G.R. No.

L-14628 September 30, 1960

FRANCISCO HERMOSISIMA, petitioner,
vs.
THE HON. COURT OF APPEALS, ET
AL., respondents.
Regino Hermosisima for petitioner.
F.P. Gabriel, Jr. for respondents.
CONCEPCION, J.:
An appeal by certiorari, taken by petitioner Francisco
Hermosisima, from a decision of Court of Appeals
modifying that of the Court of First Instance of Cebu.
On October 4, 1954, Soledad Cagigas, hereinafter
referred to as complaint, filed with said of her child, Chris
Hermosisima, as natural child and moral damages for
alleged breach of promise. Petitioner admitted the
paternity of child and expressed willingness to support
the latter, but denied having ever promised to marry the
complainant. Upon her motion, said court ordered
petitioner, on October 27, 1954, to pay, by way of
alimony pendente lite, P50.00 a month, which was, on
February 16, 1955, reduced to P30.00 a month. In due
course, later on, said court rendered a decision the
dispositive part of which reads:
WHEREFORE, judgment is hereby rendered, declaring
the child, Chris Hermosisima, as the natural daughter of
defendant, and confirming the order pendente lite, ordering
defendant to pay to the said child, through plaintiff, the
sum of thirty pesos (P30.00), payable on or before the
fifth day of every month sentencing defendant to pay to
plaintiff the sum of FOUR THOUSAND FIVE
HUNDRED PESOS (P4,500.00) for actual and
compensatory damages; the sum of FIVE THOUSAND
PESOS (P5,000.00) as moral damages; and the further
sum of FIVE HUNDRED PESOS (P500.00) as
attorney's fees for plaintiff, with costs against defendant.
On appeal taken by petitioner, the Court of Appeals
affirmed this decision, except as to the actual and
compensatory damages and the moral damages, which
were increased to P5,614.25 and P7,000.00, respectively.
The main issue before us is whether moral damages are
recoverable, under our laws, for breach of promise to
marry. The pertinent facts are:
Complainant Soledad Cagigas, was born in July 1917.
Since 1950, Soledad then a teacher in the Sibonga
Provincial High School in Cebu, and petitioner, who was
almost ten (10) years younger than she, used to go around
together and were regarded as engaged, although he had
made no promise of marriage prior thereto. In 1951, she
gave up teaching and became a life insurance underwriter
in the City of Cebu, where intimacy developed among her
and the petitioner, since one evening in 1953, when after
coming from the movies, they had sexual intercourse in
his cabin on board M/V "Escao," to which he was then
attached as apprentice pilot. In February 1954, Soledad
advised petitioner that she was in the family way,
whereupon he promised to marry her. Their child, Chris
Hermosisima, was born on June 17, 1954, in a private
maternity and clinic. However, subsequently, or on July
24, 1954, defendant married one Romanita Perez. Hence,
the present action, which was commenced on or about
October 4, 1954.
Referring now to the issue above referred to, it will be
noted that the Civil Code of Spain permitted the recovery
of damages for breach to marry. Article 43 and 44 of said
Code provides:
ART. 43. A mutual promise of marriage shall not give rise
to an obligation to contract marriage. No court shall
entertain any complaint by which the enforcement of
such promise is sought.
ART. 44. If the promise has been in a public or private
instrument by an adult, or by a minor with the
concurrence of the person whose consent is necessary for
the celebration of the marriage, or if the banns have been
published, the one who without just cause refuses to
marry shall be obliged to reimburse the other for the
expenses which he or she may have incurred by reason of
the promised marriage.
The action for reimbursement of expenses to which the
foregoing article refers must be brought within one year,
computed from the day of the refusal to celebrate the
marriage.
Inasmuch as these articles were never in force in the
Philippines, this Court ruled in De Jesus vs. Syquia (58 Phil.,
866), that "the action for breach of promises to marry has
no standing in the civil law, apart from the right to
recover money or property advanced . . . upon the faith
of such promise". The Code Commission charged with
the drafting of the Proposed Civil Code of the Philippines
deem it best, however, to change the law thereon. We
quote from the report of the Code Commission on said
Proposed Civil Code:
Articles 43 and 44 the Civil Code of 1889 refer to the
promise of marriage. But these articles are not enforced in
the Philippines. The subject is regulated in the Proposed
Civil Code not only as to the aspect treated of in said
articles but also in other particulars. It is advisable to
furnish legislative solutions to some questions that might
arise relative to betrothal. Among the provisions
proposed are: That authorizing the adjudication of moral
damages, in case of breach of promise of marriage, and
that creating liability for causing a marriage engagement
to be broken.1awphl.nt
Accordingly, the following provisions were inserted in
said Proposed Civil Code, under Chapter I, Title III,
Book I thereof:
Art. 56. A mutual promise to marry may be made
expressly or impliedly.
Art. 57. An engagement to be married must be agreed
directly by the future spouses.
Art. 58. A contract for a future marriage cannot, without
the consent of the parent or guardian, be entered into by
a male between the ages of sixteen and twenty years or by
a female between the ages of sixteen and eighteen years.
Without such consent of the parents or guardian, the
engagement to marry cannot be the basis of a civil action
for damages in case of breach of the promise.
Art. 59. A promise to marry when made by a female
under the age of fourteen years is not civilly actionable,
even though approved by the parent or guardian.
Art. 60. In cases referred to in the proceeding articles, the
criminal and civil responsibility of a male for seduction
shall not be affected.
Art. 61. No action for specific performance of a mutual
promise to marry may be brought.
Art. 62. An action for breach of promise to marry may be
brought by the aggrieved party even though a minor
without the assistance of his parent or guardian. Should
the minor refuse to bring suit, the parent or guardian may
institute the action.
Art. 63. Damages for breach of promise to marry shall
include not only material and pecuniary losses but also
compensation for mental and moral suffering.
Art. 64. Any person, other than a rival, the parents,
guardians and grandparents, of the affianced parties, who
cause a marriage engagement to be broken shall be liable
for damages, both material and moral, to the engaged
person who is rejected.
Art. 65. In case of breach of promise to marry, the party
breaking the engagement shall be obliged to return what
he or she has received from the other as gift on account
of the promise of the marriage.
These article were, however, eliminated in Congress. The
reason therefor are set forth in the report of the
corresponding Senate Committee, from which we quote:
The elimination of this Chapter is proposed. That breach
of promise to marry is not actionable has been definitely
decide in the case of De Jesus vs. Syquia, 58 Phil., 866. The
history of breach of promise suit in the United States and
in England has shown that no other action lends itself
more readily to abuse by designing women and
unscrupulous men. It is this experience which has led to
the abolition of the rights of action in the so-called Balm
suit in many of the American States.
See statutes of:
Florida 1945 pp. 1342 1344
Maryland 1945 pp. 1759 1762
Nevada 1943 p. 75
Maine 1941 pp. 140 141
New Hampshire 1941 p. 223
California 1939 p. 1245
Massachusetts 1938 p. 326
Indiana 1936 p. 1009
Michigan 1935 p. 201
New York 1935
Pennsylvania p. 450
The Commission perhaps though that it has followed the
more progression trend in legislation when it provided for
breach of promise to marry suits. But it is clear that the
creation of such causes of action at a time when so many
States, in consequence of years of experience are doing
away with them, may well prove to be a step in the wrong
direction. (Congressional Record, Vol. IV, No. 79,
Thursday, May 19, 1949, p. 2352.)
The views thus expressed were accepted by both houses
of Congress. In the light of the clear and manifest intent
of our law making body not to sanction actions for
breach of promise to marry, the award of moral damages
made by the lower courts is, accordingly, untenable. The
Court of Appeals said award:
Moreover, it appearing that because of defendant-
appellant's seduction power, plaintiff-appellee,
overwhelmed by her love for him finally yielded to his
sexual desires in spite of her age and self-control, she
being a woman after all, we hold that said defendant-
appellant is liable for seduction and, therefore, moral
damages may be recovered from him under the provision
of Article 2219, paragraph 3, of the new Civil Code.
Apart from the fact that the general tenor of said Article
2219, particularly the paragraphs preceding and those
following the one cited by the Court of Appeals, and the
language used in said paragraph strongly indicates that the
"seduction" therein contemplated is the crime punished as
such in Article as such in Article 337 and 338 of the
Revised Penal Code, which admittedly does not exist in
the present case, we find ourselves unable to say that
petitioner is morally guilty of seduction, not only because
he is approximately ten (10) years younger than the
complainant who around thirty-six (36) years of age,
and as highly enlightened as a former high school teacher
and a life insurance agent are supposed to be when she
became intimate with petitioner, then a mere apprentice
pilot, but, also, because, the court of first instance found
that, complainant "surrendered herself" to petitioner
because, "overwhelmed by her love" for him, she "wanted
to bind" "by having a fruit of their engagement even before they had
the benefit of clergy."
The court of first instance sentenced petitioner to pay the
following: (1) a monthly pension of P30.00 for the
support of the child: (2) P4,500, representing the income
that complainant had allegedly failed to earn during her
pregnancy and shortly after the birth of the child, as
actual and compensation damages; (3) P5,000, as moral
damages; and (4) P500.00, as attorney's fees. The Court of
Appeals added to the second item the sum of P1,114.25
consisting of P144.20, for hospitalization and medical
attendance, in connection with the parturiation, and the
balance representing expenses incurred to support the
child and increased the moral damages to P7,000.00.
With the elimination of this award for damages, the
decision of the Court of Appeals is hereby affirmed,
therefore, in all other respects, without special
pronouncement as to cost in this instance. It is so
ordered.
G.R. No. L-20089 December 26, 1964
BEATRIZ P. WASSMER, plaintiff-appellee,
vs.
FRANCISCO X. VELEZ, defendant-appellant.
Jalandoni & Jamir for defendant-appellant.
Samson S. Alcantara for plaintiff-appellee.
BENGZON, J.P., J.:
The facts that culminated in this case started with dreams
and hopes, followed by appropriate planning and serious
endeavors, but terminated in frustration and, what is
worse, complete public humiliation.
Francisco X. Velez and Beatriz P. Wassmer, following
their mutual promise of love, decided to get married and
set September 4, 1954 as the big day. On September 2,
1954 Velez left this note for his bride-to-be:
Dear Bet
Will have to postpone wedding My mother opposes it.
Am leaving on the Convair today.
Please do not ask too many people about the reason why
That would only create a scandal.
Paquing
But the next day, September 3, he sent her the following
telegram:
NOTHING CHANGED REST ASSURED
RETURNING VERY SOON APOLOGIZE MAMA
PAPA LOVE .
PAKING
Thereafter Velez did not appear nor was he heard from
again.
Sued by Beatriz for damages, Velez filed no answer and
was declared in default. Plaintiff adduced evidence before
the clerk of court as commissioner, and on April 29,
1955, judgment was rendered ordering defendant to pay
plaintiff P2,000.00 as actual damages; P25,000.00 as moral
and exemplary damages; P2,500.00 as attorney's fees; and
the costs.
On June 21, 1955 defendant filed a "petition for relief
from orders, judgment and proceedings and motion for
new trial and reconsideration." Plaintiff moved to strike it
cut. But the court, on August 2, 1955, ordered the parties
and their attorneys to appear before it on August 23, 1955
"to explore at this stage of the proceedings the possibility
of arriving at an amicable settlement." It added that
should any of them fail to appear "the petition for relief
and the opposition thereto will be deemed submitted for
resolution."
On August 23, 1955 defendant failed to appear before
court. Instead, on the following day his counsel filed a
motion to defer for two weeks the resolution on
defendants petition for relief. The counsel stated that he
would confer with defendant in Cagayan de Oro City
the latter's residence on the possibility of an amicable
element. The court granted two weeks counted from
August 25, 1955.
Plaintiff manifested on June 15, 1956 that the two weeks
given by the court had expired on September 8, 1955 but
that defendant and his counsel had failed to appear.
Another chance for amicable settlement was given by the
court in its order of July 6, 1956 calling the parties and
their attorneys to appear on July 13, 1956. This time.
however, defendant's counsel informed the court that
chances of settling the case amicably were nil.
On July 20, 1956 the court issued an order denying
defendant's aforesaid petition. Defendant has appealed to
this Court. In his petition of June 21, 1955 in the court a
quo defendant alleged excusable negligence as ground to
set aside the judgment by default. Specifically, it was
stated that defendant filed no answer in the belief that an
amicable settlement was being negotiated.
A petition for relief from judgment on grounds of fraud,
accident, mistake or excusable negligence, must be duly
supported by an affidavit of merits stating facts
constituting a valid defense. (Sec. 3, Rule 38, Rules of
Court.) Defendant's affidavit of merits attached to his
petition of June 21, 1955 stated: "That he has a good and
valid defense against plaintiff's cause of action, his failure
to marry the plaintiff as scheduled having been due to
fortuitous event and/or circumstances beyond his
control." An affidavit of merits like this stating mere
conclusions or opinions instead of facts is not valid.
(Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani
vs. P. Tarrachand Bros., L-15800, December 29, 1960.)
Defendant, however, would contend that the affidavit of
merits was in fact unnecessary, or a mere surplusage,
because the judgment sought to be set aside was null and
void, it having been based on evidence adduced before
the clerk of court. In Province of Pangasinan vs. Palisoc, L-
16519, October 30, 1962, this Court pointed out that the
procedure of designating the clerk of court as
commissioner to receive evidence is sanctioned by Rule
34 (now Rule 33) of the Rules of Court. Now as to
defendant's consent to said procedure, the same did not
have to be obtained for he was declared in default and
thus had no standing in court (Velez vs. Ramas, 40 Phil.
787; Alano vs. Court of First Instance, L-14557, October
30, 1959).
In support of his "motion for new trial and
reconsideration," defendant asserts that the judgment is
contrary to law. The reason given is that "there is no
provision of the Civil Code authorizing" an action for
breach of promise to marry. Indeed, our ruling
in Hermosisima vs. Court of Appeals (L-14628, Sept. 30,
1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30,
1960), is that "mere breach of a promise to marry" is not
an actionable wrong. We pointed out that Congress
deliberately eliminated from the draft of the new Civil
Code the provisions that would have it so.
It must not be overlooked, however, that the extent to
which acts not contrary to law may be perpetrated with
impunity, is not limitless for Article 21 of said Code
provides that "any person who wilfully causes loss or
injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter
for the damage."
The record reveals that on August 23, 1954 plaintiff and
defendant applied for a license to contract marriage,
which was subsequently issued (Exhs. A, A-1). Their
wedding was set for September 4, 1954. Invitations were
printed and distributed to relatives, friends and
acquaintances (Tsn., 5; Exh. C). The bride-to-be's
trousseau, party drsrses and other apparel for the
important occasion were purchased (Tsn., 7-8). Dresses
for the maid of honor and the flower girl were prepared.
A matrimonial bed, with accessories, was bought. Bridal
showers were given and gifts received (Tsn., 6; Exh. E).
And then, with but two days before the wedding,
defendant, who was then 28 years old,: simply left a note
for plaintiff stating: "Will have to postpone wedding
My mother opposes it ... " He enplaned to his home city
in Mindanao, and the next day, the day before the
wedding, he wired plaintiff: "Nothing changed rest
assured returning soon." But he never returned and was
never heard from again.
Surely this is not a case of mere breach of promise to
marry. As stated, mere breach of promise to marry is not
an actionable wrong. But to formally set a wedding and
go through all the above-described preparation and
publicity, only to walk out of it when the matrimony is
about to be solemnized, is quite different. This is palpably
and unjustifiably contrary to good customs for which
defendant must be held answerable in damages in
accordance with Article 21 aforesaid.
Defendant urges in his afore-stated petition that the
damages awarded were excessive. No question is raised as
to the award of actual damages. What defendant would
really assert hereunder is that the award of moral and
exemplary damages, in the amount of P25,000.00, should
be totally eliminated.
Per express provision of Article 2219 (10) of the New
Civil Code, moral damages are recoverable in the cases
mentioned in Article 21 of said Code. As to exemplary
damages, defendant contends that the same could not be
adjudged against him because under Article 2232 of the
New Civil Code the condition precedent is that "the
defendant acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner." The argument is
devoid of merit as under the above-narrated
circumstances of this case defendant clearly acted in a
"wanton ... , reckless [and] oppressive manner." This
Court's opinion, however, is that considering the
particular circumstances of this case, P15,000.00 as moral
and exemplary damages is deemed to be a reasonable
award.
PREMISES CONSIDERED, with the above-indicated
modification, the lower court's judgment is hereby
affirmed, with costs.
G.R. No. 97336 February 19, 1993
GASHEM SHOOKAT BAKSH, petitioner,
vs.
HON. COURT OF APPEALS and MARILOU T.
GONZALES, respondents.
Public Attorney's Office for petitioner.
Corleto R. Castro for private respondent.

DAVIDE, JR., J.:
This is an appeal by certiorari under Rule 45 of the Rules
of Court seeking to review and set aside the Decision
1
of
the respondent Court of Appeals in CA-G.R. CV No.
24256 which affirmed in toto the 16 October 1939
Decision of Branch 38 (Lingayen) of the Regional Trial
Court (RTC) of Pangasinan in Civil Case No. 16503.
Presented is the issue of whether or not damages may be
recovered for a breach of promise to marry on the basis
of Article 21 of the Civil Code of the Philippines.
The antecedents of this case are not complicated:
On 27 October 1987, private respondent, without the
assistance of counsel, filed with the aforesaid trial court a
complaint
2
for damages against the petitioner for the
alleged violation of their agreement to get married. She
alleges in said complaint that: she is twenty-two (22) years
old, single, Filipino and a pretty lass of good moral
character and reputation duly respected in her
community; petitioner, on the other hand, is an Iranian
citizen residing at the Lozano Apartments, Guilig,
Dagupan City, and is an exchange student taking a
medical course at the Lyceum Northwestern Colleges in
Dagupan City; before 20 August 1987, the latter courted
and proposed to marry her; she accepted his love on the
condition that they would get married; they therefore
agreed to get married after the end of the school
semester, which was in October of that year; petitioner
then visited the private respondent's parents in Baaga,
Bugallon, Pangasinan to secure their approval to the
marriage; sometime in 20 August 1987, the petitioner
forced her to live with him in the Lozano Apartments;
she was a virgin before she began living with him; a week
before the filing of the complaint, petitioner's attitude
towards her started to change; he maltreated and
threatened to kill her; as a result of such maltreatment,
she sustained injuries; during a confrontation with a
representative of the barangay captain of Guilig a day
before the filing of the complaint, petitioner repudiated
their marriage agreement and asked her not to live with
him anymore and; the petitioner is already married to
someone living in Bacolod City. Private respondent then
prayed for judgment ordering the petitioner to pay her
damages in the amount of not less than P45,000.00,
reimbursement for actual expenses amounting to
P600.00, attorney's fees and costs, and granting her such
other relief and remedies as may be just and equitable.
The complaint was docketed as Civil Case No. 16503.
In his Answer with Counterclaim,
3
petitioner admitted
only the personal circumstances of the parties as averred
in the complaint and denied the rest of the allegations
either for lack of knowledge or information sufficient to
form a belief as to the truth thereof or because the true
facts are those alleged as his Special and Affirmative
Defenses. He thus claimed that he never proposed
marriage to or agreed to be married with the private
respondent; he neither sought the consent and approval
of her parents nor forced her to live in his apartment; he
did not maltreat her, but only told her to stop coming to
his place because he discovered that she had deceived
him by stealing his money and passport; and finally, no
confrontation took place with a representative of the
barangay captain. Insisting, in his Counterclaim, that the
complaint is baseless and unfounded and that as a result
thereof, he was unnecessarily dragged into court and
compelled to incur expenses, and has suffered mental
anxiety and a besmirched reputation, he prayed for an
award of P5,000.00 for miscellaneous expenses and
P25,000.00 as moral damages.
After conducting a pre-trial on 25 January 1988, the trial
court issued a Pre-Trial Order
4
embodying the stipulated
facts which the parties had agreed upon, to wit:
1. That the plaintiff is single and resident (sic) of Baaga,
Bugallon, Pangasinan, while the defendant is single,
Iranian citizen and resident (sic) of Lozano Apartment,
Guilig, Dagupan City since September 1, 1987 up to the
present;
2. That the defendant is presently studying at Lyceum
Northwestern, Dagupan City, College of Medicine,
second year medicine proper;
3. That the plaintiff is (sic) an employee at Mabuhay
Luncheonette , Fernandez Avenue, Dagupan City since
July, 1986 up to the present and a (sic) high school
graduate;
4. That the parties happened to know each other when
the manager of the Mabuhay Luncheonette, Johhny
Rabino introduced the defendant to the plaintiff on
August 3, 1986.
After trial on the merits, the lower court, applying Article
21 of the Civil Code, rendered on 16 October 1989 a
decision
5
favoring the private respondent. The petitioner
was thus ordered to pay the latter damages and attorney's
fees; the dispositive portion of the decision reads:
IN THE LIGHT of the foregoing consideration,
judgment is hereby rendered in favor of the plaintiff and
against the defendant.
1. Condemning (sic) the defendant to pay the plaintiff the
sum of twenty thousand (P20,000.00) pesos as moral
damages.
2. Condemning further the defendant to play the plaintiff
the sum of three thousand (P3,000.00) pesos as atty's fees
and two thousand (P2,000.00) pesos at (sic) litigation
expenses and to pay the costs.
3. All other claims are denied.
6

The decision is anchored on the trial court's findings and
conclusions that (a) petitioner and private respondent
were lovers, (b) private respondent is not a woman of
loose morals or questionable virtue who readily submits
to sexual advances, (c) petitioner, through machinations,
deceit and false pretenses, promised to marry private
respondent, d) because of his persuasive promise to
marry her, she allowed herself to be deflowered by him,
(e) by reason of that deceitful promise, private respondent
and her parents in accordance with Filipino customs
and traditions made some preparations for the
wedding that was to be held at the end of October 1987
by looking for pigs and chickens, inviting friends and
relatives and contracting sponsors, (f) petitioner did not
fulfill his promise to marry her and (g) such acts of the
petitioner, who is a foreigner and who has abused
Philippine hospitality, have offended our sense of
morality, good customs, culture and traditions. The trial
court gave full credit to the private respondent's
testimony because, inter alia, she would not have had the
temerity and courage to come to court and expose her
honor and reputation to public scrutiny and ridicule if her
claim was false.
7

The above findings and conclusions were culled from the
detailed summary of the evidence for the private
respondent in the foregoing decision, digested by the
respondent Court as follows:
According to plaintiff, who claimed that she was a virgin
at the time and that she never had a boyfriend before,
defendant started courting her just a few days after they
first met. He later proposed marriage to her several times
and she accepted his love as well as his proposal of
marriage on August 20, 1987, on which same day he went
with her to her hometown of Baaga, Bugallon,
Pangasinan, as he wanted to meet her parents and inform
them of their relationship and their intention to get
married. The photographs Exhs. "A" to "E" (and their
submarkings) of defendant with members of plaintiff's
family or with plaintiff, were taken that day. Also on that
occasion, defendant told plaintiffs parents and brothers
and sisters that he intended to marry her during the
semestral break in October, 1987, and because plaintiff's
parents thought he was good and trusted him, they agreed
to his proposal for him to marry their daughter, and they
likewise allowed him to stay in their house and sleep with
plaintiff during the few days that they were in Bugallon.
When plaintiff and defendant later returned to Dagupan
City, they continued to live together in defendant's
apartment. However, in the early days of October, 1987,
defendant would tie plaintiff's hands and feet while he
went to school, and he even gave her medicine at 4
o'clock in the morning that made her sleep the whole day
and night until the following day. As a result of this live-
in relationship, plaintiff became pregnant, but defendant
gave her some medicine to abort the fetus. Still plaintiff
continued to live with defendant and kept reminding him
of his promise to marry her until he told her that he could
not do so because he was already married to a girl in
Bacolod City. That was the time plaintiff left defendant,
went home to her parents, and thereafter consulted a
lawyer who accompanied her to the barangay captain in
Dagupan City. Plaintiff, her lawyer, her godmother, and a
barangay tanod sent by the barangay captain went to talk
to defendant to still convince him to marry plaintiff, but
defendant insisted that he could not do so because he was
already married to a girl in Bacolod City, although the
truth, as stipulated by the parties at the pre-trial, is that
defendant is still single.
Plaintiff's father, a tricycle driver, also claimed that after
defendant had informed them of his desire to marry
Marilou, he already looked for sponsors for the wedding,
started preparing for the reception by looking for pigs
and chickens, and even already invited many relatives and
friends to the forthcoming wedding.
8

