Strict Liability/Product Liability STRICT LIABILITY. Liability without fault.

Case is one of "strict liability" when neither care nor negligence, neither good nor bad faith, neither knowledge nor ignorance will save defendant ARTICLE 2187 Manufacturers and processors of foodstuffs, drinks, toilet articles and similar goods shall be liable for death or injuries caused by any noxious or harmful substances used, although no contractual relation exists between them and the consumers. REGULATION OF SALES ACTS AND PRACTICES Art. 50. Prohibition Against Deceptive Sales Acts or Practices. - A deceptive act or practice by a seller or supplier in connection with a consumer transaction violates this Act whether it occurs before, during or after the transaction. An act or practice shall be deemed deceptive whenever the producer, manufacturer, supplier or seller, through concealment, false representation of fraudulent manipulation, induces a consumer to enter into a sales or lease transaction of any consumer product or service. Without limiting the scope of the above paragraph, the act or practice of a seller or supplier is deceptive when it represents that: (a) a consumer product or service has the sponsorship, approval, performance, characteristics, ingredients, accessories, uses, or benefits it does not have; (b) a consumer product or service is of a particular standard, quality, grade, style, or model when in fact it is not; (c) a consumer product is new, original or unused, when in fact, it is in a deteriorated, altered, reconditioned, reclaimed or secondhand state; (d) a consumer product or service is available to the consumer for a reason that is different from the fact; (e) a consumer product or service has been supplied in accordance with the previous representation when in fact it is not; (f) a consumer product or service can be supplied in a quantity greater than the supplier intends; (g) a service, or repair of a consumer product is needed when in fact it is not; (h) a specific price advantage of a consumer product exists when in fact it does not; (i) the sales act or practice involves or does not involve a warranty, a disclaimer of warranties, particular warranty terms or other rights, remedies or obligations if the indication is false; and (j) the seller or supplier has a sponsorship, approval, or affiliation he does not have. Art. 51. Deceptive Sales Act or Practices By Regulation . - The Department shall, after due notice and hearing, promulgate regulations declaring as deceptive any sales act, practice or technique which is a misrepresentation of facts other than these enumerated in Article 50. Art. 52. Unfair or Unconscionable Sales Act or Practice. - An unfair or unconscionable sales act or practice by a seller or supplier in connection with a consumer transaction violates this Chapter whether it occurs before, during or after the consumer transaction. An act or practice shall be deemed unfair or unconscionable whenever the producer, manufacturer, distributor, supplier or seller, by taking advantage of the consumer's physical or mental infirmity, ignorance, illiteracy, lack of time or the general conditions of the environment or surroundings, induces the consumer to enter into a sales or lease transaction grossly inimical to the interests of the consumer or grossly one-sided in favor of the producer, manufacturer, distributor, supplier or seller. In determining whether an act or practice is unfair and unconscionable, the following circumstances shall be considered: (a) that the producer, manufacturer, distributor, supplier or seller took advantage of the inability of the consumer to reasonably protect his interest because of his inability to understand the language of an agreement, or similar factors; (b) that when the consumer transaction was entered into, the price grossly exceeded the price at which similar products or

services were readily obtainable in similar transaction by like consumers; (c) that when the consumer transaction was entered into, the consumer was unable to receive a substantial benefit from the subject of the transaction; (d) that when the consumer was entered into, the seller or supplier was aware that there was no reasonable probability or payment of the obligation in full by the consumer; and (e) that the transaction that the seller or supplier induced the consumer to enter into was excessively one-sided in favor of the seller or supplier. Art. 97. Liability for the Defective Products. - Any Filipino or foreign manufacturer, producer, and any importer, shall be liable for redress, independently of fault, for damages caused to consumers by defects resulting from design, manufacture, construction, assembly and erection, formulas and handling and making up, presentation or packing of their products, as well as for the insufficient or inadequate information on the use and hazards thereof. A product is defective when it does not offer the safety rightfully expected of it, taking relevant circumstances into consideration, including but not limited to: (a) presentation of product; (b) use and hazards reasonably expected of it;

(c) the time it was put into circulation. A product is not considered defective because another better quality product has been placed in the market. The manufacturer, builder, producer or importer shall not be held liable when it evidences: (a) that it did not place the product on the market; (b) that although it did place the product on the market such product has no defect; (c) that the consumer or a third party is solely at fault. Art. 99. Liability for Defective Services. - The service supplier is liable for redress, independently of fault, for damages caused to consumers by defects relating to the rendering of the services, as well as for insufficient or inadequate information on the fruition and hazards thereof. The service is defective when it does not provide the safety the consumer may rightfully expect of it, taking the relevant circumstances into consideration, including but not limited to: (a) the manner in which it is provided; (b) the result of hazards which may reasonably be expected of it; (c) the time when it was provided. A service is not considered defective because of the use or introduction of new techniques. The supplier of the services shall not be held liable when it is proven: (a) that there is no defect in the service rendered; (b) that the consumer or third party is solely at fault. Art. 106. Prohibition in Contractual Stipulation. - The stipulation in a contract of a clause preventing, exonerating or reducing the obligation to indemnify for damages effected, as provided for in this and in the preceding Articles, is hereby prohibited, if there is more than one person responsible for the cause of the damage, they shall be jointly liable for the redress established in the pertinent provisions of this Act. However, if the damage is caused by a component or part incorporated in the product or service, its manufacturer, builder or importer and the person who incorporated the component or part are jointly liable. Art. 107. Penalties. - Any person who shall violate any provision of this Chapter or its implementing rules and regulations with respect to any consumer product which is not food, cosmetic, or hazardous substance shall upon conviction, be subject to a fine of not less than Five thousand pesos (P5,000.00) and by imprisonment of not more than one (1) year or both upon the discretion of the court. In case of juridical persons, the penalty shall be imposed upon its president, manager or head. If the offender is an alien, he shall, after payment of fine and service of sentence, be deported without further deportation proceedings. R.A. 3720

Section 11. The following acts and the causing thereof are hereby prohibited: (a) The manufacture, sale, offering for sale or transfer of any food, drug, device or cosmetic that is adulterated or misbranded. (b) The adulteration or misbranding of any food, drug, device, or cosmetic. (c) The refusal to permit entry or inspection as authorized by Section twenty-seven hereof or to allow samples to be collected. (d) The giving of a guaranty or undertaking referred to in Section twelve (b) hereof which guaranty or undertaking is false, except by a person who relied upon a guaranty or undertaking to the same effect signed by, and containing the name and address of, the person residing in the Philippines from whom he received in good faith the food, drug, device, or cosmetic or the giving of a guaranty or undertaking referred to in Section twelve (b) which guaranty or undertaking is false. (e) Forging, counterfeiting, simulating, or falsely representing or without proper authority using any mark, stamp, tag label, or other identification device authorized or required by regulations promulgated under the provisions of this Act. (f) The using by any person to his own advantage, or revealing, other than to the Secretary or officers or employees of the Department or to the courts when relevant in any judicial proceeding under this Act, any information acquired under authority of Section nine, or concerning any method or process which as a trade secret is entitled to protection. (g) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale (whether or not the first sale) and results in such article being adulterated or misbranded. (h) The use, on the labeling of any drug or in any advertising relating to such drug, of any representation or suggestion that an application with respect to such drug is effective under Section twenty-one hereof, or that such drug complies with the provisions of such section. (i) The use, in labeling, advertising or other sales promotion of any reference to any report or analysis furnished in compliance with Section twenty-six hereof. INTERFERENCE WITH CONTRACTUAL RELATIONS Article 1314 of the Civil Code provides: Art. 1314. Any third person who induces another to violate his contract shall be liable for damages to the other contracting party. The elements of tort interference are: (1) existence of a valid contract; (2) knowledge on the part of the third person of the existence of a contract; and (3) interference of the third person is without legal justification.[52] DECISION February 18, 1915 G.R. No. L-9356 C. S. GILCHRIST, plaintiff-appellee, vs. E. A. CUDDY, ET AL., defendants. JOSE FERNANDEZ ESPEJO and MARIANO ZALDARRIAGA, appellants. C. Lozano for appellants. Bruce, Lawrence, Ross and Block for appellee. TRENT, J.: An appeal by the defendants, Jose Fernandez Espejo and Mariano Zaldarriaga, from a judgment of the Court of First Instance of Iloilo, dismissing their cross-complaint upon the merits for damages against the plaintiff for the alleged wrongful issuance of a mandatory and a preliminary injunction. Upon the application of the appellee an ex parte mandatory injunction was issued on the 22d of May, 1913, directing the defendant, E. A. Cuddy, to send to the appellee a certain cinematograph film called Zigomar in compliance with an alleged contract which had been entered into between these two parties, and at the time an ex parte preliminary injunction was issued restraining the appellants from receiving and exhibiting in their theater the Zigomar until further orders of the court. On the 26th of that month the appellants appeared and moved the court to dissolve the preliminary injunction. When the case was called for trial on August 6, the appellee moved for the dismissal of the complaint for the reason that there is no further necessity for the maintenance of the injunction. The motion was granted without objection as to Cuddy and denied as to the appellants in order to give them an opportunity to prove that the injunction were wrongfully issued and the amount of damages suffered by reason thereof. The pertinent part of the trial courts findings of fact in this case is as follows: It appears in this case that Cuddy was the owner of the film Zigomar and that on the 24th of April he rented it to C. S. Gilchrist for a week for P125, and it was to be delivered on the 26th of May, the week beginning that day. A few days prior to this Cuddy sent the money back to Gilchrist, which he had forwarded to him in Manila, saying that he had made other arrangements with his film. The other arrangements was the rental to these defendants Espejo and his partner for P350 for the week and the injunction was asked by Gilchrist against these parties from showing it for the week beginning the 26th of May. It appears from the testimony in this case, conclusively, that Cuddy willfully violated his contract, he being the owner of the picture, with Gilchrist because the defendants had offered him more for the same

period. Mr. Espejo at the trial on the permanent injunction on the 26th of May admitted that he knew that Cuddy was the owner of the film. He was trying to get it through his agents Pathe Brothers in Manila. He is the agent of the same concern in Iloilo. There is in evidence in this case on the trial today as well as on the 26th of May, letters showing that the Pathe Brothers in Manila advised this man on two different occasions not to contend for this film Zigomar because the rental price was prohibitive and assured him also that he could not get the film for about six weeks. The last of these letters was written on the 26th of April, which showed conclusively that he knew they had to get this film from Cuddy and from this letter that the agent in Manila could not get it, but he made Cuddy an offer himself and Cuddy accepted it because he was paying about three times as much as he had contracted with Gilchrist for. Therefore, in the opinion of this court, the defendants failed signally to show the injunction against the defendant was wrongfully procured. The appellants duly excepted to the order of the court denying their motion for new trial on the ground that the evidence was insufficient to justify the decision rendered. There is lacking from the record before us the deposition of the defendant Cuddy, which apparently throws light upon a contract entered into between him and the plaintiff Gilchrist. The contents of this deposition are discussed at length in the brief of the appellants and an endeavor is made to show that no such contract was entered into. The trial court, which had this deposition before it, found that there was a contract between Cuddy and Gilchrist. Not having the deposition in question before us, it is impossible to say how strongly it militates against this findings of fact. By a series of decisions we have construed section 143 and 497 (2) of the Code of Civil Procedure to require the production of all the evidence in this court. This is the duty of the appellant and, upon his failure to perform it, we decline to proceed with a review of the evidence. In such cases we rely entirely upon the pleadings and the findings of fact of the trial court and examine only such assigned errors as raise questions of law. (Ferrer vs. NeriAbejuela, 9 Phil. Rep., 324; Valle vs. Galera, 10 Phil. Rep., 619; Salvacion vs. Salvacion, 13 Phil. Rep., 366; Breta vs. Smith, Bell & Co., 15 Phil. Rep., 446; Arroyo vs. Yulo, 18 Phil. Rep., 236; Olsen & Co. vs. Matson, Lord &Belser Co., 19 Phil. Rep., 102; Blum vs. Barretto, 19 Phil. Rep., 161; Cuyugan vs. Aguas, 19 Phil. Rep., 379; Mapa vs. Chaves, 20 Phil. Rep., 147; Mans vs. Garry, 20 Phil. Rep., 134.) It is true that some of the more recent of these cases make exceptions to the general rule. Thus, in Olsen & Co. vs. Matson, Lord &Belser Co., (19 Phil. Rep., 102), that portion of the evidence before us tended to show that grave injustice might result from a strict reliance upon the findings of fact contained in the judgment appealed from. We, therefore, gave the appellant an opportunity to explain the omission. But we required that such explanation must show a satisfactory reason for the omission, and that the missing portion of the evidence must be submitted within sixty days or cause shown for failing to do so. The other cases making exceptions to the rule are based upon peculiar circumstances which will seldom arise in practice and need not here be set forth, for the reason that they are wholly inapplicable to the present case. The appellants would be entitled to indulgence only under the doctrine of the Olsen case. But from that portion of the record before us, we are not inclined to believe that the missing deposition would be sufficient to justify us in reversing the findings of fact of the trial court that the contract in question had been made. There is in the record not only the positive and detailed testimony of Gilchrist to this effect, but there is also a letter of apology from Cuddy to Gilchrist in which the former enters into a lengthy explanation of his reasons for leasing the film to another party. The latter could only have been called forth by a broken contract with Gilchrist to lease the film to him. We, therefore, fail to find any reason for overlooking the omission of the defendants to bring up the missing portion of the evidence and, adhering to the general rule above referred to, proceed to examine the questions of law raised by the appellants. From the above-quoted findings of fact it is clear that Cuddy, a resident of Manila, was the owner of the Zigomar; that Gilchrist was the owner of a cinematograph theater in Iloilo; that in accordance with the terms of the contract entered into between Cuddy and Gilchrist the former leased to the latter the Zigomar for exhibition in his (Gilchrists) theater for the week beginning May 26, 1913; and that Cuddy willfully violate his contract in order that he might accept the appellants offer of P350 for the film for the same period. Did the appellants know that they were inducing Cuddy to violate his contract with a third party when they induced him to accept the P350? Espejo admitted that he knew that Cuddy was the owner of the film. He received a letter from his agents in Manila dated April 26, assuring him that he could not get the film for about six weeks . The arrangement between Cuddy and the appellants for the exhibition of the film by the latter on the 26th of May were perfected after April 26, so that the six weeks would include and extend beyond May 26. The appellants must necessarily have known at the time they made their offer to Cuddy that the latter had booked or contracted the film for six weeks from April 26. Therefore, the inevitable conclusion is that the appellants knowingly induced Cuddy to violate his contract with another person. But there is no specific finding that the appellants knew the identity of the other party. So we must assume that they did not know that Gilchrist was the person who had contracted for the film. The appellants take the position that if the preliminary injunction had not been issued against them they could have exhibited the film in their theater for a number of days beginning May 26, and could have also subleased it to other theater owners in the nearby towns and, by so doing, could have cleared, during the life of their contract with Cuddy, the amount claimed as damages. Taking this view of the case, it will be unnecessary for us to inquire whether the mandatory injunction against

Cuddy was properly issued or not. No question is raised with reference to the issuance of that injunction. The right on the part of Gilchrist to enter into a contract with Cuddy for the lease of the film must be fully recognized and admitted by all. That Cuddy was liable in an action for damages for the breach of that contract, there can be no doubt. Were the appellants likewise liable for interfering with the contract between Gilchrist and Cuddy, they not knowing at the time the identity of one of the contracting parties? The appellants claim that they had a right to do what they did. The ground upon which the appellants base this contention is, that there was no valid and binding contract between Cuddy and Gilchrist and that, therefore, they had a right to compete with Gilchrist for the lease of the film, the right to compete being a justification for their acts. If there had been no contract between Cuddy and Gilchrist this defense would be tenable, but the mere right to compete could not justify the appellants in intentionally inducing Cuddy to take away the appellees contractual rights. Chief Justice Wells in Walker vs. Cronin (107 Mass., 555), said: Everyone has a right to enjoy the fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be free from malicious and wanton interference, disturbance or annoyance. If disturbance or loss come as a result of competition, or the exercise of like rights by others, it is damnumabsqueinjuria, unless some superior right by contract or otherwise is interfered with. In Read vs. Friendly Society of Operative Stonemasons ([1902] 2 K. B., 88), Darling, J., said: I think the plaintiff has a cause of action against the defendants, unless the court is satisfied that, when they interfered with the contractual rights of plaintiff, the defendants had a sufficient justification for their interference; . . . for it is not a justification that `they acted bona fide in the best interests of the society of masons, i. e., in their own interests. Nor is it enough that `they were not actuated by improper motives. I think their sufficient justification for interference with plaintiffs right must be an equal or superior right in themselves, and that no one can legally excuse himself to a man, of whose contract he has procured the breach, on the ground that he acted on a wrong understanding of his own rights, or without malice, or bona fide, or in the best interests of himself, or even that he acted as an altruist, seeking only good of another and careless of his own advantage. (Quoted with approval in Beekman vs. Marsters, 195 Mass., 205.) It is said that the ground on which the liability of a third party for interfering with a contract between others rests, is that the interference was malicious. The contrary view, however, is taken by the Supreme Court of the United States in the case of Angle vs. Railway Co. (151 U. S., 1). The only motive for interference by the third party in that case was the desire to make a profit to the injury of one of the parties of the contract. There was no malice in the case beyond the desire to make an unlawful gain to the detriment of one of the contracting parties. In the case at bar the only motive for the interference with the Gilchrist Cuddy contract on the part of the appellants was a desire to make a profit by exhibiting the film in their theater. There was no malice beyond this desire; but this fact does not relieve them of the legal liability for interfering with that contract and causing its breach. It is, therefore, clear, under the above authorities, that they were liable to Gilchrist for the damages caused by their acts, unless they are relieved from such liability by reason of the fact that they did not know at the time the identity of the original lessee (Gilchrist) of the film. The liability of the appellants arises from unlawful acts and not from contractual obligations, as they were under no such obligations to induce Cuddy to violate his contract with Gilchrist. So that if the action of Gilchrist had been one for damages, it would be governed by chapter 2, title 16, book 4 of the Civil Code. Article 1902 of that code provides that a person who, by act or omission, causes damages to another when there is fault or negligence, shall be obliged to repair the damage do done. There is nothing in this article which requires as a condition precedent to the liability of a tort-feasor that he must know the identity of a person to whom he causes damages. In fact, the chapter wherein this article is found clearly shows that no such knowledge is required in order that the injured party may recover for the damage suffered. But the fact that the appellants interference with the Gilchrist contract was actionable did not of itself entitle Gilchrist to sue out an injunction against them. The allowance of this remedy must be justified under section 164 of the Code of Civil Procedure, which specifies the circumstance under which an injunction may issue. Upon the general doctrine of injunction we said in Devesa vs. Arbes (13 Phil. Rep., 273): An injunction is a special remedy adopted in that code (Act No. 190) from American practice, and originally borrowed from English legal procedure, which was there issued by the authority and under the seal of a court of equity, and limited, as in order cases where equitable relief is sought, to cases where there is no plain, adequate, and complete remedy at law, which will not be granted while the rights between the parties are undetermined, except in extraordinary cases where material and irreparable injury will be done, which cannot be compensated in damages, and where there will be no adequate remedy, and which will not, as a rule, be granted, to take property out of the possession of one party and put it into that of another whose title has not been established by law. We subsequently affirmed the doctrine of the Devesa case in Palafox vs. Madamba (19 Phil., Rep., 444), and we take this occasion of again affirming it, believing, as we do, that the indiscriminate use of injunctions should be discouraged. Does the fact that the appellants did not know at the time the identity of the original lessee of the film militate against Gilchrists right to a

preliminary injunction, although the appellants incurred civil liability for damages for such interference? In the examination of the adjudicated cases, where in injunctions have been issued to restrain wrongful interference with contracts by strangers to such contracts, we have been unable to find any case where this precise question was involved, as in all of those cases which we have examined, the identity of both of the contracting parties was known to the tort-feasors. We might say, however, that this fact does not seem to have a controlling feature in those cases. There is nothing in section 164 of the Code of Civil Procedure which indicates, even remotely, that before an injunction may issue restraining the wrongful interference with contrast by strangers, the strangers must know the identity of both parties. It would seem that this is not essential, as injunctions frequently issue against municipal corporations, public service corporations, public officers, and others to restrain the commission of acts which would tend to injuriously affect the rights of person whose identity the respondents could not possibly have known beforehand. This court has held that in a proper case injunction will issue at the instance of a private citizen to restrain ultra vires acts of public officials. (Severino vs. Governor-General, 16 Phil. Rep., 366.) So we proceed to the determination of the main question of whether or not the preliminary injunction ought to have been issued in this case. As a rule, injunctions are denied to those who have an adequate remedy at law. Where the choice is between the ordinary and the extraordinary processes of law, and the former are sufficient, the rule will not permit the use of the latter. (In re Debs, 158 U. S., 564.) If the injury is irreparable, the ordinary process is inadequate. In Wahle vs. Reinbach (76 Ill., 322), the supreme court of Illinois approved a definition of the term irreparable injury in the following language: By `irreparable injury is not meant such injury as is beyond the possibility of repair, or beyond possible compensation in damages, nor necessarily great injury or great damage, but that species of injury, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other; and, because it is so large on the one hand, or so small on the other, is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law. (Quoted with approval in Nashville R. R. Co. vs. McConnell, 82 Fed., 65.) The case at bar is somewhat novel, as the only contract which was broken was that between Cuddy and Gilchrist, and the profits of the appellee depended upon the patronage of the public, for which it is conceded the appellants were at liberty to complete by all fair does not deter the application of remarked in the case of the ticket scalpers (82 Fed., 65), the novelty of the facts does not deter the application of equitable principles. This court takes judicial notice of the general character of a cinematograph or motion-picture theater. It is a quite modern form of the play house, wherein, by means of an apparatus known as a cinematograph or cinematograph, a series of views representing closely successive phases of a moving object, are exhibited in rapid sequence, giving a picture which, owing to the persistence of vision, appears to the observer to be in continuous motion. (The Encyclopedia Britanica, vol. 6, p. 374.) The subjects which have lent themselves to the art of the photographer in this manner have increased enormously in recent years, as well as have the places where such exhibition are given. The attendance, and, consequently, the receipts, at one of these cinematograph or motion-picture theaters depends in no small degree upon the excellence of the photographs, and it is quite common for the proprietor of the theater to secure an especially attractive exhibit as his feature film and advertise it as such in order to attract the public. This feature film is depended upon to secure a larger attendance that if its place on the program were filled by other films of mediocre quality. It is evident that the failure to exhibit the feature film will reduce the receipts of the theater. Hence, Gilchrist was facing the immediate prospect of diminished profits by reason of the fact that the appellants had induced Cuddy to rent to them the film Gilchrist had counted upon as his feature film. It is quite apparent that to estimate with any decree of accuracy the damages which Gilchrist would likely suffer from such an event would be quite difficult if not impossible. If he allowed the appellants to exhibit the film in Iloilo, it would be useless for him to exhibit it again, as the desire of the public to witness the production would have been already satisfied. In this extremity, the appellee applied for and was granted, as we have indicated, a mandatory injunction against Cuddy requiring him to deliver the Zigomar to Gilchrist, and a preliminary injunction against the appellants restraining them from exhibiting that film in their theater during the weeks he (Gilchrist) had a right to exhibit it. These injunction saved the plaintiff harmless from damages due to the unwarranted interference of the defendants, as well as the difficult task which would have been set for the court of estimating them in case the appellants had been allowed to carry out their illegal plans. As to whether or not the mandatory injunction should have been issued, we are not, as we have said, called upon to determine. So far as the preliminary injunction issued against the appellants is concerned, which prohibited them from exhibiting the Zigomar during the week which Gilchrist desired to exhibit it, we are of the opinion that the circumstances justified the issuance of that injunction in the discretion of the court. We are not lacking in authority to support our conclusion that the court was justified in issuing the preliminary injunction against the appellants. Upon the precise question as to whether injunction will issue to restrain wrongful interference with contracts by strangers to such contracts, it may be said that courts in the United States have usually granted such relief where the profits of the injured person are derived from his contractual relations with a large and indefinite number of individuals,

