President of the Luzon Brokerage Company denied on the witness stand the alleged promises. b) There are discrepancies and variations between the promise of Tom Myers made to Pio Flores and those given to Verano, de Gula and Presa, which render doubtful the theory of the promise. c) Marcelino Sarceno, Alfonso Navales and Jose Angeles did not testify to any matter regarding the Myers' promises. Navales and Angeles were office managers of the company at the outbreak of the war, and as such they were in a better position, than anyone else to know such promises. The fact that they made no reference whatsoever in their testimonies with respect to said promises, shows that no such promises were made. d) Exhibit "B" is a letter addressed to Forest H. Myers, president of the Luzon Brokerage Company on February 25, 1948, whereby the claimants were seeking a reward from the company "for these unselfish services which we have voluntarily and willingly rendered during those dark days of the occupation." The fact that said Exh. B does not mention the promises of Tom Myers and F. H. Myers, alleged to have been given to the claimants in December, 1941, and in the year 1945, shows that they were never made. These observations deserve, the most serious attention. Furthermore, Tom Myers is now dead. F.H. Myers is insane and has lost his power of speech. They cannot deny the alleged promises. As the saying goes: "Of all evidence the narration of a witness of his conversation with a dead person is esteemed in justice the weakest" (II Moore on Facts, pp. 1014-1015). To avoid, therefore, a miscarriage of justice, our duty is to receive with utmost caution the testimonies on said promises. Considering, however, that Mateo C. Cornelio was not present at the particular time and place where the promise was made; that the claimants' affirmative testimonies are stronger than Cornelio's negative testimony; that the discrepancies in the claimants' testimonies may be explained by the circumstance that the testimony of every person should not be expected to be identical to and coinciding with each other, the Court has to give the claimants the benefit of doubt. As shown by the above, the court granted the claimants' right for back pay for two or three years because "the Court has to give the claimants the benefit of doubt." This conclusion has no foundation in law. Some of the claimants testified that the manager of the respondent company promised them two or three years back pay for services rendered to the U.S. Army in Bataan. Evidence, according to the court, was submitted to refute said testimony on the back wages, and the court declared that it was in a state of doubt as to whether or not the promise to pay back wages was actually made. But it granted back pay because it held that the claimants are supposedly entitled to the benefit of a doubt. As the claimants were the ones who made affirmative allegation that back pay was promised, it was they who had the duty of establishing the truth of such affirmative allegation by a preponderance of evidence. Because the lower court entertained a doubt as to whether the promise was made, the court below did not find that the promise to give back pay was supported by preponderance of evidence. In such a situation the claimants must fail, because having the obligation to prove the affirmative allegation of the supposed existence of the promise, the fact of such promise was not proved by preponderance of evidence. The court below should have found that the promise to give back pay was not made, because proof thereof was not sufficient to overcome the denial by the adverse party. We add that the supposed promise to pay back wages for two or three years, allegedly made in December, 1941, could not have been true. At the beginning of the war, the belief prevalent among Filipinos as well as Americans was that the war would not last for a long time because the United States was fully prepared and sufficiently strong to repel the Japanese attack. The most sensible interpretation of the alleged promise to pay, in view of the above circumstances, was that the pay must be during the period of hostilities only, when the claimants worked with the U.S. Army in Bataan. This period must be during the period of the war in Bataan. The manager of the respondent company, therefore, if he made that promise to give back pay, must have preferred the promise to the period during which the claimants would be working for the U.S. Army in Bataan, that is during the period of actual hostilities, and not up to the period of the termination of the war. In view of all the above considerations, We set aside the finding of the Court of Industrial Relations that the claimants are entitled to back pay for a period of two or three years and instead We declare that they should be entitled to pay during the actual period of hostilities in Bataan, that is from December 8, 1941 to April 9, 1942. But considering that after the surrender of Bataan the claimants had to go back to their respective homes, which are presumed to be