Petitioner appealed the trial court's decision to the
respondent Court of Appeals which docketed the case as
CA-G.R. CV No. 24256. In his Brief,
9
he contended that
the trial court erred (a) in not dismissing the case for lack
of factual and legal basis and (b) in ordering him to pay
moral damages, attorney's fees, litigation expenses and
costs.
On 18 February 1991, respondent Court promulgated the
challenged decision
10
affirming in toto the trial court's
ruling of 16 October 1989. In sustaining the trial court's
findings of fact, respondent Court made the following
analysis:
First of all, plaintiff, then only 21 years old when she met
defendant who was already 29 years old at the time, does
not appear to be a girl of loose morals. It is
uncontradicted that she was a virgin prior to her
unfortunate experience with defendant and never had
boyfriend. She is, as described by the lower court, a barrio
lass "not used and accustomed to trend of modern urban
life", and certainly would (sic) not have allowed
"herself to be deflowered by the defendant if there was
no persuasive promise made by the defendant to marry
her." In fact, we agree with the lower court that plaintiff
and defendant must have been sweethearts or so the
plaintiff must have thought because of the deception of
defendant, for otherwise, she would not have allowed
herself to be photographed with defendant in public in so
(sic) loving and tender poses as those depicted in the
pictures Exhs. "D" and "E". We cannot believe,
therefore, defendant's pretense that plaintiff was a
nobody to him except a waitress at the restaurant where
he usually ate. Defendant in fact admitted that he went to
plaintiff's hometown of Baaga, Bugallon, Pangasinan, at
least thrice; at (sic) the town fiesta on February 27, 1987
(p. 54, tsn May 18, 1988), at (sic) a beach party together
with the manager and employees of the Mabuhay
Luncheonette on March 3, 1987 (p. 50, tsn id.), and on
April 1, 1987 when he allegedly talked to plaintiff's
mother who told him to marry her daughter (pp. 55-56,
tsn id.). Would defendant have left Dagupan City where
he was involved in the serious study of medicine to go to
plaintiff's hometown in Baaga, Bugallon, unless there
was (sic) some kind of special relationship between them?
And this special relationship must indeed have led to
defendant's insincere proposal of marriage to plaintiff,
communicated not only to her but also to her parents,
and (sic) Marites Rabino, the owner of the restaurant
where plaintiff was working and where defendant first
proposed marriage to her, also knew of this love affair
and defendant's proposal of marriage to plaintiff, which
she declared was the reason why plaintiff resigned from
her job at the restaurant after she had accepted
defendant's proposal (pp. 6-7, tsn March 7, 1988).
Upon the other hand, appellant does not appear to be a
man of good moral character and must think so low and
have so little respect and regard for Filipino women that
he openly admitted that when he studied in Bacolod City
for several years where he finished his B.S. Biology before
he came to Dagupan City to study medicine, he had a
common-law wife in Bacolod City. In other words, he
also lived with another woman in Bacolod City but did
not marry that woman, just like what he did to plaintiff. It
is not surprising, then, that he felt so little compunction
or remorse in pretending to love and promising to marry
plaintiff, a young, innocent, trustful country girl, in order
to satisfy his lust on her.
11

and then concluded:
In sum, we are strongly convinced and so hold that it was
defendant-appellant's fraudulent and deceptive
protestations of love for and promise to marry plaintiff
that made her surrender her virtue and womanhood to
him and to live with him on the honest and sincere belief
that he would keep said promise, and it was likewise these
(sic) fraud and deception on appellant's part that made
plaintiff's parents agree to their daughter's living-in with
him preparatory to their supposed marriage. And as these
acts of appellant are palpably and undoubtedly against
morals, good customs, and public policy, and are even
gravely and deeply derogatory and insulting to our
women, coming as they do from a foreigner who has
been enjoying the hospitality of our people and taking
advantage of the opportunity to study in one of our
institutions of learning, defendant-appellant should
indeed be made, under Art. 21 of the Civil Code of the
Philippines, to compensate for the moral damages and
injury that he had caused plaintiff, as the lower court
ordered him to do in its decision in this case.
12

Unfazed by his second defeat, petitioner filed the instant
petition on 26 March 1991; he raises therein the single
issue of whether or not Article 21 of the Civil Code
applies to the case at bar.
13

It is petitioner's thesis that said Article 21 is not applicable
because he had not committed any moral wrong or injury
or violated any good custom or public policy; he has not
professed love or proposed marriage to the private
respondent; and he has never maltreated her. He criticizes
the trial court for liberally invoking Filipino customs,
traditions and culture, and ignoring the fact that since he
is a foreigner, he is not conversant with such Filipino
customs, traditions and culture. As an Iranian Moslem, he
is not familiar with Catholic and Christian ways. He
stresses that even if he had made a promise to marry, the
subsequent failure to fulfill the same is excusable or
tolerable because of his Moslem upbringing; he then
alludes to the Muslim Code which purportedly allows a
Muslim to take four (4) wives and concludes that on the
basis thereof, the trial court erred in ruling that he does
not posses good moral character. Moreover, his
controversial "common law life" is now his legal wife as
their marriage had been solemnized in civil ceremonies in
the Iranian Embassy. As to his unlawful cohabitation with
the private respondent, petitioner claims that even if
responsibility could be pinned on him for the live-in
relationship, the private respondent should also be faulted
for consenting to an illicit arrangement. Finally, petitioner
asseverates that even if it was to be assumed arguendo that
he had professed his love to the private respondent and
had also promised to marry her, such acts would not be
actionable in view of the special circumstances of the
case. The mere breach of promise is not actionable.
14

On 26 August 1991, after the private respondent had filed
her Comment to the petition and the petitioner had filed
his Reply thereto, this Court gave due course to the
petition and required the parties to submit their respective
Memoranda, which they subsequently complied with.
As may be gleaned from the foregoing summation of the
petitioner's arguments in support of his thesis, it is clear
that questions of fact, which boil down to the issue of the
credibility of witnesses, are also raised. It is the rule in this
jurisdiction that appellate courts will not disturb the trial
court's findings as to the credibility of witnesses, the latter
court having heard the witnesses and having had the
opportunity to observe closely their deportment and
manner of testifying, unless the trial court had plainly
overlooked facts of substance or value which, if
considered, might affect the result of the case.
15

Petitioner has miserably failed to convince Us that both
the appellate and trial courts had overlooked any fact of
substance or values which could alter the result of the
case.
Equally settled is the rule that only questions of law may
be raised in a petition for review on certiorari under Rule
45 of the Rules of Court. It is not the function of this
Court to analyze or weigh all over again the evidence
introduced by the parties before the lower court. There
are, however, recognized exceptions to this rule. Thus,
inMedina vs. Asistio, Jr.,
16
this Court took the time, again,
to enumerate these exceptions:
xxx xxx xxx
(1) When the conclusion is a finding grounded entirely on
speculation, surmises or conjectures (Joaquin v. Navarro,
93 Phil. 257 [1953]); (2) When the inference made is
manifestly mistaken, absurb or impossible (Luna v.
Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave
abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]);
(4) When the judgment is based on a misapprehension of
facts (Cruz v. Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are
conflicting (Casica v. Villaseca, L-9590 Ap. 30, 1957;
unrep.) (6) When the Court of Appeals, in making its
findings, went beyond the issues of the case and the same
is contrary to the admissions of both appellate and
appellee (Evangelista v. Alto Surety and Insurance Co.,
103 Phil. 401 [1958]);
(7) The findings of the Court of Appeals are contrary to
those of the trial court (Garcia v. Court of Appeals, 33
SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593
[1986]); (8) When the findings of fact are conclusions
without citation of specific evidence on which they are
based (Ibid.,); (9) When the facts set forth in the petition
as well as in the petitioners main and reply briefs are not
disputed by the respondents (Ibid.,); and (10) The finding
of fact of the Court of Appeals is premised on the
supposed absence of evidence and is contradicted by the
evidence on record (Salazar v. Gutierrez, 33 SCRA 242
[1970]).
Petitioner has not endeavored to joint out to Us the
existence of any of the above quoted exceptions in this
case. Consequently, the factual findings of the trial and
appellate courts must be respected.
And now to the legal issue.
The existing rule is that a breach of promise to marry per
se is not an actionable wrong.
17
Congress deliberately
eliminated from the draft of the New Civil Code the
provisions that would have made it so. The reason
therefor is set forth in the report of the Senate
Committees on the Proposed Civil Code, from which We
quote:
The elimination of this chapter is proposed. That breach
of promise to marry is not actionable has been definitely
decided in the case of De Jesus vs. Syquia.
18
The history
of breach of promise suits in the United States and in
England has shown that no other action lends itself more
readily to abuse by designing women and unscrupulous
men. It is this experience which has led to the abolition of
rights of action in the so-called Heart Balm suits in many
of the American states. . . .
19

This notwithstanding, the said Code contains a provision,
Article 21, which is designed to expand the concept of
torts or quasi-delict in this jurisdiction by granting adequate
legal remedy for the untold number of moral wrongs
which is impossible for human foresight to specifically
enumerate and punish in the statute books.
20

As the Code Commission itself stated in its Report:
But the Code Commission had gone farther than the
sphere of wrongs defined or determined by positive law.
Fully sensible that there are countless gaps in the statutes,
which leave so many victims of moral wrongs helpless,
even though they have actually suffered material and
moral injury, the Commission has deemed it necessary, in
the interest of justice, to incorporate in the proposed Civil
Code the following rule:
Art. 23. Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for
the damage.
An example will illustrate the purview of the foregoing
norm: "A" seduces the nineteen-year old daughter of "X".
A promise of marriage either has not been made, or can
not be proved. The girl becomes pregnant. Under the
present laws, there is no crime, as the girl is above
nineteen years of age. Neither can any civil action for
breach of promise of marriage be filed. Therefore, though
the grievous moral wrong has been committed, and
though the girl and family have suffered incalculable
moral damage, she and her parents cannot bring action
for damages. But under the proposed article, she and her
parents would have such a right of action.
Thus at one stroke, the legislator, if the forgoing rule is
approved, would vouchsafe adequate legal remedy for
that untold number of moral wrongs which it is
impossible for human foresight to provide for specifically
in the statutes.
21

Article 2176 of the Civil Code, which defines a quasi-
delict thus:
Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called
a quasi-delict and is governed by the provisions of this
Chapter.
is limited to negligent acts or omissions and excludes the
notion of willfulness or intent. Quasi-delict, known in
Spanish legal treatises as culpa aquiliana, is a civil law
concept while torts is an Anglo-American or common law
concept. Torts is much broader than culpa
aquiliana because it includes not only negligence, but
international criminal acts as well such as assault and
battery, false imprisonment and deceit. In the general
scheme of the Philippine legal system envisioned by the
Commission responsible for drafting the New Civil Code,
intentional and malicious acts, with certain exceptions, are
to be governed by the Revised Penal Code while negligent
acts or omissions are to be covered by Article 2176 of the
Civil Code.
22
In between these opposite spectrums are
injurious acts which, in the absence of Article 21, would
have been beyond redress. Thus, Article 21 fills that
vacuum. It is even postulated that together with Articles
19 and 20 of the Civil Code, Article 21 has greatly
broadened the scope of the law on civil wrongs; it has
become much more supple and adaptable than the Anglo-
American law on torts.
23

In the light of the above laudable purpose of Article 21,
We are of the opinion, and so hold, that where a man's
promise to marry is in fact the proximate cause of the
acceptance of his love by a woman and his representation
to fulfill that promise thereafter becomes the proximate
cause of the giving of herself unto him in a sexual
congress, proof that he had, in reality, no intention of
marrying her and that the promise was only a subtle
scheme or deceptive device to entice or inveigle her to
accept him and to obtain her consent to the sexual act,
could justify the award of damages pursuant to Article 21
not because of such promise to marry but because of the
fraud and deceit behind it and the willful injury to her
honor and reputation which followed thereafter. It is
essential, however, that such injury should have been
committed in a manner contrary to morals, good customs
or public policy.
In the instant case, respondent Court found that it was
the petitioner's "fraudulent and deceptive protestations of
love for and promise to marry plaintiff that made her
surrender her virtue and womanhood to him and to live
with him on the honest and sincere belief that he would
keep said promise, and it was likewise these fraud and
deception on appellant's part that made plaintiff's parents
agree to their daughter's living-in with him preparatory to
their supposed marriage."
24
In short, the private
respondent surrendered her virginity, the cherished
possession of every single Filipina, not because of lust but
because of moral seduction the kind illustrated by the
Code Commission in its example earlier adverted to. The
petitioner could not be held liable for criminal seduction
punished under either Article 337 or Article 338 of the
Revised Penal Code because the private respondent was
above eighteen (18) years of age at the time of the
seduction.
Prior decisions of this Court clearly suggest that Article
21 may be applied in a breach of promise to marry where
the woman is a victim of moral seduction. Thus,
in Hermosisima vs. Court of Appeals,
25
this Court denied
recovery of damages to the woman because:
. . . we find ourselves unable to say that petitioner
is morally guilty of seduction, not only because he is
approximately ten (10) years younger than the
complainant who was around thirty-six (36) years of
age, and as highly enlightened as a former high school
teacher and a life insurance agent are supposed to be
when she became intimate with petitioner, then a mere
apprentice pilot, but, also, because the court of first
instance found that, complainant "surrendered herself" to
petitioner because, "overwhelmed by her love" for him,
she "wanted to bind" him by having a fruit of their engagement
even before they had the benefit of clergy.
In Tanjanco vs. Court of Appeals,
26
while this Court likewise
hinted at possible recovery if there had been moral
seduction, recovery was eventually denied because We
were not convinced that such seduction existed. The
following enlightening disquisition and conclusion were
made in the said case:
The Court of Appeals seem to have overlooked that the
example set forth in the Code Commission's
memorandum refers to a tort upon a minor who had
been seduced. The essential feature is seduction, that in law
is more than mere sexual intercourse, or a breach of a
promise of marriage; it connotes essentially the idea of
deceit, enticement, superior power or abuse of confidence
on the part of the seducer to which the woman has
yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs.
Arlante, 9 Phil. 595).
It has been ruled in the Buenaventura case (supra) that
To constitute seduction there must in all cases be some
sufficient promise or inducementand the woman must yield
because of the promise or other inducement. If she consents
merely from carnal lust and the intercourse is from
mutual desire, there is no seduction (43 Cent. Dig. tit.
Seduction, par. 56) She must be induced to depart from
the path of virtue by the use of some species of arts,
persuasions and wiles, which are calculated to have and
do have that effect, and which result in her person to
ultimately submitting her person to the sexual embraces
of her seducer (27 Phil. 123).
And in American Jurisprudence we find:
On the other hand, in an action by the woman, the
enticement, persuasion or deception is the essence of the
injury; and a mere proof of intercourse is insufficient to
warrant a recovery.
Accordingly it is not seduction where the willingness
arises out of sexual desire of curiosity of the female, and
the defendant merely affords her the needed opportunity
for the commission of the act. It has been emphasized
that to allow a recovery in all such cases would tend to
the demoralization of the female sex, and would be a
reward for unchastity by which a class of adventuresses
would be swift to profit. (47 Am. Jur. 662)
xxx xxx xxx
Over and above the partisan allegations, the fact stand
out that for one whole year, from 1958 to 1959, the
plaintiff-appellee, a woman of adult age, maintain intimate
sexual relations with appellant, with repeated acts of
intercourse. Such conduct is incompatible with the idea of
seduction. Plainly there is here voluntariness and mutual
passion; for had the appellant been deceived, had she
surrendered exclusively because of the deceit, artful
persuasions and wiles of the defendant, she would not
have again yielded to his embraces, much less for one
year, without exacting early fulfillment of the alleged
promises of marriage, and would have cut short all sexual
relations upon finding that defendant did not intend to
fulfill his defendant did not intend to fulfill his promise.
Hence, we conclude that no case is made under article 21
of the Civil Code, and no other cause of action being
alleged, no error was committed by the Court of First
Instance in dismissing the complaint.
27

In his annotations on the Civil Code,
28
Associate Justice
Edgardo L. Paras, who recently retired from this Court,
opined that in a breach of promise to marry where there
had been carnal knowledge, moral damages may be
recovered:
. . . if there be criminal or moral seduction, but not if the
intercourse was due to mutual lust. (Hermosisima vs.
Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733,
Sept. 30, 1960; Batarra vs. Marcos, 7 Phil. 56 (sic); Beatriz
Galang vs. Court of Appeals, et al., L-17248, Jan. 29,
1962). (In other words, if the CAUSE be the promise to
marry, and the EFFECT be the carnal knowledge, there is
a chance that there was criminal or moral seduction, hence
recovery of moral damages will prosper. If it be the other
way around, there can be no recovery of moral damages,
because here mutual lust has intervened). . . .
together with "ACTUAL damages, should there be any,
such as the expenses for the wedding presentations (See
Domalagon v. Bolifer, 33 Phil. 471).
Senator Arturo M. Tolentino
29
is also of the same
persuasion:
It is submitted that the rule in Batarra vs. Marcos,
30
still
subsists, notwithstanding the incorporation of the present
article
31
in the Code. The example given by the Code
Commission is correct, if there was seduction, not
necessarily in the legal sense, but in the vulgar sense of
deception. But when the sexual act is accomplished
without any deceit or qualifying circumstance of abuse of
authority or influence, but the woman, already of age, has
knowingly given herself to a man, it cannot be said that
there is an injury which can be the basis for indemnity.
But so long as there is fraud, which is characterized by
willfulness (sic), the action lies. The court, however, must
weigh the degree of fraud, if it is sufficient to deceive the
woman under the circumstances, because an act which
would deceive a girl sixteen years of age may not
constitute deceit as to an experienced woman thirty years
of age. But so long as there is a wrongful act and a
resulting injury, there should be civil liability, even if the
act is not punishable under the criminal law and there
should have been an acquittal or dismissal of the criminal
case for that reason.
We are unable to agree with the petitioner's alternative
proposition to the effect that granting, for argument's
sake, that he did promise to marry the private respondent,
the latter is nevertheless also at fault. According to him,
both parties are in pari delicto; hence, pursuant to Article
1412(1) of the Civil Code and the doctrine laid down
inBatarra vs. Marcos,
32
the private respondent cannot
recover damages from the petitioner. The latter even goes
as far as stating that if the private respondent had
"sustained any injury or damage in their relationship, it is
primarily because of her own doing,
33
for:
. . . She is also interested in the petitioner as the latter will
become a doctor sooner or later. Take notice that she is a
plain high school graduate and a mere employee . . .
(Annex "C") or a waitress (TSN, p. 51, January 25, 1988)
in a luncheonette and without doubt, is in need of a man
who can give her economic security. Her family is in dire
need of financial assistance. (TSN, pp. 51-53, May 18,
1988). And this predicament prompted her to accept a
proposition that may have been offered by the
petitioner.
34

These statements reveal the true character and motive of
the petitioner. It is clear that he harbors a condescending,
if not sarcastic, regard for the private respondent on
account of the latter's ignoble birth, inferior educational
background, poverty and, as perceived by him,
dishonorable employment. Obviously then, from the very
beginning, he was not at all moved by good faith and an
honest motive. Marrying with a woman so circumstances
could not have even remotely occurred to him. Thus, his
profession of love and promise to marry were empty
words directly intended to fool, dupe, entice, beguile and
deceive the poor woman into believing that indeed, he
loved her and would want her to be his life's partner. His
was nothing but pure lust which he wanted satisfied by a
Filipina who honestly believed that by accepting his
proffer of love and proposal of marriage, she would be
able to enjoy a life of ease and security. Petitioner clearly
violated the Filipino's concept of morality and brazenly
defied the traditional respect Filipinos have for their
women. It can even be said that the petitioner committed
such deplorable acts in blatant disregard of Article 19 of
the Civil Code which directs every person to act with
justice, give everyone his due and observe honesty and
good faith in the exercise of his rights and in the
performance of his obligations.
No foreigner must be allowed to make a mockery of our
laws, customs and traditions.
The pari delicto rule does not apply in this case for while
indeed, the private respondent may not have been
impelled by the purest of intentions, she eventually
submitted to the petitioner in sexual congress not out of
lust, but because of moral seduction. In fact, it is apparent
that she had qualms of conscience about the entire
episode for as soon as she found out that the petitioner
was not going to marry her after all, she left him. She is
not, therefore, in pari delicto with the petitioner. Pari
delicto means "in equal fault; in a similar offense or crime;
equal in guilt or in legal fault."
35
At most, it could be
conceded that she is merely in delicto.
Equity often interferes for the relief of the less guilty of
the parties, where his transgression has been brought
about by the imposition of undue influence of the party
on whom the burden of the original wrong principally
rests, or where his consent to the transaction was itself
procured by
fraud.
36

In Mangayao vs. Lasud,
37
We declared:
Appellants likewise stress that both parties being at fault,
there should be no action by one against the other (Art.
1412, New Civil Code). This rule, however, has been
interpreted as applicable only where the fault on both
sides is, more or less, equivalent. It does not apply where
one party is literate or intelligent and the other one is not.
(c.f. Bough vs. Cantiveros, 40 Phil. 209).
We should stress, however, that while We find for the
private respondent, let it not be said that this Court
condones the deplorable behavior of her parents in letting
her and the petitioner stay together in the same room in
their house after giving approval to their marriage. It is
the solemn duty of parents to protect the honor of their
daughters and infuse upon them the higher values of
morality and dignity.
WHEREFORE, finding no reversible error in the
challenged decision, the instant petition is hereby
DENIED, with costs against the petitioner.
SO ORDERED.
G.R. No. 57227 May 14, 1992
AMELITA CONSTANTINO and MICHAEL
CONSTANTINO, the latter represented herein by
the former, his mother and natural
guardian, petitioners,
vs.
IVAN MENDEZ and the HONORABLE COURT
OF APPEALS, respondents.
Roberto M. Sarenas for petitioners.
Bienvinido D. Cariaga for private respondent.