thus reducing him to the necessity of proving in an action against the tortfeasor that the latter was responsible in each case for the broken contract, or else obliging him to institute individual suits against each contracting party and so exposing him to a multiplicity of suits. Sperry & Hutchinson Co. vs. Mechanics Clothing Co. (128 Fed., 800); Sperry & Hutchinson Co. vs. Louis Weber & Co. (161 Fed., 219); Sperry & Hutchinson Co. vs. Pommer (199 Fed., 309); were all cases wherein the respondents were inducing retail merchants to break their contracts with the company for the sale of the latters trading stamps. Injunction issued in each case restraining the respondents from interfering with such contracts. In the case of the Nashville R. R. Co. vs. McConnell (82 Fed., 65), the court, among other things, said: One who wrongfully interferes in a contract between others, and, for the purpose of gain to himself induces one of the parties to break it, is liable to the party injured thereby; and his continued interference may be ground for an injunction where the injuries resulting will be irreparable. In Hamby &Toomer vs. Georgia Iron & Coal Co. (127 Ga., 792), it appears that the respondents were interfering in a contract for prison labor, and the result would be, if they were successful, the shutting down of the petitioners plant for an indefinite time. The court held that although there was no contention that the respondents were insolvent, the trial court did not abuse its discretion in granting a preliminary injunction against the respondents. In Beekman vs. Marsters (195 Mass., 205), the plaintiff had obtained from the Jamestown Hotel Corporation, conducting a hotel within the grounds of the Jamestown Exposition, a contract whereby he was made their exclusive agent for the New England States to solicit patronage for the hotel. The defendant induced the hotel corporation to break their contract with the plaintiff in order to allow him to act also as their agent in the New England States. The court held that an action for damages would not have afforded the plaintiff adequate relief, and that an injunction was proper compelling the defendant to desist from further interference with the plaintiffs exclusive contract with the hotel company. In Citizens Light, Heat & Power Co. vs. Montgomery Light & Water Power Co. (171 Fed., 553), the court, while admitting that there are some authorities to the contrary, held that the current authority in the United States and England is that: The violation of a legal right committed knowingly is a cause of action, and that it is a violation of a legal right to interfere with contractual relations recognized by law, if there be no sufficient justification for the interference. (Quinn vs. Leatham, supra, 510; Angle vs. Chicago, etc., Ry. Co., 151 U. S., 1; 14 Sup. Ct., 240; 38 L. Ed., 55; Martens vs. Reilly, 109 Wis., 464, 84 N. W., 840; Rice vs. Manley, 66 N. Y., 82; 23 Am. Rep., 30; Bitterman vs. L. & N. R. R. Co., 207 U. S., 205; 28 Sup. Ct., 91; 52 L. Ed., 171; Beekman vs. Marsters, 195 Mass., 205; 80 N. E., 817; 11 L. R. A. [N. S.] 201; 122 Am. St. Rep., 232; South Wales Miners Fed. vs. Glamorgan Coal Co., Appeal Cases, 1905, p. 239.) See also Nims on Unfair Business Competition, pp. 351- 371. In 3 Elliot on Contracts, section 2511, it is said: Injunction is the proper remedy to prevent a wrongful interference with contract by strangers to such contracts where the legal remedy is insufficient and the resulting injury is irreparable. And where there is a malicious interference with lawful and valid contracts a permanent injunction will ordinarily issue without proof of express malice. So, an injunction may be issued where the complainant to break their contracts with him by agreeing to indemnify who breaks his contracts of employment may be adjoined from including other employees to break their contracts and enter into new contracts with a new employer of the servant who first broke his contract. But the remedy by injunction cannot be used to restrain a legitimate competition, though such competition would involve the violation of a contract. Nor will equity ordinarily enjoin employees who have quit the service of their employer from attempting by proper argument to persuade others from taking their places so long as they do not resort to force or intimidations on obstruct the public thoroughfares. Beekman vs. Marster, supra, is practically on all fours with the case at bar in that there was only one contract in question and the profits of the injured person depended upon the patronage of the public. Hamby &Toomer vs. Georgia Iron & Coal Co., supra, is also similar to the case at bar in that there was only one contract, the interference of which was stopped by injunction. For the foregoing reasons the judgment is affirmed, with costs, against the appellants. Arellano, C.J., Torres, Carson and Araullo, JJ., concur. Separate Opinions MORELAND, J., concurring: The court seems to be of the opinion that the action is one for a permanent injunction; whereas, under my view of the case, it is one for specific performance. The facts are simple. C. S. Gilchrist, the plaintiff, proprietor of the Eagle Theater of Iloilo, contracted with E. A. Cuddy, one of the defendants, of Manila, for a film entitled Zigomar or Eelskin, 3d series, to be exhibited in his theater in Iloilo during the week beginning May 26, 1913. Later, the defendants Espejo and Zaldarriaga, who were also operating a theater in Iloilo, representing PatheFreres, also obtained from Cuddy a contract for the exhibition of the film aforesaid in their theater in Iloilo during the same week. The plaintiff commenced this action against Cuddy and the defendants Espejo and Zaldarriaga for the specific performance of the contract with Cuddy. The complaint prays that the court, by a mandatory injunction, order Cuddy to deliver, on the 24th of May, 1913, in accordance with the aforesaid contract, the said film Zigomar, 3d series, or Eelskin, to the

plaintiff Gilchrist, in accordance with the terms of the agreement, so that plaintiff can exhibit the same during the last week beginning May 26, 1913, in the Eagle Theater, in Iloilo; that the court issue a preliminary injunction against the defendants Espejo and Zaldarriaga prohibiting them from receiving, exhibiting, or using said film in Iloilo during the last week of May, 1913, or at any other time prior to the delivery to the plaintiff; that, on the trial, said injunction be made perpetual and that Cuddy be ordered and commanded to specifically perform his contract with the plaintiff. On the filing of the complaint the plaintiff made an application for a mandatory injunction compelling the defendant Cuddy to deliver to plaintiff the film in question by mailing it to him from Manila on the 24th of May so that it would reach Iloilo for exhibition on the 26th; and for a preliminary restraining order against the order two defendants prohibiting them from receiving or exhibiting the said film prior to its exhibition by plaintiff. The court, on this application, entered an order which provided that Cuddy should not send said film Zigomar, 3d series, or Eelskin, to the defendants Espejo and Zaldarriaga and that he should send it to the plaintiff, Gilchrist, on the 24th day of May, 1913, in the mail for Iloilo, This order was duly served on the defendants, including Cuddy, in whose possession the film still was, and, in compliance therewith Cuddy mailed the film to the plaintiff at Iloilo on the 24th of May. The latter duly received it and exhibited it without molestation during the week beginning the 26th of May in accordance with the contract which he claimed to have made with Cuddy. The defendants Espejo and Zaldarriaga having received due notice of the issuance of the mandatory injunction and restraining order of the 22d of May, appeared before the court on the 26th of May and moved that the court vacate so much of the order as prohibited them from receiving and exhibiting the film. In other words, while the order of the 22d of May was composed of two parts, one a mandatory order for immediate specific performance of the plaintiffs contract with the defendant Cuddy, and the other a preliminary restraining order directed to Espejo and Zaldarriaga prohibiting them from receiving and exhibiting the film during the week beginning the 26th of May, their motion of the 26th of May referred exclusively to the injunction against them and touched in no way that portion of the order which required the immediate performance by Cuddy of his contract with Gilchrist. Indeed, the defendants Espejo and Zaldarriaga did not even except to the order requiring Cuddy to specifically perform his agreement with the plaintiff nor did they in any way make an objection to or show their disapproval of it. It was not excepted to or appealed from and is not before this court for review. The motion of Espejo and Zaldarriaga to vacate the injunction restraining them from receiving the film was denied on the 26th of May. After the termination of the week beginning May 26th, and after the exhibition of the film by the plaintiff in accordance with the alleged contract with Cuddy, the plaintiff came into court and moved that, in view of the fact that he had already obtained all that he desired to obtain or could obtain by his action, namely, the exhibition of the film in question during the week beginning May 26th, there was no reason for continuing it and moved for its dismissal. To this motion Cuddy consented and the action was dismissed as to him. But the other defendants objected to the dismissal of the action on the ground that they desired to present to the court evidence showing the damages which they had suffered by reason of the issuance of the preliminary injunction prohibiting them from receiving and exhibiting the film in question during the week beginning May 26. The court sustained their objection and declined to dismiss the action as to them, and, on the 8th of August, heard the evidence as to damages. He denied defendants the relief asked for and dismissed their claim for damages. They thereupon took an appeal from that order, and that is the appeal which we have now before us and which is the subject of the opinion of the court with which I am concurring. We thus have this strange condition: An action for specific performance of a contract to deliver a film for exhibition during a given time.A preliminary mandatory injunction ordering the delivery of the film in accordance with the contract.The delivery of the film in accordance with the preliminary mandatory injunction.The actual exhibition of the film during the time specified in the contract. No objection to the issuance of the mandatory injunction, to the delivery of the film, or to the ground that the plaintiff had obtained full relief by means of the so-called preliminary remedy by virtue of which the contract was actually specifically performed before the action was tried . No objection or exception to the order requiring the specific performance of the contract. Under such conditions it is possible for the defendant Espejo and Zaldarriaga to secure damages for the wrongful issuance of the preliminary injunction directed against them even though it be admitted that it was erroneously issued and that there was no ground therefor whatever? It seems to me that it is not. At the time this action was begun the film, as we have seen, was in the possession of Cuddy and, while in his possession, he complied with a command of the court to deliver it to plaintiff. In pursuance of that command he delivered it to plaintiff, who used it during the time specified in his contract with Cuddy; or, in other words, he made such use of it as he desired and then returned it to Cuddy. This order and the delivery of the film under it were made in an action in which the defendants Espejo and Zaldarriaga were parties, without objection on their part and without objection or exception to the order. The film having been delivered to defendants competitor, the plaintiff, under a decree of the court to which they made no objection and took no exception and from which they have not appealed, what injury

can they show by reason of the injunction restraining them from making use of the film? If they themselves, by their conduct, permitted the plaintiff to make it impossible for them to gain possession of the film and to use it, then the preliminary injunction produced no injury for the reason that no harm can result from restraining a party from doing a thing which, without such restraint, it would be impossible for him to do. Moreover, the order for the delivery of the film to plaintiff was a complete determination of the rights of the parties to the film which, while the court had no right to make, nevertheless, was valid and binding on all the parties, none of them objecting or taking exception thereto. Being a complete determination of the rights of the parties to the action, it should have been the first point attacked by the defendants, as it foreclosed them completely and, if left in force, eliminating every defense. This order was made on May 22d and was not excepted to or appealed from. On the 8th of August following the defendants appealed from the order dismissing their claim to damages but the order for the delivery of the film to plaintiff was final at that time and is now conclusive on this court. Section 143 of the Code of Civil Procedure, providing for appeals by bill of exceptions, provides that upon the rendition of final judgment disposing of the action, either party shall have the right to perfect a bill of exceptions for a review by the Supreme Court of all rulings, orders, and judgment made in the action, to which the party has duly excepted at the time of making such ruling, order, or judgment. While the order for the delivery of the film to plaintiff was in one sense a preliminary order, it was in reality a final determination of the rights of the parties to the film, as it ordered the delivery thereof to plaintiff for his use. If it had been duly excepted to, its validity could have been attacked in an appeal from the final judgment thereafter entered in the action. Not having been excepted to as required by the section just referred to, it became final and conclusive on all the parties to the action, and when, on the 8th day of August following, the defendants presented their claim for damages based on the alleged wrongful issuance of a temporary restraining order, the whole foundation of their claim had disappeared by virtue of the fact that the execution of the order of the 22d of May had left nothing for them to litigate. The trial court, on the 8th of August, would have been fully justified in refusing to hear the defendants on their claim for damages. Their right thereto had been adjudicated on the 22d of May and that adjudication had been duly put into execution without protest, objection or exception, and was, therefore, final and conclusive on them on the 8th of August. I have presented this concurring opinion in an attempt to prevent confusion, if any, which might arise from the theory on which the court decides this case. It seems to me impossible that the action can be one for a permanent injunction. The very nature of the case demonstrates that a permanent injunction is out of the question. The only thing that plaintiff desired was to be permitted to use the film for the week beginning the 26th of May. With the termination of that week his rights expired. After that time Cuddy was perfectly free to turn the film over to the defendants Espejo and Zaldarriaga for exhibition at any time. An injunction permanently prohibiting the defendants from exhibiting the film in Iloilo would have been unjustifiable, as it was something that plaintiff did not ask and did not want; and would have been an invasion of the rights of Cuddy as, after the termination of the week beginning May 26, he was at liberty, under his contract with plaintiff, to rent the film to the defendants Espejo and Zaldarriaga and permit its exhibition in Iloilo at any time. The plaintiff never asked to have defendants permanently enjoined from exhibiting the film in Iloilo and no party to the action has suggested such thing. The action is one for specific performance purely; and while the court granted plaintiff rights which should have been granted only after a trial of the action, nevertheless, such right having been granted before trial and none of the defendants having made objection or taken exception thereto, and the order granting them having become final, such order became a final determination of the action, by reason of the nature of the action itself, the rights of the parties became thereby finally determined and the defendants Espejo and Zaldarriaga, being parties to the action, were precluded from further litigation relative to the subject matter of the controversy. No damages are claimed by reason of the issuance of the mandatory injunction under which the film was delivered to plaintiff and used by him during the week beginning the 26th of May. While the opinion says in the first paragraph that the action is for damages against the plaintiff for the alleged wrongful issuance of a mandatory and preliminary injunction, the opinion also says in a latter portion that It will be unnecessary for us to inquire whether the mandatory injunction against Cuddy was properly issued or not. No question is raised with reference to the issuance of that injunction; and still later it is also stated that as to whether or not the mandatory injunction should have been issued, we are not, as we have said, called upon to determine. I repeat that no objection was made by the defendants to the issuance of the mandatory injunction, no exception was taken to the order on which it was issued and no appeal has been taken therefrom. That order is now final and conclusive and was at the time this appeal was taken. That being so, the rights of the defendants were foreclosed thereby. The defendants Espejo and Zaldarriaga cannot now be heard to say that they were damaged by the issuance of the preliminary restraining injunction issued on the same day as the mandatory injunction. From what has been said it is clear, it seems to me, that the question of a breach of contract by inducement, which is substantially the only question discussed and decided, is not in the case in reality and, in my judgment, should not be touched upon. Courts will not proceed with a litigation and

discuss and decided question which might possibly be involved in the case when it clearly appears that there remains nothing about which to litigate, the whole subject matter of the original action having been settled and the parties having no real controversy to present. At the time the defendants Espejo and Zaldarriaga offered their claim for damages arising out of the wrongful issuance of the restraining order, there was nothing between them and the plaintiff to litigate, the rightfulness of plaintiffs demand having already been finally adjudicated and determined in the same action. G.R. No. 120554 September 21, 1999 SO PING BUN, petitioner, vs. COURT OF APPEALS, TEK HUA ENTERPRISES CORP. and MANUEL C. TIONG, respondents. QUISUMBING, J.: This petition for certiorari challenges the Decision 1 of the Court of Appeals dated October 10, 1994, and the Resolution 2 dated June 5, 1995, in CA-G.R. CV No. 38784. The appellate court affirmed the decision of the Regional Trial Court of Manila, Branch 35, except for the award of attorney's fees, as follows: WHEREFORE, foregoing considered, the appeal of respondent-appellant So Ping Bun for lack of merit is DISMISSED. The appealed decision dated April 20, 1992 of the court a quo is modified by reducing the attorney's fees awarded to plaintiff TekHua Enterprising Corporation from P500,000.00 to P200,000.00. 3 The facts are as follows: In 1963, TekHua Trading Co, through its managing partner, So PekGiok, entered into lease agreements with lessor Dee C. Chuan& Sons Inc. (DCCSI). Subjects of four (4) lease contracts were premises located at Nos. 930, 930-Int., 924-B and 924-C, Soler Street, Binondo, Manila. TekHua used the areas to store its textiles. The contracts each had a one-year term. They provided that should the lessee continue to occupy the premises after the term, the lease shall be on a month-to-month basis. When the contracts expired, the parties did not renew the contracts, but TekHua continued to occupy the premises. In 1976, TekHua Trading Co. was dissolved. Later, the original members of TekHua Trading Co. including Manuel C. Tiong, formed TekHua Enterprising Corp., herein respondent corporation. So PekGiok, managing partner of TekHua Trading, died in 1986. So PekGiok's grandson, petitioner So Ping Bun, occupied the warehouse for his own textile business, Trendsetter Marketing. On August 1, 1989, lessor DCCSI sent letters addressed to TekHua Enterprises, informing the latter of the 25% increase in rent effective September 1, 1989. The rent increase was later on reduced to 20% effective January 1, 1990, upon other lessees' demand. Again on December 1, 1990, the lessor implemented a 30% rent increase. Enclosed in these letters were new lease contracts for signing. DCCSI warned that failure of the lessee to accomplish the contracts shall be deemed as lack of interest on the lessee's part, and agreement to the termination of the lease. Private respondents did not answer any of these letters. Still, the lease contracts were not rescinded. On March 1, 1991, private respondent Tiong sent a letter to petitioner which reads as follows: March 1, 1991 Mr. So Ping Bun 930 Soler Street Binondo, Manila Dear Mr. So, Due to my closed (sic) business associate (sic) for three decades with your late grandfather Mr. So PekGiok and late father, Mr. So Chong Bon, I allowed you temporarily to use the warehouse of TekHua Enterprising Corp. for several years to generate your personal business. Since I decided to go back into textile business, I need a warehouse immediately for my stocks. Therefore, please be advised to vacate all your stocks in TekHua Enterprising Corp. Warehouse. You are hereby given 14 days to vacate the premises unless you have good reasons that you have the right to stay. Otherwise, I will be constrained to take measure to protect my interest. Please give this urgent matter your preferential attention to avoid inconvenience on your part. Very truly yours, (Sgd) Manuel C. Tiong MANUEL C. TIONG President 4 Petitioner refused to vacate. On March 4, 1992, petitioner requested formal contracts of lease with DCCSI in favor Trendsetter Marketing. So Ping Bun claimed that after the death of his grandfather, So PekGiok, he had been occupying the premises for his textile business and religiously paid rent. DCCSI acceded to petitioner's request. The lease contracts in favor of Trendsetter were executed. In the suit for injunction, private respondents pressed for the nullification of the lease contracts between DCCSI and petitioner. They also claimed damages. After trial, the trial court ruled: WHEREFORE, judgment is rendered: 1. Annulling the four Contracts of Lease (Exhibits A, A-1 to A-3, inclusive) all dated March 11, 1991, between defendant So Ping Bun, doing business under the name and style of "Trendsetter Marketing", and defendant Dee

C. Chuan& Sons, Inc. over the premises located at Nos. 924-B, 924-C, 930 and 930, Int., respectively, Soler Street, Binondo Manila; 2. Making permanent the writ of preliminary injunction issued by this Court on June 21, 1991; 3. Ordering defendant So Ping Bun to pay the aggrieved party, plaintiff TekHua Enterprising Corporation, the sum of P500,000.00, for attorney's fees; 4. Dismissing the complaint, insofar as plaintiff Manuel C. Tiong is concerned, and the respective counterclaims of the defendant; 5. Ordering defendant So Ping Bun to pay the costs of this lawsuit; This judgment is without prejudice to the rights of plaintiff TekHua Enterprising Corporation and defendant Dee C. Chuan& Sons, Inc. to negotiate for the renewal of their lease contracts over the premises located at Nos. 930, 930-Int., 924-B and 924-C Soler Street, Binondo, Manila, under such terms and conditions as they agree upon, provided they are not contrary to law, public policy, public order, and morals. SO ORDERED. 5 Petitioner's motion for reconsideration of the above decision was denied. On appeal by So Ping Bun, the Court of Appeals upheld the trial court. On motion for reconsideration, the appellate court modified the decision by reducing the award of attorney's fees from five hundred thousand (P500,000.00) pesos to two hundred thousand (P200,000.00) pesos. Petitioner is now before the Court raising the following issues: I. WHETHER THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL COURT'S DECISION FINDING SO PING BUN GUILTY OF TORTUOUS INTERFERENCE OF CONTRACT? II. WHETHER THE APPELLATE COURT ERRED IN AWARDING ATTORNEY'S FEES OF P200,000.00 IN FAVOR OF PRIVATE RESPONDENTS. The foregoing issues involve, essentially, the correct interpretation of the applicable law on tortuous conduct, particularly unlawful interference with contract. We have to begin, obviously, with certain fundamental principles on torts and damages. Damage is the loss, hurt, or harm which results from injury, and damages are the recompense or compensation awarded for the damage suffered. 6 One becomes liable in an action for damages for a nontrespassory invasion of another's interest in the private use and enjoyment of asset if (a) the other has property rights and privileges with respect to the use or enjoyment interfered with, (b) the invasion is substantial, (c) the defendant's conduct is a legal cause of the invasion, and (d) the invasion is either intentional and unreasonable or unintentional and actionable under general negligence rules. 7 The elements of tort interference are: (1) existence of a valid contract; (2) knowledge on the part of the third person of the existence of contract; and (3) interference of the third person is without legal justification or excuse. 8 A duty which the law of torts is concerned with is respect for the property of others, and a cause of action ex delicto may be predicated upon an unlawful interference by one person of the enjoyment by the other of his private property. 9 This may pertain to a situation where a third person induces a party to renege on or violate his undertaking under a contract. In the case before us, petitioner's Trendsetter Marketing asked DCCSI to execute lease contracts in its favor, and as a result petitioner deprived respondent corporation of the latter's property right. Clearly, and as correctly viewed by the appellate court, the three elements of tort interference abovementioned are present in the instant case. Authorities debate on whether interference may be justified where the defendant acts for the sole purpose of furthering his own financial or economic interest. 10 One view is that, as a general rule, justification for interfering with the business relations of another exists where the actor's motive is to benefit himself. Such justification does not exist where his sole motive is to cause harm to the other. Added to this, some authorities believe that it is not necessary that the interferer's interest outweigh that of the party whose rights are invaded, and that an individual acts under an economic interest that is substantial, not merely de minimis, such that wrongful and malicious motives are negatived, for he acts in selfprotection. 11 Moreover justification for protecting one's financial position should not be made to depend on a comparison of his economic interest in the subject matter with that of others. 12 It is sufficient if the impetus of his conduct lies in a proper business interest rather than in wrongful motives. 13 As early as Gilchrist vs. Cuddy, 14 we held that where there was no malice in the interference of a contract, and the impulse behind one's conduct lies in a proper business interest rather than in wrongful motives, a party cannot be a malicious interferer. Where the alleged interferer is financially interested, and such interest motivates his conduct, it cannot be said that he is an officious or malicious intermeddler. 15 In the instant case, it is clear that petitioner So Ping Bun prevailed upon DCCSI to lease the warehouse to his enterprise at the expense of respondent corporation. Though petitioner took interest in the property of respondent corporation and benefited from it, nothing on record imputes deliberate wrongful motives or malice on him. Sec. 1314 of the Civil Code categorically provides also that, "Any third person who induces another to violate his contract shall be liable for damages to the other contracting party." Petitioner argues that damage is an essential element of tort interference, and since the trial court and the appellate court ruled that private respondents were not entitled to actual, moral or exemplary damages, it follows that he ought to be absolved of any liability, including attorney's fees. It is true that the lower courts did not award damages, but this was only because the extent of damages was not quantifiable. We had a similar