in Manila, the Court believes that they should be entitled to pay up to June 8, 1942. The second point raised in the second motion for reconsideration is that the claimants should not be entitled to "incidental expenses". We find this contention to be correct. There is no specification of the nature thereof, hence it is difficult to judge the probability of their existence; and inasmuch as the claimants were under the U.S. Army, the latter must have supplied them with all their needs. Hence, the grant of incidental expenses can not be authorized. The third point raised in the second motion for reconsideration is that the claimants should not be entitled to sixteen hours overtime pay during their stay in Bataan. If we take into account that the claimants joined the U.S. Army in Bataan and were actually in service there, and if we also take into account that hostilities were continuous from the time they went to Bataan up to the surrender on April 9, 1942, the claim for overtime pay should be justified, because during the period of hostilities they had to be on the alert and be ready to be called any time of the day or night. We can take judicial notice of the fact that during war time an army is on the alert for the full twenty four hours, so should all the employees or workers thereof, as the claimants were. Another claim of the movant is that the claim of the claimants should be reduced by the actual amounts received by them from the U.S. Army. This claim of reduction should also be denied because of the fact that during the claimants' stay in Bataan they were there as employees of the respondent Luzon Brokerage Company. If the U.S. Army paid them for actual work, that does not mean that the claimants thereby and thereupon ceased to be employees of the Luzon Brokerage Company. As the promise was made to the effect that they shall be considered as employees of the respondent company during their stay in Bataan, whatever they received from the U.S. Army should not be deducted because the same was paid by the U.S. Army and not by the Luzon Brokerage Company. In the second motion for reconsideration, movant also claims that thirty claimants who do not appear in Annexes "A" to "L" enumerated on page 4 of their motion for reconsideration should be excluded. This claim is based on the fact that their claims are not supported by any affidavits on their part. We find this claim to be justified because while the presence of these claimants was testified to by other witnesses, said claimants not having filed their respective affidavits of claim, the Court feels that it cannot grant the claims without their affidavits; it is the affidavit of the claimants that constitutes the best evidence admissible as to whether or not they actually rendered services and the nature thereof. The contention of the movant Luzon Brokerage Company that the claims of the said thirty claimants should be denied, is hereby sustained, except that of claimant No. 7, Martin Feria, which is approved. We also found that one claimant by the name of Jose Padilla did not file any affidavit of claim. The claim of said Padilla therefore should also be discarded and denied. The respondent Luzon Labor Union argues that the second motion for reconsideration should not be considered because the same is prohibited by the rule on omnibus motions. This opposition cannot be sustained. The rule on omnibus motions is applicable only to motions for reconsideration that tend to delay the perfection of an appeal, but not be motions for reconsideration addressed to the merits of the case, as in the case at bar. The Court is authorized under the Rules [Rules 124, Sec. 5-(g)] to amend its judgments and orders at any time to make them conformable to law and justice. This power of the Court cannot be deemed affected or modified by the fact that the questions raised in the second motion for reconsideration have not been previously raised in the first motion for reconsideration. The movant further prays that the Claims of Pablo Pureza and Alfredo Peraan should be disallowed. We find that Pablo Pureza is the duplication of claimant Pablo Presa. Alfredo Peraan in his affidavit (Exhibit A21-) appears to have rendered services in Manila but not in Bataan. Hence, these claimants should be discarded from the list of persons entitled to recover back wages. WHEREFORE, the original decision rendered by Us is hereby modified in the sense that the claims for back wages of the respondents in this case, with the exception of those whose claims were disallowed in our resolution on the first motion for reconsideration, be limited to the period from December 8, 1941 to June 8, 1942. All claims for incidental expenses are denied. The claims of the thirty claimants enumerated on page 4 of the second motion for reconsideration are hereby disallowed, with the exception of that of Martin Feria. The claims of Jose Padilla, Pablo Pureza and Alfredo Peraan are also disallowed. No costs. Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur. The Lawphil Project - Arellano Law Foundation