BIDIN, J.:
This is a petition for review on certiorari questioning the
decision
1
dated April 30, 1981 of the Court of Appeals in
CA-G.R. No. 61552-R which dismissed petitioner's
complaint and set aside the resolution
2
dated October 21,
1976 of the then Court of First Instance of Davao, 16th
Judicial District, amending the dispositive portion of its
decision dated June 21, 1976 and ordering private
respondent Ivan Mendez: (1) to acknowledge the minor
Michael Constantino as his illegitimate child; (2) to give a
monthly support of P300.00 to the minor child; (3) to pay
complainant Amelita Constantino the sum of P8,200.00
as actual and moral damages; and (4) to pay attorney's
fees in the sum of P5,000 plus costs.
It appears on record that on June 5, 1975, petitioner
Amelita Constantino filed an action for acknowledgment,
support and damages against private respondent Ivan
Mendez. The case was filed with the then CFI of Davao,
10th Judicial District and docketed as Civil Case No.
8881. In her complaint, Amelita Constantino alleges,
among others, that sometime in the month of August,
1974, she met Ivan Mendez at Tony's Restaurant located
at Sta. Cruz, Manila, where she worked as a waitress; that
the day following their first meeting, Ivan invited Amelita
to dine with him at Hotel Enrico where he was billeted;
that while dining, Ivan professed his love and courted
Amelita; that Amelita asked for time to think about Ivan's
proposal; that at about 11:00 o'clock in the evening,
Amelita asked Ivan to bring her home to which the latter
agreed, that on the pretext of getting something, Ivan
brought Amelita inside his hotel room and through a
promise of marriage succeeded in having sexual
intercourse with the latter; that after the sexual contact,
Ivan confessed to Amelita that he is a married man; that
they repeated their sexual contact in the months of
September and November, 1974, whenever Ivan is in
Manila, as a result of which Amelita got pregnant; that her
pleas for help and support fell on deaf ears; that Amelita
had no sexual relations with any other man except Ivan
who is the father of the child yet to be born at the time of
the filing of the complaint; that because of her pregnancy,
Amelita was forced to leave her work as a waitress; that
Ivan is a prosperous businessman of Davao City with a
monthly income of P5,000 to P8,000. As relief, Amelita
prayed for the recognition of the unborn child, the
payment of actual, moral and exemplary damages,
attorney's fees plus costs.
In his answer dated August 5, 1975, Ivan admitted that he
met Amelita at Tony's Cocktail Lounge but denied having
sexual knowledge or illicit relations with her. He prayed
for the dismissal of the complaint for lack of cause of
action. By way of counterclaim, he further prayed for the
payment of exemplary damages and litigation expense
including attorney's fees for the filing of the malicious
complaint.
On September 1, 1975, Amelita Constantino filed a
motion for leave to amend the complaint impleading as
co-plaintiff her son Michael Constantino who was born
on August 3, 1975. In its order dated September 4, 1975,
the trial court admitted the amended complaint.
On September 11, 1975, Ivan Mendez filed his answer to
the amended complaint reiterating his previous answer
denying that Michael Constantino is his illegitimate son.
After hearing, the trial court rendered a decision dated
June 21, 1976, the dispositive portion of which reads, viz:
WHEREFORE, in view of the foregoing, judgment is
hereby rendered in favor of plaintiff Amelita Constantino
and against defendant Ivan Mendez, ordering the latter to
pay Amelita Constantino the sum of P8,000.00 by way of
actual and moral damages; and, the sum of P3,000.00, as
and by way of attorney's fees. The defendant shall pay the
costs of this suit.
SO ORDERED.
From the above decision, both parties filed their separate
motion for reconsideration. Ivan Mendez anchored his
motion on the ground that the award of damages was not
supported by evidence. Amelita Constantino, on the
other hand, sought the recognition and support of her
son Michael Constantino as the illegitimate son of Ivan
Mendez.
In its resolution dated October 21, 1976, the trial court
granted Amelita Constantino's motion for
reconsideration, and amended the dispositive portion of
its decision dated June 21, 1976 to read as follows, viz:
WHEREFORE, in view of the foregoing, judgment is
hereby rendered in favor of plaintiff Amelita Constantino
and plaintiff-minor Michael Constantino, and against
defendant Ivan Mendez ordering the latter to pay Amelita
Constantino the sum of P8,000.00 by way of actual and
moral damages and the sum of P200.00 as and by way of
payment of the hospital and medical bills incurred during
the delivery of plaintiff-minor Michael Constantino; to
recognize as his own illegitimate child the plaintiff-minor
Michael Constantino who shall be entitled to all the
rights, privileges and benefits appertaining to a child of
such status; to give a permanent monthly support in favor
of plaintiff Michael Constantino the amount of P300.00;
and the sum of P5,000.00 as and by way of attorney's
fees. The defendant shall pay the costs of this suit.
Let this Order form part of the decision dated June 21,
1976.
SO ORDERED.
On appeal to the Court of Appeals, the above amended
decision was set aside and the complaint was dismissed.
Hence, this petition for review.
Basically, the issue to be resolved in the case at bar is
whether or not the Court of Appeals committed a
reversible error in setting aside the decision of the trial
court and in dismissing the complaint.
Petitioners contend that the Court of Appeals erred in
reversing the factual findings of the trial and in not
affirming the decision of the trial court. They also pointed
out that the appellate court committed a misapprehension
of facts when it concluded that Ivan did not have sexual
access with Amelita during the first or second week of
November, 1976 (should be 1974), the time of the
conception of the child.
It must be stressed at the outset that factual findings of
the trial court have only a persuasive and not a conclusive
effect on the Court of Appeals. In the exercise of its
appellate jurisdiction, it is the duty of the Court of
Appeals to review the factual findings of the trial court
and rectify the errors it committed as may have been
properly assigned and as could be established by a re-
examination of the evidence on record. It is the factual
findings of the Court of Appeals, not those of the trial
court, that as a rule are considered final and conclusive
even on this Court (Hermo v. Hon. Court of Appeals, et
al., 155 SCRA 24 [1987]). This being a petition
for certiorari under Rule 45 of the Rules of Court, this
Court will review only errors of law committed by the
Court of Appeals. It is not the function of this Court to
re-examine all over again the oral and documentary
evidence submitted by the parties unless the findings of
facts of the Court of Appeals is not supported by the
evidence on record or the judgment is based on
misapprehension of facts (Remalante v. Tibe, et al., 158
SCRA 138 [1988]; Hernandez v. Court of Appeals, et al.,
149 SCRA 97 [1987]).
It is the conclusion of the Court of Appeals, based on the
evidence on record, that Amelita Constantino has not
proved by clear and convincing evidence her claim that
Ivan Mendez is the father of her son Michael
Constantino. Such conclusion based on the evaluation of
the evidence on record is controlling on this Court as the
same is supported by the evidence on record. Even the
trial court initially entertained such posture. It ordered the
recognition of Michael as the illegitimate son of Ivan only
when acting on the motions for reconsideration, it
reconsidered, on October 21, 1976, its earlier decision
dated June 21, 1976. Amelita's testimony on cross-
examination that she had sexual contact with Ivan in
Manila in the first or second week of November, 1974
(TSN, December 8, 1975, p. 108) is inconsistent with her
response that she could not remember the date of their
last sexual intercourse in November, 1974 (Ibid, p. 106).
Sexual contact of Ivan and Amelita in the first or second
week of November, 1974 is the crucial point that was not
even established on direct examination as she merely
testified that she had sexual intercourse with Ivan in the
months of September, October and November, 1974.
Michael Constantino is a full-term baby born on August
3, 1975 (Exhibit 6) so that as correctly pointed out by
private respondent's counsel, citing medical science
(Williams Obstetrics, Tenth Ed., p. 198) to the effect that
"the mean duration of actual pregnancy, counting from
the day of conception must be close to 267 days", the
conception of the child (Michael) must have taken place
about 267 days before August 3, 1975 or sometime in the
second week of November, 1974. While Amelita testified
that she had sexual contact with Ivan in November, 1974,
nevertheless said testimony is contradicted by her own
evidence (Exh. F), the letter dated February 11, 1975,
addressed to Ivan Mendez requesting for a conference,
prepared by her own counsel Atty. Roberto Sarenas to
whom she must have confided the attendant
circumstances of her pregnancy while still fresh in her
memory, informing Ivan that Amelita is four (4) months
pregnant so that applying the period of the duration of
actual pregnancy, the child was conceived on or about
October 11, 1974.
Petitioner's assertion that Ivan is her first and only
boyfriend (TSN, December 8, 1975, p. 65) is belied by
Exhibit 2, her own letter addressed to Mrs. Mendez
where she revealed the reason for her attachment to Ivan
who possessed certain traits not possessed by her
boyfriend. She also confided that she had a quarrel with
her boyfriend because of gossips so she left her work. An
order for recognition and support may create an
unwholesome atmosphere or may be an irritant in the
family or lives of the parties so that it must be issued only
if paternity or filiation is established by clear and
convincing evidence. The burden of proof is on Amelita
to establish her affirmative allegations that Ivan is the
father of her son. Consequently, in the absence of clear
and convincing evidence establishing paternity or filiation,
the complaint must be dismissed.
As regards Amelita's claim for damages which is based on
Articles 19
3
& 21
4
of the Civil Code on the theory that
through Ivan's promise of marriage, she surrendered her
virginity, we cannot but agree with the Court of Appeals
that more sexual intercourse is not by itself a basis for
recovery. Damages could only be awarded if sexual
intercourse is not a product of voluntariness and mutual
desire. At the time she met Ivan at Tony's Restaurant,
Amelita was already 28 years old and she admitted that
she was attracted to Ivan (TSN, December 3, 1975, p.
83). Her attraction to Ivan is the reason why she
surrendered her womanhood. Had she been induced or
deceived because of a promise of marriage, she could
have immediately severed her relation with Ivan when she
was informed after their first sexual contact sometime in
August, 1974, that he was a married man. Her declaration
that in the months of September, October and
November, 1974, they repeated their sexual intercourse
only indicates that passion and not the alleged promise of
marriage was the moving force that made her submit
herself to Ivan.
WHEREFORE, the instant petition is Dismissed for lack
of merit.
SO ORDERED.
G.R. No. 82380 April 29, 1988
AYER PRODUCTIONS PTY. LTD. and
McELROY & McELROY FILM
PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN
PONCE ENRILE, respondents.
G.R. No. 82398 April 29, 1988
HAL MCELROY petitioner,
vs.
HON. IGNACIO M. CAPULONG, in his capacity
as Presiding Judge of the Regional Trial Court of
Makati, Branch 134 and JUAN PONCE
ENRILE, respondents.

FELICIANO, J.:
Petitioner Hal McElroy an Australian film maker, and his
movie production company, Petitioner Ayer Productions
pty Ltd. (Ayer Productions),
1
envisioned, sometime in
1987, the for commercial viewing and for Philippine and
international release, the histolic peaceful struggle of the
Filipinos at EDSA (Epifanio de los Santos Avenue).
Petitioners discussed this Project with local movie
producer Lope V. Juban who suggested th they consult
with the appropriate government agencies and also with
General Fidel V. Ramos and Senator Juan Ponce Enrile,
who had played major roles in the events proposed to be
filmed.
The proposed motion picture entitled "The Four Day
Revolution" was endorsed by the Movie Television
Review and Classification Board as wel as the other
government agencies consulted. General Fidel Ramos
also signified his approval of the intended film
production.
In a letter dated 16 December 1987, petitioner Hal
McElroy informed private respondent Juan Ponce Enrile
about the projected motion picture enclosing a synopsis
of it, the full text of which is set out below:
The Four Day Revolution is a six hour mini-series about
People Powera unique event in modern history that-
made possible the Peaceful revolution in the Philippines
in 1986.
Faced with the task of dramatising these rerkble events,
screenwriter David Williamson and history Prof Al
McCoy have chosen a "docu-drama" style and created
[four] fictitious characters to trace the revolution from the
death of Senator Aquino, to the Feb revolution and the
fleeing of Marcos from the country.
These character stories have been woven through the real
events to help our huge international audience understand
this ordinary period inFilipino history.
First, there's Tony O'Neil, an American television
journalist working for major network. Tony reflects the
average American attitude to the Phihppinence once a
colony, now the home of crucially important military
bases. Although Tony is aware of the corruption and of
Marcos' megalomania, for him, there appears to be no
alternative to Marcos except the Communists.
Next, Angie Fox a fiery Australian photo-journalist. A
'new girl in town,' she is quickly caught up in the events
as it becomes dear that the time has come for a change.
Through Angle and her relationship with one of the
Reform Army Movement Colonels (a fictitious character),
we follow the developing discontent in the armed forces.
Their dislike for General Ver, their strong loyalty to
Defense Minister Enrile, and ultimately their defection
from Marcos.
The fourth fictitious character is Ben Balano, a middle-
aged editor of a Manila newspaper who despises the
Marcos regime and is a supporter an promoter of Cory
Aquino. Ben has two daughters, Cehea left wing lawyer
who is a secret member of the New People's Army, and
Eva--a -P.R. girl, politically moderate and very much in
love with Tony. Ultimately, she must choose between her
love and the revolution.
Through the interviews and experiences of these central
characters, we show the complex nature of Filipino
society, and thintertwining series of events and characters
that triggered these remarkable changes. Through them
also, we meet all of the principal characters and
experience directly dramatic recreation of the revolution.
The story incorporates actual documentary footage filmed
during the period which we hope will capture the unique
atmosphere and forces that combined to overthrow
President Marcos.
David Williamson is Australia's leading playwright with
some 14 hugely successful plays to his credit(Don's Party,'
'The Club,' Travelling North) and 11 feature films (The
Year of Living Dangerously,' Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales) is an
American historian with a deep understanding of the
Philippines, who has worked on the research for this
project for some 18 months. Together with Davi
Wilhamgon they have developed a script we believe
accurately depicts the complex issues and events that
occurred during th period .
The six hour series is a McElroy and McElroy co-
production with Home Box Office in American, the
Australian Broadcast Corporation in Australia and Zenith
Productions in the United Kingdom
The proposed motion picture would be essentially a re-
enact. ment of the events that made possible the EDSA
revolution; it is designed to be viewed in a six-hour mini-
series television play, presented in a "docu-drama" style,
creating four (4) fictional characters interwoven with real
events, and utilizing actual documentary footage as
background.
On 21 December 1987, private respondent Enrile replied
that "[he] would not and will not approve of the use,
appropriation, reproduction and/or exhibition of his
name, or picture, or that of any member of his family in
any cinema or television production, film or other
medium for advertising or commercial exploitation" and
further advised petitioners that 'in the production, airing,
showing, distribution or exhibition of said or similar film,
no reference whatsoever (whether written, verbal or
visual) should not be made to [him] or any member of his
family, much less to any matter purely personal to them.
It appears that petitioners acceded to this demand and the
name of private respondent Enrile was deleted from the
movie script, and petitioners proceeded to film the
projected motion picture.
On 23 February 1988, private respondent filed a
Complaint with application for Temporary Restraining
Order and Wilt of Pretion with the Regional Trial Court
of Makati, docketed as Civil Case No. 88-151 in Branch
134 thereof, seeking to enjoin petitioners from producing
the movie "The Four Day Revolution". The complaint
alleged that petitioners' production of the mini-series
without private respondent's consent and over his
objection, constitutes an obvious violation of his right of
privacy. On 24 February 1988, the trial court issued ex-
parte a Temporary Restraining Order and set for hearing
the application for preliminary injunction.
On 9 March 1988, Hal McElroy flied a Motion to
Dismiss with Opposition to the Petition for Preliminary
Injunction contending that the mini-series fim would not
involve the private life of Juan Ponce Enrile nor that of
his family and that a preliminary injunction would amount
to a prior restraint on their right of free expression.
Petitioner Ayer Productions also filed its own Motion to
Dismiss alleging lack of cause of action as the mini-series
had not yet been completed.
In an Order
2
dated 16 March 1988, respondent court
issued a writ of Preliminary Injunction against the
petitioners, the dispositive portion of which reads thus:
WHEREFORE, let a writ of preliminary injunction be
issued, ordering defendants, and all persons and entities
employed or under contract with them, including actors,
actresses and members of the production staff and crew
as well as all persons and entities acting on defendants'
behalf, to cease and desist from producing and filming the mini-
series entitled 'The Four Day Revolution" and from making any
reference whatsoever to plaintiff or his family and from creating any
fictitious character in lieu of plaintiff which nevertheless is based on,
or bears rent substantial or marked resemblance or similarity to, or
is otherwise Identifiable with, plaintiff in the production and
any similar film or photoplay, until further orders from
this Court, upon plaintiff's filing of a bond in the amount
of P 2,000,000.00, to answer for whatever damages
defendants may suffer by reason of the injunction if the
Court should finally decide that plaintiff was not entitled
thereto.
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to
this Court by a Petition for certiorari dated 21 March
1988 with an urgent prayer for Preliminary Injunction or
Restraining Order, which petition was docketed as G.R.
No. L-82380.
A day later, or on 23 March 1988, petitiioner Hal
McElroy also filed separate Petition for certiorari with
Urgent Prayer for a Restraining Order or Preliminary
Injunction, dated 22 March 1988, docketed as G.R. No.
L-82398.
By a Resolution dated 24 March 1988, the petitions were
consolidated and private respondent was required to file a
consolidated Answer. Further, in the same Resolution,
the Court granted a Temporary Restraining Order
partially enjoining the implementation of the respondent
Judge's Order of 16 March 1988 and the Writ of
Preliminary Injunction issued therein, and allowing the
petitioners to resume producing and filming those
portions of the projected mini-series which do not make
any reference to private respondent or his family or to
any fictitious character based on or respondent.
Private respondent seasonably filed his Consolidated
Answer on 6 April 1988 invoking in the main a right of
privacy.
I
The constitutional and legal issues raised by the present
Petitions are sharply drawn. Petitioners' claim that in
producing and "The Four Day Revolution," they are
exercising their freedom of speech and of expression
protected under our Constitution. Private respondent,
upon the other hand, asserts a right of privacy and claims
that the production and filming of the projected mini-
series would constitute an unlawful intrusion into his
privacy which he is entitled to enjoy.
Considering first petitioners' claim to freedom of speech
and of expression the Court would once more stress that
this freedom includes the freedom to film and produce
motion pictures and to exhibit such motion pictures in
theaters or to diffuse them through television. In our day
and age, motion pictures are a univesally utilized vehicle
of communication and medium Of expression. Along
with the press, radio and television, motion pictures
constitute a principal medium of mass communication for
information, education and entertainment. In Gonzales v.
Katigbak,
3
former Chief Justice Fernando, speaking for the
Court, explained:
1. Motion pictures are important both as a medium for
the communication of Ideas and the expression of the
artistic impulse. Their effect on the perception by our
people of issues and public officials or public figures as
well as the pre cultural traits is considerable. Nor as
pointed out in Burstyn v. Wilson(343 US 495 [19421) is the
Importance of motion pictures as an organ of public
opinion lessened by the fact that they are designed to
entertain as well as to inform' (Ibid, 501). There is no clear
dividing line between what involves knowledge and what
affords pleasure. If such a distinction were sustained,
there is a diminution of the basic right to free expression.
...
4

This freedom is available in our country both to locally-
owned and to foreign-owned motion picture companies.
Furthermore the circumstance that the production of
motion picture films is a commercial activity expected to
yield monetary profit, is not a disqualification for availing
of freedom of speech and of expression. In our
community as in many other countries, media facilities are
owned either by the government or the private sector but
the private sector-owned media facilities commonly
require to be sustained by being devoted in whole or in
pailt to revenue producing activities. Indeed, commercial
media constitute the bulk of such facilities available in our
country and hence to exclude commercially owned and
operated media from the exerciseof constitutionally
protected om of speech and of expression can only result
in the drastic contraction of such constitutional liberties
in our country.
The counter-balancing of private respondent is to a right
of privacy. It was demonstrated sometime ago by the then
Dean Irene R. Cortes that our law, constitutional and
statutory, does include a right of privacy.
5
It is left to case
law, however, to mark out the precise scope and content
of this right in differing types of particular situations. The
right of privacy or "the right to be let alone,"
6
like the
right of free expression, is not an absolute right. A limited
intrusion into a person's privacy has long been regarded
as permissible where that person is a public figure and the
information sought to be elicited from him or to be
published about him constitute of apublic
character.
7
Succinctly put, the right of privacy cannot be
invoked resist publication and dissemination of matters of
public interest.
8
The interest sought to be protected by
the right of privacy is the right to be free
from unwarranted publicity, from the wrongful publicizing of
the private affairs and activities of an individual which are
outside the realm of legitimate public concern.
9

Lagunzad v. Vda. de Gonzales,
10
on which private
respondent relies heavily, recognized a right to privacy in
a context which included a claim to freedom of speech
and of expression. Lagunzad involved a suit fortion
picture producer as licensee and the widow and family of
the late Moises Padilla as licensors. This agreement gave
the licensee the right to produce a motion Picture
Portraying the life of Moises Padilla, a mayoralty
candidate of the Nacionalista Party for the Municipality
of Magallon, Negros Occidental during the November
1951 elections and for whose murder, Governor Rafael
Lacson, a member of the Liberal Party then in power and
his men were tried and convicted.
11
In the judgment of
the lower court enforcing the licensing agreement against
the licensee who had produced the motion picture and
exhibited it but refused to pay the stipulated royalties, the
Court, through Justice Melencio-Herrera, said:
Neither do we agree with petitioner's subon that the
Licensing Agreement is null and void for lack of, or for
having an illegal cause or consideration, while it is true
that petitioner bad pled the rights to the book entitled
"The Moises Padilla Story," that did not dispense with the
need for prior consent and authority from the deceased
heirs to portray publicly episodes in said deceased's life
and in that of his mother and the member of his family.
As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE
31 LRA 286.49 Am St Rep 671), 'a privilege may be given
the surviving relatives of a deperson to protect his
memory, but the privilege wts for the benefit of the
living, to protect their feelings and to preventa violation
of their own rights in the character and memory of the
deceased.'
Petitioners averment that private respondent did not have
any property right over the life of Moises Padilla since the
latter was a public figure, is neither well taken. Being a
public figure ipso facto does not automatically destroy in
toto a person's right to privacy. The right to invade a
person's privacy to disseminate public information does
not extend to a fictional or novelized representation of a
person, no matter how public a he or she may be (Garner
v. Triangle Publications, DCNY 97 F. Supp., SU 549
[1951]). In the case at bar, while it is true that petitioner
exerted efforts to present a true-to-life Story Of Moises
Padilla, petitioner admits that he included a little romance
in the film because without it, it would be a drab story of
torture and brutality.
12

In Lagunzad, the Court had need, as we have in the instant
case, to deal with contraposed claims to freedom of
speech and of expression and to privacy. Lagunzad the
licensee in effect claimed, in the name of freedom of
speech and expression, a right to produce a motion
picture biography at least partly "fictionalized" of Moises
Padilla without the consent of and without paying pre-
agreed royalties to the widow and family of Padilla. In
rejecting the licensee's claim, the Court said:
Lastly, neither do we find merit in petitioners contention
that the Licensing Agreement infringes on the
constitutional right of freedom of speech and of the
press, in that, as a citizen and as a newspaperman, he had
the right to express his thoughts in film on the public life
of Moises Padilla without prior restraint.The right
freedom of expression, indeed, occupies a preferred
position in the "hierarchy of civil liberties" (Philippine
Blooming Mills Employees Organization v. Philippine
Blooming Mills Co., Inc., 51 SCRA 191 [1963]). It is not,
however, without limitations. As held in Gonzales v.
Commission on Elections, 27 SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctine is that the clear and present danger
rule is such a limitation. Another criterion for permissible
limitation on freedom of speech and the press, which
includes such vehicles of the mass media as radio,
television and the movies, is the "balancing of interest
test" (Chief Justice Enrique M. Fernando on the Bill of
Rights, 1970 ed. p. 79). The principle "requires a court to
take conscious and detailed consideration of the interplay
of interests observable in given situation or type of
situation" (Separation Opinion of the late Chief Justice
Castro in Gonzales v. Commission on Elections, supra, p.
899).
In the case at bar, the interests observable are the right to privacy
asserted by respondent and the right of freedom of expression
invoked by petitioner. taking into account the interplay of
those interests, we hold that under the particular circumstances
presented, and considering the obligations assumed in the Licensing
Agreement entered into by petitioner, the validity of such agreement
will have to be upheld particularly because the limits of freedom of
expression are reached when expression touches upon matters of
essentially private concern."
13