situation in Gilchrist, where it was difficult or impossible to determine the extent of damage and there was nothing on record to serve as basis thereof. In that case we refrained from awarding damages. We believe the same conclusion applies in this case. While we do not encourage tort interferers seeking their economic interest to intrude into existing contracts at the expense of others, however, we find that the conduct herein complained of did not transcend the limits forbidding an obligatory award for damages in the absence of any malice. The business desire is there to make some gain to the detriment of the contracting parties. Lack of malice, however, precludes damages. But it does not relieve petitioner of the legal liability for entering into contracts and causing breach of existing ones. The respondent appellate court correctly confirmed the permanent injunction and nullification of the lease contracts between DCCSI and Trendsetter Marketing, without awarding damages. The injunction saved the respondents from further damage or injury caused by petitioner's interference. Lastly, the recovery of attorney's fees in the concept of actual or compensatory damages, is allowed under the circumstances provided for in Article 2208 of the Civil Code. 16 One such occasion is when the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest. 17 But we have consistently held that the award of considerable damages should have clear factual and legal bases. 18 In connection with attorney's fees, the award should be commensurate to the benefits that would have been derived from a favorable judgment. Settled is the rule that fairness of the award of damages by the trial court calls for appellate review such that the award if far too excessive can be reduced. 19 This ruling applies with equal force on the award of attorney's fees. In a long line of cases we said, "It is not sound policy to place in penalty on the right to litigate. To compel the defeated party to pay the fees of counsel for his successful opponent would throw wide open the door of temptation to the opposing party and his counsel to swell the fees to undue proportions." 20 Considering that the respondent corporation's lease contract, at the time when the cause of action accrued, ran only on a month-to-month basis whence before it was on a yearly basis, we find even the reduced amount of attorney's fees ordered by the Court of Appeals still exorbitant in the light of prevailing jurisprudence. 21 Consequently, the amount of two hundred thousand (P200,000.00) awarded by respondent appellate court should be reduced to one hundred thousand (P100,000.00) pesos as the reasonable award or attorney's fees in favor of private respondent corporation. WHEREFORE, the petition is hereby DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 38784 are hereby AFFIRMED, with MODIFICATION that the award of attorney's fees is reduced from two hundred thousand (P200,000.00) to one hundred thousand (P100,000.00) pesos. No pronouncement as to costs.1wphi1.nt SO ORDERED. Bellosillo, Mendoza and Buena, JJ., concur. LIABILITY OF LOCAL GOVERNMENT UNITS ARTICLE 2189 Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. SECOND DIVISION G.R. No. 61516 March 21, 1989 FLORENTINA A. GUILATCO, petitioner, vs. CITY OF DAGUPAN, and the HONORABLE COURT OF APPEALS, respondents. Nolan R. Evangelista for petitioner. The City Legal Officer for respondents. SARMIENTO, J.: In a civil action 1 for recovery of damages filed by the petitioner Florentina A. Guilatco, the following judgment was rendered against the respondent City of Dagupan: x xx (1) Ordering defendant City of Dagupan to pay plaintiff actual damages in the amount of P 15,924 (namely P8,054.00 as hospital, medical and other expenses [Exhs. H to H-60], P 7,420.00 as lost income for one (1) year [Exh. F] and P 450.00 as bonus). P 150,000.00 as moral damages, P 50,000.00 as exemplary damages, and P 3,000.00 as attorney's fees, and litigation expenses, plus costs and to appropriate through its SangguniangPanglunsod (City Council) said amounts for said purpose; (2) Dismissing plaintiffs complaint as against defendant City Engr. Alfredo G. Tangco; and (3) Dismissing the counterclaims of defendant City of Dagupan and defendant City Engr. Alfredo G. Tangco, for lack of merit. 2 The facts found by the trial court are as follows: 3 It would appear from the evidences that on July 25, 1978, herein plaintiff, a Court Interpreter of Branch III, CFI--Dagupan City, while she was about to board a motorized tricycle at a sidewalk located at Perez Blvd. (a National Road, under the control and supervision of the City of Dagupan) accidentally fell into a manhole located on said sidewalk, thereby causing her right leg to be fractured. As a result thereof, she had to be hospitalized, operated on, confined, at first at the Pangasinan Provincial Hospital, from July 25 to August 3, 1978 (or for a period of 16 days). She also incurred hospitalization, medication and other expenses to the tune

of P 8,053.65 (Exh. H to H-60) or a total of P 10,000.00 in all, as other receipts were either lost or misplaced; during the period of her confinement in said two hospitals, plaintiff suffered severe or excruciating pain not only on her right leg which was fractured but also on all parts of her body; the pain has persisted even after her discharge from the Medical City General Hospital on October 9, 1978, to the present. Despite her discharge from the Hospital plaintiff is presently still wearing crutches and the Court has actually observed that she has difficulty in locomotion. From the time of the mishap on July 25, 1978 up to the present, plaintiff has not yet reported for duty as court interpreter, as she has difficulty of locomotion in going up the stairs of her office, located near the city hall in Dagupan City. She earns at least P 720.00 a month consisting of her monthly salary and other means of income, but since July 25, 1978 up to the present she has been deprived of said income as she has already consumed her accrued leaves in the government service. She has lost several pounds as a result of the accident and she is no longer her former jovial self, she has been unable to perform her religious, social, and other activities which she used to do prior to the incident. Dr. Norberto Felix and Dr. DominadoManzano of the Provincial Hospital, as well as Dr. Antonio Sison of the Medical City General Hospital in Mandaluyong Rizal (Exh. I; see also Exhs. F, G, G-1 to G-19) have confirmed beyond shadow of any doubt the extent of the fracture and injuries sustained by the plaintiff as a result of the mishap. On the other hand, Patrolman Claveria, De Asis and Cerezo corroborated the testimony of the plaintiff regarding the mishap and they have confirmed the existence of the manhole (Exhs. A, B, C and sub-exhibits) on the sidewalk along Perez Blvd., at the time of the incident on July 25, 1978 which was partially covered by a concrete flower pot by leaving gaping hole about 2 ft. long by 1 1/2 feet wide or 42 cms. wide by 75 cms. long by 150 cms. deep (see Exhs. D and D-1). Defendant Alfredo Tangco, City Engineer of Dagupan City and admittedly ex-officio Highway Engineer, City Engineer of the Public Works and Building Official for Dagupan City, admitted the existence of said manhole along the sidewalk in Perez Blvd., admittedly a National Road in front of the Luzon Colleges. He also admitted that said manhole (there are at least 11 in all in Perez Blvd.) is owned by the National Government and the sidewalk on which they are found along Perez Blvd. are also owned by the National Government. But as City Engineer of Dagupan City, he supervises the maintenance of said manholes or drainage system and sees to it that they are properly covered, and the job is specifically done by his subordinates, Mr. Santiago de Vera (Maintenance Foreman) and Engr. Ernesto Solermo also a maintenance Engineer. In his answer defendant Tangco expressly admitted in par. 7-1 thereof, that in his capacity as exofficio Highway Engineer for Dagupan City he exercises supervision and control over National roads, including the Perez Blvd. where the incident happened. On appeal by the respondent City of Dagupan, the appellate court 4 reversed the lower court findings on the ground that no evidence was presented by the plaintiff- appellee to prove that the City of Dagupan had "control or supervision" over Perez Boulevard. 5 The city contends that Perez Boulevard, where the fatal drainage hole is located, is a national road that is not under the control or supervision of the City of Dagupan. Hence, no liability should attach to the city. It submits that it is actually the Ministry of Public Highways that has control or supervision through the Highway Engineer which, by mere coincidence, is held concurrently by the same person who is also the City Engineer of Dagupan. After examination of the findings and conclusions of the trial court and those of the appellate court, as well as the arguments presented by the parties, we agree with those of the trial court and of the petitioner. Hence, we grant the petition. In this review on certiorari, we have simplified the errors assigned by the petitioner to a single issue: whether or not control or supervision over a national road by the City of Dagupan exists, in effect binding the city to answer for damages in accordance with article 2189 of the Civil Code. The liability of public corporations for damages arising from injuries suffered by pedestrians from the defective condition of roads is expressed in the Civil Code as follows: Article 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. It is not even necessary for the defective road or street to belong to the province, city or municipality for liability to attach. The article only requires that either control or supervision is exercised over the defective road or street. 6 In the case at bar, this control or supervision is provided for in the charter of Dagupan and is exercised through the City Engineer who has the following duties: Sec. 22. The City Engineer--His powers, duties and compensation-There shall be a city engineer, who shall be in charge of the department of Engineering and Public Works. He shall receive a salary of not exceeding three thousand pesos per annum. He shall have the following duties: x xx (j) He shall have the care and custody of the public system of waterworks and sewers, and all sources of water supply, and shall control, maintain and regulate the use of the same, in accordance with the ordinance relating thereto; shall inspect and regulate the use of all private systems for supplying water to the city and its inhabitants, and all private sewers, and their connection with the public sewer system. x xx

The same charter of Dagupan also provides that the laying out, construction and improvement of streets, avenues and alleys and sidewalks, and regulation of the use thereof, may be legislated by the Municipal Board .7 Thus the charter clearly indicates that the city indeed has supervision and control over the sidewalk where the open drainage hole is located. The express provision in the charter holding the city not liable for damages or injuries sustained by persons or property due to the failure of any city officer to enforce the provisions of the charter, can not be used to exempt the city, as in the case at bar.8 The charter only lays down general rules regulating the liability of the city. On the other hand article 2189 applies in particular to the liability arising from "defective streets, public buildings and other public works." 9 The City Engineer, Mr. Alfredo G. Tangco, admits that he exercises control or supervision over the said road. But the city can not be excused from liability by the argument that the duty of the City Engineer to supervise or control the said provincial road belongs more to his functions as an exofficio Highway Engineer of the Ministry of Public Highway than as a city officer. This is because while he is entitled to an honorarium from the Ministry of Public Highways, his salary from the city government substantially exceeds the honorarium. We do not agree. Alfredo G. Tangco "(i)n his official capacity as City Engineer of Dagupan, as Ex- Officio Highway Engineer, as Ex-Officio City Engineer of the Bureau of Public Works, and, last but not the least, as Building Official for Dagupan City, receives the following monthly compensation: P 1,810.66 from Dagupan City; P 200.00 from the Ministry of Public Highways; P 100.00 from the Bureau of Public Works and P 500.00 by virtue of P.D. 1096, respectively." 10 This function of supervision over streets, public buildings, and other public works pertaining to the City Engineer is coursed through a Maintenance Foreman and a Maintenance Engineer. 11 Although these last two officials are employees of the National Government, they are detailed with the City of Dagupan and hence receive instruction and supervision from the city through the City Engineer. There is, therefore, no doubt that the City Engineer exercises control or supervision over the public works in question. Hence, the liability of the city to the petitioner under article 2198 of the Civil Code is clear. Be all that as it may, the actual damages awarded to the petitioner in the amount of P 10,000.00 should be reduced to the proven expenses of P 8,053.65 only. The trial court should not have rounded off the amount. In determining actual damages, the court can not rely on "speculation, conjecture or guess work" as to the amount. Without the actual proof of loss, the award of actual damages becomes erroneous. 12 On the other hand, moral damages may be awarded even without proof of pecuniary loss, inasmuch as the determination of the amount is discretionary on the court.13 Though incapable of pecuniary estimation, moral damages are in the nature of an award to compensate the claimant for actual injury suffered but which for some reason can not be proven. However, in awarding moral damages, the following should be taken into consideration: (1) First, the proximate cause of the injury must be the claimee's acts. 14 (2) Second, there must be compensatory or actual damages as satisfactory proof of the factual basis for damages. 15 (3) Third, the award of moral damages must be predicated on any of the cases enumerated in the Civil Code. 16 In the case at bar, the physical suffering and mental anguish suffered by the petitioner were proven. Witnesses from the petitioner's place of work testified to the degeneration in her disposition-from being jovial to depressed. She refrained from attending social and civic activities. 17 Nevertheless the award of moral damages at P 150,000.00 is excessive. Her handicap was not permanent and disabled her only during her treatment which lasted for one year. Though evidence of moral loss and anguish existed to warrant the award of damages, 18 the moderating hand of the law is called for. The Court has time and again called attention to the reprehensible propensity of trial judges to award damages without basis,19 resulting in exhorbitant amounts. 20 Although the assessment of the amount is better left to the discretion of the trial court 21 under preceding jurisprudence, the amount of moral damages should be reduced to P 20,000.00. As for the award of exemplary damages, the trial court correctly pointed out the basis: To serve as an example for the public good, it is high time that the Court, through this case, should serve warning to the city or cities concerned to be more conscious of their duty and responsibility to their constituents, especially when they are engaged in construction work or when there are manholes on their sidewalks or streets which are uncovered, to immediately cover the same, in order to minimize or prevent accidents to the poor pedestrians.22 Too often in the zeal to put up "public impact" projects such as beautification drives, the end is more important than the manner in which the work is carried out. Because of this obsession for showing off, such trivial details as misplaced flower pots betray the careless execution of the projects, causing public inconvenience and inviting accidents. Pending appeal by the respondent City of Dagupan from the trial court to the appellate court, the petitioner was able to secure an order for garnishment of the funds of the City deposited with the Philippine National Bank, from the then presiding judge, Hon. WillelmoFortun. This order for garnishment was revoked subsequently by the succeeding presiding judge, Hon. Romeo D. Magat, and became the basis for the petitioner's motion for reconsideration which was also denied. 23

We rule that the execution of the judgment of the trial court pending appeal was premature. We do not find any good reason to justify the issuance of an order of execution even before the expiration of the time to appeal .24 WHEREFORE, the petition is GRANTED. The assailed decision and resolution of the respondent Court of Appeals are hereby REVERSED and SET ASIDE and the decision of the trial court, dated March 12, 1979 and amended on March 13, 1979, is hereby REINSTATED with the indicated modifications as regards the amounts awarded: (1) Ordering the defendant City of Dagupan to pay the plaintiff actual damages in the amount of P 15,924 (namely P 8,054.00 as hospital, medical and other expenses; P 7,420.00 as lost income for one (1) year and P 450.00 as bonus); P 20,000.00 as moral damages and P 10,000.00 as exemplary damages. The attorney's fees of P 3,000.00 remain the same. SO ORDERED. Melencio-Herrera, (Chaiperson), Paras, Padilla and Regalado, JJ., concur. PRESUMPTION OF NEGLIGENCE ARTICLE 2185 Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. (n) ARTICLE 2188 There is prima facie presumption of negligence on the part of the defendant if the death or injury results from his possession of dangerous weapons or substances, such as firearms and poison, except when the possession or use thereof is indispensable in his occupation or business. (n) ARTICLE 2190 The proprietor of a building or structure is responsible for the damages resulting from its total or partial collapse, if it should be due to the lack of necessary repairs. (1907) ARTICLE 2191 Proprietors shall also be responsible for damages caused: (1) By the explosion of machinery which has not been taken care of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place; (2) By excessive smoke, which may be harmful to persons or property; (3) By the falling of trees situated at or near highways or lanes, if not caused by force majeure; (4) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place. (1908) ARTICLE 2192 Proprietors shall also be responsible for damages caused: (1) By the explosion of machinery which has not been taken care of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place; (2) By excessive smoke, which may be harmful to persons or property; (3) By the falling of trees situated at or near highways or lanes, if not caused by force majeure; (4) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place. (1908) ARTICLE 2193 The head of a family that lives in a building or a part thereof, is responsible for damages caused by things thrown or falling from the same. (1910) PERSONS LIABLE THE TORTFEASOR ARTICLE 2176 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. (1902a) ARTICLE 2181 Whoever pays for the damage caused by his dependents or employees may recover from the latter what he has paid or delivered in satisfaction of the claim. (1904) ARTICLE 2194 The responsibility of two or more persons who are liable for quasi-delict is solidary. (n) G.R. No. L-5932 February 27, 1912 DEAN C. WORCESTER, plaintiff-appellee, vs. MARTIN OCAMPO, TEODORO M. KALAW, LOPE K. SANTOS, FIDEL A. REYES, FAUSTINO AGUILAR, ET AL., defendants-appellants. Felipe Agoncillo for appellants. W. A. Kincaid and Thos. L. Hartigan for appellee. JOHNSON, J.: On the 23rd day of January, 1909, the plaintiff commenced an action against the defendants in the Court of First Instance of the city of Manila, for the purpose of recovering damages resulting from an alleged libelous publication. The complaint was in the following language: COMPLAINT. I. That the plaintiff as well as the defendants are residents of the city of Manila, Philippine Islands. II. That for a long time before the 30th of October, 1908, the defendants, Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Fidel A. Reyes, Faustino Aguilar, Leoncio G. Liquete , Manuel Palma, Arcadio Arellano, Angel Jose, GaloLichauco, Felipe Barretto, and Gregorio M. Cansipit, were the owners, directors, writers (redactores), editors (editores) and

administrators of a certain daily newspaper known as "El Renacimiento" and "MulingPagsilang," which newspaper during all the time mentioned in this complaint was published and circulated daily in the Spanish and Tagalog languages in the city of Manila, having a large circulation throughout the Philippine Islands. III. That for a long time the defendants have been maliciously persecuting and attacking the plaintiff in said newspaper, until at last on the 30th of October, 1908, with the malicious intention of injuring the plaintiff, who on said date was, and still is a member of the Civil Commission of the Philippines and Secretary of the Interior in the Government of the Philippines, they attacked the honesty and reviled the fame of the plaintiff, not only as a private person but also as an official of the Government of the Philippine Islands, and with the object of exposing him to the odium, contempt, and ridicule of the public, printed, wrote (redactaron), and published in said newspaper in its ordinary number of the 30th of October, 1908, a malicious defamation and false libel which was injurious (injurioso ) to the plaintiff, said libel reading as follows: "EDITORIAL. "BIRDS OF PREY. "On the surface of the globe some were born to eat and devour, others to be eaten and devoured. "Now and then the latter have bestirred themselves, endeavoring to rebel against an order of things which makes them the prey and food of the insatiable voracity of the former. At times they have been fortunate, putting to flight the eaters and devourers, but in the majority of cases they did not obtain but a change of name or plumage. "The situation is the same in all the spheres of creation: the relation between the ones and the others is that dictated by the appetite and the power to satisfy it at the fellow-creatures' expense. "Among men it is very easy to observe the development of this daily phenomenon. And for some psychological reason the nations who believe themselves powerful have taken the fiercest and most harmful creatures as emblems; it is either the lion, or the eagle, or the serpent. Some have done so by a secret impulse of affinity and others in the nature of simulation, of infatuated vanity, making themselves appear that which they are not nor ever can be. "The eagle, symbolizing liberty and strength, is the bird that has found the most adepts. And men, collectively and individually, have desired to copy and imitate the most rapacious bird in order to triumph in the plundering of their fellow-men. "There are men who, besides being eagles, have the characteristics of the vulture, the owl and the vampire. "Ascending the mountains of Benguet to classify and measure the skulls of the Igorots and study and civilize them and to espy in his flight, with the eye of the bird of prey, where are the large deposits of gold, the prey concealed amidst the lonely mountains, to appropriate them to himself afterwards, thanks to legal facilities made and unmade at will, but always for his own benefit. "Authorizing, despite laws and ordinances, an illegal slaughtering of diseased cattle in order to derive benefit from the infected and putrid meat which he himself was obliged to condemn by virtue of his official position. "Presenting himself on all occasions with the wrinkled brow of the scientist who consumes his life in the mysteries of the laboratory of science, when his whole scientific labor is confined o dissecting insects and importing fish eggs, as if the fish eggs of this country were less nourishing and less savory, so as to make it worth the while replacing them with species coming from other climes. "Giving an admirable impulse to the discovery of wealthy lodes in Mindoro, in Mindanao, and in other virgin regions of the Archipelago, with the money of the people, and under the pretext of the public good, when, as a strict matter of truth, the object is to possess all the data and the key to the national wealth for his essentially personal benefit, as is shown by the acquisition of immense properties registered under he names of others. "Promoting, through secret agents and partners, the sale to the city of worthless land at fabulous prices which the city fathers dare not refuse, from fear of displeasing the one who is behind the motion, and which they do not refuse for their own good. "Patronizing concessions for hotels on filled-in-land, with the prospects of enormous profits, at the expense of the blood of the people. "Such are the characteristics of the man who is at the same time an eagle who surprises and devours, a vulture who gorges himself on the dead and putrid meats, an owl who affects a petulent omniscience and a vampire who silently sucks the blood of the victim until he leaves it bloodless. "It is these birds of prey who triumph. Their flight and their aim are never thwarted. "Who will detain them? "Some share in the booty and the plunder. Others are too weak to raise a voice of protest. And others die in the disconsolating destruction of their own energies and interests. "And then there appears, terrifying, the immortal legend: "MANE, TECEL, PHARES." IV. That the plaintiff was, on the date of said publication, and still is, well known to the officials of the Government of the Philippine Islands, and to the inhabitants of the Philippine Islands, and to public in general, personally as well as a member of the Civil Commission of the Philippines and as Secretary of the Interior, and the defamation and libel, and the words, terms and language used in said defamation and libel were

employed by the said defendants with the intention of indicating the said plaintiff, and that should be understood, as in effect they were understood, by the public officials of the Government and the inhabitants of the Philippine Islands in general, as referring to the plaintiff, by reason of the publicly known fact that said plaintiff in compliance with his duties in his position as such member of the Civil Commission of the Philippines and as such Secretary of the Interior of the Philippine Islands, ascended on a previous occasion the mountains of the Province of Benguet to study the native tribe known as Igorot, residing in said region; by reason of the publicly known fact that in the said mountains of Benguet there exist large deposits of gold, and for the reason that, as member of the Civil Commission of the Philippines, which is the legislative body of the Philippine Islands, the plaintiff takes part in the enactment and repealing of laws in said Islands; by reason furthermore of the fact, publicly known, that the plaintiff, as such Secretary of the Interior of the Philippine Islands, has had under his direction and control the enforcement of the laws of the Philippine Islands and the ordinances of the city of Manila relating to the slaughtering of cattle; by reason furthermore of the fact, publicly known that said plaintiff, as such Secretary of the Interior of the Philippine Islands, had under his direction and control the Bureau of Science of the Government of the Philippine Islands, and he is generally known as a man devoted to the study of science; by reason furthermore of the publicly known fact that the said plaintiff, as such Secretary of the Interior of the Philippine Islands, at a previous time, caused the importation into the Philippine Islands of fish eggs for the purpose of supplying the mountain streams of the Philippine Islands with fish-hatcheries; by reason furthermore of the publicly known fact that said plaintiff, as such Secretary of the Interior of the Philippine Islands, has journeyed to and explored the Islands of Mindoro, Mindanao, and other regions of the Philippine Archipelago; by reason furthermore of the publicly known fact that said plaintiff, as such Secretary of the Interior of the Philippine Islands, at one time investigated and prepared a report for the Civil Commission of the Philippines in regard to a certain proposition for the purchase of a parcel of land for the city of Manila; by reason furthermore of the publicly known fact that said plaintiff, as member of said Civil Commission of the Philippines together with the other members of said legislative body, once opened negotiations with a certain firm engaged in the hotel business in regard to the location of a prospective hotel on one of the filled-in lands of the city of Manila. That said defendants charged said plaintiff with the prostitution of his office as member of the Civil Commission of the Philippines and as Secretary of the Interior of said Islands, for personal ends; with wasting public funds for the purpose of promoting his personal welfare; with the violation of the laws of the Philippine Islands and the ordinances of the city of Manila; with taking part in illegal combinations for the purpose of robbing the people; with the object of gain for himself and for others; and lastly with being "a bird of prey;" and that said defamation should be understood, as in effect it was understood, by the public officials of the Government and the people of the Philippine Islands in general, as charging the said plaintiff with the conduct, actions and things above specified; all of which allegations relating to the character and conduct of the said plaintiff, as above stated, were and are false and without any foundation whatsoever. That said defamation and libel were published by the defendants under a heading in large and showy type, and every effort made by said defendants to see that said defamation and libel should attract the attention of the public and be read by all the subscribers to said newspaper and the readers of the same. V. Besides assailing the integrity and reviling the reputation of the plaintiff, said defendants, in publishing the said libel, did so with the malicious intention of inciting the Filipino people to believe that the plaintiff was a vile despot and a corrupt person, unworthy of the position which he held, and for this reason to oppose his administration of the office in his charge as Secretary of the Interior, and in this way they endeavored to create enormous difficulties for him in the performance of his official duties, and to make him so unpopular that he would have to resign his office as member of the Civil Commission of the Philippines and Secretary of the Interior. In fact said defendants, by means of said libel and other false statements in said mentioned newspaper, have been deliberately trying to destroy the confidence of the public in the plaintiff and to incite the people to place obstacles in his way in the performance of his official duties, in consequence of which the plaintiff has met with a great many difficulties which have increased to a great extent his labors as a public official in every one of the Departments. VI. And for all these reasons the plaintiff alleges: That he has been damaged and is entitled to an indemnity for the additional work to which he has been put, by the said defendants, in the compliance of his duties, both in the past and the future, as well as for the injuries to his reputation and feelings, in the sum of fifty thousand pesos (P50,000) Philippine currency, and besides this said amount he is entitled to collect from the defendants the additional sum of fifty thousand pesos (P50,000) Philippine currency, in the way of punitive damages, as a warning to the defendants. Wherefore the plaintiff files this complaint, praying the court: (1) That the defendants be summoned according to law. (2) That judgment be rendered ordering the defendants to pay the damages as above stated, and the costs of the action. On the 23d of February, 1909, the defendants presented the following demurrer to the said complaint:

DEMURRER. Now come the defendants, through their undersigned attorney, and demur to the complaint filed herein, upon the following grounds: First, That the complaint is vague and unintelligible. Second. That the facts alleged in the complaint do not constitute a cause or right of action. Third. That there is another action pending between the plaintiff and several of the defendants for the same cause; and Fourth. That some of the defendants have been erroneously included therein. Therefore, they respectfully ask the court to dismiss the complaint, with costs against the plaintiff. On the 27th of February, 1909, the Honorable Charles S. Lobingier, judge, overruled said demurrer in the following decision, to which the defendants duly excepted: ORDER. The defendant demur upon several grounds: (1) The first ground is that the complaint is vague and unintelligible and this is directed principally to paragraph 2, in which it is alleged that the defendants were "dueos, directores, redactores", etc., but it is not alleged that they were such simultaneously. If this were the sole averment of the defendants' connection with the alleged libel, the objection might be well taken, but paragraph 3 of the complaint alleges that the defendants "imprimieron, redactaron y publicaron ", etc., the article complained of. Under section 2 of Act 277 "every person" who "publishes or procures to be published any belief is made responsible. (Cf. U.S. vs. Ortiz, 8 Phil. Rep., 752.) We think, therefore, that the connection of the defendants with the publication complained of is sufficiently charged. (2) It is also claimed that the facts alleged are not sufficient to state a cause of action and it is urged in support of this that the article complained of and which is copied in the complaint, fails to mention the plaintiff or to show on its face that it refers to him. It is, however, specifically alleged in paragraph 4 that the article was intended to refer to the plaintiff and was so understood by the public, and this allegation is admitted by the demurrer. Under the rule announced in Causin vs. Jakosalem (5 Phil. Rep., 155), where the words complained of do refer to the plaintiff "an action for libel may be maintained even though the defamatory publication does not refer to the plaintiff by name." (3) It is further argued that there is another action pending between the parties for the same cause. This, it is true, is made a ground for demurrer by the Code of Civil Procedure, sec. 91 (3), but like all grounds therein mentioned, it must "appear upon the face" of the pleading objected to, and where it does not so appear "the objection can only be taken by answer." (Code C. P., sec. 92.) There is no averment in the complaint which indicates that there is no another action pending. The fourth ground of the demurrer is not one recognized by law (Code C. P., sec. 91) nor do we find anything in Sanidad vs. Cabotaje (5 Phil. Rep., 204) which would necessitate any change in the views already expressed. The demurrer is, therefore, overruled and defendants are given the usual five days to answer. On the 15th day of November, 1909, the defendants presented their amended answer, which was as follows: ANSWER. The defendants in the above-entitled cause, through their undersigned attorney, by their answer to the complaint, state: That the defendants deny generally the allegation of the complaint. As a special defense, the defendants allege: First. That the plaintiff has no legal capacity to institute this action, as it clearly appears from the allegations of the complaint and which the defendants hereby deny. Second. That the facts are set out as constituting cause of action in the complaint, are insufficient to constitute such cause of action in favor of the plaintiff and against the defendants. Third. That the said complaint is manifestly improper, for the reason that there is now pending in the Court of First Instance of this city a criminal cause, No. 4295, for the crime of libel against the defendants herein, Martin Ocampo, Teodoro M. Kalaw, and Fidel A. Reyes, both actions, criminal and civil, being based upon the same facts which the plaintiffs herein, who is also a party to the said criminal action, now alleges as the basis of his action. Fourth. That the civil action in the above-entitled cause has been extinguished for the reason that plaintiff did not expressly reserve the right to enforce the same in the aforesaid cause 4295, for the crime of libel, after the said criminal cause had been finally disposed of. Fifth. That the defendants, Lope K. Santos, Faustino Aguilar, Leoncio G. Liquete, Manuel Palma, Arcadio Arellano, Angel Jose, GaloLichauco, Felipe Barretto, and Gregorio M. Cansipit, were erroneously included in the complaint for the simple reason that the first two were acquitted in said criminal cause No. 4295, for libel, the third was used as a witness for the prosecution in the said criminal cause, and the others have no interest, either directly or indirectly, in the newspaper "El Renacimiento" in which it is alleged by the plaintiff the editorial, which is the basis of the complaint, and which it is claimed to be libelous, was published. Wherefore the defendants pray that they be acquitted of the complaint, with the costs against the plaintiff. After hearing the evidence adduced during the trial of the cause, the arguments if the respective attorneys, the Honorable James C. Jenkins, judge, on the 14th of January, 1910, rendered the following decision: DECISION. This is a civil action sounding in damages to the amount of P100,000 for an alleged libel of the plaintiff by the defendants.

The plaintiff is the Honorable Dean C. Worcester, a member of the Civil Commission of the Philippine Islands, and Secretary of the Interior of Insular Government. The defendants are twelve persons designated by name in the complaint and alleged therein to be the owners, directors, writers (redactores), editors (editores), and administrators of a certain daily newspaper known as "El Renacimiento" and "MulingPagsilang," which defendants, as well as the plaintiff, are residents of the city of Manila, Philippine Islands. It is further alleged in the complaint that for a long time prior to the 30th of October, 1908, the defendants were the owners, directors, writers, editors, and administrators of said daily newspaper, and that said newspaper, during all the time mentioned in the complaint, was published and circulated daily in the Spanish and Tagalog languages in the city of Manila, having a large circulation throughout the Philippine Islands. It is also alleged that for a long time the defendants had been maliciously persecuting and attacking the plaintiff in said newspaper, until at last, on said date, with the malicious intention of injuring the plaintiff who then was still is a member of the Civil Commission of the Philippines and Secretary of the Interior in the Government of the Philippines, they attacked the integrity and reviled the reputation of the plaintiff, not only as a private citizen, but also as an official of the Government of the Philippine Islands; and with the object of exposing him to the odium, contempt, and ridicule of the public, they wrote, printed, and published in said newspaper in its ordinary number of the said 30th of October, 1908, a malicious defamation and false libel, which was injurious to the plaintiff, said libel, as translated from the Spanish, reading as follows: "EDITORIAL. "BIRDS OF PREY. "On the surface of the globe some were born to eat and devour, others to be eaten and devoured. "Now and then the latter have bestirred themselves, endeavoring to rebel against an order of things which makes them the prey and food of the insatiable voracity of the former. At times they have been fortunate, putting to flight the eaters and devourers, but in a majority of cases they do not obtain anything but a change of name or plumage. "The situation is the same in all spheres of creation; the relation between the ones and the others is that dictated by the appetite and the power to satisfy it at the fellow-creature's expense. "Among men it is easy to observe the development of this daily phenomenon. And for some psychological reason the nations who believe themselves powerful have taken the fiercest and most harmful creatures as emblems; it is either the lion, or the eagle, or the serpent. Some have done so by a secret impulse of affinity and others in the nature of simulation, of infatuated vanity, making themselves appear that which they are not nor ever will be. "The eagle, symbolizing liberty and strength, is the bird that has found the most adepts. And men, collectively and individually, have desired to copy and imitate the most rapacious bird in order to triumph in the plundering if their fellow-men. "There are men who, besides being eagles, have the characteristics of the vulture, the owl and the vampire. "Ascending the mountains of Benguet to classify and measure the skulls of the Igorots and study and civilize them, and to espy in his flight with the eye of the bird of prey, where are the large deposits of gold, the prey concealed amongst the lonely mountains, to appropriate them to himself afterwards, thanks to legal facilities made and unmade at will, but always for his own benefit. "Authorizing, despite laws and ordinances an illegal slaughtering of diseased cattle in order to derive benefit from the infected and putrid meat which he himself was obliged to condemn by virtue of his official position. "Presenting himself on all occasions with the wrinkled brow of the scientist who consumes his life in the mysteries of the laboratory of science, when his whole scientific labor is confined to dissecting insects and importing fish eggs, as if the fish eggs of this country were less nourishing and savory, so as to make it worth the while replacing them with species coming from other climes. "Giving an admirable impulse to the discovery of wealthy lodes in Mindanao, in Mindoro, and in other virgin regions of the archipelago, with the money of the people, and under the pretext of the public good, when, as a strict matter of truth, the object is to possess all the data and the key to the national wealth for his essentially personal benefit, as is shown by the acquisition of immense properties registered under the names of others. "Promoting through secret agents and partners, the sale of the city worthless land at fabulous prices which the city fathers dare not refuse from fear of displeasing the one who is behind the motion, and which they do not refuse to their own good. "Patronizing concessions for hotels on filled-in lands, with the prospects of enormous profits, at the expense of the blood of the people. "Such are the characteristics of the man who is at the same time an eagle who surprises and devours, a vulture who gorges himself on the dead and putrid meats, an owl who affects a petulant omniscience and a vampire who silently sucks the blood of the victim until he leaves it bloodless. "It is these birds of prey who triumph. Their flight and aim are never thwarted. "Who will detain them? "Some share in the body and plunder, Others are too weak to raise a voice to protest. And others die in the disconsolating destruction of their own energies and interests. "And then there appears, terrifying, the immortal legend:

"MANE, TECEL, PHARES." It is alleged, among other things, in paragraph four of the complaint, that the plaintiff was on the date of said publication, and still is, well known to the officials of the Government of the Philippine Islands, and to the inhabitants of the Philippine Islands, and to the public generally, personally as well as a member of the Civil Commission of the Philippines and as a Secretary of the Interior; and the defamation and libel, and the words, terms, and language used in said defamation and libel were employed by the said defendants with the intention of indicating the said plaintiff, and that they should be understood, as in fact they were understood, by the public officials of the Government and the inhabitants of the Philippine Islands in general, as referring to the plaintiff. (Here follow the reasons for saying the editorial referred to plaintiff and why the public understood it as referring to him.) The said defendants charged plaintiff with the prostitution of his office as a member of the Civil Commission of the Philippines and as Secretary of the Interior of said Islands, for personal ends; with wasting public funds for the purpose of promoting his personal welfare; and with the violation of the laws of the Philippine Islands and the ordinances of the city of Manila; with taking part in illegal combination of the purpose of robbing the people, with the object of gain for himself and for others; and lastly, with being a bird of prey, and that said defamation should be understood, as in effect it was understood by the public officials of the Government and the people of the Philippine Islands in general, as charging the said plaintiff with the conduct, actions and things above specified; all of which allegations relating to the character and conduct of the said plaintiff, as above stated, were and are false and without any foundation whatever. That said defamation and libel were published by the defendants under a heading in large and showy type, and every effort was made by said defendant to see that said defamation and libel should attract the attention of the public and be read by all the subscribers to said newspaper and the readers of the same. In paragraph five of the complaint it is further alleged that, besides assailing the integrity and reviling the reputation of the plaintiff, said defendants, in publishing said libel, did so with the malicious intention of inciting the Filipino to believe that the plaintiff was a vile despot and a corrupt person, unworthy of the position which he held, and for this reason to oppose of his administration of the office in his charge as Secretary of the Interior, and in this way they endeavored to create enormous difficulties for him in the performance of his official duties, and to make him so unpopular that he would have to resign his office as a member of the Civil Commission of the Philippines and Secretary of the Interior. In fact, said defendants, by means of said libel and other false statements in said mentioned newspaper, have been deliberately trying to destroy the confidence of the public in the plaintiff, and to in incite the people to place obstacles in his way in the performance of his official duties, in consequence of which said plaintiff has met with a great many difficulties which have increased to a great extent his labors as a public official in every one of the Departments. And the allegations end with paragraph six, in which the plaintiff states that for all these reasons has been damaged and is entitled to an indemnity for the additional work to which he has been put by said defendants in compliance with his duties, both in the past and in the future, as well as for the injuries to his reputation and feelings, in the sum, of P50,000, and that besides this said amount he is entitled to collect from the defendants the additional sum of fifty thousand pesos in the way of punitive damages, as a warning to the defendants. The complaint concludes with a prayer, among other things, that judgment be rendered ordering the defendants to pay the damages as above stated and the costs of the action; and is dated and signed, Manila, P.I., January 23, 1909, Hartigan and Rohde, Kincaid and Hurd, attorneys for plaintiff. A demurrer to this complaint was filed by the defendants, through their attorney, Sr. Felipe Agoncillo, which demurrer was heretofore heard and overruled by the Court, and the defendants required to answer. Accordingly, the defendants within the prescribed time, filed their answer; and on November 16, 1909, through their attorney, filed and amended answer, which is as follows (after stating the case): The defendants in the above-entitled action, through their undersigned attorney, answering the complaint, state: That they make a general denial of the allegations in the complaint, and as a special defense allege: "(1) That the plaintiff lacks the necessary personality to institute the complaint in question, as evidently appears from the allegations in the same, and which the defendants deny; "(2) That the facts set forth as a cause of action in the complaint are insufficient to constitute a cause of action in favor of the plaintiff and against the defendants; "(3) That the said complaint is in every sense contrary to law, criminal case No. 4295, for libel, against the defendants Martin Ocampo, Teodoro M. Kalaw, and Fidel A. Reyes, in the Court of First Instance of this city, being still pending, inasmuch as both causes, criminal and civil, are based upon the same facts which the plaintiff, who is also interested in said criminal cause, considers a cause of action; "(4) That the civil action in the above-entitled cause has been destroyed as a consequence of the fact that the plaintiff did not expressly reserve his right to the same in the said mentioned cause No. 4295 for libel, in order to exercise it after the termination of said criminal cause: "(5) That the defendants Lope K. Santos, Faustino Aguilar, Leoncio G. Liquete, Manuel Palma, Arcadio Arellano, Angel Jose, GaloLichauco, Felipe Barretto, and Gregorio M. Cansipit have been erroneously included in the complaint, for the simple reason that the first two were acquitted in said

cause No. 4295 for libel, the third was used as a witness by the prosecution in the same cause, and the latter ones have no interest, directly or indirectly, in the newspaper "El Renacimiento," in which the plaintiff presumes, was published the editorial which forms the basis of the complaint, and which is said to be libelous; and concluding with a prayer to the court to dismiss the case, with cost against the plaintiff." The second paragraph of this "special defense" is nothing other than a general demurrer to the complaint, which has been overruled, as already stated. The first paragraph is not clearly stated, but the court construes it as meaning a simple denial that the plaintiff is the person referred to in the alleged libelous article "Birds of Prey," which issue is sufficiently raised by the general denial of the allegations in the complaint. The third paragraph is not a valid defense in law, for the simple reason that section 11 of Act 277 of the Philippine Commission, under which this suit is brought, especially provides for a separate civil action for damages, as well as for a criminal prosecution. (See Mr. Justice Johnson's recent decision.) This third paragraph is therefore without merit; and the same may be said of the fourth paragraph thereof. As to paragraph five, it contains no material averment which could not have been set up and insisted upon under the general issue. One part if this so-called special defense is therefore a demurrer already and adjudicated, another part is covered by the general issue, and the residue is without merit as a legal defense, and might have been stricken out. The defense is therefore tantamount to the general issue only, there being no special plea that these charges are true, nor any plea of justification. The trial of this case on its merits began November 16, and ended December 10, 1909, and the proceedings and evidence introduced are to be found in the exhibits and stenographic notes taken by the court's official reporter. At the trial Judge Kincaid said Major Hartigan appeared for the plaintiff and SeoresAgoncillo, Cruz Herrera, and Ferrer for the defendants. After hearing the testimony and arguments of counsel and a due consideration of the case, the court finds the following facts established by the admissions and a decided preponderance of the evidence: That the defendants Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, GaloLichauco, Felipe Barretto, and Gregorio M. Cansipit, seven in number, are the proprietors and owners of the said daily newspaper known as "El Renacimiento" and "MulingPagsilang," and that "El Renacimiento" and "MulingPagsilang," are one and the same newspaper, owned, managed, printed and published by the same persons; that Teodoro M. Kalaw and Lope K. Santos were the editors in chief of directors of this paper on the 30th of October, 1908, and that said nine defendants named were the owners, editors, proprietors, managers and publishers of said newspaper on said 30th of October, 1908, for a long time prior thereto, and during all the time mentioned in the complaint. As to the defendants, Reyes, Aguilar, and Liquete, they appear from the evidence to have been editors of said paper, but in subordinate position to the chief editors or directors, Kalaw and Santos, and to have acted under the direction of their latter two defendants. The court further finds that every essential or material allegation of the complaint is true substantially as therein stated, with the exception noted to Fidel A. Reyes, Faustino Aguilar, and Leoncio G. Liquete, and as may be hereinafter indicated. The case is therefore dismissed as to these three defendants. The only serious contention of the defense is (1) that the editorial "Birds of Prey" does not refer to a determinate person; and (2) that, conceding that it does refer to the plaintiff, none of the defendants, except Teodoro M. Kalaw, is responsible for the writing, printing, or publication of the alleged libelous article of the damages to the plaintiff resulting therefrom. In the opinion of the court this article so indubitably refers to the plaintiff, and was so easily and well understood by the readers of said paper as indicating the plaintiff, that it would be an act of superrogation to elaborately discuss the evidence adduced in support of or against the proposition. It is as clear to the court from the evidence adduced as the noonday sun, that the plaintiff is the identical and only person meant and referred to in said article "Birds and Prey;" and it requires no argument to prove that it does mean and refer to him and was so intended by the writer, and therefore by said nine defendants, and could not have been otherwise understood by any intelligent reader or subscriber of said paper, in view of the reasons assigned in the complaint, which reasons are clearly disclosed and fully established by the evidence. And it may be added that much valuable time was needlessly consumed by the defense at trial in an effort to establish the contrary. It seems to the court a reflection upon the intelligence of the subscribers and readers of "El Renacimiento" to contend that this editorial was not well understood by them as referring to the plaintiff, and as fully as if his name had been mentioned in every paragraph thereof. And assuredly the omission of his name from the editorial has made the libel less hurtful and disastrous in its results to the reputation and feelings of the plaintiff. Much time was consumed also in adducing evidence to show that none of the twelve defendants were the owners of "El Renacimiento" and "MulingPagsilang," but that six of them had originally contributed their money as a partriotic donation to the Filipino people, and that Martin Ocampo simply held the money and property of the paper as trustees for this people, and that the paper was being devoted exclusively to philanthropic and patriotic ends, and that Galo and Lichauco had agreed to contribute to the same ends, but had not done so. This proposition in the light of evidence is so preposterous as to entitle it to little, if any, serious consideration. To ask the court to believe it is

tantamount to asking the court to stultify reason and common sense. That those seven defendants named contributed their respective sums of money, as shown by the evidence, to the foundation of said newspaper in 1901 for their own personal benefit and profit is fully and unmistakably established. It is equally well established that Martin Ocampo is and was, not only a part owner, but that he has been and is still the administrator or business manager of said newspaper, and that the other six persons named are shareholders, part owners and proprietors thereof, and were such on said 30th of October, 1908. Arcadio Arellano testified positively that GaloLichauco was one of the seven founders, and that Lichauco contributed P1,000. Martin Ocampo testified that GaloLichauco promised to contribute an amount which he (the witness) did not remember but that Lichauco did not keep his promise. (See pp. 107, 108, and 231 of the evidence.) The other evidence and circumstances strongly corroborate Arcadio Arellano, and the court is constrained to believe that Arellano told the truth and Ocampo did not. See Exhibit B-J, a copy of "El Renacimiento" containing the article "Infamy Among Comrades," page 87 of the evidence, in which there was published that these seven persons named are the shareholders of the paper. Furthermore, GaloLichauco failed to appear and testify, so as to enlighten the court as to which witness, Arellano or Ocampo, told the truth, or whether chief editor Kalaw had his authority to publish in said paper, as he did in November 22, 1907, that he, GaloLichauco, was one of the shareholders. The presumptions are therefore against GaloLichauco. See S.S. Co. vs.Brancroft-Whitney Co. (36 C. C. A., 136 and 153). It also appears from the evidence that Teodoro M. Kalaw was the chief editor or director of the Spanish section of said paper, and that Lope K. Santos was the chief editor or director of the Tagalog section on said 30th of October, 1908, and that the Spanish and Tagalog sections are, and then were, one and the same newspaper, but printed and published in different languages. It is alleged that said newspaper has a large circulation throughout the Philippine Islands, and was published and circulated daily in the Spanish and Tagalog languages in the city of Manila. Not only are these allegations true, but it is also true that said newspaper has a daily circulation and subscribers in other parts of the world, notably in the United States and Spain; and it has subscribers numbering in toto not less than 5,200, and a daily issue of 6,000 copies. It is also true as alleged, and the court so finds that since the year 1906 to said 30th of October, 1908, these nine defendants had been maliciously persecuting and attacking the plaintiff in their said newspapers, until at last, on said 30th of October, 1908 with the malicious intention of injuring the plaintiff, who on said date was and still is a member of the Civil Commission and Secretary of the Interior in the Government of the Philippine Islands; and with the object of exposing him to the odium, contempt, and ridicule of the public, they wrote, printed, and published in their said newspaper, in its ordinary number of said 30th of October, 1908, the malicious defamation and false libel of and concerning the plaintiff, entitled and herein alluded to as the editorial "Birds of Prey," which libel was and is highly injurious to the plaintiff and from which the plaintiff has sustained serious damage. This editorial, when properly interpreted and read between the lines, means, besides other things, and was intended by the writer to mean and be understood by the readers thereof as meaning substantially the following: That the plaintiff, Dean C. Worcester, was born on the surface of the globe to eat and devour, like a bird of prey, and that others, born to be eaten and devoured, are the prey and the food of the insatiable voracity of the plaintiff; that the plaintiff had a desire to copy and imitate the most rapacious bird, the eagle, in order to triumph in plundering his fellowman; that the plaintiff besides being an eagle, has the characteristics of the vulture, the owl, and the vampire. That the plaintiff ascended the mountains of Benguet to classify and measure the skulls of the Igorots, and study and civilize them and to espy in his flight with the eye of the bird of prey the large deposits of gold-the prey concealed amidst the mountains-and to appropriate them to himself afterwards, and that to this end the plaintiff had the legal facilities, made and unmade at his own will, and that this is always done for his own benefit. That the plaintiff authorized, inspite of laws and ordinances, the illegal slaughtering is diseased cattle in order to derive benefit from the infected and putrid meant which he himself was obliged to condemn by virtue of his official position ; that while the plaintiff presents himself on all occasions with the wrinkled brow of the scientist who consumes his life in the mysteries of the laboratory of science, his whole scientific labor is confined to dissecting insects and importing fish eggs. That although the plaintiff gave an admirable impulse to the discovery of wealthy lodes in Mindanao and Mindoro, and in other virgin regions of the Archipelago, with the money of the people, under the pretext of the public good, as a strict matter of truth his object was to possess all the data and the key to the national wealth for his essentially personal benefit, and that this is shown by his acquisition of immense properties registered under the names of others. That the plaintiff promoted, through secret agents and partners, the sale to the city of Manila of worthless land at fabulous prices, which the city fathers dared not refuse from fear of displeasing the plaintiff, who was behind the project, and which they did not refuse for their own good; that the plaintiff favored concessions for hotels in Manila on filled-in land; with the prospect of enormous profits, at the expense of the blood of the people.