Whether the "balancing of interests test" or the clear and
present danger test" be applied in respect of the instant
Petitions, the Court believes that a different conclusion
must here be reached: The production and filming by
petitioners of the projected motion picture "The Four
Day Revolution" does not, in the circumstances of this
case, constitute an unlawful intrusion upon private
respondent's "right of privacy."
1. It may be observed at the outset that what is involved
in the instant case is a prior and direct restraint on the
part of the respondent Judge upon the exercise of speech
and of expression by petitioners. The respondent Judge
has restrained petitioners from filming and producing the
entire proposed motion picture. It is important to note
that in Lagunzad, there was no prior restrain of any kind
imposed upon the movie producer who in fact completed
and exhibited the film biography of Moises Padilla.
Because of the speech and of expression, a weighty
presumption of invalidity vitiates.
14
The invalidity of a
measure of prior restraint doesnot, of course, mean that
no subsequent liability may lawfully be imposed upon a
person claiming to exercise such constitutional freedoms.
The respondent Judge should have stayed his hand,
instead of issuing an ex-parte Temporary Restraining
Order one day after filing of a complaint by the private
respondent and issuing a Preliminary Injunction twenty
(20) days later; for the projected motion picture was as yet
uncompleted and hence not exhibited to any audience.
Neither private respondent nor the respondent trial Judge
knew what the completed film would precisely look like.
There was, in other words, no "clear and present danger"
of any violation of any right to privacy that private
respondent could lawfully assert.
2. The subject matter of "The Four Day Revolution"
relates to the non-bloody change of government that took
place at Epifanio de los Santos Avenue in February 1986,
and the trian of events which led up to that denouement.
Clearly, such subject matter is one of public interest and
concern. Indeed, it is, petitioners' argue, of international
interest. The subject thus relates to a highly critical stage
in the history of this countryand as such, must be
regarded as having passed into the public domain and as
an appropriate subject for speech and expression and
coverage by any form of mass media. The subject mater,
as set out in the synopsis provided by the petitioners and
quoted above, does not relate to the individual life and
certainly not to the private life of private respondent
Ponce Enrile. Unlike in Lagunzad, which concerned the
life story of Moises Padilla necessarily including at least
his immediate family, what we have here is not a film
biography, more or less fictionalized, of private
respondent Ponce Enrile. "The Four Day Revolution" is
not principally about, nor is it focused upon, the man
Juan Ponce Enrile' but it is compelled, if it is to be
historical, to refer to the role played by Juan Ponce Enrile
in the precipitating and the constituent events of the
change of government in February 1986.
3. The extent of the instrusion upon the life of private
respondent Juan Ponce Enrile that would be entailed by
the production and exhibition of "The Four Day
Revolution" would, therefore, be limited in character. The
extent of that intrusion, as this Court understands the
synopsis of the proposed film, may be generally described
as such intrusion as is reasonably necessary to keep that
film a truthful historical account. Private respondent does
not claim that petitioners threatened to depict in "The
Four Day Revolution" any part of the private life of
private respondent or that of any member of his family.
4. At all relevant times, during which the momentous
events, clearly of public concern, that petitioners propose
to film were taking place, private respondent was what
Profs. Prosser and Keeton have referred to as a "public
figure:"
A public figure has been defined as a person who, by his
accomplishments, fame, or mode of living, or by adopting a
profession or calling which gives the public a legitimate interest in his
doings, his affairs, and his character, has become a 'public
personage.' He is, in other words, a celebrity. Obviously to be
included in this category are those who have achieved some degree of
reputation by appearing before the public, as in the case of an
actor, a professional baseball player, a pugilist, or any
other entertainment. The list is, however, broader than
this. It includes public officers, famous inventors and
explorers, war heroes and even ordinary soldiers, an infant
prodigy, and no less a personage than the Grand Exalted
Ruler of a lodge. It includes, in short, anyone who has arrived at
a position where public attention is focused upon him as a person.
Such public figures were held to have lost, to some extent at least,
their tight to privacy. Three reasons were given, more or less
indiscrimately, in the decisions" that they had sought
publicity and consented to it, and so could not complaint
when they received it; that their personalities and their affairs
has already public, and could no longer be regarded as their own
private business; and that the press had a privilege, under the
Constitution, to inform the public about those who have become
legitimate matters of public interest. On one or another of these
grounds, and sometimes all, it was held that there was no
liability when they were given additional publicity, as to matters
legitimately within the scope of the public interest they had aroused.
The privilege of giving publicity to news, and other matters of public
interest, was held to arise out of the desire and the right of the public
to know what is going on in the world, and the freedom of the press
and other agencies of information to tell it. "News" includes all
events and items of information which are out of the
ordinary hum-drum routine, and which have 'that
indefinable quality of information which arouses public
attention.' To a very great extent the press, with its
experience or instinct as to what its readers will want, has
succeeded in making its own definination of news, as a
glance at any morning newspaper will sufficiently indicate.
It includes homicide and othe crimes, arrests and police
raides, suicides, marriages and divorces, accidents, a death
from the use of narcotics, a woman with a rare disease,
the birth of a child to a twelve year old girl, the
reappearance of one supposed to have been murdered
years ago, and undoubtedly many other similar matters of
genuine, if more or less deplorable, popular appeal.
The privilege of enlightening the public was not, however, limited, to
the dissemination of news in the scene of current events. It extended
also to information or education, or even entertainment and
amusement, by books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in general, as well as
the reproduction of the public scene in newsreels and travelogues. In
determining where to draw the line, the courts were
invited to exercise a species of censorship over what the
public may be permitted to read; and they were
understandably liberal in allowing the benefit of the
doubt.
15

Private respondent is a "public figure" precisely
because, inter alia, of his participation as a principal actor
in the culminating events of the change of government in
February 1986. Because his participation therein was
major in character, a film reenactment of the peaceful
revolution that fails to make reference to the role played
by private respondent would be grossly unhistorical. The
right of privacy of a "public figure" is necessarily
narrower than that of an ordinary citizen. Private
respondent has not retired into the seclusion of simple
private citizenship. he continues to be a "public figure."
After a successful political campaign during which his
participation in the EDSA Revolution was directly or
indirectly referred to in the press, radio and television, he
sits in a very public place, the Senate of the Philippines.
5. The line of equilibrium in the specific context of the
instant case between the constitutional freedom of speech
and of expression and the right of privacy, may be
marked out in terms of a requirement that the proposed
motion picture must be fairly truthful and historical in its
presentation of events. There must, in other words, be no
knowing or reckless disregard of truth in depicting the
participation of private respondent in the EDSA
Revolution. 16 There must, further, be no presentation of
the private life of the unwilling private respondent and
certainly no revelation of intimate or embarrassing
personal facts. 17 The proposed motion picture should
not enter into what Mme. Justice Melencio-Herrera in
Lagunzad referred to as "matters of essentially private
concern." 18 To the extent that "The Four Day
Revolution" limits itself in portraying the participation of
private respondent in the EDSA Revolution to those
events which are directly and reasonably related to
the public facts of the EDSA Revolution, the intrusion into
private respondent's privacy cannot be regarded as
unreasonable and actionable. Such portrayal may be
carried out even without a license from private
respondent.
II
In a Manifestation dated 30 March 1988, petitioner Hal
McElroy informed this Court that a Temporary
Restraining Order dated 25 March 1988, was issued by
Judge Teofilo Guadiz of the Regional Trial Court of
Makati, Branch 147, in Civil Case No. 88-413, entitled
"Gregorio B. Honasan vs. Ayer Productions Pty. Ltd.,
McElroy Film Productions, Hal McElroy, Lope Juban
and PMP Motion for Pictures Production" enjoining him
and his production company from further filimg any
scene of the projected mini-series film. Petitioner alleged
that Honasan's complaint was a "scissors and paste"
pleading, cut out straight grom the complaint of private
respondent Ponce Enrile in Civil Case No. 88-151.
Petitioner Ayer Productions, in a separate Manifestation
dated 4 April 1988, brought to the attention of the Court
the same information given by petitoner Hal McElroy,
reiterating that the complaint of Gregorio B. Honasan
was substantially identical to that filed by private
respondent herein and stating that in refusing to join
Honasan in Civil Case No. 88-151, counsel for private
respondent, with whom counsel for Gregorio Honasan
are apparently associated, deliberately engaged in "forum
shopping."
Private respondent filed a Counter-Manifestation on 13
April 1988 stating that the "slight similarity" between
private respondent's complaint and that on Honasan in
the construction of their legal basis of the right to privacy
as a component of the cause of action is understandable
considering that court pleadings are public records; that
private respondent's cause of action for invasion of
privacy is separate and distinct from that of Honasan's
although they arose from the same tortious act of
petitioners' that the rule on permissive joinder of parties
is not mandatory and that, the cited cases on "forum
shopping" were not in point because the parties here and
those in Civil Case No. 88-413 are not identical.
For reasons that by now have become clear, it is not
necessary for the Court to deal with the question of
whether or not the lawyers of private respondent Ponce
Enrile have engaged in "forum shopping." It is, however,
important to dispose to the complaint filed by former
Colonel Honasan who, having refused to subject himself
to the legal processes of the Republic and having become
once again in fugitive from justice, must be deemed to
have forfeited any right the might have had to protect his
privacy through court processes.
WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE
COURSE, and the Order dated 16 March 1988 of
respondent trial court granting a Writ of Preliminary
Injunction is hereby SET ASIDE. The limited Temporary
Restraining Order granted by this Court on 24 March
1988 is hereby MODIFIED by enjoining unqualifiedly
the implementation of respondent Judge's Order of 16
March 1988 and made PERMANENT, and
b) Treating the Manifestations of petitioners dated 30
March 1988 and 4 April 1988 as separate Petitions for
Certiorari with Prayer for Preliminary Injunction or
Restraining Order, the Court, in the exercise of its plenary
and supervisory jurisdiction, hereby REQUIRES Judge
Teofilo Guadiz of the Regional Trial Court of Makati,
Branch 147, forthwith to DISMISS Civil Case No. 88-413
and accordingly to SET ASIDE and DISSOLVE his
Temporary Restraining Order dated 25 March 1988 and
any Preliminary Injunction that may have been issued by
him.
No pronouncement as to costs.
SO ORDERED.
G.R. No. L-32599 June 29, 1979
EDGARDO E. MENDOZA, petitioner
vs.
HON. ABUNDIO Z. ARRIETA, Presiding Judge of
Branch VIII, Court of First Instance of Manila,
FELINO TIMBOL, and RODOLFO
SALAZAR, respondents.
David G. Nitafan for petitioner.
Arsenio R. Reyes for respondent Timbol.
Armando M. Pulgado for respondent Salazar.

MELENCIO-HERRERA, J:
Petitioner, Edgardo Mendoza, seeks a review on certiorari
of the Orders of respondent Judge in Civil Case No.
80803 dismissing his Complaint for Damages based
on quasi-delict against respondents Felino Timbol and
Rodolfo Salazar.
The facts which spawned the present controversy may be
summarized as follows:
On October 22, 1969, at about 4:00 o'clock in the
afternoon, a three- way vehicular accident occurred along
Mac-Arthur Highway, Marilao, Bulacan, involving a
Mercedes Benz owned and driven by petitioner; a private
jeep owned and driven by respondent Rodolfo Salazar;
and a gravel and sand truck owned by respondent
Felipino Timbol and driven by Freddie Montoya. As a
consequence of said mishap, two separate Informations
for Reckless Imprudence Causing Damage to Property
were filed against Rodolfo Salazar and Freddie Montoya
with the Court of First Instance of Bulacan. The race
against truck-driver Montoya, docketed as Criminal Case
No. SM-227, was for causing damage to the jeep owned
by Salazar, in the amount of Pl,604.00, by hitting it at the
right rear portion thereby causing said jeep to hit and
bump an oncoming car, which happened to be
petitioner's Mercedes Benz. The case against jeep-owner-
driver Salazar, docketed as Criminal Case No. SM 228,
was for causing damage to the Mercedes Benz of
petitioner in the amount of P8,890.00
At the joint trial of the above cases, petitioner testified
that jeep-owner- driver Salazar overtook the truck driven
by Montoya, swerved to the left going towards the
poblacion of Marilao, and hit his car which was bound for
Manila. Petitioner further testified that before the impact,
Salazar had jumped from the jeep and that he was not
aware that Salazar's jeep was bumped from behind by the
truck driven by Montoya. Petitioner's version of the
accident was adopted by truck driver Montoya. Jeep-
owner-driver Salazar, on the other hand, tried to show
that, after overtaking the truck driven by Montoya, he
flashed a signal indicating his intention to turn left
towards the poblacion of Marilao but was stopped at the
intersection by a policeman who was directing traffic; that
while he was at a stop position, his jeep was bumped at
the rear by the truck driven by Montova causing him to
be thrown out of the jeep, which then swerved to the left
and hit petitioner's car, which was coming from the
opposite direction.
On July 31, 1970, the Court of First Instance of Bulacan,
Branch V, Sta. Maria, rendered judgment, stating in its
decretal portion:
IN VIEW OF THE FOREGOING, this Court finds the
accused Freddie Montoya GUILTY beyond reasonable
doubt of the crime of damage to property thru reckless
imprudence in Crime. Case No. SM-227, and hereby
sentences him to pay a fine of P972.50 and to indemnify
Rodolfo Salazar in the same amount of P972.50 as actual
damages, with subsidiary imprisonment in case of
insolvency, both as to fine and indemnity, with costs.
Accused Rodolfo Salazar is hereby ACQUITTED from
the offense charged in Crime. Case No. SM-228, with
costs de oficio, and his bond is ordered canceled
SO ORDERED.
1

Thus, the trial Court absolved jeep-owner-driver Salazar
of any liability, civil and criminal, in view of its findings
that the collision between Salazar's jeep and petitioner's
car was the result of the former having been bumped
from behind by the truck driven by Montoya. Neither was
petitioner awarded damages as he was not a complainant
against truck-driver Montoya but only against jeep-owner-
driver Salazar.
On August 22, 1970, or after the termination of the
criminal cases, petitioner filed Civil Case No. 80803 with
the Court of First Instance of Manila against respondents
jeep-owner-driver Salazar and Felino Timbol, the latter
being the owner of the gravel and sand truck driven by
Montoya, for indentification for the damages sustained by
his car as a result of the collision involving their vehicles.
Jeep-owner-driver Salazar and truck-owner Timbol were
joined as defendants, either in the alternative or in
solidum allegedly for the reason that petitioner was
uncertain as to whether he was entitled to relief against
both on only one of them.
On September 9, 1970, truck-owner Timbol filed a
Motion to Dismiss Civil Case No. 80803 on the grounds
that the Complaint is barred by a prior judgment in the
criminal cases and that it fails to state a cause of action.
An Opposition thereto was filed by petitioner.
In an Order dated September 12, 1970, respondent Judge
dismissed the Complaint against truck-owner Timbol for
reasons stated in the afore- mentioned Motion to Dismiss
On September 30, 1970, petitioner sought before this
Court the review of that dismissal, to which petition we
gave due course.
On January 30, 1971, upon motion of jeep-owner-driver
Salazar, respondent Judge also dismissed the case as
against the former. Respondent Judge reasoned out that
"while it is true that an independent civil action for
liability under Article 2177 of the Civil Code could be
prosecuted independently of the criminal action for the
offense from which it arose, the New Rules of Court,
which took effect on January 1, 1964, requires an express
reservation of the civil action to be made in the criminal
action; otherwise, the same would be barred pursuant to
Section 2, Rule 111 ...
2
Petitioner's Motion for
Reconsideration thereof was denied in the order dated
February 23, 1971, with respondent Judge suggesting that
the issue be raised to a higher Court "for a more decisive
interpretation of the rule.
3

On March 25, 1971, petitioner then filed a Supplemental
Petition before us, also to review the last two mentioned
Orders, to which we required jeep-owner-driver Salazar
to file an Answer.
The Complaint against
truck-owner Timbol
We shall first discuss the validity of the Order, dated
September 12, 1970, dismissing petitioner's Complaint
against truck-owner Timbol.
In dismissing the Complaint against the truck-owner,
respondent Judge sustained Timbol's allegations that the
civil suit is barred by the prior joint judgment in Criminal
Cases Nos. SM-227 and SM-228, wherein no reservation
to file a separate civil case was made by petitioner and
where the latter actively participated in the trial and tried
to prove damages against jeep-driver-Salazar only; and
that the Complaint does not state a cause of action
against truck-owner Timbol inasmuch as petitioner
prosecuted jeep-owner-driver Salazar as the one solely
responsible for the damage suffered by his car.
Well-settled is the rule that for a prior judgment to
constitute a bar to a subsequent case, the following
requisites must concur: (1) it must be a final judgment; (2)
it must have been rendered by a Court having jurisdiction
over the subject matter and over the parties; (3) it must be
a judgment on the merits; and (4) there must be, between
the first and second actions, Identity of parties, Identity
of subject matter and Identity of cause of action.
It is conceded that the first three requisites of res
judicata are present. However, we agree with petitioner
that there is no Identity of cause of action between
Criminal Case No. SM-227 and Civil Case No. 80803.
Obvious is the fact that in said criminal case truck-driver
Montoya was not prosecuted for damage to petitioner's
car but for damage to the jeep. Neither was truck-owner
Timbol a party in said case. In fact as the trial Court had
put it "the owner of the Mercedes Benz cannot recover
any damages from the accused Freddie Montoya, he
(Mendoza) being a complainant only against Rodolfo
Salazar in Criminal Case No. SM-228.
4
And more
importantly, in the criminal cases, the cause of action was
the enforcement of the civil liability arising from criminal
negligence under Article l of the Revised Penal Code,
whereas Civil Case No. 80803 is based on quasi-
delict under Article 2180, in relation to Article 2176 of the
Civil Code As held in Barredo vs. Garcia, et al.
5

The foregoing authorities clearly demonstrate the separate
in. individuality of cuasi-delitos or culpa aquiliana under the
Civil Code. Specifically they show that there is a
distinction between civil liability arising from criminal
negligence (governed by the Penal Code) and
responsibility for fault or negligence under articles 1902
to 1910 of the Civil Code, and that the same negligent act
may produce either a civil liability arising from a crime
under the Penal Code, or a separate responsibility for
fault or negligence under articles 1902 to 1910 of the Civil
Code. Still more concretely, the authorities above cited
render it inescapable to conclude that the employer in this
case the defendant- petitioner is primarily and directly
liable under article 1903 of the Civil Code.
That petitioner's cause of action against Timbol in the
civil case is based on quasi-delict is evident from the
recitals in the complaint to wit: that while petitioner was
driving his car along MacArthur Highway at Marilao,
Bulacan, a jeep owned and driven by Salazar suddenly
swerved to his (petitioner's) lane and collided with his car
That the sudden swerving of Salazar's jeep was caused
either by the negligence and lack of skill of Freddie
Montoya, Timbol's employee, who was then driving a
gravel and sand truck iii the same direction as Salazar's
jeep; and that as a consequence of the collision,
petitioner's car suffered extensive damage amounting to
P12,248.20 and that he likewise incurred actual and moral
damages, litigation expenses and attorney's fees. Clearly,
therefore, the two factors that a cause of action must
consist of, namely: (1) plaintiff's primary right, i.e., that he
is the owner of a Mercedes Benz, and (2) defendant's
delict or wrongful act or omission which violated
plaintiff's primary right, i.e., the negligence or lack of skill
either of jeep-owner Salazar or of Timbol's employee,
Montoya, in driving the truck, causing Salazar's jeep to
swerve and collide with petitioner's car, were alleged in
the Complaint.
6

Consequently, petitioner's cause of action being based
on quasi-delict, respondent Judge committed reversible
error when he dismissed the civil suit against the truck-
owner, as said case may proceed independently of the
criminal proceedings and regardless of the result of the
latter.
Art. 31. When the civil action is based on an obligation
not arising from the act or omission complained of as a
felony, such civil action may proceed independently of
the criminal proceedings and regardless of the result of
the latter.
But it is truck-owner Timbol's submission (as well as that
of jeep-owner-driver Salazar) that petitioner's failure to
make a reservation in the criminal action of his right to
file an independent civil action bars the institution of
such separate civil action, invoking section 2, Rule 111,
Rules of Court, which says:
Section 2. Independent civil action. In the cases
provided for in Articles 31, 32, 33, 34 and 2177 of the
Civil Code of the Philippines, an independent civil action
entirely separate and distinct from the criminal action may
be brought by the injured party during the pendency of
the criminal case, provided the right is reserved as
required in the preceding section. Such civil action shau
proceed independently of the criminal prosecution, and
shall require only a preponderance of evidence.
Interpreting the above provision, this Court, in Garcia vs.
Florida
7
said:
As we have stated at the outset, the same negligent act
causing damages may produce a civil liability arising from
crime or create an action for quasi-delict or culpa extra-
contractual. The former is a violation of the criminal law,
while the latter is a distinct and independent negligence,
having always had its own foundation and individuality.
Some legal writers are of the view that in accordance with
Article 31, the civil action based upon quasi-delict may
proceed independently of the criminal proceeding for
criminal negligence and regardless of the result of the
latter. Hence, 'the proviso in Section 2 of Rule 111 with
reference to ... Articles 32, 33 and 34 of the Civil Code is
contrary to the letter and spirit of the said articles, for
these articles were drafted ... and are intended to
constitute as exceptions to the general rule stated in what
is now Section 1 of Rule 111. The proviso, which is
procedural, may also be regarded as an unauthorized
amendment of substantive law, Articles 32, 33 and 34 of
the Civil Code, which do not provide for the reservation
required in the proviso ... .
In his concurring opinion in the above case, Mr. Justice
Antonio Barredo further observed that inasmuch as
Articles 2176 and 2177 of the Civil Code create a civil
liability distinct and different from the civil action arising
from the offense of negligence under the Revised Penal
Code, no reservation, therefore, need be made in the
criminal case; that Section 2 of Rule 111 is inoperative, "it
being substantive in character and is not within the power
of the Supreme Court to promulgate; and even if it were
not substantive but adjective, it cannot stand because of
its inconsistency with Article 2177, an enactment of the
legislature superseding the Rules of 1940."
We declare, therefore, that in so far as truck-owner
Timbol is concerned, Civil Case No. 80803 is not barred
by the fact that petitioner failed to reserve, in the criminal
action, his right to file an independent civil action based
on quasi-delict.
The suit against
jeep-owner-driver Salazar
The case as against jeep-owner-driver Salazar, who was
acquitted in Criminal Case No. SM-228, presents a
different picture altogether.
At the outset it should be clarified that inasmuch as civil
liability co-exists with criminal responsibility in negligence
cases, the offended party has the option between an
action for enforcement of civil liability based
on culpa criminalunder Article 100 of the Revised Penal
Code, and an action for recovery of damages based
on culpa aquilianaunder Article 2177 of the Civil Code.
The action for enforcement of civil liability based on culpa
criminal under section 1 of Rule 111 of the Rules of Court
is deemed simultaneously instituted with the criminal
action, unless expressly waived or reserved for separate
application by the offended party.
8

The circumstances attendant to the criminal case yields
the conclusion that petitioner had opted to base his cause
of action against jeep-owner-driver Salazar on culpa
criminal and not on culpa aquiliana as evidenced by his
active participation and intervention in the prosecution of
the criminal suit against said Salazar. The latter's civil
liability continued to be involved in the criminal action
until its termination. Such being the case, there was no
need for petitioner to have reserved his right to file a
separate civil action as his action for civil liability was
deemed impliedly instituted in Criminal Case No. SM-
228.
Neither would an independent civil action he.
Noteworthy is the basis of the acquittal of jeep-owner-
driver Salazar in the criminal case, expounded by the trial
Court in this wise:
In view of what has been proven and established during
the trial, accused Freddie Montoya would be held able for
having bumped and hit the rear portion of the jeep driven
by the accused Rodolfo Salazar,
Considering that the collision between the jeep driven by
Rodolfo Salazar and the car owned and driven by
Edgardo Mendoza was the result of the hitting on the
rear of the jeep by the truck driven by Freddie Montoya,
this Court behaves that accused Rodolfo Salazar cannot
be held able for the damages sustained by Edgardo
Mendoza's car.
9

Crystal clear is the trial Court's pronouncement that
under the facts of the case, jeep-owner-driver Salazar
cannot be held liable for the damages sustained by
petitioner's car. In other words, "the fact from which the
civil might arise did not exist. " Accordingly, inasmuch as
petitioner's cause of action as against jeep-owner-driver
Salazar isex- delictu, founded on Article 100 of the Revised
Penal Code, the civil action must be held to have been
extinguished in consonance with Section 3(c), Rule 111 of
the Rules of Court
10
which provides:
Sec. 3. Other civil actions arising from offenses. In all
cases not included in the preceding section the following
rules shall be observed:
xxx xxx xxx
c) Extinction of the penal action does not carry with it
extinction of the civil, unless the extinction proceeds
from a declaration in a final judgment that the fact from
which the civil night arise did not exist. ...
And even if petitioner's cause of action as against jeep-
owner-driver Salazar were not ex-delictu, the end result
would be the same, it being clear from the judgment in
the criminal case that Salazar's acquittal was not based
upon reasonable doubt, consequently, a civil action for
damages can no longer be instituted. This is explicitly
provided for in Article 29 of the Civil Code quoted here
under:
Art. 29. When the accused in a criminal prosecution is
acquitted on the ground that his guilt has not been
proved beyond reasonable doubt, a civil action for
damages for the same act or omission may be instituted.
Such action requires only a preponderance of evidence ...
If in a criminal case the judgment of acquittal is based
upon reasonable doubt, the court shall so declare. In the
absence of any declaration to that effect, it may be
inferred from the text of the decision whether or not the
acquittal is due to that ground.
In so far as the suit against jeep-owner-driver Salazar is
concerned, therefore, we sustain respondent Judge's
Order dated January 30, 1971 dismissing the complaint,
albeit on different grounds.
WHEREFORE, 1) the Order dated September 12, 1970
dismissing Civil Case No. 80803 against private
respondent Felino Timbol is set aside, and respondent
Judge, or his successor, hereby ordered to proceed with
the hearing on the merits; 2) but the Orders dated January
30, 1971 and February 23, 1971 dismissing the Complaint
in Civil Case No. 80803 against respondent Rodolfo
Salazar are hereby upheld.
No costs.
SO ORDERED.
G.R. No. L-15315 August 26, 1960
ABUNDIO MERCED, petitioner,
vs.
HON. CLEMENTINO V. DIEZ, ETC. ET
AL., respondents.
Pedro A. Bandoquillo for petitioner.
Fulvio Pelaez for respondents.
LABRADOR, J.:
This is a petition for a writ of certiorari with prohibition to
prohibit the judge presiding the Court of First Instance of
Negros Oriental, Hon. Clementino V. Diez, from
proceeding further in the Criminal Case No. V-6520,
entitled People of the Philippines vs. Abundio Merced
until after final termination of Civil Case No. R-5387, for
the annulment of the marriage of petitioner Abundio
Merced with Elizabeth Ceasar, also pending in same
court.
The record disclose the following proceedings in the
court a quo: On January 30, 1958, Abundio Merced filed a
complaint for annulment of his second marriage with
Elizabeth Ceasar. The complaint is docketed as Civil Case
No. R-5387. The complaint alleges that defendant
Elizabeth Ceasar and her relatives forced, threatened and
intimated him into signing an affidavit to the effect that
he and defendant had been living together as husband
and wife for over five years, which is not true; that this
affidavit was used by defendant in securing their marriage
of exceptional character, without the need for marriage
license; that he was again forced, threatened and
intimated by defendant and her relatives into entering the
marriage with her on August 21, 1957 before Municipal
Judge Medardo A. Conde; that immediately after the
celebration of the marriage plaintiff left defendant and
never lived with her; that the defendant wrote him on
October 29, 1957, admitting that he was forced into the
marriage and asking him to go to Cebu to have the
marriage annulled, but he refused to go for fear he may
be forced into living with the defendant. Merced prays for
annulment of the marriage and for moral damages in the
amount of P2,000. On March 3, 1958, Elizabeth Ceasar
filed her answer to the complaint. In her answer, she
denies the material allegations of the complaint and avers
as affirmative defenses that neither she nor her relatives
know of plaintiff's previous marriage to Eufrocina Tan;
that sometime in July, 1957, plaintiff asked her mother to
intercede on their behalf to secure her father's consent to
their marriage as plaintiff could not concentrate on his
studies without marrying Elizabeth, but that her mother
advised him to finish his studies first; that sometime in
April, 1957, defendant learned that plaintiff was engaged
to marry Eufrocina Tan, but plaintiff, upon being
confronted with such discovery, showed her a letter
which he wrote breaking off his engagement with Tan. As
a counterclaim defendant asks P50,000 as moral damages
for the deceit, fraud and insidious machinations
committed upon her by plaintiff.
On February 19, 1958, after had filed Civil Case No. R-
5387 defendant Elizabeth Ceasar filed a criminal
complaint for bigamy 39 3 against plaintiff Abundio
Merced with the office of the City Fiscal of Cebu. On
April 7, 1958 the Assistant City Fiscal filed Criminal Case
No. V-6520, charging Merced with bigamy for the second
marriage. The information reads.
The undersigned Assistant Fiscal of City of Cebu accuses
Abundio Merced of the crime of bigamy, committed as
follows:
That on or about the 21st day of August, 1957, in the City
of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the said accused Abundio Merced,
being previously united in lawful marriage with Eufrocina
Tan, and without the said marriage having been legally
dissolved did then and there wilfully unlawfully,
feloniously contract a second marriage with Elizabeth
Ceasar.
Contrary to Article 349 of the Revised Penal Code.
(Annex "2".)
Abundio Merced filed a motion to hold to trial of said
criminal case in abeyance until final termination of Civil
Case No. R- 5387. Reason alleged for the motion is that
the Civil Action involves facts which if proved will
determine the innocence of the accused. After an
opposition thereto was filed by the assistant provincial
fiscal, the court granted the motion. However, upon
motion for reconsideration filed by the fiscal, the order
was set aside and another entered denying the motion of
accused for suspension of the criminal proceedings,
which last order is the one sough herein to be annulled.
The court held in its last order that inasmuch as by virtue
of the decision of the Supreme Court in the case of People
vs. Mendoza, 95 Phil., 50 Off. Gaz. [10], 4767, judicial
declaration of nullity of a second and bigamous marriage
is not necessary, there is no need in this case to decide the
nullity of the second marriage, or to determine and
declare the existence of the grounds for annulling the
same, but that said grounds should be used as a defense
in the criminal action. A motion to reconsider the second
order of the court having been denied, petition herein was
filed.
When the petition for certiorari with prohibition was filed,
the petitioner secured from this Court a writ of
preliminary injunction to enjoin respondent judge from
proceeding further in the criminal case.
Before this Court the sole question raised is whether an
action to annul the second marriage is a prejudicial
question in a prosecution for bigamy.
The definition and the elements of a prejudicial question
have been set forth by us as follows:
Prejudicial question has been defined to be that which
arises in a case, the resolution of which (question) is a
logical antecedent of the issue involved in said case, and
the cognizance of which pertains to another Tribunal
(Cuestion prejudicial, es 3o 3 la que surge en un pleito o
causa cuya resolucion sean antecedente logico de la
cuestion-objeto del pleito o causa y cuyo conocimiento
corresponda a los Tribunales de otro orden o jurisdiccion.
Enciclopedia Juridica Espaola, p. 228). The
prejudicial question must be determinative of the case
before the court; this is its first element. Jurisdiction to try
said question must be lodged in another tribunal; this is
the second element. In an action for bigamy for example,
if the accused claims that the first marriage is null and
void and the right to decide such validity is vested in
another tribunal, the civil action for nullity must be first
decided before the action for bigamy can proceed, hence,
the validity of the first marriage is a prejudicial question.
(People vs. Aragon, 94 Phil., 357; 50 Off. Gaz., No. 10,
4863).
In order that a person may be held guilty of the crime of
bigamy, the second and subsequent marriage must have
all the essential elements of a valid marriage, were it not
for the subsistence of the first marriage. This was the
ruling of this Court in People vs. Dumpo, 62 Phil., 246,
where we said:
It is an essential element of the crime of bigamy that the
alleged second marriage, having all the essential requisites,
would be valid were it not for the subsistence of the first
marriage. It appearing that the marriage alleged to have
been contracted by the accused with Sabdapal, her former
marriage with Hassan being undissolved, can not be
considered as such, according to Mohameddan rites, there
is no justification to hold her guilty of the crime charged
in the information. (People vs. Dumpo, 62 Phil. 246).
One of the essential elements of a valid marriage is that
the consent thereto of the contracting parties must be
freely and voluntarily given. Without the element of
consent a marriage would be illegal and void. (Section 29,
Act No. 3613, otherwise known as the Marriage Law.)
But the question of invalidity can not ordinarily be
decided in the criminal action for bigamy but in a civil
action for annulment. Since the validity of the second
marriage, subject of the action for bigamy, cannot be
determined in the criminal case and since prosecution for
bigamy does not lie unless the elements of the second
marriage appear to exist, it is necessary that a decision in a
civil action to the effect that the second marriage contains
all the essentials of a marriage must first be secured.
We have, therefore, in the case at bar, the issue of the
validity of the second marriage, which must be
determined before hand in the civil action, before the
criminal action can proceed. We have a situation where
the issue of the validity of the second marriage can be
determined or must be determined in the civil action
before the criminal action for bigamy can be prosecuted.
The question of the validity of the second marriage is,
therefore, a prejudicial question, because determination of
the validity of the second marriage is determinable in the
civil action and must precede the criminal action for
bigamy.
Spanish jurisprudence, from which the principle of
prejudicial question has been taken, requires that the
essential element determinative of the criminal action
must be cognizable by another court. This requirement of
a different court is demanded in Spanish jurisprudence
because Spanish courts are divided according to their
jurisdictions, some courts being exclusively of civil
jurisdiction, others of criminal jurisdiction. In the
Philippines, where our courts are vested with both civil
and criminal jurisdiction, the principle of prejudicial
question is to be applied even if there is only one court
before which the civil action and the criminal action are
to be litigated. But in this case the court when exercising
its jurisdiction over the civil action for the annulment of
marriage is considered as a court distinct and different
from itself when trying the criminal action for bigamy.
Our conclusion that the determination of the validity of
the marriage in the civil action for annulment is a
prejudicial question, insofar as the criminal action for
bigamy is concerned, is supported by Mr. Justice Moran
in his dissenting opinion in De Leon vs. Mabanag, 70
Phil., 207 thus:
La regla general es que cuando hay una cuestion civil y
otra criminal sobre un mismo delito u ofensa, la segunda
debe verse antes que la primera, por la razon de que las
formas de un juicio criminal son las mas a proposito para
la averiguacion de un delito, y no las de un juicio civil.
Esta regla tiene, sin embargo, una excepcion, y es la que
se refiere a una cueston civil prejudicial. Una cuestion
civil es de caracter prejudicial y debe resolverse antes que
una cuestion criminal, cuando versa sonbre un hecho
distinto y separado del delito, pero tan intimamente ligado
a el que determina la culpabilidad o inocencia del acusado.
Por ejemplo, una accion criminal por bigamia.
The majority decision in said case of De Leon vs.
Mabanag also sustains the theory that when a civil action is
pending in court, in which a validity of a document
claimed to be false and fictitious is in issue, the fiscal may
not prosecute the person who allegedly executed the false
document because the issue of the validity of the
instrument is sub judice and the prosecuting officer should
be ordered to suspend the criminal action until the
prejudicial question has been finally determined. Thus the
Court said"
Hablando en terminos generales la facultad del Fiscal y su
deber perseguir los delitos no deben ser controlados ni
coartados por los tribunales; pero no hay duda que esa
facultad puede ser regulada para que no se abuse de ella.
Cuando un miembro del Ministerio Fiscal se desvia de la
ley y entorpece la recta administracion de justicia
procesando a una persona por hechos constituvos de
delito que se encuentran sub-judice y de los cuales se
propone una cuestion prejudicial administrativa, es deber
de los tribunales llamarle la atencion y obligarle que
suspenda toda accion criminal hasta que la cuestion
prejudicial administrativa se haya decidido finalmente.
(De Leon vs. Mabanag, 70 Phil., 207.)
The case of People vs. Mendoza, supra, upon which the trial
court and the respondents rely, presents a different sets of
facts from the case at bar. So is the ruling therein as
contained in the syllabus. In the case of People vs. Mendoza,
Mendoza was charged with and convicted of bigamy for a
marriage with one Carmencita Panlilio, contracted in
August, 1949. Mendoza was married for the first time in
1946 with Josefa de Asis; then married for the second
time with Olga Lema; and then married for the third time
to Panlilio in 1949. On February 2, 1943, Josefa de Asis
died. The court citing the provisions of Article 29 of the
marriage law, held that the second marriage of the
appellant Mendoza with Lema was operation of law null
and void, because at the time of the second marriage in
1941, appellant's former wife Josefa de Asis was still
living. This marriage of appellant with Lema being null
and void at the time the appellant contracted the said
marriage, the impediment of the second marriage did not
exist. Hence the appellant was acquitted of bigamy for the
1949 marriage because his previous marriage with Lema
in 1941, by operation of law, was void ab initio.
In the case at bar, in order that the petitioner be held
guilty of the crime of bigamy, the marriage which she
contracted for the second time with Elizabeth Ceasar,
must first be declared valid. But its validity has been
questioned in the civil action. This civil action must be
decided before the prosecution for bigamy can proceed.
For the foregoing considerations, the petition for the
issuance of a writ of certiorari and prohibition is hereby
granted. The order of the court denying the petition of
the herein petitioner to prohibit the Fiscal from
prosecuting the case for bigamy, criminal case no. V-
6520, entitled People vs. Abundio Merced, is hereby set
aside and the preliminary injunction issued by this court
to that effect is hereby made permanent. So Ordered.
G.R. No. L-22579 February 23, 1968
ROLANDO LANDICHO, petitioner,
vs.
HON. LORENZO RELOVA, in his capacity as
Judge of the Court of First Instance of Batangas,
Branch I, and PEOPLE OF THE
PHILIPPINES, respondents.
Jose W. Diokno for petitioner.
Office of the Solicitor General for respondents.
FERNANDO, J.:
In this petition for certiorari and prohibition with
preliminary injunction, the question before the Court is
whether or not the existence of a civil suit for the
annulment of marriage at the instance of the second wife
against petitioner, with the latter in turn filing a third
party complaint against the first spouse for the annulment
of the first marriage, constitutes a prejudicial question in a
pending suit for bigamy against him. Respondent, Judge
Relova answered in the negative. We sustain him.
The pertinent facts as set forth in the petition
follow. On February 27, 1963, petitioner was charged
before the Court of First Instance of Batangas, Branch I,
presided over by respondent Judge, with the offense, of
bigamy. It was alleged in the information that petitioner
"being then lawfully married to Elvira Makatangay, which
marriage has not been legally dissolved, did then and
there wilfully, unlawfully and feloniously contract a
second marriage with Fe Lourdes Pasia." On March 15,
1963, an action was filed before the Court of First
Instance ofBatangas, likewise presided plaintiff
respondent Judge Fe Lourdes Pasia, seeking to declare
her marriage to petitioner as null and void ab
initio because of the alleged use of force, threats and
intimidation allegedly employed by petitioner and because
of its allegedly bigamous character. On June 15, 1963,
petitioner as defendant in said case, filed a third-party
complaint, against the third-party defendant Elvira
Makatangay, the first spouse, praying that his marriage
with the said third-party defendant be declared null and
void, on the ground that by means of threats, force and
intimidation, she compelled him to appear and contract
marriage with her before the Justice of the Peace of
Makati, Rizal.
Thereafter, on October 7, 1963, petitioner moved
to suspend the hearing of the criminal case pending the
decision on the question of the validity of the two
marriages involved in the pending civil suit. Respondent
Judge on November 19, 1963 denied the motion for lack
of merit. Then came a motion for reconsideration to set
aside the above order, which was likewise denied on
March 2, 1964. Hence this petition, filed on March 13,
1964.
In a resolution of this Court of March 17, 1964,
respondent Judge was required to answer within ten (10)
days, with a preliminary injunction being issued to restrain
him from further proceeding with the prosecution of the
bigamy case. In the meanwhile, before the answer was
filed there was an amended petition for certiorari, the
amendment consisting solely in the inclusion of the
People of the Philippines as another respondent. This
Court admitted such amended petition in a resolution of
April 3, 1964.
Then came the answer to the amended petition on
May 14 of that year where the statement of facts as above
detailed was admitted, with the qualifications that the
bigamy charge was filed upon the complaint of the first
spouse Elvira Makatangay. It alleged as one of its special
and affirmative defenses that the mere fact that "there are
actions to annul the marriages entered into by the accused
in a bigamy case does not mean that 'prejudicial questions
are automatically raised in said civil actions as to warrant
the suspension of the criminal case for bigamy."
1
The
answer stressed that even on the assumption that the first
marriage was null and void on the ground alleged by
petitioner, the fact would not be material to the outcome
of the criminal case. It continued, referring to Viada, that
"parties to the marriage should not be permitted to judge
for themselves its nullity, for this must be submitted to
the judgment of competent courts and only when the
nullity of a marriage is so declared can it be held as void,
and so long as there is no such declaration the
presumption is that the marriage exists. Therefore,
according to Viada, he who contracts a second marriage
before the judicial declaration of nullity of the first
marriage incurs the penalty provided for in this Article. . .
."
2

This defense is in accordance with the principle
implicit in authoritative decisions of this Court. In Merced
v. Diez,
3
what was in issue was the validity of the second
marriage, "which must be determined before hand in the
civil action before the criminal action can proceed."
According to the opinion of Justice Labrador: "We have a
situation where the issue of the validity of the second
marriage can be determined or must first be determined
in the civil action before the criminal action for bigamy
can be prosecuted. The question of the validity of the
second marriage is, therefore, a prejudicial question
because determination of the validity of the second
marriage is determinable in the civil action and must
precede the criminal action for bigamy." It was the
conclusion of this Court then that for petitioner Merced
to be found guilty of bigamy, the second marriage which
he contracted "must first be declared valid." Its validity
having been questioned in the civil action, there must be a
decision in such a case "before the prosecution for
bigamy can proceed."
To the same effect is the doctrine announced
in Zapanta v. Mendoza.
4
As explained in the opinion of
Justice Dizon: "We have heretofore defined a prejudicial
question as that which arises in a case, the resolution of
which is a logical antecedent of the issue involved therein,
and the cognizance of which pertains to another tribunal.
. . . The prejudicial question we further said must
be determinative of the case before the court, and
jurisdiction to try the same must be lodged in another
court. . . . These requisites are present in the case at bar.
Should the question for annulment of the second
marriage pending in the Court of First Instance of
Pampanga prosper on the ground that, according to the
evidence, petitioner's consent thereto was obtained by
means of duress, force and intimidation, it is obvious that
his act was involuntary and can not be the basis of his
conviction for the crime of bigamy with which he was
charged in the Court of First Instance of Bulacan. Thus
the issue involved in the action for the annulment of the
second marriage is determinative of petitioner's guilt or
innocence of the crime of bigamy. . . ."
The situation in this case is markedly different. At
the time the petitioner was indicted for bigamy on
February 27, 1963, the fact that two marriage ceremonies
had been contracted appeared to be indisputable. Then
on March 15, 1963, it was the second spouse, not
petitioner who filed an action for nullity on the ground of
force, threats and intimidation. It was sometime later, on
June 15, 1963, to be precise, when petitioner, as
defendant in the civil action, filed a third-party complaint
against the first spouse alleging that his marriage with her
should be declared null and void on the ground of force,
threats and intimidation. As was correctly stressed in the
answer of respondent Judge relying on Viada, parties to a
marriage should not be permitted to judge for themselves
its nullity, only competent courts having such authority.
Prior to such declaration of nullity, the validity of the first
marriage is beyond question. A party who contracts a
second marriage then assumes the risk of being
prosecuted for bigamy.
Such was the situation of petitioner. There is no
occasion to indulge in the probability that the third-party
complaint against the first wife brought almost five
months after the prosecution for bigamy was started
could have been inspired by the thought that he could
thus give color to a defense based on an alleged
prejudicial question. The above judicial decisions as well
as the opinion of Viada preclude a finding that
respondent Judge abused, much less gravely abused, his
discretion in failing to suspend the hearing as sought by
petitioner.
WHEREFORE, the petition for certiorari is denied
and the writ of preliminary injunction issued dissolved.
With costs.1wph1.t
G.R. No. L-53642 April 15, 1988
LEONILO C. DONATO, petitioners,
vs.
HON. ARTEMON D. LUNA, PRESIDING
JUDGE, COURT OF FIRST INSTANCE OF
MANIIA, BRANCH XXXII HON. JOSE
FLAMINIANO, CITY FISCAL OF MANILA; PAZ
B. ABAYAN, respondents.
Leopoldo P. Dela Rosa for petitioner.
Emiterio C. Manibog for private respondent.
City Fiscal of Manila for public respondent.

GANCAYCO, J.:
In this petition for certiorari and prohibition with
preliminary injunction, the question for the resolution of
the Court is whether or not a criminal case for bigamy
pending before the Court of First Itance of Manila should
be suspended in view of a civil case for annulment of
marriage pending before the Juvenile and Domestic
Relations Court on the ground that the latter constitutes a
prejudicial question. The respondent judge ruled in the
negative. We sustain him.
The pertinent facts as set forth in the records follow. On
January 23, 1979, the City Fiscal of Manila acting thru
Assistant City Fiscal Amado N. Cantor filed an
information for bigamy against herein petitioner, Leonilo
C. Donato with the Court of First Instance of Manila,
docketed as Criminal Case No. 43554 and assigned to
Branch XXXII of said court. The information was filed
based on the complaint of private respondent Paz B.
Abayan.
On September 28, 1979, before the petitioner's
arraignment, private respondent filed with the Juvenile
and Domestic Relations Court of Manila a civil action for
declaration of nullity of her marriage with petitioner
contracted on September 26, 1978, which action was
docketed as Civil Case No. E-02627. Said civil case was
based on the ground that private respondent consented to
entering into the marriage, which was petitioner Donato's
second one, since she had no previous knowledge that
petitioner was already married to a certain Rosalinda R.
Maluping on June 30, 1978. Petitioner Donato's answer in
the civil case for nullity interposed the defense that his
second marriage was void since it was solemnized without
a marriage license and that force, violence, intimidation
and undue influence were employed by private
respondent to obtain petitioner's consent to the marriage.
Prior to the solemnization of the subsequent or second
marriage, petitioner and private respondent had lived
together and deported themselves as husband and wife
without the benefit of wedlock for a period of at least five
years as evidenced by a joint affidavit executed by them
on September 26, 1978, for which reason, the requisite
marriage license was dispensed with pursuant to Article
76 of the New Civil Code pertaining to marriages of
exceptional character.
Prior to the date set for the trial on the merits of Criminal
Case No. 43554, petitioner filed a motion to suspend the
proceedings of said case contending that Civil Case No.
E-02627 seeking the annulment of his second marriage
filed by private respondent raises a prejudicial question
which must first be determined or decided before the
criminal case can proceed.
In an order dated April 7, 1980. Hon. Artemon D. Luna
denied the motion to suspend the proceedings in
Criminal Case No. 43554 for bigamy. Respondent judge's
basis for denial is the ruling laid down in the case
of Landicho vs. Relova.
1
The order further directed that the
proceedings in the criminal case can proceed as
scheduled.
A motion for reconsideration was flied by herein
petitioner thru counsel citing as one of his grounds for
suspension of proceedings the ruling laid down by this
Court in the case of De la Cruz vs. Ejercito
2
which was a
much later case than that cited by respondent judge in his
order of denial.
The motion for reconsideration of the said order was
likewise denied in an order dated April 14, 1980, for lack
of merit. Hence, the present petition for certiorari and
prohibition with preliminary injunction.
A prejudicial question has been defined to be one which
arises in a case, the resolution of which question is a
logical antecedent of the issue involved in said case, and
the cognizance of which pertains to another tribunal.
3
It
is one based on a fact distinct and separate from the
crime but so intimately connected with it that it
determines the guilt or innocence of the accused, and for
it to suspend the criminal action, it must appear not only
that said case involves facts intimately related to those
upon which the criminal prosecution would be based but
also that in the resolution of the issue or issues raised in
the civil case, the guilt or innocence of the accused would
necessarily be determined.
4
A prejudicial question usually
comes into play in a situation where a civil action and a
criminal action may proceed, because howsoever the issue
raised in the civil action is resolved would be
determinative juris et de jure of the guilt or innocence of
the accused in a criminal case.
5

The requisites of a prejudicial question do not obtain in
the case at bar. It must be noted that the issue before the
Juvenile and Domestic Relations Court touching upon
the nullity of the second marriage is not determinative of
petitioner Donato's guilt or innocence in the crime of
bigamy. Furthermore, it was petitioner's second wife, the
herein private respondent Paz B. Abayan who filed the
complaint for annulment of the second marriage on the
ground that her consent was obtained through deceit.
Petitioner Donato raised the argument that the second
marriage should have been declared null and void on the
ground of force, threats and intimidation allegedly
employed against him by private respondent only
sometime later when he was required to answer the civil
action for anulment of the second marriage. The doctrine
elucidated upon by the case of Landicho vs. Relova
6
may be
applied to the present case. Said case states that:
The mere fact that there are actions to annul the
marriages entered into by the accused in a bigamy case
does not mean that "prejudicial questions" are
automatically raised in civil actions as to warrant the
suspension of the case. In order that the case of
annulment of marriage be considered a prejudicial
question to the bigamy case against the accused, it must
be shown that the petitioner's consent to such marriage
must be the one that was obtained by means of duress,
force and intimidation to show that his act in the second
marriage must be involuntary and cannot be the basis of
his conviction for the crime of bigamy. The situation in
the present case is markedly different. At the time the
petitioner was indicted for bigamy on February 27, 1963,
the fact that two marriage ceremonies had been
contracted appeared to be indisputable. And it was the
second spouse, not the petitioner who filed the action for
nullity on the ground of force, threats and intimidation.
And it was only on June 15, 1963, that petitioner, as
defendant in the civil action, filed a third-party complaint
against the first spouse alleging that his marriage with her
should be declared null and void on the ground of force,
threats and intimidation. Assuming that the first marriage
was null and void on the ground alleged by petitioner, the
fact would not be material to the outcome of the case.
Parties to the marriage should not be permitted to judge
for themselves its nullity, for the same must be submitted
to the judgment of the competent courts and only when
the nullity of the marriage is so declared can it be held as
void, and so long as there is no such declaration the
presumption is that the marriage exists. Therefore, he
who contracts a second marriage before the judicial
declaration of nullity of the first marriage assumes the risk
of being prosecuted for bigamy. The lower court
therefore, has not abused much less gravely abused, its
discretion in failing to suspend the hearing as sought by
petitioner.
In the case at bar, petitioner has not even sufficiently
shown that his consent to the second marriage has been
obtained by the use of threats, force and intimidation.
Petitioner calls the attention of this Court to the fact that
the case of De la Cruz vs. Ejercito is a later case and as
such it should be the one applied to the case at bar. We
cannot agree. The situation in the case at bar is markedly
different. In the aforecited case it was accused Milagros
dela Cruz who was charged with bigamy for having
contracted a second marriage while a previous one
existed. Likewise, Milagros dela Cruz was also the one
who filed an action for annulment on the ground of
duress, as contra-distinguished from the present case
wherein it was private respondent Paz B. Abayan,
petitioner's second wife, who filed a complaint for
annulment of the second marriage on the ground that her
consent was obtained through deceit since she was not
aware that petitioner's marriage was still subsisting.
Moreover, in De la Cruz, a judgment was already
rendered in the civil case that the second marriage of De
la Cruz was null and void, thus determinative of the guilt
or innocence of the accused in the criminal case. In the
present case, there is as yet no such judgment in the civil
case.
Pursuant to the doctrine discussed in Landicho vs.
Relova, petitioner Donato cannot apply the rule on
prejudicial questions since a case for annulment of
marriage can be considered as a prejudicial question to
the bigamy case against the accused only if it is proved
that the petitioner's consent to such marriage was
obtained by means of duress, violence and intimidation in
order to establish that his act in the subsequent marriage
was an involuntary one and as such the same cannot be
the basis for conviction. The preceding elements do not
exist in the case at bar.
Obviously, petitioner merely raised the issue of prejudicial
question to evade the prosecution of the criminal case.
The records reveal that prior to petitioner's second
marriage on September 26, 1978, he had been living with
private respondent Paz B. Abayan as husband and wife
for more than five years without the benefit of marriage.
Thus, petitioner's averments that his consent was
obtained by private respondent through force, violence,
intimidation and undue influence in entering a subsequent
marriage is belled by the fact that both petitioner and
private respondent executed an affidavit which stated that
they had lived together as husband and wife without
benefit of marriage for five years, one month and one day
until their marital union was formally ratified by the
second marriage and that it was private respondent who
eventually filed the civil action for nullity.
Another event which militates against petitioner's
contentions is the fact hat it was only when Civil Case
No. E-02627 was filed on September 28, 1979, or more
than the lapse of one year from the solemnization of the
second marriage that petitioner came up with the story
that his consent to the marriage was secured through the
use of force, violence, intimidation and undue influence.
Petitioner also continued to live with private respondent
until November 1978, when the latter left their abode
upon learning that Leonilo Donato was already previously
married.
In the light of the preceding factual circumstances, it can
be seen that the respondent Judge did not err in his earlier
order. There is no pivotal issue that must be pre-
emptively resolved in Civil Case No. E-02627 before
proceedings in the criminal action for bigamy can be
undertaken.
Accordingly, there being no prejudicial question shown to
exit the order of denial issued by the respondent judge
dated April 14, 1980 should be sustained.
WHEREFORE, in view of the foregoing, the instant
petition is hereby DISMISSED for lack of merit. We
make no pronouncement as to costs.
SO ORDERED.
G.R. No. 26795 July 31, 1970
CARMEN QUIMIGUING, Suing through her
parents, ANTONIO QUIMIGUING and JACOBA
CABILIN,plaintiffs-appellants,
vs.
FELIX ICAO, defendant-appellee.
Torcuato L. Galon for plaintiffs-appellants.
Godardo Jacinto for defendant-appellee.