That such are the characteristics of the plaintiff, who is at the same time an eagle that surprises and devours, a vulture that gorges his self on deed and rotten meats, an owl that affects a petulant omniscience, and a vampire that sucks the blood of the victim until he leaves it bloodless. And this libelous article concludes with the asseveration in substance that the plaintiff has been "weighed in the balance and found wanting" "Mane, Tecel, Phares." That this editorial is malicious and injurious goes without saying. Almost every line thereof teems with malevolence, ill will, and wanton and reckless disregard of the rights and feelings of the plaintiff; and from the very nature and the number of the charges therein contained the editorial is necessarily very damaging to the plaintiff. That this editorial, published as it was by the nine defendants, tends to impeach the honesty and reputation of the plaintiff and publishes his alleged defects, and thereby exposes him to public hatred, contempt, and ridicule is clearly seen by a bare reading of the editorial. It suffices to say that not a line is to be found in all the evidence in support of these malicious, defamatory and injurious charges against the plaintiff; and there was at the trial no pretense whatever by the defendants that any of them are true, nor the slightest evidence introduced to show the truth of a solitary charge; nor is there any plea of justification or that the charges are true, much less evidence to sustain a plea. In the opinion of the court "Birds of Prey," when read and considered in its relation to and connection with the other articles libelous and defamatory in nature, published of and concerning the plaintiff by these nine defendants anterior and subsequent to the publication of this article, and having reference to the same subject matter as shown by the evidence, is one of the worst libels of record. It is safe to say that in all the court reports to the Philippine Islands, or of Spain, or the United States, there is not to be found a libel case in which there is a more striking exemplification of the spirit of hatred, bad faith, evil motive, mischievous intent, actual malice, nefarious purpose, base malignity, or gross malevolence. It is proper to observe also that since the beginning of this attack on the plaintiff in the year 1906 down almost to the present time, so far from there being any apology, retraction, or effort to repair the injury already done as far as lay in the power of the defendants, the persecution, wrong, and tortious injury to the plaintiff had been steadily kept up and persisted in, without the slightest abatement of the malevolent spirit. There has been neither retraction, apology, nor reparation; per contra, the libel has been repeated, reiterated, and accentuated, and widely and extensively propagated by these nine defendants through the columns of their said paper and otherwise; and it appears from the evidence that especial effort has been made by these same defendants to give as much publicity as possible to the libelous and defamatory words used of and concerning the plaintiff in said editorial. Through their instrumentality and persistency in asserting and reasserting its truth, this diabolical libel has been spread broadcast over the Philippine Islands and to other parts of the world. In said criminal case No. 4295 some of these nine defendants pleaded the truth of the charges; and in Exhibit A-Q is to be found this language: "The defense will adduce its evidence demonstrating the truth of every one of the facts published." In their said paper of the 11th of January, 1909, there is published statement: "The brief period of time allowed us by the court, at the request of the counsel, to gather evidence which we are to adduce in our effort to demonstrate the truth of the accusation that we have formulated in the article which is the subject of the agitation against us, having expired, the trial of the case against our director had been resumed." (See pp. 63 and 67 of the evidence.) And about the same time they also declared in their said paper that "there is more graft than fish in the rivers of Benguet." And this in the year of our Lord 1909! the persecution having begun in 1905; thus indicating that there is to be no "let-up" or cessation of the hostile attitude toward the plaintiff or the vilification of his name and assaults upon his character, much less a retraction or an apology, unless drastic means and measures are made use of to the end that there may be no further propagation of the libel, or asseveration, or reiteration of its truth. This article "Birds of Prey" charges the plaintiff with malfeasance in office and criminal acts, and is therefore libelous per se. It in substance charges the plaintiff with the prostitution of his office as a member of the Civil Commission of the Philippine Islands and Secretary of the Interior of said Islands for personal ends. It is charged also substantially that plaintiff in his official capacity wasted the public funds for the purpose of promoting his own personal welfare, and that he violated the laws of the Philippine Islands and the ordinances of the city of Manila. In its essence he is charged with taking part in illegal combinations for the purpose of robbing the people with the object of gain for himself and for others; with being a bird of prey, a vulture (buzzard), an owl, and a vampire that sucks the blood of the victim (meaning the people) until he leaves it bloodless, that is to say, robs the people, until he leaves them wretched and poverty-stricken, deprived of all worldly possessions; and lastly, that he, the plaintiff, like Belshazzar, has been weighed in the balance and found wanting as a high Government functionary; all of which charges are false and malicious and without and foundation whatever in fact, as the evidence fully demonstrates. It is also a matter of fact, and the court so finds, that said defamation was written and published that it might be understood, and it was understood, by the public officials of the Government and the people of the Philippine Islands in general, and wherever else said newspaper may have circulated

and been read, as charging the plaintiff with the tortious and criminal acts and conduct charged in said editorial as hereinbefore specified and interpreted. The court finds it also true that, besides assailing the integrity and reviling the reputation of the plaintiff, said nine defendants, in publishing said libel, did so with the malicious intention of inciting the Filipino people to believe that the plaintiff was despotic and corrupt and unworthy of the position which he held, and for this reason to oppose his administration of the office in his charge as Secretary of the Interior, and in this way they endeavored to create enormous difficulties for him in the performance of his official duties, and to make him so unpopular that he would have to resign his office as a member of the Civil Commission of the Philippines and Secretary of the Interior. It is also true that the said nine defendants, by means of said libel, and other like false statements in their said newspaper, have been deliberately trying to destroy the confidence of the public in the plaintiff and to incite the people to place obstacles in his way in the performance of his official duties, in consequence of which the plaintiff has met with many difficulties which have greatly increased his labors as a public official. It further appears from the evidence that not only has an effort been made by these nine defendants to give as much publicity as possible to the charges, but in order that said defamation should attract the attention of the public, they published the same under a heading in large, bold and showy type, so that it might be easily seen and read by all the subscribers and readers of said paper. In full view of all the evidence, therefore, it is clearly seen that every essential allegation of the complaint is true substantially as therein claimed, and that the whole of the said editorial relating to the misconduct and bad character of the plaintiff is false and without the slightest foundation in fact. Not a scintilla of evidence was introduced in support of any injurious charge made therein against the plaintiff, to say nothing of the plaintiff's evidence that each and every charge of malfeasance therein contained is false, and without reference to whether a failure to plead the truth admits the falsity of the charge. The evidence shows no "special" or "actual pecuniary damage," and none is alleged in the complaint. Two other kinds of damages, however are claimed, to wit, general damages for injuries to the feelings and reputation of the plaintiff and additional work to which he has been put by the conduct of the defendants, which are laid in the sum of P50,000, and "punitive," exemplary, or vindictive damages, "as a warning to the defendants," or as expressed in Act 277 of the Philippine Commission, as a just punishment to the libelers and an example to others," which are laid in the same sum of P50,000. The nine defendants being liable to the plaintiff for damages, the next question to be decided is what amount of damages should be awarded the plaintiff for the injury to his reputation and feelings and his being a proper case for punitive damages, the further question is, what sum shall be awarded as a just punishment to these nine libelers and as an example to others. In neither of these cases is there any precise measure of damages. In determining the amount to be awarded in the first instance it is proper to consider the previous character, influence, reputation, standing, official position, hope of advancement, prospect of promotion, and social status of the plaintiff and his family, and all the circumstances connected with the case. The plaintiff is a man in the prime of life, holding, as he has held for the last ten years an important, responsible, lucrative, high and exalted position of trust and honor in the service of the Government of the United States, in the Philippine Islands, without a blotch on his family escutcheon, so far as the evidence shows, and with an untarnished reputation as a man, as a citizen, and as a Government official. He is a man of honesty, integrity, and high social position; a man of learning, famous as a scientist, and scientific achievements and scholarly attainments, a man of industrious habits, genuine worth, and intellectual force. He has read, studied, traveled and learned much, and is an author of merit and distinction. He was for a long while a professor in one of the largest and most renowned institutions of learning in the world; he is a man of vast experience, broad and liberal views, and an extensive acquaintanceship, not only in the Philippine Islands, but in the United States and other countries of the world. He was well and favorably received by the people wherever he journeyed previous to this atrocious libel upon his integrity and reputation. He has discharged the duties of his lofty official position in a manner that reflects credit upon himself as well as the Government which he represents, and apparently with entire satisfaction to all of his superiors in office and the people generally; and but for this pernicious, outrageous, and highly reprehensible assault upon his good name, fame and reputation, there were prospects of promotion to higher honors. And so far as his personal and private record is concerned it was without a blemish anterior to the time when these unfounded and dastardly aspersions were cast upon it by these nine defendants. Indeed, it is only necessary to advert to the testimony of the defense itself to ascertain that the plaintiff is an honorable man, and without a stain upon his character, officially or otherwise. It would be interesting to note here in parallel columns and compare the charges made in "Birds of Prey" and the testimony of one of the witnesses for the defendants. Felipe Buencamino, an intelligent witness for the defense, in his testimony (p. 240) when asked the question, Do you know Mr. Worcester?" he answers, "Yes, sir: I know him as an honorable man. I also know him as an honest, honorable public official ." In answer to another question he says, "As I have said, I know Mr. Worcester as a private citizen and as a public

official, and my opinion of him is that of honorable man and an upright official." And no other witness testified anything to the contrary. "A good name is rather to be chosen than great riches and loving favor rather than silver of gold." "Who steals my purse steals trash; x xx x xx x xx But he that filches from me my good name, Robs me of that which not enriches him And makes me poor indeed." The enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property. It is one of those rights necessary to human society that underlie the whole scheme of human civilization. "The respect and esteem of his fellows are among the highest rewards of a well-spent life vouchsafed to man in this existence. The hope of it is the inspiration of youth, and their possession the solace of later years. A man of affairs, a business man, who has been seen and known of his fellowmen in the active pursuits of life for many years, and who has developed a great character and an unblemished reputation, has secured a possession more useful, and more valuable than lands, or houses, or silver, or gold . . . "The law recognizes the value of such a reputation, and constantly strives to give redress for its injury. It imposes upon him who attacks it by slanderous words, or libelous publication, a liability to make full compensation for the damage to the reputation, for the shame and obloquy, and for the injury to the feelings of the owner, which are caused by the publication of the slander or the libel. "It goes further. If the words are spoken, or the publication is made, with the intent to injure the victim, or with the criminal indifference to civil obligation, it imposes such damages as a jury (in this case the judge), in view of all the circumstances of the particular case adjudge that the wrongdoer ought to pay as an example to the public, to deter others from committing like offenses, and as a punishment for the infliction of the injury. "In the ordinary acceptance of the term, malice signifies ill will, evil intent, or hatred, while it is legal signification is defined to be "a wrongful act done intentionally, without legal justification." (36 C. C. A., 475.) Surely in the case at bar there was a wrongful or tortious act done intentionally and without the semblance of justification or excuse, or proof that the libelous charges against the plaintiff were "published and good motives and justifiable ends." But the Legislature and the highest judicial authority of these Islands have spoken in no uncertain words with regard to the rights of the plaintiff in this case; and we need not necessarily turn to the law of libel elsewhere, or the decision of the courts in other jurisdictions to ascertain or determine his rights. In sections 1, 2, 3, 4, 6, and 11 of the Libel Law (Act 277, Philippine Commission) is to be found the law of these Islands especially applicable to this case. Section 1 thereof defines libel. Section 2 provides that every person who willfully and with a malicious intent to injure another publishes, or procures to be published, any libel shall be punished as therein provided. Section 3 provides that an injurious publication is presumed to have been malicious if no justifiable motive for making it is shown. Section 4 provides, among other things, that in all criminal prosecutions the truth may be given in evidence; but to establish this defense, not only must the truth of the matter charged as libelous be proven, but also that it was published with good motives and for justifiable ends; and the presumptions, rules of evidence, and special defenses are equally applicable in civil and criminal actions, according to section 11 of said Act. Section 6 is as follows: "Every author, editor, or proprietor of any book, newspaper, or serial publication is chargeable with the publication of any words contained in any part of such book or number of each newspaper or serial as fully as if he were the author of the same." And section 11 provides as follows: "In addition to such criminal action, any person libeled as hereinbefore set forth shall have a right to a civil action against the person libeling him for damages sustained by reason of such libel, and the person so libeled shall be entitled to recover in such civil action not only the actual pecuniary damages sustained by him, but also damages for injury to his feelings and reputation, and in addition such punitive damages as the court may think will be a just punishment to the libeler and an example to others. Suit may be brought in any Court of First Instance having jurisdiction of the parties. The presumptions, rules or evidence and special defenses provided for in this chapter for criminal prosecutions shall be equally applicable in civil actions under this section." "The proprietor of a printing plant is responsible for publishing a libel. According to the legal doctrines and jurisprudence of the United States, the printer of a publication containing libelous matter is liable for the same." (Mr. Justice Torres, in U.S. vs. Ortiz, 8 Phil. Rep., 757.) But said section 6 plainly fixes the liability of editors and proprietors of newspapers, and is clear enough for all the purposes of this case. Mr. Justice Carson (5 Phil. Rep. 1551), speaking for our Supreme Court, says: "When there is an averment in the complaint that the defamatory words used refer to the plaintiff, and it is proven that the words do in fact refer to him and are capable of bearing such special application, an action for libel may be maintained even though the defamatory publication does not refer to the plaintiff by name."

And Mr. Justice Willard (12 Phil. Rep., 4282), for the same high authority, says: "In an action for libel damages for injury to feelings and reputation may be recovered though no actual pecuniary damages are proven. "Punitive damages cannot be recovered unless the tort is aggravated by evil motive, actual malice, deliberate violence or oppression." That is to say, if there is evil motive, or actual malice or deliberate violence, or oppression then punitive damages, or "smart money," may be recovered. And Justice Carson (U.S. vs.Sedano, 14 Phil., Rep., 338), also says: "Actual or express malice of an alleged libelous publication may be inferred from the style and tone of the publication. "The publication of falsehood and calumny against public officers and candidates for public office is specially reprehensible and is an offense most dangerous to the people and to the public welfare. "The interest of society require that immunity should be granted to the discussion of public affairs, and that all acts and matters of a public nature may be freely published with fitting comments and strictures; but they do not require that the right to criticise public officers shall embrace the right to base such criticism under false statements of fact, or attack the private character of the officer, or to falsely impute to him malfeasance or misconduct in office." And there are almost numberless English and American authorities in perfect harmony with these decisions of our Supreme Court too numerous indeed to be cited here; and it is not necessary. Among the leading cases, however, in the United States, is that of Scott vs. Donald (165 U.S., 58) and cases therein cited. In this case the court says: "Damages have been defined to be the compensation which law will allow for an injury done, and are said to be exemplary and allowable in excess of the actual loss when the tort is aggravated by evil motive, actual malice, deliberate violence or oppression," which is in entire harmony with Justice Willard's decision hereinbefore cited. And quoting from the decision in Day vs. Woodworth (13 Howard, 371) the same high court says: "In actions of trespass, where the injury has been wanton and malicious, or gross or outrageous, courts permit juries (here the court) to add to the measured compensation of the plaintiff which he would have been entitled to recover, had the injury been inflicted without design or intention, something further by way of punishment or example, which has sometimes been called "smart money." " It thus clearly appears that the facts established in the case at bar are more than sufficient to bring it within the rule of law here laid down by the highest judicial authority. Section 11 of the Libel Law expressly allows general damages; and Mr. Justice Willard, in Macleod vs. Philippine Publishing Company,3says: "The general damages which are allowed in actions of libel are not for mental suffering alone, but they are allowed for injury to the standing and reputation of the person libeled, and the common law of England and America presumed that such damages existed without proof thereof from the mere fact of publication of the libel." In Day vs. Woodworth, the Supreme Court of the United States recognized the power of a jury in certain actions in tort to assess against the tort feasor punitive damages. Where the injury has been inflicted maliciously or wantonly, and with circumstances of contumely, or indignity, the judge or jury, as the case may be, is not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. "The public position of the plaintiff, as an officer of the Government, and the evil example of libels, are considerations with the jury (here the judge) for increasing damages." (Tillotson vs.Cheetham, 3 Johns, 56.) "The character, condition and influence of the plaintiff are relevant on the matter of the extent of damages." (Littlejohn vs. Greely, 22 How. Prac., 345; 13 Abb. Prac., 41, 311.) "Where the publication is libelous, the law presumes that it was made with malice technical, legal malice, but not malice in fact and the amount of damages depends in a large degree upon the motives which actuated the defendants in its publication; and in such cases the law leaves it to the jury (here the judge) to find a return such damages as they think right and just, by a sound, temperate, deliberate, and reasonable exercise of their functions as jurymen." (Erbervs. Dun. (C. C.) 12 Fed., 526.) "Actions of libel, so far as they involve questions of exemplary damages, and the law of principal and agent, are controlled by the same rules as are other actions of tort. The right of a plaintiff to recover exemplary damages exists wherever a tortious injury has been inflicted recklessly or wantonly, and it is not limited to cases where the injury resulted from personal malice or recklessness of the defendant. It follows that the owner of a newspaper is as responsible for all the acts of omission and commission of those he employs to edit it and manage its affairs, as he would be if personally managing the same.' (Malloy vs. Bennett, (C. C.) 15 Fed., 371.) "The fact that a publication, libelous per se, was made without any attempt to ascertain its correctness is sufficient to justify a finding that defendant committed libel client with a wanton indifference, and with actual malice sufficient to sustain exemplary damages." (Van Ingen vs. Star Co., 1 App. Div., 429, 37 N.Y., 114.) "The court is not authorized to set aside a verdict for $45,000 in an action for libel, where it appears that plaintiff was persistently persecuted in the columns of defendant's newspaper, and that he and his family were held up to public contempt and ridicule, and defendants withdraw from the case after failing to establish a plea of justification." (Smith vs. Times Co., (Com. p. 1) 4 Pa. Dist. Rep., 399.) "In considering the amount with the defendant shall pay, on this account (exemplary damages) the turpitude of his conduct and his financial ability

are only considered; and such consideration is not in view of the injury or distress of the plaintiff, but in behalf of the public; the wrongful act is regarded as an indication of the actor's vicious mind an overt deed of vindictive or wanton wrong, offensive and dangerous to the public good. This is the view of those damages which generally prevails." (Sutherland on Damages, vol. 2, p. 1092. title Exemplary Damages.) "Punitive damages are recoverable not to compensate the plaintiff, but solely to punish the defendant. This legal motive would suffer defeat if punitive damages could not be given for a malicious attack on a reputation too well established to receive substantial injury at the hands of a libeler." (Judge Bond in Ferguson vs. Pub. Co., 72 Mo. App., 462.) It may be suggested that the reputation of the plaintiff in this case is too well established to be seriously affected by the defamatory words used of and concerning him in "Birds of Prey," but it would not be proper to gravely consider this suggestion. The conditions in these Islands are peculiar. The minds, thoughts, and opinions of the people are easily molded, and the public is credulous and perhaps frequently too ready to believe anything that may be said in derogation of an American official, especially when it is published and vouched for by the editorial and business management and proprietors if a newspaper of the prominence, pretensions, circulation and influence if "El Renacimiento," which paper is everlastingly proclaiming in its columns that it is being conducted and published solely in the interests of the Filipino people pro bono publico. There is stronger disposition to give credence to what is said in a newspaper here in the Islands the elsewhere, and when abuse, vilification, and defamation are persistently practiced for a period of several years, without modification or retraction, but with renewed emphasis, the people naturally come to believe in its verity and authenticity. It is apparent from the evidence that as an effect of the persecution of the plaintiff by "El Renacimiento" and the libel published in its columns, the minds of the major part of the Filipino people have been poisoned and prejudiced against the plaintiff to such an extent that he is regarded by these people as odious, dishonest, unscrupulous and tyrannical. It may be that his reputation has not suffered so severely with those of his own race, but when it is considered that his vocation has tenfold more to do with the Filipinos than with his own people, that his official duties place him in constant contact with them, and that his success in his chosen career is largely dependent upon their good will and support, it is manifest that the damage to his reputation has been very great and that a large sum of money should be awarded to indemnify him, as far as money can indemnify, for the loss of his good name with the Filipino people. The plaintiff came to the Philippine Islands when a young man, full of hope and ambition. Since his arrival he has devoted himself incessantly and indefatigably to the uplifting of the inhabitants of the Archipelago and to the faithful performance, as far as he was able, of the pledges and promises of the Government to the Filipino people. The duties of his particular office were such as brought him in more immediate and constant contract with the people than any other official of the same category in these Islands. It is clearly shown that the plaintiff faithfully endeavored to perform, and did efficiently perform, all of these duties, doing everything that he could in an unselfish and disinterested manner of the welfare and development of the country and its people, knowing full well that his career, as well as his advancement, depended largely upon the good will of these people, and that by incurring their censure or displeasure he would have little hope of success in his chosen work. Imagine, therefore, the chagrin, disappointment, mortification, mental suffering, and distress, and perturbation of spirit that would necessarily be occasioned him when he discovered that through the nefarious, studied, and practiced persecution of the paper in question, these high hopes were blasted, and that, instead of having gained the respect and gratitude of the people for the assiduous labors devoted to their uplifting, they had been made to believe that, instead of being a benefactor, he was a vampire that was sucking their life blood, a corrupt politician who was squandering the money wrung from the people by means of taxation, in schemes for his own personal aggrandizement and enrichment. That instead of developing the mineral wealth of the Islands he was taking up all the rich veins and appropriating them in the names of subservient tools, to his own personal use, benefit and profit. That instead of protecting the people from disease, he was, by means of infected meat and for his own personal gain, spreading contagion among them. That he united in his person all the bad qualities of the vulture, the eagle, and the vampire; that, in short, he was a "bird of prey," with all that is implied in that term in its worst acceptation; that he was a corrupt tyrant, who never lost an opportunity to do the people hurt; that instead of wishing them well and seeking their advancement, he was their enemy, who never lost an opportunity to degrade and humiliate them; that instead of preferring them for office and positions of official trust, he treated them with all sorts of contempt and indifference. It is difficult to appreciate the feelings of a refined soul in its contemplation of a result so disastrous, so unjust, and so unmerited. It is furthermore shown that when the plaintiff came to these Islands a young scientist he had already won fame in his own country; that he is a fellow of the important scientific associations in the world. His election as a fellow or member of these scientific bodies shows that his labors in the Philippines were the object of solicitude by the prominent scientific and learned men not only of his own race, but in many other civilized countries of the world. Important results were evidently expected of him by them, and it can not be doubted that they expected of him of life honestly