REYES, J.B.L., J.:
Appeal on points of law from an order of the Court of
First Instance of Zamboanga del Norte (Judge Onofre
Sison Abalos, presiding), in its Civil Case No. 1590,
dismissing a complaint for support and damages, and
another order denying amendment of the same pleading.
The events in the court of origin can be summarized as
follows:
Appellant, Carmen Quimiguing, assisted by her parents,
sued Felix Icao in the court below. In her complaint it
was averred that the parties were neighbors in Dapitan
City, and had close and confidential relations; that
defendant Icao, although married, succeeded in having
carnal intercourse with plaintiff several times by force and
intimidation, and without her consent; that as a result she
became pregnant, despite efforts and drugs supplied by
defendant, and plaintiff had to stop studying. Hence, she
claimed support at P120.00 per month, damages and
attorney's fees.
Duly summoned, defendant Icao moved to dismiss for
lack of cause of action since the complaint did not allege
that the child had been born; and after hearing arguments,
the trial judge sustained defendant's motion and
dismissed the complaint.
Thereafter, plaintiff moved to amend the complaint to
allege that as a result of the intercourse, plaintiff had later
given birth to a baby girl; but the court, sustaining
defendant's objection, ruled that no amendment was
allowable, since the original complaint averred no cause
of action. Wherefore, the plaintiff appealed directly to this
Court.
We find the appealed orders of the court below to be
untenable. A conceived child, although as yet unborn, is
given by law a provisional personality of its own for all
purposes favorable to it, as explicitly provided in Article
40 of the Civil Code of the Philippines. The unborn child,
therefore, has a right to support from its progenitors,
particularly of the defendant-appellee (whose paternity is
deemed admitted for the purpose of the motion to
dismiss), even if the said child is only "en ventre de sa mere;"
just as a conceived child, even if as yet unborn, may
receive donations as prescribed by Article 742 of the
same Code, and its being ignored by the parent in his
testament may result in preterition of a forced heir that
annuls the institution of the testamentary heir, even if
such child should be born after the death of the testator
Article 854, Civil Code).
ART. 742. Donations made to conceived and unborn
children may be accepted by those persons who would
legally represent them if they were already born.
ART. 854. The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of
heir; but the devises and legacies shall be valid insofar as
they are not inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without
prejudice to the right of 'representation.
It is thus clear that the lower court's theory that Article
291 of the Civil Code declaring that support is an
obligation of parents and illegitimate children "does not
contemplate support to children as yet unborn," violates
Article 40 aforesaid, besides imposing a condition that
nowhere appears in the text of Article 291. It is true that
Article 40 prescribing that "the conceived child shall be
considered born for all purposes that are favorable to it"
adds further "provided it be born later with the
conditions specified in the following article" (i.e., that the
foetus be alive at the time it is completely delivered from
the mother's womb). This proviso, however, is not a
condition precedent to the right of the conceived child;
for if it were, the first part of Article 40 would become
entirely useless and ineffective. Manresa, in his
Commentaries (5th Ed.) to the corresponding Article 29
of the Spanish Civil Code, clearly points this out:
Los derechos atribuidos al nasciturus no son
simples expectativas, ni aun en el sentido tecnico que la
moderna doctrina da a esta figura juridica sino que
constituyen un caso de los propiamente Ilamados
'derechos en estado de pendenci'; el nacimiento del sujeto en
las condiciones previstas por el art. 30, no determina el
nacimiento de aquellos derechos (que ya existian de
antemano), sino que se trata de un hecho que tiene
efectos declarativos. (1 Manresa, Op. cit., page 271)
A second reason for reversing the orders appealed from is
that for a married man to force a woman not his wife to
yield to his lust (as averred in the original complaint in
this case) constitutes a clear violation of the rights of his
victim that entitles her to claim compensation for the
damage caused. Says Article 21 of the Civil Code of the
Philippines:
ART. 21. Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for
the damage.
The rule of Article 21 is supported by Article 2219 of the
same Code:
ART 2219. Moral damages may be recovered in the
following and analogous cases:
(3) Seduction, abduction, rape or other lascivious acts:
xxx xxx xxx
(10) Acts and actions referred to in Articles 21, 26, 27, 28
....
Thus, independently of the right to Support of the child
she was carrying, plaintiff herself had a cause of action for
damages under the terms of the complaint; and the order
dismissing it for failure to state a cause of action was
doubly in error.
WHEREFORE, the orders under appeal are reversed and
set aside. Let the case be remanded to the court of origin
for further proceedings conformable to this decision.
Costs against appellee Felix Icao. So ordered.
G.R. No. L-16439 July 20, 1961
ANTONIO GELUZ, petitioner,
vs.
THE HON. COURT OF APPEALS and OSCAR
LAZO, respondents.
Mariano H. de Joya for petitioner.
A.P. Salvador for respondents.
REYES, J.B.L., J.:
This petition for certiorari brings up for review question
whether the husband of a woman, who voluntarily
procured her abortion, could recover damages from
physician who caused the same.
The litigation was commenced in the Court of First
Instance of Manila by respondent Oscar Lazo, the of Nita
Villanueva, against petitioner Antonio Geluz, a physician.
Convinced of the merits of the complaint upon the
evidence adduced, the trial court rendered judgment favor
of plaintiff Lazo and against defendant Geluz, ordering
the latter to pay P3,000.00 as damages, P700.00 attorney's
fees and the costs of the suit. On appeal, Court of
Appeals, in a special division of five, sustained the award
by a majority vote of three justices as against two, who
rendered a separate dissenting opinion.
The facts are set forth in the majority opinion as follows:
Nita Villanueva came to know the defendant (Antonio
Geluz) for the first time in 1948 through her aunt
Paula Yambot. In 1950 she became pregnant by her
present husband before they were legally married.
Desiring to conceal her pregnancy from her parent, and
acting on the advice of her aunt, she had herself aborted
by the defendant. After her marriage with the plaintiff,
she again became pregnant. As she was then employed in
the Commission on Elections and her pregnancy proved
to be inconvenient, she had herself aborted again by the
defendant in October 1953. Less than two years later, she
again became pregnant. On February 21, 1955,
accompanied by her sister Purificacion and the latter's
daughter Lucida, she again repaired to the defendant's
clinic on Carriedo and P. Gomez streets in Manila, where
the three met the defendant and his wife. Nita was again
aborted, of a two-month old foetus, in consideration of
the sum of fifty pesos, Philippine currency. The plaintiff
was at this time in the province of Cagayan, campaigning
for his election to the provincial board; he did not know
of, nor gave his consent, to the abortion.
It is the third and last abortion that constitutes plaintiff's
basis in filing this action and award of damages. Upon
application of the defendant Geluz we granted certiorari.
The Court of Appeals and the trial court predicated the
award of damages in the sum of P3,000.06 upon the
provisions of the initial paragraph of Article 2206 of the
Civil Code of the Philippines. This we believe to be error,
for the said article, in fixing a minimum award of
P3,000.00 for the death of a person, does not cover the
case of an unborn foetus that is not endowed with
personality. Under the system of our Civil Code, "la
criatura abortiva no alcanza la categoria de persona
natural y en consscuencia es un ser no nacido a la vida del
Derecho" (Casso-Cervera, "Diccionario de Derecho
Privado", Vol. 1, p. 49), being incapable of having rights
and obligations.
Since an action for pecuniary damages on account of
personal injury or death pertains primarily to the one
injured, it is easy to see that if no action for such damages
could be instituted on behalf of the unborn child on
account of the injuries it received, no such right of action
could derivatively accrue to its parents or heirs. In fact,
even if a cause of action did accrue on behalf of the
unborn child, the same was extinguished by its pre-natal
death, since no transmission to anyone can take place
from on that lacked juridical personality (or juridical
capacity as distinguished from capacity to act). It is no
answer to invoke the provisional personality of a
conceived child (conceptus pro nato habetur) under Article 40
of the Civil Code, because that same article expressly
limits such provisional personality by imposing the
condition that the child should be subsequently born
alive: "provided it be born later with the condition
specified in the following article". In the present case,
there is no dispute that the child was dead when separated
from its mother's womb.
The prevailing American jurisprudence is to the same
effect; and it is generally held that recovery can not had
for the death of an unborn child (Stafford vs. Roadway
Transit Co., 70 F. Supp. 555; Dietrich vs. Northampton,
52 Am. Rep. 242; and numerous cases collated in the
editorial note, 10 ALR, (2d) 639).
This is not to say that the parents are not entitled to
collect any damages at all. But such damages must be
those inflicted directly upon them, as distinguished from
the injury or violation of the rights of the deceased, his
right to life and physical integrity. Because the parents can
not expect either help, support or services from an
unborn child, they would normally be limited to moral
damages for the illegal arrest of the normal development
of the spes hominis that was the foetus, i.e., on account of
distress and anguish attendant to its loss, and the
disappointment of their parental expectations (Civ. Code
Art. 2217), as well as to exemplary damages, if the
circumstances should warrant them (Art. 2230). But in
the case before us, both the trial court and the Court of
Appeals have not found any basis for an award of moral
damages, evidently because the appellee's indifference to
the previous abortions of his wife, also caused by the
appellant herein, clearly indicates that he was
unconcerned with the frustration of his parental hopes
and affections. The lower court expressly found, and the
majority opinion of the Court of Appeals did not
contradict it, that the appellee was aware of the second
abortion; and the probabilities are that he was likewise
aware of the first. Yet despite the suspicious repetition of
the event, he appeared to have taken no steps to
investigate or pinpoint the causes thereof, and secure the
punishment of the responsible practitioner. Even after
learning of the third abortion, the appellee does not seem
to have taken interest in the administrative and criminal
cases against the appellant. His only concern appears to
have been directed at obtaining from the doctor a large
money payment, since he sued for P50,000.00 damages
and P3,000.00 attorney's fees, an "indemnity" claim that,
under the circumstances of record, was clearly
exaggerated.
The dissenting Justices of the Court of Appeals have aptly
remarked that:
It seems to us that the normal reaction of a husband who
righteously feels outraged by the abortion which his wife
has deliberately sought at the hands of a physician would
be highminded rather than mercenary; and that his
primary concern would be to see to it that the medical
profession was purged of an unworthy member rather
than turn his wife's indiscretion to personal profit, and
with that idea in mind to press either the administrative or
the criminal cases he had filed, or both, instead of
abandoning them in favor of a civil action for damages of
which not only he, but also his wife, would be the
beneficiaries.
It is unquestionable that the appellant's act in provoking
the abortion of appellee's wife, without medical necessity
to warrant it, was a criminal and morally reprehensible
act, that can not be too severely condemned; and the
consent of the woman or that of her husband does not
excuse it. But the immorality or illegality of the act does
not justify an award of damage that, under the
circumstances on record, have no factual or legal basis.
The decision appealed from is reversed, and the
complaint ordered dismissed. Without costs.
Let a copy of this decision be furnished to the
Department of Justice and the Board of Medical
Examiners for their information and such investigation
and action against the appellee Antonio Geluz as the facts
may warrant.
CONTINENTAL STEEL
MANUFACTURING
CORPORATION,
Petitioner,

- versus -

HON. ACCREDITED
VOLUNTARY
ARBITRATOR ALLAN S.
MONTAO and
NAGKAKAISANG
MANGGAGAWA NG
CENTRO STEEL
CORPORATION-
SOLIDARITY OF UNIONS
IN THE PHILIPPINES
FOR EMPOWERMENT
AND REFORMS (NMCSC-
SUPER),
Respondents.
G.R. No. 182836


Present:

CARPIO, J.,
Chairperson,
CHICO-
NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.


Promulgated:



October 13, 2009
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - -x



D E C I S I O N



CHICO-NAZARIO, J.:


Before Us is a Petition for Review
on Certiorari, under Rule 45 of the Rules of Court,
assailing the Decision
[1]
dated 27 February 2008 and the
Resolution
[2]
dated 9 May 2008 of the Court of Appeals in
CA-G.R. SP No. 101697, affirming the Resolution
[3]
dated
20 November 2007 of respondent Accredited Voluntary
Arbitrator Atty. Allan S. Montao (Montao) granting
bereavement leave and other death benefits to Rolando P.
Hortillano (Hortillano), grounded on the death of his
unborn child.

The antecedent facts of the case are as
follows:

Hortillano, an employee of petitioner
Continental Steel Manufacturing Corporation
(Continental Steel) and a member of respondent
Nagkakaisang Manggagawa ng Centro Steel Corporation-
Solidarity of Trade Unions in the Philippines for
Empowerment and Reforms (Union) filed on 9 January
2006, a claim for Paternity Leave, Bereavement Leave and
Death and Accident Insurance for dependent, pursuant to
the Collective Bargaining Agreement (CBA) concluded
between Continental and the Union, which reads:

ARTICLE X: LEAVE OF ABSENCE

x x x x

Section 2. BEREAVEMENT LEAVEThe
Company agrees to grant a bereavement leave with pay to
any employee in case of death of the employees
legitimate dependent (parents, spouse, children, brothers
and sisters) based on the following:

2.1 Within Metro Manila up to Marilao,
Bulacan - 7 days

2.2 Provincial/Outside Metro Manila - 11
days

x x x x

ARTICLE XVIII: OTHER BENEFITS

x x x x

Section 4. DEATH AND ACCIDENT
INSURANCEThe Company shall grant death and
accidental insurance to the employee or his family in the
following manner:

x x x x

4.3 DEPENDENTSEleven Thousand Five
Hundred Fifty Pesos (Php11,550.00) in case of death of
the employees legitimate dependents (parents, spouse,
and children). In case the employee is single, this benefit
covers the legitimate parents, brothers and sisters only
with proper legal document to be presented (e.g. death
certificate).
[4]



The claim was based on the death of
Hortillanos unborn child. Hortillanos wife, Marife V.
Hortillano, had a premature delivery on 5 January
2006 while she was in the 38
th
week of
pregnancy.
[5]
According to the Certificate of Fetal Death
dated 7 January 2006, the female fetus died during labor
due to fetal Anoxia secondary to uteroplacental
insufficiency.
[6]


Continental Steel immediately granted
Hortillanos claim for paternity leave but denied his
claims for bereavement leave and other death benefits,
consisting of the death and accident insurance.
[7]


Seeking the reversal of the denial by
Continental Steel of Hortillanos claims for bereavement
and other death benefits, the Union resorted to the
grievance machinery provided in the CBA. Despite the
series of conferences held, the parties still failed to settle
their dispute,
[8]
prompting the Union to file a Notice to
Arbitrate before the National Conciliation and Mediation
Board (NCMB) of the Department of Labor and
Employment (DOLE), National Capital Region
(NCR).
[9]
In a Submission Agreement dated 9 October
2006, the Union and Continental Steel submitted for
voluntary arbitration the sole issue of whether Hortillano
was entitled to bereavement leave and other death
benefits pursuant to Article X, Section 2


and Article XVIII, Section 4.3 of the CBA.
[10]
The parties
mutually chose Atty. Montao, an Accredited Voluntary
Arbitrator, to resolve said issue.
[11]


When the preliminary conferences again
proved futile in amicably settling the dispute, the parties
proceeded to submit their respective Position
Papers,
[12]
Replies,
[13]
and Rejoinders
[14]
to Atty. Montao.

The Union argued that Hortillano was entitled
to bereavement leave and other death benefits pursuant
to the CBA. The Union maintained that Article X,
Section 2 and Article XVIII, Section 4.3 of the CBA did
not specifically state that the dependent should have first
been born alive or must have acquired juridical
personality so that his/her subsequent death could be
covered by the CBA death benefits. The Union cited
cases wherein employees of MKK Steel Corporation
(MKK Steel) and Mayer Steel Pipe Corporation (Mayer
Steel), sister companies of Continental Steel, in similar
situations as Hortillano were able to receive death
benefits under similar provisions of their CBAs.

The Union mentioned in particular the case of
Steve L. Dugan (Dugan), an employee of Mayer Steel,
whose wife also prematurely delivered a fetus, which had
already died prior to the delivery. Dugan was able to
receive paternity leave, bereavement leave, and voluntary
contribution under the CBA between his union and
Mayer Steel.
[15]
Dugans child was only 24 weeks in the
womb and died before labor, as opposed to Hortillanos
child who was already 37-38 weeks in the womb and only
died during labor.

The Union called attention to the fact that
MKK Steel and Mayer Steel are located in the same
compound as Continental Steel; and the representatives
of MKK Steel and Mayer Steel who signed the CBA with
their respective employees unions were the same as the
representatives of Continental Steel who signed the
existing CBA with the Union.

Finally, the Union invoked Article 1702 of the
Civil Code, which provides that all doubts in labor
legislations and labor contracts shall be construed in favor
of the safety of and decent living for the laborer.

On the other hand, Continental Steel posited
that the express provision of the CBA did not
contemplate the death of an unborn child, a fetus,
without legal personality. It claimed that there are two
elements for the entitlement to the benefits, namely:
(1) death and (2) status as legitimate dependent, none of
which existed in Hortillanos case. Continental Steel,
relying on Articles 40, 41 and 42
[16]
of the Civil Code,
contended that only one with civil personality could
die. Hence, the unborn child never died because it never
acquired juridical personality. Proceeding from the same
line of thought, Continental Steel reasoned that a fetus
that was dead from the moment of delivery was not a
person at all. Hence, the term dependent could not be
applied to a fetus that never acquired juridical
personality. A fetus that was delivered dead could not be
considered a dependent,since it never needed any support,
nor did it ever acquire the right to be supported.

Continental Steel maintained that the wording
of the CBA was clear and unambiguous. Since neither of
the parties qualified the terms used in the CBA, the legally
accepted definitions thereof were deemed automatically
accepted by both parties. The failure of the Union to
have unborn child included in the definition of dependent, as
used in the CBA the death of whom would have
qualified the parent-employee for bereavement leave and
other death benefits bound the Union to the legally
accepted definition of the latter term.

Continental Steel, lastly, averred that similar
cases involving the employees of its sister companies,
MKK Steel and Mayer Steel, referred to by the Union,
were irrelevant and incompetent evidence, given the
separate and distinct personalities of the
companies. Neither could the Union sustain its claim that
the grant of bereavement leave and other death benefits
to the parent-employee for the loss of an unborn child
constituted company practice.

On 20 November 2007, Atty. Montao, the
appointed Accredited Voluntary Arbitrator, issued a
Resolution
[17]
ruling that Hortillano was entitled to
bereavement leave with pay and death benefits.

Atty. Montao identified the elements for
entitlement to said benefits, thus:


This Office declares that for the entitlement of the
benefit of bereavement leave with pay by the covered
employees as provided under Article X, Section 2 of the
parties CBA, three (3) indispensable elements must be
present: (1) there is death; (2) such death must be of
employees dependent; and (3) such dependent must be
legitimate.

On the otherhand, for the entitlement to
benefit for death and accident insurance as provided
under Article XVIII, Section 4, paragraph (4.3) of the
parties CBA, four (4) indispensable elements must be
present: (a) there is death; (b) such death must be of
employees dependent; (c) such dependent must be
legitimate; and (d) proper legal document to be
presented.
[18]



Atty. Montao found that there was no
dispute that the death of an employees legitimate
dependent occurred. The fetus had the right to be
supported by the parents from the very moment he/she
was conceived. The fetus had to rely on another for
support; he/she could not have existed or sustained
himself/herself without the power or aid of someone
else, specifically, his/her mother. Therefore, the fetus
was already a dependent, although he/she died during the
labor or delivery. There was also no question that
Hortillano and his wife were lawfully married, making
their dependent, unborn child, legitimate.

In the end, Atty. Montao decreed:

WHEREFORE, premises considered, a
resolution is hereby rendered ORDERING [herein
petitioner Continental Steel] to pay Rolando P. Hortillano
the amount of Four Thousand Nine Hundred Thirty-
Nine Pesos (P4,939.00), representing his bereavement
leave pay and the amount of Eleven Thousand Five
Hundred Fifty Pesos (P11,550.00) representing death
benefits, or a total amount ofP16,489.00

The complaint against Manuel Sy, however, is
ORDERED DISMISSED for lack of merit.

All other claims are DISMISSED for lack of
merit.

Further, parties are hereby ORDERED to
faithfully abide with the herein dispositions.


Aggrieved, Continental Steel filed with the
Court of Appeals a Petition for Review
on Certiorari,
[19]
under Section 1, Rule 43 of the Rules of
Court, docketed as CA-G.R. SP No. 101697.

Continental Steel claimed that Atty. Montao
erred in granting Hortillanos claims for bereavement
leave with pay and other death benefits because
no death of an employees dependent had occurred. The
death of a fetus, at whatever stage of pregnancy, was
excluded from the coverage of the CBA since what was
contemplated by the CBA was the death of a legal person,
and not that of a fetus, which did not acquire any juridical
personality. Continental Steel pointed out that its
contention was bolstered by the fact that the
term death was qualified by the phrase legitimate
dependent. It asserted that the status of a child could only
be determined upon said childs birth, otherwise, no such
appellation can be had. Hence, the conditions sine qua
non for Hortillanos entitlement to bereavement leave and
other death benefits under the CBA were lacking.

The Court of Appeals, in its Decision
dated 27 February 2008, affirmed Atty. Montaos
Resolution dated 20 November 2007. The appellate
court interpreted death to mean as follows:


[Herein petitioner Continental Steels]
exposition on the legal sense in which the term death is
used in the CBA fails to impress the Court, and the same
is irrelevant for ascertaining the purpose, which the grant
of bereavement leave and death benefits thereunder, is
intended to serve. While there is no arguing with
[Continental Steel] that the acquisition of civil personality
of a child or fetus is conditioned on being born alive
upon delivery, it does not follow that such event of
premature delivery of a fetus could never be
contemplated as a death as to be covered by the CBA
provision, undoubtedly an event causing loss and grief to
the affected employee, with whom the dead fetus stands
in a legitimate relation. [Continental Steel] has proposed
a narrow and technical significance to the term death of
a legitimate dependent as condition for granting
bereavement leave and death benefits under the CBA.
Following [Continental Steels] theory, there can be no
experience of death to speak of. The Court, however,
does not share this view. A dead fetus simply cannot be
equated with anything less than loss of human life,
especially for the expectant parents. In this light,
bereavement leave and death benefits are meant to
assuage the employee and the latters immediate family,
extend to them solace and support, rather than an act
conferring legal status or personality upon the unborn
child. [Continental Steels] insistence that the certificate of
fetal death is for statistical purposes only sadly misses this
crucial point.
[20]



Accordingly, the fallo of the 27 February
2008 Decision of the Court of Appeals reads:

WHEREFORE, premises considered, the
present petition is hereby DENIED for lack of merit.
The assailed Resolution dated November 20, 2007 of
Accredited Voluntary Arbitrator Atty. Allan S. Montao
is hereby AFFIRMED and UPHELD.

With costs against [herein petitioner
Continental Steel].
[21]



In a Resolution
[22]
dated 9 May 2008, the
Court of Appeals denied the Motion for
Reconsideration
[23]
of Continental Steel.

Hence, this Petition, in which Continental Steel
persistently argues that the CBA is clear and
unambiguous, so that the literal and legal meaning
of death should be applied. Only one with juridical
personality can die and a dead fetus never acquired a
juridical personality.

We are not persuaded.

As Atty. Montao identified, the elements for
bereavement leave under Article X, Section 2 of the CBA
are: (1) death; (2) the death must be of a dependent, i.e.,
parent, spouse, child, brother, or sister, of an employee;
and (3) legitimate relations of the dependent to the
employee. The requisites for death and accident
insurance under ArticleXVIII, Section 4(3) of the CBA
are: (1) death; (2) the death must be of a dependent, who
could be a parent, spouse, or child of a married employee;
or a parent, brother, or sister of a single employee; and (4)
presentation of the proper legal document to prove such
death, e.g., death certificate.

It is worthy to note that despite the repeated
assertion of Continental Steel that the provisions of the
CBA are clear and unambiguous, its fundamental
argument for denying Hortillanos claim for bereavement
leave and other death benefits rests on the purportedly
proper interpretation of the terms death and
dependent as used in the CBA. If the provisions of the
CBA are indeed clear and unambiguous, then there is no
need to resort to the interpretation or construction of the
same. Moreover, Continental Steel itself admitted that
neither management nor the Union sought to define the
pertinent terms for bereavement leave and other death
benefits during the negotiation of the CBA.

The reliance of Continental Steel on Articles
40, 41 and 42 of the Civil Code for the legal definition
of death is misplaced. Article 40 provides that a conceived
child acquires personality only when it is born, and Article
41 defines when a child is considered born. Article 42
plainly states that civil personality is extinguished by
death.

First, the issue of civil personality is not
relevant herein. Articles 40, 41 and 42 of the Civil Code
on natural persons, must be applied in relation to Article
37 of the same Code, the very first of the general
provisions on civil personality, which reads:

Art. 37. Juridical capacity, which is the fitness
to be the subject of legal relations, is inherent in every
natural person and is lost only through death. Capacity to
act, which is the power to do acts with legal effect, is
acquired and may be lost.


We need not establish civil personality of the unborn
child herein since his/her juridical capacity and capacity
to act as a person are not in issue. It is not a question
before us whether the unborn child acquired any rights or
incurred any obligations prior to his/her death that were
passed on to or assumed by the childs parents. The
rights to bereavement leave and other death benefits in
the instant case pertain directly to the parents of the
unborn child upon the latters death.

Second, Sections 40, 41 and 42 of the Civil
Code do not provide at all a definition
of death. Moreover, while the Civil Code expressly
provides that civil personality may be extinguished by
death, it does not explicitly state that only those who have
acquired juridical personality could die.

And third, death has been defined as the cessation of
life.
[24]
Life is not synonymous with civil
personality. One need not acquire civil personality first
before he/she could die. Even a child inside the womb
already has life. No less than the Constitution recognizes
the life of the unborn from conception,
[25]
that the State
must protect equally with the life of the mother. If the
unborn already has life, then the cessation thereof even
prior to the child being delivered, qualifies as death.

Likewise, the unborn child can be considered
a dependent under the CBA. As Continental Steel itself
defines, a dependent is one who relies on another for
support; one not able to exist or sustain oneself without
the power or aid of someone else. Under said general
definition,
[26]
even an unborn child is a dependent of its
parents. Hortillanos child could not have reached 38-39
weeks of its gestational life without depending upon its
mother, Hortillanos wife, for sustenance. Additionally, it
is explicit in the CBA provisions in question that
the dependent may be the parent, spouse, or child of a
married employee; or the parent, brother, or sister of a
single employee. The CBA did not provide a qualification
for the child dependent, such that the child must have been
born or must have acquired civil personality, as
Continental Steel avers. Without such qualification,
then child shall be understood in its more general sense,
which includes the unborn fetus in the mothers
womb.

The term legitimate merely addresses the
dependent childs status in relation to his/her
parents. In Angeles v. Maglaya,
[27]
we have expounded on
who is a legitimate child, viz:

A legitimate child is a product of, and, therefore, implies a
valid and lawful marriage. Remove the element of lawful
union and there is strictly no legitimate filiation between
parents and child. Article 164 of the Family Code cannot
be more emphatic on the matter: Children conceived or
born during the marriage of the parents are legitimate.
(Emphasis ours.)


Conversely, in Briones v. Miguel,
[28]
we identified
an illegitimate child to be as follows:

The fine distinctions among the various types
of illegitimate children have been eliminated in the Family
Code. Now, there are only two classes of children --
legitimate (and those who, like the legally adopted, have
the rights of legitimate children) and illegitimate. All
children conceived and born outside a valid marriage are
illegitimate, unless the law itself gives them legitimate
status. (Emphasis ours.)



It is apparent that according to the Family
Code and the afore-cited jurisprudence, the legitimacy or
illegitimacy of a child attaches upon his/her
conception. In the present case, it was not disputed that
Hortillano and his wife were validly married and that their
child was conceived during said marriage, hence, making
said child legitimate upon her conception.

Also incontestable is the fact that Hortillano was
able to comply with the fourth element entitling him to
death and accident insurance under the CBA, i.e.,
presentation of the death certificate of his unborn child.

Given the existence of all the requisites for
bereavement leave and other death benefits under the
CBA, Hortillanos claims for the same should have been
granted by Continental Steel.

We emphasize that bereavement leave and other
death benefits are granted to an employee to give aid to,
and if possible, lessen the grief of, the said employee and
his family who suffered the loss of a loved one. It cannot
be said that the parents grief and sense of loss arising
from the death of their unborn child, who, in this case,
had a gestational life of 38-39 weeks but died during
delivery, is any less than that of parents whose child was
born alive but died subsequently.

Being for the benefit of the employee, CBA
provisions on bereavement leave and other death benefits
should be interpreted liberally to give life to the intentions
thereof. Time and again, the Labor Code is specific in
enunciating that in case of doubt in the interpretation of
any law or provision affecting labor, such should be
interpreted in favor of labor.
[29]
In the same way, the
CBA and CBA provisions should be interpreted in favor
of labor. In Marcopper Mining v. National Labor Relations
Commission,
[30]
we pronounced:

Finally, petitioner misinterprets the
declaration of the Labor Arbiter in the assailed decision
that "when the pendulum of judgment swings to and fro
and the forces are equal on both sides, the same must be
stilled in favor of labor." While petitioner acknowledges
that all doubts in the interpretation of the Labor Code
shall be resolved in favor of labor, it insists that what is
involved-here is the amended CBA which is essentially a
contract between private persons. What petitioner has
lost sight of is the avowed policy of the State, enshrined
in our Constitution, to accord utmost protection and
justice to labor, a policy, we are, likewise, sworn to
uphold.

In Philippine Telegraph & Telephone Corporation v.
NLRC [183 SCRA 451 (1990)], we categorically stated
that:

When conflicting interests of labor and capital
are to be weighed on the scales of social justice, the
heavier influence of the latter should be counter-balanced
by sympathy and compassion the law must accord the
underprivileged worker.

Likewise, in Terminal Facilities and Services
Corporation v. NLRC [199 SCRA 265 (1991)], we declared:

Any doubt concerning the rights of labor
should be resolved in its favor pursuant to the social
justice policy.


IN VIEW WHEREOF, the Petition
is DENIED. The Decision dated 27 February 2008 and
Resolution dated 9 May 2008 of the Court of Appeals in
CA-G.R. SP No. 101697, affirming the Resolution dated
20 November 2007 of Accredited Voluntary Arbitrator
Atty. Allan S. Montao, which granted to Rolando P.
Hortillano bereavement leave pay and other death
benefits in the amounts of Four Thousand Nine Hundred
Thirty-Nine Pesos (P4,939.00) and Eleven Thousand Five
Hundred Fifty Pesos (P11,550.00), respectively, grounded
on the death of his unborn child,
are AFFIRMED. Costs against Continental Steel
Manufacturing Corporation.