devoted to the conscientious discharge of his duties as a trusted public functionary of the American Government in the Philippine Islands. And yet he is falsely denounced in the columns of said newspaper to his fellows of these societies as a man who is so absolutely corrupt, so inordinately selfish and avaricious that he has not considered for a moment the duties incumbent upon him; that he has been oblivious to every obligation of trust and confidence, and that he is unworthy of the respect of honest men. One witness testified that he read this libel in the public library of the city of Boston. It is furthermore shown that copies of this paper went to Spain, England, and to different parts of the United States; and inasmuch as the plaintiff is a man of prominence in the scientific world, it is to be inferred that his fellows became more or less aware of these heinous charges. Thus we find that the plaintiff is here confronted with disappointed ambition and frustrated hopes, and placed in the humiliating attitude of having to explain to his fellows that the charges are untrue, of adducing evidence to clear himself, perhaps never with complete success, of the stain that has been cast upon his reputation by the libelous and defamatory declarations contained in "Birds of Prey." In view of the foregoing findings of fact and circumstances of the case and the law applicable thereto, It is the opinion of the court, and the court so finds, that the plaintiff has sustained damages on account of wounded feelings and mental suffering and injuries to his standing and reputation in the sum of thirty-five thousand (P35,000) pesos, and that he is entitled to recover this sum of the nine defendants named, as being responsible for having written, printed, and published said libel; and that the plaintiff is entitled to recover of them the further sum of twenty-five thousand (P25,000) pesos, as punitive damages, which the court thinks will be a just punishment to these nine libelers and an example to others. Wherefore, it is so ordered and adjudged that the plaintiff, Dean C. Worcester, have and recover of the defendants, Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Manuel Palma, Arcadio Arellano, Angel Jose, GaloLichauco, Felipe Barretto, and Gregorio M. Cansipit, jointly and severally, the sum of sixty thousand (P60,000) pesos, and the costs of suit, for which execution may issue. It is ordered. At Manila, P.I., this 14th day of January , 1910. From said decision the defendants appealed and made the following assignments of error in this court: I. The court erred in overruling our motions for suspension of this case, in its present state, until final judgment should be rendered in criminal case No. 4295 of the Court of First Instance of Manila, pending appeal in the Honorable Supreme Court, for libel based also on the editorial, "Birds of Prey." II. The court erred in admitting as evidence mere opinion adduced by counsel for the plaintiff with the intention of demonstrating to whom the editorial, alleged to the libelous, refers. III. The court erred in giving greater preponderance to the opinions of the witnesses for the plaintiff than to the expert testimony of the defense. IV. The court erred in declaring the editorial on which the complaint is based to be libelous per se and to refer necessarily to the plaintiff, Dean C. Worcester. V. The court erred in declaring the defendants Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Felipe Barretto, Gregorio M. Cansipit, and GaloLichauco to be owners of "El Renacimiento." VI. The court erred in not admitting Exhibits 1 and 3 presented by counsel for the defendants. VII. The court erred in rendering judgment against the defendants. VIII. The court erred in sentencing the defendants jointly "and severally" to pay to the plaintiff, Dean C. Worcester, the sum of P60,000. IX. The court erred in not ordering that execution of the judgment to be confined to the business known as "El Renacimiento" and to the defendant Teodoro M. Kalaw, without extending to property of the alleged owners of said newspaper which was not invested therein by them at its establishment. X. The court erred in granting damages to the plaintiff by virtue of the judgment rendered against the defendants. XI. The court, finally, erred in granting to the plaintiff punitive damages against the alleged owners of "El Renacimiento," admitting the hypothesis that said editorial is libelous per se and refers to the Honorable Dean C. Worcester. The theory of the defendants, under the first assignment of error, is that the civil action could not proceed until the termination of the criminal action, relying upon the provisions of the Penal Code in support of such theory. This court, however, has decided in the case of Ocampo et al. vs. Jenkins (14 Phil. Rep., 681) that a judgment in a criminal prosecution for libel, under the provisions of Act 277 of the Civil commission, constitutes no bar or estoppel in a civil action based upon the same acts or transactions. The reason most often given for this doctrine is that the two proceedings are not between the same parties. Different rule as to the

competency of witnesses and the weight of evidence necessary to the findings in the two proceedings always exist. As between civil and criminal actions under said Act (No. 277) a judgment in one is no bar or estoppel to the prosecution of the other. A judgment in a criminal cause, under said Act, can not be pleaded as res adjudicata in a civil action. (Stone vs. U.S., 167 U.S., 178; Boyd vs. U.S., 616 U. S., 616, 634; Lee vs. U.S., 150 U.S., 476, 480; U.S. vs.Jaedicke, 73 Fed. Rep., 100; U.S. vs. Schneider, 35 Fed. Rep., 107; Chamberlain vs. Pierson, 87 Fed. Rep., 420; Steel vs.Cazeaux, 8 Martin (La.), 318, 13 American Decisions, 288; Betts vs. New Hartford, 25 Conn., 185.) In a criminal action for libel the State must prove its case by evidence which shows the guilt of the defendant, beyond a reasonable doubt, while in a civil action it is sufficient for the plaintiff to sustain his cause by a preponderance of evidence only. (Ocampo vs. Jenkins (supra); Reilly vs. Norton, 65 Iowa, 306; Sloane vs. Gilbert, 27 American decisions, 708; Cooley on Torts, sec. 208; Greenleaf on Evidence, 426; Wigmore on Evidence, secs. 2497, 2498.) With reference to the second assignment of error above noted, we find that this court has already decided the question raised thereby, in the case of U. S. vs.Ocampo et al. (18 Phil. Rep., 1). During the trial of the cause the plaintiff called several witnesses for the purpose of showing that the statements made in said alleged libelous editorial were intended to apply to the Honorable Dean C. Worcester, Secretary of the Interior. The defendants duly objected to these questions and excepted to the ruling of the court admitting them. In the case of Russell vs. Kelley (44 Cal., 641, 642) the same question was raised and the court, in its decision, said: The rule laid down in 2 Stockey on Slander (p. 51) is that the application of the slanderous words to the plaintiff and the extrinsic matters alleged in the declaration may be shown by the testimony of witnesses who knew the parties and circumstances and who can state their judgment and opinion upon the application and meaning of the terms used by the defendant. It is said that where the words are ambiguous on the face of the libel, to whom it was intended to be applied, the judgment and opinion of witnesses, who from their knowledge of the parties and circumstances are able to form a conclusion as to the defendant's intention and application of the libel is evidence for the information of the jury. Mr. Odgers, in his work on Libel and Slander (p. 567), says: The plaintiff may also call at the trial his friends or others acquainted with the circumstances, to state that, in reading the libel, they at once concluded it was aimed at the plaintiff. It is not necessary that all the world should understand the libel. It is sufficient if those who know the plaintiff can make out that he is the person meant. (See also Falkard'sStockey on Libel and Slander, 4th English edition, 589.) The correctness of this rule is not only established by the weight of authority but is supported by every consideration of justice and sound policy. The lower court committed no error in admitting the opinion of witnesses offered during the trial of the cause. One's reputation is the sum or composite of the impressions spontaneously made by him from time to time, and in one way or another, upon his neighbors and acquaintances. The effect of a libelous publication upon the understanding of such persons, involving necessarily the identity of the person libeled is of the very essence of the wrong. The issue in a libel case concerns not only the sense of the publication, but, in a measure its effect upon a reader acquainted with the person referred to. The correctness of the opinion of the witnesses as to the identity of the person meant in the libelous publication may always be tested by cross-examination. (Enquirer Co. vs. Johnston, 72 Fed. Rep., 443; 2nd Greenleaf on Evidence, 417; Nelson vs.Barchenius, 52 Ill., 236; Smith vs. Miles, 15 Vt., 245; Miller vs. Butler, 6 Cushing (Mass.), 71.) It is true that some of the courts have established a different rule. We think, however, that a large preponderance of the decisions of the supreme courts of the different States is in favor of the doctrine which we have announced here. We are of the opinion that assignments of error Nos. 3, 4, and 7 may fairly be considered together, the question being whether or not the evidence adduced during the trial of the cause in the lower court shows, by a preponderance of the evidence, that the said editorial was libelous in its character. Here again we find that this question has been passed upon by this court in the case of U. S. vs.Ocampo et al. (18 Phil. Rep., 1), and we deem it unnecessary to discuss this question again, for the reason that the evidence adduced in the present cause was practically the same, or at least to the same effect, as the evidence adduced in the cause of U.S. vs.Ocampo et al. It is sufficient here to say that the evidence adduced during the trial of the present cause shows, by a large preponderance of the evidence, that said editorial was one of the most pernicious and malicious libels upon a just, upright and honorable official, which the courts have ever been called upon to consider. There is not a scintilla of evidence in the entire record, notwithstanding the fact that the defendants from time to time attempted to make a show of proving the truthfulness of the statements made in said editorial, which in any way reflects upon the character and high ideals of Mr. Dean C. Worcester, in the administration of his department of the Government . With reference to the fifth assignment of error, to wit: That the court erred in holding that the defendants, Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Felipe Barretto, Gregorio M. Cansipit, and GaloLichauco, were the proprietors of "El Renacimiento," the lower court said: Much time was consumed also in adducing evidence to show that none of the twelve defendants were the owners of "El Renacimiento" and "MulingPagsilang," but that six of them had originally contributed their

money as a patriotic donation to the Filipino people, and that Martin Ocampo simply held the money and property of the paper as trustee for this people, and that the paper was being devoted exclusively to philanthropic and patriotic ends, and that GaloLichauco had agreed to contribute to the same ends but had not done so. "This proposition," said the lower court, "in the light of the evidence, is so preposterous as to entitle it to little, if any, serious consideration. To ask the court to believe it is tantamount to asking the court to stultify reason and common sense. That those seven defendants named contributed their respective sums of money, as shown by the evidence, to the foundation of said newspaper in 1901, for their own personal benefit and profit, is fully and unmistakably established. It is equally well established that Martin Ocampo is and was, not only a part owner, but that he has been and is still the administrator or business manager of said newspaper, and that the other six persons named are shareholders, part owners and proprietors thereof and were such on the said 30th of October, 1908." Examining the evidence adduced during the cause in the lower court, we find, sometime before the commencement of the present action and before any question was raised with reference to who were the owners of the said newspaper, that the defendant, Arcadio Arellano, in the case of United States vs. Jose Sedano (14 Phil. Rep., 338), testified upon that question as follows: Q. Who are the proprietors of "El Renacimiento"? A. I, Martin Ocampo, Gregorio Mariano (Cansipit), Mr. Barretto, and GaloLichauco. Q. Who else? A. No one else. Q. And Rafael Palma is not so? A. No, sir; Manuel Palma, the brother of Rafael Palma. During the trial of the present cause, Arcadio Arellano testified that his declarations in other cause were true. It also appears from the record (Exhibit B-J) that in the month of November, 1907, long before the commencement of the present action, "El Renacimiento," in reply to an article which was published in "El Comercio," published the following statement: They (it) say (s) that this enterprise" (evidently meaning the publication of "El Renacimiento") "is sustained by Federal money; that we are inspired by Federal personages. We declare that this, besides being false, is calumnious. The shareholders of this company are persons well known by the public, and never at any moment of their lives have they acted with masks on--those masks for which "El Comercio" seems to have so great an affection. They are, as the public knows: SeoresMartin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, GaloLichauco, Felipe Barretto, and Gregorio Cansipit . Arcadio Arellano also testified during the trial of the present cause that he contributed P750 to the establishment of "El Renacimiento;" that Martin Ocampo contributed the sum of P500; that Mariano Cansipit, Felipe Barretto and Angel Jose contributed the sum of P250 or P500 each; that GaloLichauco contributed the sum of P1,000 and that Manuel Palma contributed P3,000. During the trial of the present cause Arcadio Arellano, Martin Ocampo, and Angel Jose testified as witnesses, relating to the ownership of the newspaper called "El Renacimiento." They testified that whatever money they gave for the purpose of establishing said newspaper, was given as a donation, and that they were neither the owners nor coowners of said periodical. The defendants, Manuel Palma, GaloLichauco, Felipe Barretto, and Gregorio Cansipit, did not testify as witnesses during the trial of the cause in the lower court. No reason is given for their failure to appear and give testimony in their own behalf. The record does not disclose whether or not the declarations of Arcadio Arellano, in the case of U. S. vs.Sedano (14 Phil. Rep., 338) at the time they were made, were called to the attention of Manuel Palma, GaloLichauco, Felipe Barretto, and Gregorio Cansipit, as well as the reply to "El Comercio," above noted. Proof of said declarations and publication was adduced during the trial of the cause in the present case, and the attorney of these particular defendants well knew the purpose and effect of such evidence, if not disputed; but, notwithstanding the fact that said declarations and publication were presented in evidence, and notwithstanding the fact that the attorney for the defendants knew of the purpose of such proof, the defendants, Palma, Lichauco, Barretto, and Cansipit, were not called as witnesses for the purpose of rebutting the same. It is a well settled rule of evidence, that when the circumstances in proof tend to fix the liability on a party who has it in his power to offer evidence of all the facts as they existed and rebut the inferences which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting would support the inferences against him, and the court is justified in acting upon that conclusion . (Railway Company vs. Ellis, C. C. A. Reports, vol. 4, p. 454; Commonwealth vs. Webster, 5 Cush. (Mass.), 295; People vs. McWhorter 4 Barb. (N. Y.), 438.) Lord Mansfield, in the case of Blatch vs. Archer (Cowper, 63, 65) said: It is certainly a maxim that all the evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted. Mr. Starkey, in his valuable work on evidence (vol. 1, p. 64), lays down the rule that: The conduct of a party in omitting to produce evidence in elucidation of the subject matter in dispute, which is within his power and which rests peculiarly within his own knowledge, frequently offers occasion for presumptions against him, since it raises the strong suspicion that such evidence, if adduced, would operate to his prejudice. (Pacific Coast et al. Co. vs. Bancroft-Whitney Co., 36 C. C. A. Reports, 136, 153.)

At the time of the said declarations of Arcadio Arellano in the case of Sedano and at the time of the said publication in reply to "El Comercio," there was no reason for stating anything except the truth: neither does there seem to have been any reason for publishing the fact that the defendants were the owners of "El Renacimiento" unless it was true . At the time there seemed to be no reason to have it appear that they were donors and public benefactors only. They seemed to be proud of the fact that they were the owners. The editors, publishers, and managers of "El Renacimiento," at the time the reply to "El Comercio" was published, seemed to be anxious to announce to the public who its owners were. It ("El Renacimiento") had not then realized that it belonged to no one; that it had been born into the community without percentage; that it had been created a terrible machine for the purpose of destroying the good character and reputation of men without having any one to respond for its malicious damage occasioned to honorable men; that it was a cast-off, without a past or the hope of a future; that it was liable to be kicked and buffetted about the persecuted and destroyed without any one to protect it; that its former friends and creators had scattered hither and thither and had disappeared like feathers before a cyclone, declaring, under oath, that they did not know their offspring and were not willing to recognize it in public. It seems to have been a Moses found in the bulrushes, destined by its creators to be a great good among the Filipino people, in teaching them to respect the rights of persons and property; but, unlike its Biblical prototype, it became, by reason of its lack of parentage, an engine of destruction let loose in the State, to enter the private abode of lawabiding citizens and to take from them their honor and reputation, which neither it nor the State could restore. To rob a man of his wealth is to rob him of trash, but to take from him his good name and reputation is to rob him of that which does not make the robber richer and leaves the person robbed poor indeed. The appellants tried to make it appear that the money which they gave for the establishment of "El Renacimiento" was a pure donation. They claim that it was a donation to the Filipino people. They do not state, however, or attempt to show what particular persons were to manage, control, and direct the enterprise for which the donation was made. A donation must be made to definite persons or associations. A donation to an indefinite person or association is an anomaly in law, and we do not believe, in view of all of the facts, that it was in fact made. A donation must be made to some definite person or association and the donee must be some ascertained or ascertainable person or association. A donation may be made for the benefit of the public, but it must be made, in the very nature of things, to some definite person or association. A donation made to no person or association could not be regarded as a donation in law. It could not be more than an abandonment of property . Of course where a donation is in fact made, without reservation to a particular person or association, the donor is no longer the owner of the thing donated nor responsible, in any way, for its use, provided that the object, for which the donation was made, was legal. A person does not become an owner or part owner of a church, for example, to the construction of which he has made a donation; neither is he responsible for the use to which said edifice may be applied. No one disputes the fact that donations may be made for the public use, but they must be made to definite persons or associations, to be administered in accordance with the purpose of the gift. We can not believe , in the light of the whole record, that the defendants and appellants, at the time they presented the defense that they were donors simply and not owners, had a reasonable hope that their declarations as to said donation, given in the manner alleged, would be believed by the court. After a careful examination of the evidence brought to this court and taking into consideration the failure of the other defendants to testify, we are of the opinion that a preponderance of such evidence shows that the defendants, Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, GaloLichauco, Felipe Barretto, and Gregorio M. Cansipit, were the coowners of the newspaper known as "El Renacimiento," at the time of the publication of the said alleged libel. With reference to the sixth assignment of error above noted, to wit: That the lower court committed an error in not admitting in evidence the judgment of acquittal of the defendant, Lope K. Santos, rendered in the criminal cause, we are of the opinion that the refusal to admit said evidence in the civil cause was not an error. The fact that the evidence in the criminal cause was insufficient to show that Lope K. Santos was guilty of the crime charged, in no way barred the right of the person injured by said alleged libel to maintain the present civil action against him. (Ocampo vs. Jenkins, 14 Phil. Rep., 681.) The criminal action had to be sustained by evidence showing the culpability of the defendant beyond a reasonable doubt, while in the civil action it is sufficient to show that the defendants injured the plaintiff by the alleged libelous publication, by a preponderance of the evidence only. (Greenleaf on Evidence, sec. 426; Cooley on Torts, 208; Reilleyvs. Norton, 65 Iowa, 306; Sloane vs. Gilbert, 23 Am. Dec., 708.) In the case of Steel vs. Cazeaux (8 Martin, La., 318; 13 American Decisions, 288), the supreme court of Louisiana said: A judgment of conviction in a criminal prosecution can not be given in evidence in a civil action. In the case of Betts et al. vs. New Hartford (25 Conn., 180) Mr. Justice Ellsworth said (in a case where a judgment in a criminal case was offered in evidence): A conviction in a criminal case is not evidence of facts upon which the judgment was rendered, when those facts come up in a civil case, for this evidence would not be material; and so the law is perfectly well settled. (1