SO ORDERED.
G.R. No. L-5426 May 29, 1953
RAMON JOAQUIN, petitioner,
vs.
ANTONIO C. NAVARRO, respondent.
Agrava, Peralta & Agrava for petitioner.
Leonardo Abola for respondent.
TUASON, J.:
This three proceedings was instituted in the Court of First
Instance of Manila in the summary settlement of states of
Joaquin Navarro, Sr., his wife Angela Joaquin de Navarro,
Joaquin Navarro, Jr., and Pilar Navarro, deceased. All of
them having been heard jointly, Judge Rafael Amparo
handed down a single decision which was appealed to the
Court of Appeals, whose decision, modifying that the
Court of First Instance, in turn was elevated to the
Supreme Court for review.
The main question represented in the first two courts
related to the sequence of the deaths of Joaquin Navarro,
Sr., his wife, and their children, all of whom were killed in
the massacre of civilians by Japanese troops in Manila in
February 1945. The trial court found the deaths of this
persons to have accurred in this order: 1st. The Navarro
girls, named Pilar, Concepcion and Natividad; 2nd.
Joaquin Navarro, Jr.; 3rd. Angela Joaquin de Navarro, and
4th, Joaquin Navarro, Sr. The Court of Appeals
concurred with the trial court except that, with regard to
Angela Joaquin de Navarro and Joaquin Navarro, Jr., the
latter was declared to have survived his mother.
It is this modification of the lower court's finding which
is now being contested by the petitioner. The importance
of the question whether Angela Joaquin de Navarro died
before Joaquin Navarro, Jr., or vice versa, lies in the fact
that it radically affects the rights of succession of Ramon
Joaquin, the present petitioner who was an acknowledged
natural child of Angela Joaquin and adopted child of the
deceased spouses, and Antonio C. Navarro, respondent,
son of Joaquin Navarro, Sr. by first marriage.
The facts, which is not disputed, are outlined in the
statement in the decision of the Court of Appeals as
follows:
"On February 6, 1945, while the battle for the liberation
of Manila was raging, the spouses Joaquin Navarro, Sr.
and Angela Joaquin, together with their three daughters,
Pilar, Concepcion, and Natividad, and their son Joaquin
Navarro, Jr., and the latter's wife, Adela Conde, sought
refuge in the ground floor of the building known as the
German Club, at the corner of San Marcelino and San
Luis Streets of this City. During their stay, the building
was packed with refugees, shells were exploding around,
and the Club was set on fire. Simultaneously, the Japanese
started shooting at the people inside the building,
especially those who were trying to escape. The three
daughters were hit and fell of the ground near the
entrance; and Joaquin Navarro, Sr., and his son decided
to abandon the premises to seek a safer heaven. They
could not convince Angela Joaquin who refused to join
them; and son Joaquin Navarro, Sr., his son, Joaquin
Navarro, Jr., and the latter's wife, Angela Conde, and a
friend and former neighbor, Francisco Lopez, dashed out
of the burning edifice. As they came out, Joaquin
Navarro, Jr. was shot in the head by a Japanese soldier
and immediately dropped. The others lay flat on the
ground in front of the Club premises to avoid the bullets.
Minutes later, the German Club, already on fire,
collapsed, trapping many people inside, presumably
including Angela Joaquin.
"Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and
Francisco Lopez managed to reach an air raid shelter
nearby, the stayed there about three days, until February
10, 1915, when they were forced to leave the shelter be-
cause the shelling tore it open. They flied toward the St.
Theresa Academy in San Marcelino Street, but
unfortunately met Japanese Patrols, who fired at the
refugees, killing Joaquin Navarro, Sr., and his daughter-in-
law.
"At the time of the masaccre, Joaquin Navarro, Sr. was
aged 70; his wife Angela Joaquin was about 67 years old;
Joaquin Navarro, Jr., about 30; Pilar Navarro was two or
three years older than her brother; while the other sisters,
Concepcion and Natividad Navarro y Joaquin, were
between 23 and 25."
The Court of Appeals' finding were all taken from the
testimony of Francisco Lopez, who miraculously survived
the holocaust, and upon them the Court of Appeals
opined that, "as between the mother Angela Joaquin and
the son Joaquin Navarro, Jr., the evidence of the
survivorship is uncertain and insufficient" and the
statutory presumption must be applied. The appellate
Court's reasoning for its conclusion is thus stated:
"It does not require argument to show that survivorship
cannot be established by proof of the death of only one
of the parties; but that there must be adequate proof that
one was alive when the other had already died. Now in
this case before us, the testimony of the sole witness
Lopez is to the effect that Joaquin Navarro, Jr. was shot
and died shortly after the living the German Club in the
company of his father and the witness, and that the
burning edified entirely collapsed minutes after the
shooting of the son; but there is not a scintilla of
evidence, direct or circumstantial, from which we may
infer the condition of the mother, Angela Joaquin, during
the appreciable interval from the instant his son turned
his back to her, to dash out to the Club, until he died. All
we can glean from the evidence is that Angela Joaquin
was unhurt when her son left her to escape from the
German Club; but she could have died almost
immediately after, from a variety of causes. She might
have been shot by the Japanese, like her daughters, killed
by falling beams from the burning edifice, overcome by
the fumes, or fatally struck by splinters from the
exploding shells. We cannot say for certain. No evidence
is available on the point. All we can decide is that no one
saw her alive after her son left her aside, and that there is
no proof when she died. Clearly, this circumstance alone
cannot support a finding that she died latter than her son,
and we are thus compelled to fall back upon the statutory
presumption. In deed, it could be said that the purpose of
the presumption of survivorship would be precisely to
afford a solution to uncertainties like these. Hence the
son Joaquin Navarro, Jr. aged 30, must be deemed to
have survived his mother, Angela Joaquin, who was
admittedly above 60 years of age (Rule 123, sec. 69,
subsec. (ii), Rules of Court).
"The total lack of evidence on how Angela Joaquin died
likewise disposes of the question whether she and her
deceased children perished in the same calamity. There
being no evidence to the contrary, the only guide is the
occasion of the deaths, which is identical for all of them;
that battle for the liberation of Manila. A second reason is
that the law, in declaring that those fallen in the same
battle are to be regarded as perishing in the same
calamity, could not overlooked that a variety of cause of
death can ( and usually do) operate in the source of
combats. During the same battle, some may die from
wounds, other from gages, fire, or drowning. It is clear
that the law disregards episodic details, and treats the
battle as an overall cause of death in applying the
presumption of survivorship.
"We are thus led the conclusion that the order in which
the members of the Navarro-Joaquin family met their end
is as follows: first, the three daughters Pilar, Concepcion,
and Natividad; then the mother Angela Joaquin; then the
son Joaquin Navarro, Jr., and days later (of which there is
no doubt), the father Joaquin Navarro, Sr."
Much space in the briefs is taken in a discussion of
whether section 334(37) of Act No. 129, now section 69
(ii) of Rule 123 of the Rules of Court, has repealed article
33 of the civil code of 1889, now article 43 of the New
Civil Code. It is the contention of the petitioner that it
did not, and that on the assumption that there is total lack
of evidence, as the Court of Appeals said, then Angela
Joaquin and Joaquin Navarro, Jr. should, under article 33,
be held to have died at the same time.
The point is not of much if any relevancy and will be left
open for the consideration when obsolute necessity there
for arises. We say irrelevant because our opinion is that
neither of the two provisions is applicable for the reasons
to be presently set forth.
Rule 123, section 69 (ii) of the Revised Rules of Court,
reads:
When two person perish in the same calamity, such as
wreck, battle or conflagration, and it is not (1) shown who
died first, and there are no (2) particular circumstances
from when it can be inferred, the survivorship is
presumed from the probabilities resulting from the
strength and ages of the sexes, according to the following
rules:
x x x x x x x x x
Article 33 of the Civil Code of 1889 of the following
tenor:
Whenever a doubt arises as to which was the first to die
to the two or more persons who would inherent one
from the other, the persons who alleges the prior death of
either must prove the allegation; in the absence of proof
the presumption shall be that they died at the same time,
and no transmission of rights from one to the other shall
take place.
Most provisions, as their language plainly implies, are
intended as a substitute for lacks and so are not to be
available when there are facts. With particular reference to
section 69 (ii) of Rule 123, "the situation which it present
is one in which the facts are not only unknown but
unknowable. By hypothesis, there is no specific evidence
as to the time of death . . . ." . . . it is assumed that no
evidence can be produced. . . . Since the facts are
unknown and unknowable, the law may apply the law of
fairness appropriate to the different legal situation that
arises." (IX Wigmore on Evidence, 1940 ed., 483.)
In In re Wallace's Estate, 220 Pac. 683, which the Court of
Appeals cited the applied with the respect to the deaths of
the Navarro girls, pointing out that "our rule is taken
from the Fourth Division of sec. 1936 of the California
Code of Civil Procedure," the Supreme Court of
California said:
When the statue speaks of "particular circumstances from
which it can be inferred" that one died before the other it
means that there are circumstances from which the fact
of death by one before the other may be inferred as a
relation conclusion from the facts proven. The statue
does not mean circumstances which would shown, or
which would tend to show, probably that one died before
the other. Grand Lodge A.O.W.W.vs. Miller, 8 Cal. App.
28, 96 Pac. 22. When by circumstantial evidence alone, a
party seeks to prove a survivorship contrary to the
statutory presumption, the circumstances by which it is
sought to prove the survivorship must be such as are
competent and sufficient when tested by the general rules
of evidence in civil cases. The inference of survivorship
cannot rest upon mere surmise, speculation, or
conjecture. As was said in Grand Lodge vs. Miller, supra,
"if the matter is left to probably, then the statue of the
presumption."
It is manifest from the language of section 69 (ii) of Rule
123 and of that of the foregoing decision that the
evidence of the survivorship need not be direct; it may be
indirect, circumstantial, or inferential. Where there are
facts, known or knowable, from which a rational
conclusion can be made, the presumption does not step
in, and the rule of preponderance of evidence controls.
Are there particular circumstances on record from which
reasonable inference of survivorship between Angela
Joaquin and her son can be drawn? Is Francisco Lopez'
testimony competent and sufficient for this purpose? For
a better appreciation of this issue, it is convenient and
necessary to detail the testimony, which was described by
the trial court as "disinterested and trustworthy" and by
the Court of Appeals as "entitled to credence."
Lopez testified:
Q. You said you were also heat at that time as you leave
the German Club with Joaquin Navarro, Sr., Joaquin
Navarro, Jr. and the latter's wife?- A. Yes, sir.
Q. Did you fall? A. I fell down.
Q. And you said you fell down close to Joaquin Navarro,
Jr.? A. Yes, sir.
Q. When the German Club collapsed where were you?
A. We were out 15 meters away from the building but I
could see what was going on.
x x x x x x x x x
Q. Could there have been an interval of fifteen minutes
between the two events, that is the shooting of Joaquin
Navarro, Jr. and the collapse of the German Club? A.
Yes, sir, I could not say exactly, Occasions like that, you
know, you are confused.
Q. Could there (have) been an interval of an hour instead
of fifteen minutes? A. Possible, but not probable.
Q. Could it have been 40 minutes? A. Yes, sir, about
40 minutes.
x x x x x x x x x
Q. You also know that Angela Joaquin is already dead?
A. Yes, sir.
Q. Can you tell the Honorable Court when did Angela
Joaquin die? A. Well, a few minutes after we have
dashed out, the German Club, which was burning,
collapsed over them, including Mrs. Joaquin Navarro, Sr.
x x x x x x x x x
Q. From your testimony it would appear that while you
can give positive evidence to the fact that Pilar,
Concepcion and Natividad Navarro, and Joaquin
Navarro, Jr. died, you can not give the same positive
evidence to the fact that Angela Joaquin also died? A.
Yes, sir, in the sense that I did not see her actually die, but
when the building collapsed over her I saw and I am
positive and I did not see her come out of that building
so I presumed she died there.
x x x x x x x x x
Q. Why did you have to dash out of the German Club,
you, Mr. Joaquin Navarro, Sr. and Mr. Joaquin Navarro
Jr. and the latter's wife? A. Because the Japanese had
set fire to the Club and they were shooting people
outside, so we thought of running away rather than be
roasted.
x x x x x x x x x
Q. You mean to say that before you jumped out of the
German Club all the Navarro girls, Pilar, Concepcion, and
Natividad, were already wounded? A. to my
knowledge, yes.
Q. They were wounded? A. Yes, sir.
Q. Were they lying on the ground or not? A. On the
ground near the entrance, because most of the people
who were shot by the Japanese were those who were
trying to escape, and as far as I can remember they were
among those killed.
x x x x x x x x x
Q. So you noticed that they were killed or shot by the
Japanese a few minutes before you left the place? A.
That is what I think, because those Japanese soldiers were
shooting the people inside especially those trying to
escape.
x x x x x x x x x
Q. And none of them was not except the girls, is that
what you mean? A . There were many people shot
because they were trying to escape.
x x x x x x x x x
Q. How come that these girls were shot when they were
inside the building, can you explain that? A. They were
trying to escape probably.
It is our opinion that the preceding testimony contains
facts quite adequate to solve the problem of survivorship
between Angela Joaquin and Joaquin Navarro, Jr. and
keep the statutory presumption out of the case. It is
believed that in the light of the conditions painted by
Lopez, a fair and reasonable inference can be arrived at,
namely: that Joaquin Navarro, Jr. died before his mother.
While the possibility that the mother died before the son
can not be ruled out, it must be noted that this possibility
is entirely speculative and must yield to the more rational
deduction from proven facts that it was the other way
around. Joaquin Navarro, Jr., it will be recalled, was killed,
while running, in front of, and 15 meters from, the
German Club. Still in the prime of life, 30, he must have
negotiated that distance in five seconds or less, and so
died within that interval from the time he dashed out of
the building. Now, when Joaquin Navarro, Jr. with his
father and wife started to flee from the clubhouse, the old
lady was alive and unhurt, so much so that the Navarro
father and son tried hard to have her come along. She
could have perished within those five or fewer seconds,
as stated, but the probabilities that she did seem very
remote. True, people in the building were also killed but
these, according to Lopez, were mostly refugees who had
tried to slip away from it and were shot by Japanese
troops. It was not very likely that Mrs. Joaquin Navarro,
Sr. made an attempt to escape. She even made frantic
efforts to dissuade her husband and son from leaving the
place and exposing themselves to gun fire.
This determination of Mrs. Angela Joaquin to stay where
she was may well give an idea, at the same time, of a
condition of relative safety in the clubhouse at the
moment her husband, son, and daughter-in-law left her.
It strongly tends to prove that, as the situation looked to
her, the perils of death from staying were not so
imminent. And it lends credence to Mr. Lopez' statement
that the collapse of the clubhouse occurred about 40
minutes after Joaquin Navarro the son was shot in the
head and dropped dead, and that it was the collapse that
killed Mrs. Angela Navarro. The Court of Appeals said
the interval between Joaquin Navarro's death and the
breaking down of the edifice was "minutes". Even so, it
was much longer than five seconds, long enough to
warrant the inference that Mrs. Angela Joaquin was sill
alive when her son expired
The Court of Appeals mentioned several causes, besides
the collapse of the building, by which Mrs. Navarro could
have been killed. All these are speculative , and the
probabilities, in the light of the known facts, are against
them. Dreading Japanese sharpshooters outside as
evidenced by her refusal to follow the only remaining
living members of her family, she could not have kept
away form protective walls. Besides, the building had
been set on fire trap the refugees inside, and there was no
necessity for the Japanese to was their ammunition except
upon those who tried to leave the premises. Nor was
Angela Joaquin likely to have been killed by falling beams
because the building was made of concrete and its
collapse, more likely than not, was sudden. As to fumes,
these do not cause instantaneous death; certainly not
within the brief space of five seconds between her son's
departure and his death.
It will be said that all this is indulging in inferences that
are not conclusive. Section 69(ii) of Rule 123 does not
require that the inference necessary to exclude the
presumption therein provided be certain. It is the
"particular circumstances from which it (survivorship) can
be inferred" that are required to be certain as tested by
the rules of evidence. In speaking of inference the rule
can not mean beyond doubt, for "inference is never
certainty, but if may be plain enough to justify a finding
of fact." (In re Bohenko's Estate, 4 N.Y.S. 2nd. 427,
citing Tortora vs. State of New York, 269 N.Y. 199 N.E.
44; Hart vs. Hudson River Bridge Co., 80 N.Y.). 622.) As
the California courts have said, it is enough that "the
circumstances by which it is sought to prove the
survivorship must be such as are competent and
sufficient when tested by the general rules of evidence in
civil cases." (In re Wallace's Estate,supra.) "Juries must
often reason," says one author, "according
to probabilities, drawing an inference that the main fact in
issue existed from collateral facts not directly proving, but
strongly tending to prove, its existence. The vital question
in such cases is the cogency of the proof afforded by the
secondary facts. How likely, according to experience, is
the existence of the primary fact if certain secondary facts
exist?" (1 Moore on Facts, Sec. 596.) The same author
tells us of a case where "a jury was justified in drawing the
inference that the person who was caught firing a shot at
an animal trespassing on his land was the person who
fired a shot about an hour before at the same animal also
trespassing." That conclusion was not airtight, but
rational. In fact, the circumstances in the illustration leave
greater room for another possibility than do the facts of
the case at hand.
In conclusion the presumption that Angela Joaquin de
Navarro died before her son is based purely on surmises,
speculations, or conjectures without any sure foundation
in the evidence. the opposite theory that the mother
outlived her son is deduced from established facts
which, weighed by common experience, engender the
inference as a very strong probability. Gauged by the
doctrine of preponderance of evidence by, which civil
cases are decided, this inference ought to prevail. It can
not be defeated as in an instance, cited by Lord Chief
Justice Kenyon, "bordering on the ridiculous, where in an
action on the game laws it was suggested that the gun
with which the defendant fired was not charged with
shot, but that the bird might have died in consequence of
the fright." (1 Moore on Facts, 63, citing Wilkinson vs.
Payne, 4 T. R. 468.)
It is said that part of the decision of the Court of Appeals
which the appellant impugns, and which has been
discussed, involves findings of fact which can not be
disturbed. The point is not, in our judgment, well
considered. The particular circumstances from which the
parties and the Court of Appeals drew conclusions are, as
above seen, undisputed, and this being the case, the
correctness or incorrectness of those conclusions raises a
question of law, not of fact, which the Supreme Court has
jurisdiction to look into. As was said in 1 Moran
Commentaries on the Rules of ?Court, 3rd Ed. 856, 857,
"Undisputed evidence is one thing, and contradicted
evidence is another. An incredible witness does not cease
to be such because he is not impeached or contradicted.
But when the evidence is purely documentary, the
authenticity of which is not questioned and the only issue
is the construction to be placed thereon, or where a case
is submitted upon an agreement of facts, or where all the
facts are stated in the judgment and the issue is the
correctness of the conclusions drawn therefrom, the
question is one of law which may be reviewed by the
Supreme Court."
The question of whether upon given facts the operation
of the statutory presumption is to be invoked is a
question of law.
The prohibition against intermeddling with decisions on
questions of evidence refers to decisions supported by
substantial evidence. By substantial evidence is meant real
evidence or at least evidence about which reasonable men
may disagree. Findings grounded entirely on speculations,
surmises, or conjectures come within the exception to the
general rule.
We are constrained to reverse the decision under review,
and hold that the distribution of the decedents' estates
should be made in accordance with the decision of the
trial court. This result precludes the necessity of passing
upon the question of "reserva troncal" which was put
forward on the hypothetical theory that Mrs. Joaquin
Navarro's death preceded that of her son. Without costs.
ARTICLE IV
CITIZENSHIP
Section 1. The following are citizens of the Philippines:
1. Those who are citizens of the Philippines at the time of
the adoption of this Constitution;
2. Those whose fathers or mothers are citizens of the
Philippines;
3. Those born before January 17, 1973, of Filipino mothers,
who elect Philippine Citizenship upon reaching the age of
majority; and
4. Those who are naturalized in the accordance with law.
Section 2. Natural-born citizens are those who are
citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine
citizenship. Those who elect Philippine citizenship in
accordance with paragraph (3), Section 1 hereof shall be
deemed natural-born citizens.
Section 3. Philippine citizenship may be lost or
reacquired in the manner provided by law.
Section 4. Citizens of the Philippines who marry aliens
shall retain their citizenship, unless by their act or
omission they are deemed, under the law to have
renounced it.
Section 5. Dual allegiance of citizens is inimical to the
national interest and shall be dealt with by law.
Congress of the Philippines
Eleventh Congress
REPUBLIC ACT NO. 9139 June 08, 2001
AN ACT PROVIDING FOR THE ACQUISITION
OF PHILIPPINE CITIZENSHIP FOR CERTAIN
ALIENS BY ADMINISTRATIVE
NATURALIZATION AND FOR OTHER
PURPOSES
Be it enacted by the Senate and the House of Representatives of the
Philippines in Congress assembled:
Section 1. Short Title. - This Act shall be known as "The
Administrative Naturalization Law of 2000."
Section 2. Declaration of Policy. - The State shall control
and regulate the admission and integration of aliens into
its territory and body politic including the grant of
citizenship to aliens. Towards this end, aliens born and
residing in the Philippines may be granted Philippine
citizenship by administrative proceedings subject to
certain requirements dictated by national security and
interest.
Section 3. Qualifications. - Subject to the provisions of the
succeeding section, any person desiring to avail of the
benefits of this Act must meet the following
qualifications:
(a) The applicant must be born in the Philippines and
residing therein since birth;
(b) The applicant must not be less than eighteen (18)
years of age, at the time of filing of his/her petition;
(c) The applicant must be of good moral character and
believes in the underlying principles of the Constitution,
and must have conducted himself/herself in a proper and
irreproachable manner during his/her entire period of
residence in the Philippines in his relation with the duly
constituted government as well as with the community in
which he/she is living;
(d) The applicant must have received his/her primary and
secondary education in any public school or private
educational institution dully recognized by the
Department of Education, Culture and Sports, where
Philippine history, government and civics are taught and
prescribed as part of the school curriculum and where
enrollment is not limited to any race or
nationality: Provided, That should he/she have minor
children of school age, he/she must have enrolled them
in similar schools;
(e) The applicant must have a known trade, business,
profession or lawful occupation, from which he/she
derives income sufficient for his/her support and if
he/she is married and/or has dependents, also that of
his/her family:Provided, however, That this shall not apply to
applicants who are college degree holders but are unable
to practice their profession because they are disqualified
to do so by reason of their citizenship;
(f) The applicant must be able to read, write and speak
Filipino or any of the dialects of the Philippines; and
(g) The applicant must have mingled with the Filipinos
and evinced a sincere desire to learn and embrace the
customs, traditions and ideals of the Filipino people.
Section 4. Disqualifications, - The following are not
qualified to be naturalized as Filipino citizens under this
Act:
(a) Those opposed to organized government or affiliated
with any association of group of persons who uphold and
teach doctrines opposing all organized governments;
(b) Those defending or teaching the necessity of or
propriety of violence, personal assault or assassination for
the success or predominance of their ideas;
(c) Polygamists or believers in the practice of polygamy;
(d) Those convicted of crimes involving moral turpitude;
(e) Those suffering from mental alienation or incurable
contagious diseases;
(f) Those who, during the period of their residence in the
Philippines, have not mingled socially with Filipinos, or
who have not evinced a sincere desire to learn and
embrace the customs, traditions and ideals of the
Filipinos;
(g) Citizens or subjects with whom the Philippines is at
war, during the period of such war; and
(h) Citizens or subjects of a foreign country whose laws
do not grant Filipinos the right to be naturalized citizens
or subjects thereof.
Section 5. Petition for Citizenship. - (1) Any person desiring
to acquire Philippine citizenship under this Act shall file
with the Special Committee on Naturalization created
under Section 6 hereof, a petition of five (5) copies legibly
typed and signed, thumbmarked and verified by him/her,
with the latter's passport-sized photograph attached to
each copy of the petition, and setting forth the following:
(a) The petitioner's name and surname, and any other
name he/she has used or by which he/she is known;
(b) The petitioner's present and former places of
residence;
(c) The petitioner's place and date of birth, the names and
citizenship of his/her parents and their residences;
(d) The petitioner's trade, business, profession or
occupation, and if married, also that of his/her spouse;
(e) Whether the petitioner is single or married or his/her
marriage is annulled. If married, petitioner shall state the
date and place of his/her marriage, and the name, date of
birth, birthplace, citizenship and residence of his/her
spouse; and if his marriage is annulled, the date of decree
of annulment of marriage and the court which granted
the same;
(f) If the petitioner has children, the name, date and
birthplace and residences of his/her children ;
(g) A declaration that the petitioner possesses all the
qualifications and none of the disqualifications under this
Act;
(h) A declaration that the petitioner shall never be a
public charge; and
(i) A declaration that it is the petitioner's true and honest
intention to acquire Philippine citizenship and to
renounce absolutely and forever any prince, potentate,
State or sovereign, and particularly the country of which
the applicant is a citizen or subject.
(2) The application shall be accompanied by:
(a) Duplicate original or certified photocopies of
petitioner's birth certificate;
(b) Duplicate original or certified photocopies of
petitioner's alien certificate of registration and native born
certificate of residence;
(c) Duplicate original or certified photocopies of
petitioner's marriage certified, if married, or the death
certificate of his spouse, if widowed, or the court decree
annulling his marriage, if such was the fact;
(d) Duplicate original or certified photocopies of birth
certificates, alien certificate of registration or native born
certificate of residence if any, of petitioner's minor
children, wherever applicable;
(e) Affidavit of financial capacity by the petitioner, and
sworn statements on the good moral character of the
petitioner by at least two (2) Filipino citizens of good
reputation in his/her place of residence stating that they
have personally known the petitioner for at least a period
of ten (10) years and that said petitioner has in their own
opinion all the qualifications necessary to become a
citizen of the Philippines and is not in any way
disqualified under the provisions of this Act;
(f) A medical certificate that petitioner is not a user of
prohibited drugs or otherwise a drug dependent and that
he/she is not afflicted with acquired immune deficiency
syndrome (AIDS);
(g) School diploma and transcript of records of the
petitioner in the schools he attended in the Philippines.
Should the petitioner have minor children, a certification
that his children are enrolled in a school where Philippine
history, government and civics are taught and are part of
the curriculum; and
(h) If gainfully employed, the income tax return for the
past three (3) years.
Section 6. Special Committee on Naturalization. - There shall
be constituted a Special Committee on Naturalization
herein referred to as the "Committee", with the Solicitor
General as chairman, the Secretary of Foreign Affairs, or
his representative, and the National Security Adviser, as
members, with the power to approve, deny or reject
applications for naturalization as provided in this Act.
The Committee shall meet, as often as practicable, to
consider applications for naturalization. For this purpose,
the chairman and members shall receive an honorarium
of Two thousand pesos (P2,000.00) and One thousand
five hundred pesos (P1,500.00), respectively, per meeting
attended.
Section 7. Powers/Functions of the Special Committee on
Naturalization. - An alien who believes that he has all the
qualifications, and none of the disqualifications, may file
an application for naturalization with the secretariat of the
Special Committee on Naturalization, and a processing
fee of Forty thousand pesos (P40,000.00). Thereafter, the
petition shall be stamped to indicate the date of filing and
a corresponding docket number. Within fifteen (15) days
from the receipt of the petition, the Committee shall
determine whether the petition is complete in substance
and in form. If such petition is complete, the Committee
shall immediately publish pertinent portions of the
petition indicating the name, qualifications and other
personal circumstances of the applicant, once a week for
three (3) consecutive weeks in a newspaper of general
circulation, and have copies of the petition posted in any
public or conspicuous area. The Committee shall
immediately furnish the Department of Foreign Affairs
(DFA), the Bureau of Immigration (BI), the civil registrar
of the petitioner's place of residence and tile National
Bureau of Investigation (NBI) copies of the petition and
its supporting documents. These agencies shall have
copies of the petition posted in any public or conspicuous
area in their buildings, offices and premises, and shall,
within thirty (30) days from the receipt of the petition,
submit to the Committee a report stating whether or not
petitioner has any derogatory record on file or any such
relevant and material information which might be adverse
to petitioner's application for citizenship.
If the petition is found by the Committee to be wanting
in substance and form, the petition shall be dismissed
without prejudice.
Section 8. Approval or Disapproval of the Petition. - Within
sixty (60) days from receipt of the report of the agencies
which were furnished a copy of the petition or the date of
the last publication of the petition, whichever comes in
later, the Committee shall consider and review all relevant
and material information it has received pertaining to the
petition, and may, for the purpose call the petitioner for
interview to ascertain his/her identity, the authenticity of
the petition and its annexes, and to determine the
truthfulness of the statements and declarations made in
the petition and its annexes.
If the Committee shall have received any information
adverse to the petition, the Committee shall allow the
petitioner to answer, explain or refute the information.
Thereafter, if the Committee believes, in view of the facts
before it, that the petitioner has all the qualifications and
none of the disqualifications required for Philippine
citizenship under this Act, it shall approve the petition
and henceforth, notify the petitioner of the fact of such
approval. Otherwise, the Committee shall disapprove the
same.
Section 9. Decree of Naturalization and Naturalization
Processing Fee. -Within thirty (30) days from the receipt of
the notice of the approval of his/her petition, the
applicant shall pay to the Committee a naturalization fee
of One hundred thousand pesos (P100,000.00) payable as
follows: Fifty thousand pesos (P50,000.00) upon the
approval of the petition and Fifty thousand pesos
(P50,000.00) upon the taking of the oath of allegiance to
the Republic of the Philippines, forthwith, a certificate of
naturalization shall be issued. Within sixty (60) days from
the issuance of the certificate, the petitioner shall take an
oath of allegiance in the proper forum upon proof of
payment of the required naturalization processing fee and
certificate of naturalization. Should the applicant fail to
take the abovementioned oath of allegiance within said
period of time, the approval of the petition shall be
deemed abandoned.
Section 10. Duty of the Bureau of Immigration. - Within five
(5) days after the applicant has taken his oath of allegiance
as required in the preceding section, the BI shall forward
a copy of the petitioner's oath to the proper local civil
registrar. Thereafter, the BI shall cancel the alien
certificates of registration of the applicant.
Section 11. Status of Alien Wife and Minor Children. - After
the approval of the petition for administrative
naturalization in cancellation of applicant's alien
certificate of registration, applicant's alien lawful wife and
minor children may file a petition for cancellation of their
alien certificates of registration with the Committee
subject to the payment of the filing fee of Twenty
thousand pesos (P20,000.00) and naturalization fee of
Forty thousand pesos (P40,000.00) payable as follows:
Twenty thousand pesos (P20,000.00) upon the approval
of the petition and Twenty thousand pesos (P20,000.00)
upon the taking of the oath of allegiance to the Republic
of the Philippines.
Section 12. Status of Alien Husband and Minor Children. - If
the applicant is a married woman, the approval of her
petition for administrative naturalization will not benefit
her alien husband but her minor children may file a
petition for cancellation of their alien certificates of
registration with the BI subject to the requirements of
existing laws.
Section 13. Cancellation of the Certificate of Naturalization. -
The Special Committee may cancel certificates of
naturalization issued under this Act in the following cases:
(a) If it finds that the naturalized person or his duly
authorized representative made any false statement or
misrepresentation or committed any violation of law,
rules and regulations in connection with the petition for
naturalization, or if he otherwise obtains Philippine
citizenship fraudulently or illegally, the certificate of
naturalization shall be cancelled;
(b) If the naturalized person or his wife, or any or his
minor children who acquire Filipino citizenship by virtue
of his naturalization shall, within five (5) years next
following the grant of Philippine citizenship, establish
permanent residence in a foreign country, that individual's
certificate of naturalization or acquired citizenship shall
be cancelled or revoked: Provided, That the fact of such
person's remaining for more than one (1) year in his
country of origin, or two (2) years in any foreign country,
shall be considered prima facie evidence of intent to
permanently reside therein;
(c) If the naturalized person or his wife or child with
acquired citizenship allows himself or herself to be used
as a dummy in violation of any constitutional or legal
provision requiring Philippine citizenship as a condition
for the exercise, use or enjoyment of a right, franchise or
privilege, the certificate of naturalization or acquired
citizenship shall be cancelled or revoked; and
(d) If the naturalized person or his wife or child with
acquired citizenship commits any act inimical to national
security, the certificate of naturalization or acquired
citizenship shall be cancelled or revoked.
In case the naturalized person holds any hereditary title,
or belong to any order of nobility, he shall make an
express renunciation of his title or membership in this
order of nobility before the Special Committee or its duly
authorized representative, and such renunciation shall be
included in the records of his application for citizenship.
Section 14. Penalties. - Any person who shall fraudulently
make, falsify, forge, change, alter, or cause or aid any
person to do the same, or who shall purposely aid and
assist in falsely making, forging, falsifying, changing or
altering a naturalization certificate issued under this
proceeding for the purpose of making use thereof, or in
order that the same may be used by another person or
persons, and any person who shall purposely aid and
assist another in obtaining a naturalization certificate in
violation of this Act, shall be punished by a fine of not
more than Five hundred thousand pesos
(P500,OOO.OO) and by imprisonment for not more
than five (5) years, and in the case that the person
convicted is a naturalized citizen, his certificate of
naturalization shall, if not earlier cancelled by the Special
Committee, be ordered cancelled.
Section 15. Any person who failed to register his/her
birth with the concerned city or municipal civil registrar
may, within two (2) years from the effectivity of this Act,
file a petition for the acquisition of the Philippine
citizenship:Provided, That the applicant possesses all the
qualifications and none of the disqualifications under this
Act and subject to the requirements of existing laws.
Section 16. Special Disposition of the Filing Fee. - An amount
equivalent to twenty five percent (25%) of the filing fee to
be paid by the applicants pursuant to Section 7 hereof
shall accrue to the University of the Philippines Law
Center and another twenty-five percent (25%) shall be
allotted for the publication of the Journal of the House of
Representatives. Said amount shall be treated as receipts
automatically appropriated.
Section 17. Implementing Rules and Regulations. - The Special
Committee on Naturalization is hereby authorized to
promulgate such rules and regulations as may be needed
for the proper implementation of the provisions of this
Act.
Section 18. Repealing Clause. -All provisions of existing
laws, orders, decrees, rules and regulations contrary to or
inconsistent with this Act are hereby repealed or modified
accordingly.
Section 19. Separability CIause. - If any part, section or
provision of this Act is declared invalid or
unconstitutional, the part, section or provision not
affected thereby shall continue to be in force and effect.
Section 20. Effectivity Clause. - This Act shall take effect
after fifteen (15) days following its publication in at least
two (2) newspapers of general circulation.
Approved,
(Sgd)


AQUILINO Q. PIMENTEL JR.
President of the Senate


(Sgd)


FELICIANO BELMONTE JR.
Speaker of the House of Representatives


(Sgd)


LUTGARDO B. BARBO
Secretary of the Senate


(Sgd)


ROBERTO P. NAZARENO
Secretary General
House of Representatives


Approved: June 08, 2001
(Sgd)


GLORIA MACAPAGAL-ARROYO
President of the Philippines
Begun held in Metro Manila on Monday, the twenty-
eighth day of July, two thousand three.



Republic Act No. 9225 August 29, 2003
AN ACT MAKING THE CITIZENSHIP OF
PHILIPPINE CITIZENS WHO ACQUIRE
FOREIGN CITIZENSHIP PERMANENT.
AMENDING FOR THE PURPOSE
COMMONWEALTH ACT. NO. 63, AS
AMENDED AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled:
Section 1. Short Title this act shall be known as the
"Citizenship Retention and Re-acquisition Act of
2003."
Section 2. Declaration of Policy - It is hereby declared
the policy of the State that all Philippine citizens of
another country shall be deemed not to have lost their
Philippine citizenship under the conditions of this Act.
Section 3. Retention of Philippine Citizenship - Any
provision of law to the contrary notwithstanding, natural-
born citizenship by reason of their naturalization as
citizens of a foreign country are hereby deemed to have
re-acquired Philippine citizenship upon taking the
following oath of allegiance to the Republic:
"I _____________________, solemny swear (or affrim)
that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal
orders promulgated by the duly constituted authorities of
the Philippines; and I hereby declare that I recognize and
accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I
imposed this obligation upon myself voluntarily without
mental reservation or purpose of evasion."
Natural born citizens of the Philippines who, after the
effectivity of this Act, become citizens of a foreign
country shall retain their Philippine citizenship upon
taking the aforesaid oath.
Section 4. Derivative Citizenship - The unmarried
child, whether legitimate, illegitimate or adopted, below
eighteen (18) years of age, of those who re-acquire
Philippine citizenship upon effectivity of this Act shall be
deemed citizenship of the Philippines.
Section 5. Civil and Political Rights and Liabilities -
Those who retain or re-acquire Philippine citizenship
under this Act shall enjoy full civil and political rights and
be subject to all attendant liabilities and responsibilities
under existing laws of the Philippines and the following
conditions:
(1) Those intending to exercise their right of surffrage
must Meet the requirements under Section 1, Article V of
the Constitution, Republic Act No. 9189, otherwise
known as "The Overseas Absentee Voting Act of 2003"
and other existing laws;
(2) Those seeking elective public in the Philippines shall
meet the qualification for holding such public office as
required by the Constitution and existing laws and, at the
time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to
administer an oath;
(3) Those appointed to any public office shall subscribe
and swear to an oath of allegiance to the Republic of the
Philippines and its duly constituted authorities prior to
their assumption of office: Provided, That they renounce
their oath of allegiance to the country where they took
that oath;
(4) Those intending to practice their profession in the
Philippines shall apply with the proper authority for a
license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any
public office in the Philippines cannot be exercised by, or
extended to, those who:
(a) are candidates for or are occupying any public office in
the country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or non-
commissioned officers in the armed forces of the country
which they are naturalized citizens.
Section 6. Separability Clause - If any section or
provision of this Act is held unconstitutional or invalid,
any other section or provision not affected thereby shall
remain valid and effective.
Section 7. Repealing Clause - All laws, decrees, orders,
rules and regulations inconsistent with the provisions of
this Act are hereby repealed or modified accordingly.
Section 8. Effectivity Clause This Act shall take effect
after fifteen (15) days following its publication in
theOfficial Gazette or two (2) newspaper of general
circulation.


Approved,
FRANKLIN DRILON
President of the Senate
JOSE DE VENECIA JR.
Speaker of the House of Representatives
This Act, which is a consolidation of Senate Bill No. 2130
and House Bill No. 4720 was finally passed by the the
House of Representatives and Senate on August 25, 2003
and August 26, 2003, respectively.
OSCAR G. YABES
Secretary of Senate
ROBERTO P. NAZARENO
Secretary General
House of Represenatives
Approved: August 29, 2003
GLORIA MACAPAGAL-ARROYO
President of the Philippines