Greenleaf on Evidence, secs. 536, 524; 1 Phillips on Evidence, 231; Hutchinson vs. Bank of Wheeling, 41 Pa. St., 42; Beausoleil vs. Brown, 12 La. Ann., 543; McDonald vs. Stark, 176 Ill., 456, 468.) While we believe that the lower court committed no error in refusing to admit the sentence acquitting Lope K. Santos in the criminal case, we are of the opinion, after a careful examination of the record brought to this court, that it is insufficient to show that Lope K. Santos was responsible, in any way, for the publication of the alleged libel, and without discussing the question whether or not the so-called Tagalog edition of "El Renacimiento" and "El Renacimiento" constituted one and the same newspaper, we find that the evidence is insufficient to show that Lope K. Santos is responsible in damages, in any way, for the publication of the said alleged libel. The appellants discussed the eight and ninth assignments of error together, and claim that the lower court committed an error in rendering a judgment jointly and severally against the defendants and in allowing an execution against the individual property of said owners, and cite provisions of the Civil and Commercial Codes in support of their contention. The difficulty in the contention of the appellants is that they fail to recognize that the basis of the present action is a tort. They fail to recognize the universal doctrine that each joint tort feasor is not only individually liable for the tort in which he participates, but is also jointly liable with his tort feasors. The defendants might have been sued separately for the commission of the tort. They might have been sued jointly and severally, as they were. (Nicoll vs.Glennie, 1 M. & S. (English Common Law Reports), 558.) If several persons jointly commit a tort, the plaintiff or person injured, has his election to sue all or some of the parties jointly, or one of them separately, because the tort is in its nature a separate act of each individual. (1 Chiddey, Common Law Pleadings, 86.) It is not necessary that the cooperation should be a direct, corporeal act, for, to give an example, in a case of assault and battery committed by various persons, under the common law all are principals. So also is the person who counsels, aids or assists in any way he commission of a wrong. Under the common law, he who aided or assisted or counseled, in any way, the commission of a crime, was as much a principal as he who inflicted or committed the actual tort. (Page vs. Freeman, 19 Mo., 421.) It may be stated as a general rule, that the joint tort feasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit. They are each liable as principals, to the same extent and in the same manner as if they had performed the wrongful act themselves. (Cooley on Torts, 133; Moir vs. Hopkins, 16 Ill., 313 (63 Am. Dec., 312 and note); Berry vs. Fletch, 1st Dill., 67; Smithwickvs. Ward, 7 Jones L. 64; Smith vs. Felt, 50 Barb. (N. Y.), 612; Shepard vs.McQuilkin, 2 W. Va., 90; Lewis vs. Johns, 34 Cal., 269.) Joint tort feasors are jointly and severally liable for the tort which they commit. The person injured may sue all of them, or any number less than all. Each is liable for the whole damage caused by all, and all together are jointly liable for the whole damage. It is no defense for one sued alone, that the others who participated in the wrongful act are not joined with him as defendants; nor is it any excuse for him that his participation in the tort was insignificant as compared with that of the others. (Forebrothervs.Ansley, 1 Campbell (English Reports), 343; Pitcher vs. Bailey, 8 East, 171; Booth vs. Hodgson, 6 Term Reports, 405; Vosevs. Grant, 15 Mass., 505; Acheson vs. Miller, 18 Ohio, 1; Wallace vs. Miller, 15 La. Ann., 449; Murphy vs. Wilson, 44 Mo., 313; Bishop vs.Ealey, 9 Johnson (N. Y.), 294.) Joint tort feasors are not liable pro rata. The damages can not be apportioned among them, except among themselves. They can no insist upon an apportionment, for the purpose of each paying an aliquot part. They are jointly and severally liable for the full amount. (Pardrige vs. Brady, 7 Ill. App., 639; Carney vs. Read, 11 Ind., 417; Lee vs. Black, 27 Ark., 337; Bevinsvs. McElroy, 52 Am. Dec., 258.) A payment in full of the damage done, by one of the joint tort feasors, of course satisfies any claim which might exist against the others. There can be but one satisfaction. The release of one of the joint tort feasors by agreement, generally operates to discharge all. (Wright vs. Lathrop, 2 Ohio, 33; Livingston vs. Bishop, 1 Johnson (N.Y.), 290; Brown vs. Marsh, 7 Vt., 327; Ayer vs.Ashmead, 31 Conn., 447; Eastman vs. Grant, 34 Vt., 387; Turner vs. Hitchcock, 20 Iowa, 310; Ellis vs.Esson, 50 Wis., 149.) Of course the courts during the trial may find that some of the alleged joint tort feasors are liable and that others are not liable. The courts may release some for lack of evidence while condemning others of the alleged tort feasors. And this is true even though they are charged jointly and severally. (Lansing vs. Montgomery, 2 Johnson (N. Y.), 382; Drake vs. Barrymore, 14 Johnson, 166; Owens vs. Derby, 3 Ill., 126.) This same principle is recognized by Act 277 of the Philippine Commission. Section 6 provides that: Every author, editor or proprietor . . . is chargeable with the publication of any words in any part . . . or number of each newspaper, as fully as if he were the author of the same. In our opinion the lower court committed no error in rendering a joint and several judgment against the defendants and allowing an execution against their individual property. The provisions of the Civil and Commercial Codes cited by the defendants and appellants have no application whatever to the question presented in the present case. The tenth assignment of error above noted relates solely to the amount of damages suffered on account of wounded feelings, mental suffering and injury to the good name and reputation of Mr. Worcester, by reason of the alleged libelous publication. The lower court found that the damages thus suffered by Mr. Worcester amounted to P35,000. This assignment of error

presents a most difficult question. The amount of damages resulting from a libelous publication to a man's good name and reputation is difficult of ascertainment. It is nordifficult to realize that the damage thus done is great and almost immeasurable. The specific amount the damages to be awarded must depend upon the facts in each case and the sound discretion of the court. No fixed or precise rules can be laid down governing the amount of damages in cases of libel. It is difficult to include all of the facts and conditions which enter into the measure of such damages. A man's good name and reputation are worth more to him than all the wealth which he can accumulate during a lifetime of industrious labor. To have them destroyed may be eminently of more damage to him personally than the destruction of his physical wealth . The loss is immeasurable. No amount of money can compensate him for his loss. Notwithstanding the great loss which he, from his standpoint, sustains, the courts must have some tangible basis upon which to estimate such damages. In discussing the elements of damages in a case of libel, the Honorable James C. Jenkins, who tried the present case in the court below, correctly said that, "The enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property . It is one of those rights necessary to human society, that underlie the whole scheme of human civilization. The respect and esteem of his fellows are among the highest rewards of a wellspent life vouchsafed to man in this existence. The hope of it is the inspiration of youth and its possession is a solace in later years. A man of affairs, a business man, who has been seen known by his fellowmen in the active pursuits of life for many years, and who has developed a great character and an unblemished reputation, has secured a possession more useful and more valuable than lands or houses or silver or gold. The law recognizes the value of such a reputation and constantly strives to give redress for its injury. It imposes upon him who attacks it by slanderous words or libelous publications, the liability to make full compensation for the damage to the reputation, for the shame, obloquy and for the injury to the feelings of its owner, which are caused by the publication of the slander or libel. The law goes further. If the words are spoken or the publication is made with the intent to injure the victim or with criminal indifference to civil obligation, it imposes such damages as the jury, in view of all the circumstances of the particular case, adjudge that the wrongdoer ought to pay as an example to the public and to deter others from doing likewise, and for punishment for the infliction of the injury." As was said above, the damages suffered by Mr. Worcester to his good name and reputation are most difficult of ascertainment. The attorney for the appellants, in his brief, lends the court but little assistance in reaching a conclusion upon this question. The appellants leaves the whole question to the discretion of the court, without any argument whatever. After a careful examination, we are of the opinion that part of the judgment of the lower court relating to the damages suffered by the Honorable Dean C. Worcester, should be modified, and that a judgment should be rendered in favor of Mr. Dean C. Worcester and against the defendants, jointly and severally, for the sum of P15,000, with interest at 6 per cent from the 23d of January, 1909. With reference to the eleventh assignment of error above noted, to wit: That the court erred in imposing punitive damages upon the defendants, we are of the opinion, after a careful examination of the evidence, and in view of all of the facts and circumstances and the malice connected with the publication of said editorial and the subsequent publications with relation to said editorial, that the lower court, by virtue of the provisions of Act No. 277 of the Philippine Commission, was justified in imposing punitive damages upon the defendants. Section 11 of Act No. 277 allows the court, in an action for libel, to render a judgment for punitive damages, in an amount which the court may think will be a just punishment to the libeler and an example to others. Exemplary damages in civil actions for libel may always be recovered if the defendant or defendants are actuated by malice. In the present case there was not the slightest effort on the part of the defendants to show the existence of probable cause or foundation whatever for the facts contained in said editorial. Malice, hatred, and ill will against the plaintiff are seen throughout the record. The said editorial not only attempted to paint the plaintiff as a villain, but upon every occasion, the defendants resorted to ridicule of the severest kind. Here again we find difficulty in arriving at a conclusion relating to the damages which should be imposed upon the defendants for the purpose of punishment. Upon this question the courts must be governed in each case by the evidence, the circumstances and their sound discretion. Taking into consideration the fact that some of the defendants have been prosecuted criminally and have been sentenced, and considering that fact as a part of the punitive damages, we have arrived at the conclusion that the judgment of the lower court should be modified, and that a judgment should be rendered against the defendants, jointly and severally, and in favor of the plaintiff, the Honorable Dean C. Worcester, in the sum of P10,000, as punitive damages, with interest at 6 per cent from the 23d day of January, 1909. Therefore, after a full consideration of all the facts contained in the record and the errors assigned by the appellants in this court, we are of the opinion that the judgment of the lower court should be modified and that a judgment should be rendered in favor of Dean C. Worcester and against the defendants Martin Ocampo, Teodoro M. Kalaw, Manuel Palma, Arcadio Arellano, Angel Jose, GaloLichauco, Felipe Barretto, and Gregorio M. Cansipit, jointly and severally, for the sum of P25,000 with interest at 6 per cent from the 23d of January, 1909, with costs, and that a judgment

should be entered absolving Lope K. Santos from any liability under said complaint. So ordered. Carson, Moreland and Trent, JJ.,concur. Separate Opinions ARELLANO, C.J. and MAPA, J., concurring: We concur, except with reference to the liability imposed upon GaloLichauco based on the testimony of one of the defendants, Arcadio Arellano, and an article published in the newspaper itself, "El Renacimiento." In a case against Sedano, Arcadio Arellano said that GaloLichauco was one of the owners of that newspaper and in the criminal case prosecuted for libel against some of the defendants herein that he was one of the founders. Also, it was asserted in an article in "El Renacimiento" that GaloLichauco was one of its stockholders. If these things could be taken as evidence of his right as a partner, coowner or participant in a business or company, it would follow that they could be evidence of an obligation or liability emanating from such business, but it quite impossible that they be regarded as evidence of such nature, that is, in his favor. Therefore, they can not be held to be sufficient proof against him to conclude that he has contracted an obligation or established a basis for liability, such as that of answering with all his property for the consequences of the act of another. Such person could not on this evidence claim a share of the earnings or profits of the Renacimiento company, because it is inconsistent with all the provisions and prohibitions of law bearing upon the validity and force of such pretended right of participation. He could not be held to be in the situation of the other so-called founders of "El Renacimiento," under article 117 of the Code of Commerce, according to which: Articles of association, executed with the essential requisites of law, shall be valid and binding between the parties thereto, no matter what form, conditions, and combinations, legal and honest, are embraced therein, provided they are not expressly prohibited by this code. There operates in favor of these other so-called founders of "El Renacimiento" the testimony of the real founder and manager thereof, Martin Ocampo, who at the trial admitted that they had subscribed and paid sums of money to aid him in the business he had projected. But with reference to GaloLichauco, Martin Ocampo explicitly stated that he offered to contribute, but did not carry out his offer and in fact paid nothing. It is incomprehensible how one could claim the right or title to share the earnings or profits of a company when he had put no capital into it, neither is it comprehensible how one could share in the losses thereof, and still less incur liability for damages on account of some act of the said company an unrestricted liability to the extent of all his property, as though he were a regular general partner when he was not such. If there could be one law for and another against, or, in other words, one for rights and another for obligations, emanating from the same source, as in a contract of partnership, then it might well happen that one could be a partner for assuming obligations, losses and liabilities, and not a partner in the sense of exercising rights and of participation in the earnings and profits of partnership. But the contrary is a legal axiom, and it is impossible to set aside the principle of reciprocity that pervades and regulates in equal manner rights and obligations. Hence it is impossible to reach as a conclusion derived from the evidence set forth that GaloLichauco is a partner in the Renacimiento company and coowner of the newspaper of that name. Judgment so rendered would not clothe GaloLichauco, after he had been sentenced to pay damages for acts of "El Renacimiento," with any title, right, or reason for calling himself a coowner of said business and entitle him to claim a share of any earnings and profits which might be realized in the meantime or in the future. He would not be entitled to register in the mercantile registry on such ground, nor would or could any court oblige the Renacimiento company or Martin Ocampo to regard GaloLichauco as a partner or coowner. From the testimony of a single witness, corroborated by a newspaper article, wherein it is asserted that a certain person is a partner or coowner of the Y. M. C. A., the witness believing for a certain amount and the newspaper merely saying that he was a stockholder in that association, offset by the assertion of its president that he was not such, no court is capable of rendering judgment declaring that such person is actually a partner or coowner of the Y. M. C. A. and must pay damages for a culpable action of said association and must in exchange be recognized and admitted as a partner and coowner of the Y. M. C. A. and a sharer in the earnings, profits and advantages thereof. Neither could a person be recognized and held out to be the owner of one or more parcels of real estate on the testimony of one witness, the evidence of a newspaper article and the strength of a judgment based upon such testimony and newspaper article, in order that he might be required to pay the land tax and in exchange collect the rents from such property; it is no argument, either pro or con, to say that such person has neither impugned that testimony nor corrected or denied the article published. Should a newspaper publish a list of millionaires and include therein one who is not such, or if a millionaire should figure in a list of paupers, there is no law imposing upon the pauper or the millionaire the duty of denying or correcting the inaccurate report. Neither is there any law that creates the presumption that failure to make such correction implies the truth of what is so asserted. It is not a rational and acceptable rule to infer consequences from the failure to correct (whether proper or not) newspaper statements, and still less when in a judicial action such assertion is not substantiated, as has resulted in the case at bar.

Although Arcadio Arellano may say during a trial, as he has said, once, twice or a hundred times that GaloLichauco is the proprietor or founder of "El Renacimiento;" although "El Renacimiento" may have asserted extrajudicially, in an article in reply to another newspaper, that GaloLichauco is one of the stockholders of the business it conducts; yet when its editor on trial testifies that such report had been secured from mere hearsay among his associates in the newspaper office and not from the organizer, manager or administrator of the newspaper, Martin Ocampo, it can not in justice be concluded that GaloLichauco is a partner in the business or coowner of the newspaper "El Renacimiento." TORRES, J., dissenting: I concur in the foregoing decision of the majority in regard to the defendants Martin Ocampo and TeodoroKalaw, but dissent from it with reference to the others Manuel Palma, Arcadio Arellano, Angel Jose, GaloLichauco, Felipe Barretto, and Gregorio Cansipit for they had neither direct nor indirect participation in the act that gave rise to the present suit for damages, nor were they owners or proprietors of the newspaper "El Renacimiento," its press or other equipment. Consequently they are not liable for the damages claimed and should be absolved from the complaint. With the exception of GaloLichauco, who did not pay up the sum he subscribed toward the founding of said newspaper, it is undeniable and clearly proven that the other five Palma, Arellano, Jose, Barretto, and Cansipit contributed different sums for the object stated. Martin Ocampo was placed at the head of the business and from the funds he took charge of purchased the press and other necessary equipment for printing and publishing said newspaper. It is not conclusively shown in the record that a company was formed to found and publish "El Renacimiento," and divide the earnings and profits among the partners, through a contract entered into among them, nor that there was established a community of ownership over the said newspaper, its press and the other equipment indispensable for its publication. From the fact that the said five individuals contributed, each turning over to Ocampo a certain sum for the purpose of founding, editing and issuing the said newspaper, it is improper to deduce that the contributors formed a company of either a civil or commercial nature, just as it is inadmissible to presume the existence of a company unless it appears that the formation thereof was agreed upon among the partners. Aside from the fact of the contribution, it is not shown in the record that said six contributors had anything to do with acquiring the press, type and other equipment indispensable for getting out the newspaper; that any contract, either verbal or written, as to how and in what manner the publication with its receipts and expenditures should be managed, and in what manner profits should be divided or deficit made up in case of loss; or that at any time meetings were held for discussing the business and dividing the profits, as though they were really in partnership. Up to the time when said newspaper ceased publication, its sole manager, Martin Ocampo, acted freely, just as if he were the absolute owner of the publication, nor does it appear that he ever rendered any report of his acts to those who contributed their money to the founding of "El Renacimiento." The six contributors mentioned believed in all good faith that it was necessary, expedient and useful for the rights and interests of the inhabitants of the Philippines to found a newspaper and that out of love and duty to their country they ought to contribute from their private fortunes toward the expenses indispensable thereto, and in so doing unconditionally and with liberality they made a genuine gift, each one freely turning over to Martin Ocampo the amount he could spare. The case comes under article 618 of the Civil Code, which says: A gift is an act of liberality by which a person disposes gratuitously of a thing in favor of another, who accepts it. It is true that Martin Ocampo is not the real donee, but considering that such acts of liberality were executed by said six contributors for the common good of the Filipino people and that it was Martin Ocampo who voluntarily undertook to realize and carry out the perfectly legitimate purpose of the contributors, his acceptance of the sums donated, not having been actually repudiated or disapproved by the community, must be understood to have been made in their name, and thus is fulfilled the requirement of acceptance established by the article of the code cited. According to this theory the donors, after they had freely and spontaneously parted with the sums donated, could not retain any right over the objects to which these sums were applied, because the donor by his gift voluntarily conveys to the donee his rights of ownership over the thing donated. Therefore the said donors can not in strict logic be regarded as the proprietors of the newspaper "El Renacimiento," its press and equipment, because after having turned over the money to Martin Ocampo, who accepted the commission of carrying out the wishes and purposes of the contributors, they retained no right over the newspaper or the press, fixtures and equipment thereof. Persons who contribute to the erection of a church or a hospital, in spite of the fact that they freely and liberally give money to parties charged with collecting it, do not, therefore retain any right, nor can they be called coowners or coproprietors of the church or hospital constructed, and the receipt or acknowledgment of the sums paid to the parties at the head of the enterprise fulfills the requirement of the law, perfects and brings within the legal pale the donation voluntarily made from the motives of piety or benevolence. Such is the case of the said six contributors, who were animated by love of this country in which they were born. Five gave different sums to Martin Ocampo, and a sixth promised to give something, for the founding of "El

Renacimiento," believing in good faith that by their acts they, were rendering a meritorious service to their country, but, notwithstanding the internal moral satisfaction they got, as in the case of the benefactors of a church or hospital, they can never be called coowners or coproprietors of said newspaper. If, after the establishment of the newspaper, its staff, editor or manager made bad use of the publication and issued a libelous article, the donors who contributed to the funds, necessary for the founding of "El Renacimiento," from the very fact that they are not proprietors of the newspaper or of the press from which it is issued, are not liable for the publication of said article, because they did not participate therein either directly or indirectly, just as in the criminal case they were not indicted even on the ground that they are members of the company that is alleged to have been formed for the establishment of the said newspaper, "El Renacimiento." But this is a theory which, as we have already said, we do not admit, because proof is entirely lacking of the existence of that company wherefrom it is attempted to derive the character of owner attributed to the said donees and the consequent obligation to indemnify the plaintiff for the damages claimed. After Martin Ocampo had accepted the various amounts proffered by the said Palma, Jose, Arellano, Barretto, and Cansipit, these letter ceased to be the owners of and surrendered all right to the money donated and to the objects that were acquired therewith for the purpose of establishing the newspaper "El Renacimiento," from which business said five individuals, as also GaloLichauco, are entirely separated. Therefore they can not incur, jointly and severally with the director and manager of "El Renacimiento," the liability to indemnify the plaintiff for the publication therein of an article constituting libel. Section 11 of Act No. 277, applicable to the case, prescribes: In addition to the criminal action hereby prescribed, a right of civil action is also hereby given to any person libeled as hereinbefore set forth against the person libeling him for damages sustained by such libel, and the person so libeled shall be entitled to recover in such civil action not only the actual pecuniary damages sustained by him but also damages for injury to his feelings and reputation, and in addition to such punitive damages as the court may think will be a just punishment to the libeler and an example to others. Suit may be brought in any Court of First Instance having jurisdiction of the parties. The presumptions, rules of evidence, and special defenses herein provided for criminal prosecutions shall be equally applicable in civil actions under this section. It is certain that Lichauco, who merely promised a certain sum, and each of the other five mentioned, who gave the amounts they could spare, did not write, edit, or publish the libelous article that gave rise to this action, neither did they take part directly or indirectly in writing and publishing said article for the purpose of discrediting the plaintiff, and for this reason there does not in our opinion exist any just or legal ground for bringing against them the corresponding civil action for damages, since the mere fact of having contributed from their respective fortunes to the establishment of the newspaper "El Renacimiento," a contribution made in the nature of a gift, and not for the purpose of forming a company for the sake of dividing among themselves earnings and profits, can not in any way have given rise to or produced the obligation to indemnify the plaintiff and place them on a par with those who have injured him by means of a defamatory article, because in making the gifts of money which they did the said six contributing defendants did not acquire, nor do they retain, any right of property or of participation in the said newspaper, its press and equipment. As it does not appear from the record to have been ascertained or proven that they contributed with bad faith and criminal intention to the founding of a newspaper expressly intended to publish libelous articles, or in so doing that they executed acts prohibited by law or contrary to public morality, those who gave money nine years ago for its establishment are certainly not responsible for the bad use that those wrote and managed said newspaper made of it, especially when the penal action from which the obligation arises was committed many years later, unless it appears that said original donors had knowledge of or participation in the defamatory acts performed. For these reasons it follows in our opinion that justice requires that the judgment appealed from with regard to the defendants GaloLichauco, Manuel Palma, Arcadio Arellano, Angel Jose, Felipe Barretto, and Gregorio Cansipit should be reversed and that they should be absolved from the complaint entered against them for damages, with no special finding as to six-ninths of the costs in both instances. I concur in the decision of the majority with reference to the others Kalaw, Ocampo, and the rest of the defendants. ARTICLE 2184 In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months. If the owner was not in the motor vehicle, the provisions of article 2180 are applicable. (n) G.R. No. L-9010 March 28, 1914 J. H. CHAPMAN, plaintiff-appellant, vs. JAMES M. UNDERWOOD, defendant-appellee. Wolfson&Wolfson for appellant. Bruce, Lawrence, Ross & Block for appellee. MORELAND, J.:

At the time the accident occurred, which is the basis of this action, there was a single-track street-car line running along CalleHerran, with occasional switches to allow cars to meet and pass each other. One of these switches was located at the scene of the accident. The plaintiff had been visiting his friend, a man by the name of Creveling, in front of whose house the accident happened. He desired to board a certain "San Marcelino" car coming from Santa Ana and bound for Manila. Being told by Creveling that the car was approaching, he immediately, and somewhat hurriedly, passed from the gate into the street for the purpose of signaling and boarding the car. The car was a closed one, the entrance being from the front or the rear flatform. Plaintiff attempted to board the front platform but, seeing that he could not reached it without extra exertion, stopped beside the car, facing toward the rear platform, and waited for it to come abreast of him in order to board. While in this position he was struck from behind and run over by the defendant's automobile. The defendant entered CalleHerran at CallePeafrancia in his automobile driven by his chauffeur, a competent driver. A street car bound from Manila to Santa Ana being immediately in front of him, he followed along behind it. Just before reaching the scene of the accident the street car which was following took the switch that is, went off the main line to the left upon the switch lying alongside of the main track. Thereupon the defendant no longer followed that the street car nor went to the left, but either kept straight ahead on the main street-car track or a bit to the right. The car which the plaintiff intended to board was on the main line and bound in an opposite direction to that in which the defendant was going. When the front of the "San Marcelino" car, the one the plaintiff attempted to board, was almost in front of the defendant's automobile, defendant's driver suddenly went to the right and struck and ran over the plaintiff, as above described. The judgment of the trial court was for defendant. A careful examination of the record leads us to the conclusion that the defendant's driver was guilty of negligence in running upon and over the plaintiff. He was passing an oncoming car upon the wrong side. The plaintiff, in common out to board the car, was not obliged, for his own protection, to observe whether a car was coming upon him from his left hand. He had only to guard against those coming from the right. He knew that, according to the law of the road, no automobile or other vehicle coming from his left should pass upon his side of the car. He needed only to watch for cars coming from his right, as they were the only ones under the law permitted to pass upon that side of the street car. The defendant, however, is not responsible for the negligence of his driver, under the facts and circumstances of this case. As we have said in the case of Johnson vs. David (5 Phil. Rep., 663), the driver does not fall within the list of persons in article 1903 of the Civil Code for whose acts the defendant would be responsible. Although in the David case the owner of the vehicle was not present at the time the alleged negligent acts were committed by the driver, the same rule applies where the owner is present, unless the negligent act of the driver are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a violation of the law by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible for such acts. The owner of an automobile who permits his chauffeur to drive up to Escolta, for example, at a speed of 60 miles an hour, without any effort to stop him, although he has had a reasonable opportunity to do so, becomes himself responsible, both criminally and civilly, for the results produced by the acts of his chauffeur. On the other hand, if the driver, by a sudden act of negligence, and without the owner having a reasonable opportunity to prevent the acts or its continuance, injures a person or violates the criminal law, the owner of the automobile, although present therein at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length a time that the owner, by his acquiescence, makes his driver's act his own. In the case before us it does not appear from the record that, from the time the automobile took the wrong side of the road to the commission of the injury, sufficient time intervened to give the defendant an opportunity to correct the act of his driver. Instead, it appears with fair clearness that the interval between the turning out to meet and pass the street car and the happening of the accident was so small as not to be sufficient to charge defendant with the negligence of the driver. Whether or not the owner of an automobile driven by a competent driver, would be responsible, whether present or not, for the negligent acts of his driver when the automobile was a part of a business enterprise, and was being driven at the time of the accident in furtherance of the owner's business, we do not now decide. The judgment appealed from is affirmed, with costs against the appellant. Arellano, C.J., Carson and Araullo, JJ., concur. Trent, J., concurs in the result. G.R. No. L-20392 December 18, 1968 MARCIAL T. CAEDO, JUANA SANGALANG CAEDO, and the Minors, EPHRAIM CAEDO, EILEEN CAEDO, ROSE ELAINE CAEDO, suing through their father, MARCIAL T. CAEDO, as guardian ad litem, plaintiffs-appellants, vs. YU KHE THAI and RAFAEL BERNARDO, defendants-appellants. Norberto J. Quisumbing for plaintiffs-appellants. De Joya, Lopez, Dimaguila, Hermoso and Divino for defendants-appellants

MAKALINTAL, J.: As a result of a vehicular accident in which plaintiff MarcialCaedo and several members of his family were injured they filed this suit for recovery of damages from the defendants. The judgment, rendered by the Court of First Instance of Rizal on February 26, 1960 (Q-2952), contains the following disposition: IN VIEW OF THE FOREGOING, the court renders a judgment, one in favor of the plaintiffs and against the defendants, Yu Khe Thai and Rafael Bernardo, jointly and severally, to pay to plaintiffs MarcialCaedo, et al., the sum of P1,929.70 for actual damages; P48,000.00 for moral damages; P10,000.00 for exemplary damages; and P5,000.00 for attorney's fees, with costs against the defendants. The counterclaim of the defendants against the plaintiffs is hereby ordered dismissed, for lack of merits. On March 12, 1960 the judgment was amended so as to include an additional award of P3,705.11 in favor of the plaintiffs for the damage sustained by their car in the accident. Both parties appealed to the Court of Appeals, which certified the case to us in view of the total amount of the plaintiffs' claim. There are two principal questions posed for resolution: (1) who was responsible for the accident? and (2) if it was defendant Rafael Bernardo, was his employer, defendant Yu Khe Thai, solidarily liable with him? On the first question the trial court found Rafael Bernardo negligent; and on the second, held his employer solidarily liable with him. The mishap occurred at about 5:30 in the morning of March 24, 1958 on Highway 54 (now E. de los Santos Avenue) in the vicinity of San Lorenzo Village. Marcial was driving his Mercury car on his way from his home in Quezon City to the airport, where his son Ephraim was scheduled to take a plane for Mindoro. With them in the car were Mrs. Caedo and three daughters. Coming from the opposite direction was the Cadillac of Yu Khe Thai, with his driver Rafael Bernardo at the wheel, taking the owner from his Paraaque home to WackWack for his regular round of golf. The two cars were traveling at fairly moderate speeds, considering the condition of the road and the absence of traffic the Mercury at 40 to 50 kilometers per hour, and the Cadillac at approximately 30 to 35 miles (48 to 56 kilometers). Their headlights were mutually noticeable from a distance. Ahead of the Cadillac, going in the same direction, was acaretella owned by a certain Pedro Bautista. The carretela was towing another horse by means of a short rope coiled around the rig's vertical post on the right side and held at the other end by Pedro's son, Julian Bautista. Rafael Bernardo testified that he was almost upon the rig when he saw it in front of him, only eight meters away. This is the first clear indication of his negligence. The carretela was provided with two lights, one on each side, and they should have given him sufficient warning to take the necessary precautions. And even if he did not notice the lights, as he claimed later on at the trial, the carretela should anyway have been visible to him from afar if he had been careful, as it must have been in the beam of his headlights for a considerable while. In the meantime the Mercury was coming on its own lane from the opposite direction. Bernardo, instead of slowing down or stopping altogether behind the carretelauntil that lane was clear, veered to the left in order to pass. As he did so the curved end of his car's right rear bumper caught the forward rim of the rig's left wheel, wrenching it off and carrying it along as the car skidded obliquely to the other lane, where it collided with the oncoming vehicle. On his part Caedo had seen the Cadillac on its own lane; he slackened his speed, judged the distances in relation to the carretela and concluded that the Cadillac would wait behind. Bernardo, however, decided to take a gamble beat the Mercury to the point where it would be in line with the carretela, or else squeeze in between them in any case. It was a risky maneuver either way, and the risk should have been quite obvious. Or, since the car was moving at from 30 to 35 miles per hour (or 25 miles according to Yu Khe Thai) it was already too late to apply the brakes when Bernardo saw the carretela only eight meters in front of him, and so he had to swerve to the left in spite of the presence of the oncoming car on the opposite lane. As it was, the clearance Bernardo gave for his car's right side was insufficient. Its rear bumper, as already stated, caught the wheel of thecarretela and wrenched it loose. Caedo, confronted with the unexpected situation, tried to avoid the collision at the last moment by going farther to the right, but was unsuccessful. The photographs taken at the scene show that the right wheels of his car were on the unpaved shoulder of the road at the moment of impact. There is no doubt at all that the collision was directly traceable to Rafael Bernardo's negligence and that he must be held liable for the damages suffered by the plaintiffs. The next question is whether or not Yu Khe Thai, as owner of the Cadillac, is solidarily liable with the driver. The applicable law is Article 2184 of the Civil Code, which reads: ART. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months. Under the foregoing provision, if the causative factor was the driver's negligence, the owner of the vehicle who was present is likewise held liable if he could have prevented the mishap by the exercise of due diligence. The rule is not new, although formulated as law for the first time in the new Civil Code. It was expressed in Chapman vs. Underwood (1914), 27 Phil. 374, where this Court held: ... The same rule applies where the owner is present, unless the negligent acts of the driver are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to desist therefrom. An owner who sits in his automobile, or other vehicle,

and permits his driver to continue in a violation of the law by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible for such acts. The owner of an automobile who permits his chauffeur to drive up the Escolta, for example, at a speed of 60 miles an hour, without any effort to stop him, although he has had a reasonable opportunity to do so, becomes himself responsible, both criminally and civilly, for the results produced by the acts of the chauffeur. On the other hand, if the driver, by a sudden act of negligence, and without the owner having a reasonable opportunity to prevent the act or its continuance, injures a person or violates the criminal law, the owner of the automobile, although present therein at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length of time that the owner, by his acquiescence, makes his driver act his own. The basis of the master's liability in civil law is not respondent superior but rather the relationship of paterfamilias. The theory is that ultimately the negligence of the servant, if known to the master and susceptible of timely correction by him, reflects his own negligence if he fails to correct it in order to prevent injury or damage. In the present case the defendants' evidence is that Rafael Bernardo had been Yu Khe Thai's driver since 1937, and before that had been employed by Yutivo Sons Hardware Co. in the same capacity for over ten years. During that time he had no record of violation of traffic laws and regulations. No negligence for having employed him at all may be imputed to his master. Negligence on the part of the latter, if any, must be sought in the immediate setting and circumstances of the accident, that is, in his failure to detain the driver from pursuing a course which not only gave him clear notice of the danger but also sufficient time to act upon it. We do not see that such negligence may be imputed. The car, as has been stated, was not running at an unreasonable speed. The road was wide and open, and devoid of traffic that early morning. There was no reason for the car owner to be in any special state of alert. He had reason to rely on the skill and experience of his driver. He became aware of the presence of thecarretela when his car was only twelve meters behind it, but then his failure to see it earlier did not constitute negligence, for he was not himself at the wheel. And even when he did see it at that distance, he could not have anticipated his driver's sudden decision to pass the carretela on its left side in spite of the fact that another car was approaching from the opposite direction. The time element was such that there was no reasonable opportunity for Yu Khe Thai to assess the risks involved and warn the driver accordingly. The thought that entered his mind, he said, was that if he sounded a sudden warning it might only make the other man nervous and make the situation worse. It was a thought that, wise or not, connotes no absence of that due diligence required by law to prevent the misfortune. The test of imputed negligence under Article 2184 of the Civil Code is, to a great degree, necessarily subjective. Car owners are not held to a uniform and inflexible standard of diligence as are professional drivers. In many cases they refrain from driving their own cars and instead hire other persons to drive for them precisely because they are not trained or endowed with sufficient discernment to know the rules of traffic or to appreciate the relative dangers posed by the different situations that are continually encountered on the road. What would be a negligent omission under aforesaid Article on the part of a car owner who is in the prime of age and knows how to handle a motor vehicle is not necessarily so on the part, say, of an old and infirm person who is not similarly equipped. The law does not require that a person must possess a certain measure of skill or proficiency either in the mechanics of driving or in the observance of traffic rules before he may own a motor vehicle. The test of his intelligence, within the meaning of Article 2184, is his omission to do that which the evidence of his own senses tells him he should do in order to avoid the accident. And as far as perception is concerned, absent a minimum level imposed by law, a maneuver that appears to be fraught with danger to one passenger may appear to be entirely safe and commonplace to another. Were the law to require a uniform standard of perceptiveness, employment of professional drivers by car owners who, by their very inadequacies, have real need of drivers' services, would be effectively proscribed. We hold that the imputation of liability to Yu Khe Thai, solidarily with Rafael Bernardo, is an error. The next question refers to the sums adjudged by the trial court as damages. The award of P48,000 by way of moral damages is itemized as follows: 1. MarcialCaedo 2. Juana S. Caedo 3. Ephraim Caedo 4. Eileen Caedo 5. Rose Elaine Caedo 6. MerilynCaedo P 20,000.00 15,000.00 3,000.00 4,000.00 3,000.00 3,000.00

maintain that the amounts awarded as moral damages are excessive and should be reduced. We find no justification for either side. The amount of actual damages suffered by the individual plaintiffs by reason of their injuries, other than expenses for medical treatment, has not been shown by the evidence. Actual damages, to be compensable, must be proven. Pain and suffering are not capable of pecuniary estimation, and constitute a proper ground for granting moral, not actual, damages, as provided in Article 2217 of the Civil Code. The injuries sustained by plaintiffs are the following: MARCIAL T. CAEDO: A. Contusion, with hematoma, scalp, frontal left; abrasions, chest wall, anterior; B. Multiple fractures, ribs, right, lst to 5th inclusive. Third rib has a double fracture; Subparieto-plaural hematoma; Basal disc atelectasis, lung, right lower lobe, secondary; C. Pseudotosis, left, secondary to probable basal fracture, skull. JUANA SANGALANG CAEDO: A. Abrasions, multiple: (1)frontal region, left; (2) apex of nose; (3) upper eyelid, left; (4) knees. B. Wound, lacerated, irregular, deep, frontal; C. Fracture, simple, 2nd rib posterior, left with displacement. D. Fracture, simple, base, proximal phalanx right, big toe. E. Fracture, simple, base, metatarsals III and V right. F. Concussion, cerebral. EPHRAIM CAEDO: A. Abrasions, multiple: (1) left temporal area; (2) left frontal; (3) left supraorbital EILEEN CAEDO: A. Lacerated wound (V-shaped), base, 5th finger, right, lateral aspect. B. Abrasions, multiple: (1) dorsum, proximal phalanx middle finger; (2) Knee, anterior, bilateral; (3) shin, lower 1/3. ROSE ELAINE CAEDO: A. Abrasions, multiple: (1) upper and lower lids; (2) left temporal; (3) nasolabial region; (4) leg, lower third, anterior. MARILYN CAEDO: A. Abrasions, multiple: (1)shin, lower 1/3 right; (2) arm, lower third C. Contusion with hematoma, shin, lower 1/3, anterior aspect, right. (See Exhibits D, D-1, D-2, D-3, D-4, and D- 5) It is our opinion that, considering the nature and extent of the abovementioned injuries, the amounts of moral damages granted by the trial court are not excessive. WHEREFORE, the judgment appealed from is modified in the sense of declaring defendant-appellant Yu Khe Thai free from liability, and is otherwise affirmed with respect to defendant Rafael Bernardo, with costs against the latter. Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro and Capistrano, JJ., concur. Fernando, J., took no part. SECOND DIVISION G.R. No. L-62988 February 28, 1985 FELINA RODRIGUEZ-LUNA, JOSE R. LUNA and ROBERTO R. LUNA, JR., petitioners, vs. THE HON. INTERMEDIATE APPELLATE COURT, JOSE E. DELA ROSA and LUIS DELA ROSA, respondents. Ezequiel S. Consulta for petitioners. David M. Castro for respondents. ABAD SANTOS, J.: This is a petition to review a decision of the defunct Court of Appeals. The petitioners are the heirs of Roberto R. Luna who was killed in a vehicular collision. The collision took place on January 18, 1970, at the go-kart practice area in Greenhills, San Juan, Metro Manila. Those involved were the go-kart driven by the deceased, a business executive, and a Toyota car driven by Luis dela Rosa, a minor of 13 years who had no driver's license. In a suit for damages brought by the heirs of Roberto R. Luna against Luis dela Rosa and his father Jose dela Rosa, the Court of First Instance of Manila in Civil Case No. 81078, rendered the following judgment: WHEREFORE, judgment is hereby rendered sentencing the defendants Luis dela Rosa and Jose dela Rosa to pay, jointly and severally, to the plaintiffs the sum of P1,650,000.00 as unearned net earnings of Roberto Luna, P12,000.00 as compensatory damages, and P50,000.00 for the loss of his companionship, with legal interest from the date of this decision; plus attorney's fees in the sum of P50,000.00, and the costs of suit. (Record on Appeal, p. 35.) The defendants appealed to the defunct Court of Appeals which in a decision dated May 22, 1979, affirmed in toto that of the trial court. (Rollo, p. 48.) However, upon a motion for reconsideration filed by the defendants-appellants, the Court of Appeals, in a resolution dated June 19, 1981, modified its judgment thus: WHEREFORE, the decision rendered in this case is hereby modified insofar as the judgment ordering the defendants to pay, jointly and severally, the sum of P 1,650,000.00 to plaintiffs with legal interest from July 5, 1973, is concerned. In lieu thereof, defendants are hereby ordered to pay plaintiffs, jointly and severally, the sum of Four Hundred Fifty Thousand Pesos (P450,000.00) as unearned net earnings of Roberto R. Luna, with legal interest thereon from the date of the filing of the complaint until the whole amount shall have been totally paid.

Plaintiffs appealed from the award, claiming that the Court should have granted them also actual or compensatory damages, aggregating P225,000, for the injuries they sustained. Defendants, on the other hand

The rest of the other dispositions in the judgment a quo stand. (Rollo, pp. 33-34.) Both parties filed separate petitions for review of the appellate court's decision. In G.R. No. 57362, the petition for review of Jose and Luis dela Rosa was denied for lack of merit on October 5, 1981. Subsequently, they informed that the decision sought to be reviewed was not yet final because the Lunas had a pending motion for reconsideration. For prematurity, this Court set aside all previous resolutions. On February 16, 1983, acting upon the motion and manifestation of the petitioners, they were required to file an amended petition within thirty days from notice. On June 20, 1983, this Court resolved: "For failure of the petitioners to file an amended petition as required, this case is hereby DISMISSED and the dismissal is final." The instant case G.R. No. 62988 is the separate appeal of the Lunas. Their petition contains the following prayer: 1. That the petition be given due course; 2. That after notice and hearing, judgment be rendered, setting aside or modifying the RESOLUTION of respondent Court of Appeals dated June 19, 1981, attached as Annex "A" to the petition, only insofar as it reduced the unearned net earnings to P450,000.00, s as to affirm the trial court's finding as to the unearned net earnings of the deceased in the amount of P1,650,000.00; 3. Ordering that the award of attorney's fees shall also be with interest, at the legal rate. (Rollo, p. 27.) On June 27, 1983, the petition was given due course. (Rollo, pp. 122-123.) In the light of the foregoing, the resolution stated: It thus appears that the questions inesseare with respect to the award for unearned net earnings should the award be P450,000.00 only or should it be P1,650,000.00 as originally adjudged; and whether the award for attorney's fees shall also be with interest at the legal rate. The Court takes notice that the wrongful death occurred as early as January 18, 1970, and that until now the process of litigation is not yet over. In the meantime the value of the Philippine peso has been seriously eroded so that the heirs of the deceased may ultimately have a greatly depreciated judgment. In the interest of justice, the private respondents are hereby ordered to PAY to the petitioners within thirty (30) days from notice the following amounts adjudged against them: P450,000.00 for unearned net earnings of the deceased; (P12,000.00 as compensatory damages; P50,000.00 for the loss of his companionship with legal interest from July 3, 1973; and P50,000.00 as attorney's fees. Still to be resolved shall be the following: whether the award for unearned net earnings shall be increased to P1,650,000.00; and whether the award for attorney's fees shall also be with interest at the legal rate. The costs will be adjudged as a matter of course. (Rollo, p. 123.) The private respondents failed to pay the amounts and when required to explain they said that they had no cash money. Accordingly, this Court directed the trial court to issue a writ of execution but the attempt of the special sheriff to enter the private respondent's premises so that he could make an inventory of personal properties was thwarted by guards and this Court had to direct the Chief of the Philippine Constabulary to assist in enforcing the writ of execution. The execution yielded only a nominal amount. In the meantime, Luis dela Rosa is now of age, married with two children, and living in Madrid, Spain with an uncle but only casually employed. It is said: "His compensation is hardly enough to support his family. He has no assets of his own as yet." (Rollo, p. 208.) 1. On the amount of the award. The award of P1,650,000.00 was based on two factors, namely: (a) that the deceased Roberto R. Luna could have lived for 30 more years; and (b) that his annual net income was P55,000.00, computed at P75,000.00 annual gross income less P20,000.00 annual personal expenses. This is what the trial court said on Luna's life expectancy: According to the American Experience Table of Mortality, at age 33 the life expectancy of Roberto Luna was 33.4 years, and under the Commissioner Standard Ordinary, used by our domestic insurance companies since 1968 for policies above P5,000.00 his life expectancy was 38.51 years. Dr. Vicente Campa, medical director of San Miguel Corporation, testified that he was the regular physician of Roberto Luna since his marriage to Felina Rodriguez in 1957. He said that except for a slight anemia which he had ten years earlier, Roberto Luna was of good health. Allowing for this condition, he could reasonably expect to have a life expectancy of 30 years. (Record on Appeal, p. 33.) The Court of Appeals in sustaining the trial court's conclusion said: We have not been persuaded to disturb the conclusion that the deceased had a life expectancy of thirty years. At the time of Luna's death, he was only thirty-three years old and in the best of health. With his almost perfect physical condition and his sound mind, the expectation that he could have lived for another thirty years is reasonable, considering that with his educational attainment, his social and financial standing, he had the means of staying fit and preserving his health and well-being. That he could have lived at least until the age of sixty-three years is an assessment which is more on the conservative side in view of the testimony of Dr. Vicente Campa that the general life expectancy nowadays had gone up to seventy years. (Rollo, p. 45.) The Court of Appeals likewise sustained the trial court in respect of Luna's annual income and expense. This is what the trial court said: Roberto Luna was 33 years old when he died, and was survived by his wife Felina Rodriguez-Luna, and two children, Roberto Jr., 13 years, and Jose, 12 years. His wife was 35 years old at the time. He declared a gross income of P16,900.00 for 1967 (Exhibit I), P29,700,000 for 1968 (Exhibit H) and P45,117.69 for 1969 (Exhibit G). He had investments in various

corporations amounting to P136,116.00 (Exhibits K, M, M-1, N, N-1 to N-3, O, O-1, P, Q and R) and was the president and general manager of Rodlum Inc.; general manager of Esso Greenhills Service Center; Assistant manager of Jose Rodriguez Lanuza Sons; director of Steadfast Investment Corporation; chairman and treasurer of Greenhills Industrial Corporation; vice-president of Oasis, Inc.; director of Nation Savings Association; director of Arlun Taxi; and treasurer of National Association of Retired Civil Employees. ... . His income tax returns show an increase in his income in the short period of three years. It is reasonable to expect that it would still go higher for the next fifteen years and reach a minimum of P75,000.00 a year. The potential increase in the earning capacity of a deceased person is recognized by the Supreme Court. ... the court believes that the expected gross earnings of Roberto Luna should be fixed in the sum of P75,000.00 a year for the period of his life expectancy of 30 years, but deducting his personal expenses which, because of his business and social standing the court in the amount of P20,000.00 a year, in accordance with the rulings of the Supreme Court. (Record on Appeal, pp. 32-34.) Acting on a motion for reconsideration filed by the dela Rosas, the Court of Appeals took into account the fact "that the deceased Roberto R. Luna had been engaged in car racing as a sport, having participated in tournaments both here and abroad;" it said that Luna's habit and manner of life should be "one of the factors affecting the value of mortality table in actions for damages;" and, consequently, concluded that Luna could not have lived beyond 43 years. The result was that the 30-year life expectancy of Luna was reduced to 10 years only. Further on the motion for reconsideration, the Court of Appeals ruled in respect of Luna's annual personal expenses: ... . Considering the escalating price of automobile gas which is a key expenditure in Roberto R. Luna's social standing, We should increase that amount to P30,000.00 as the would be personal expenses of the deceased per annum. (Rollo, p. 33.) The Court of Appeals then determined the amount of the award thus: P75,000.00 annual gross income less P30,000.00 annual personal expenses leaves P45,000.00 multiplied by 10 years of life expectancy and the product is P450,000.00. The petitioners contend that the Court of Appeals erred when by its resolution of June 19, 1981, it reduced Luna's life expectancy from 30 to 10 Years and increased his annual personal expenses from P20,000.00 to P30,000.00. We sustain the petitioners. The Court of Appeals, in reducing Luna's life expectancy from 30 to 10 years said that his habit and manner of life should be taken into account, i.e. that he had been engaged in car racing as a sport both here and abroad - a dangerous and risky activity tending to shorten his life expectancy. That Luna had engaged in car racing is not based on any evidence on record. That Luna was engaged in go-kart racing is the correct statement but then go-kart racing cannot be categorized as a dangerous sport for go-karts are extremely low slung, low powered vehicles, only slightly larger than foot-pedalled four wheeled conveyances. It was error on the part of the Court of Appeals to have disturbed the determination of the trial court which it had previously affirmed. Similarly, it was error for the Court of Appeals to reduce the net annual income of the deceased by increasing his annual personal expenses but without at the same time increasing his annual gross income. It stands to reason that if his annual personal expenses should increase because of the "escalating price of gas which is a key expenditure in Roberto R. Luna's social standing" [a statement which lacks complete basis], it would not be unreasonable to suppose that his income would also increase considering the manifold sources thereof. In short, the Court of Appeals erred in modifying its original decision. 2. Attorney's fees with or without interest at the legal rate. The trial court awarded attorney's fees to the petitioners in the sum of P50,000.00. This award was affirmed by the Court of Appeals in its decision of May 22, 1979. The resolution of June 19, 1981, reaffirmed the award. The two decisions as well as the resolution do not provide for interest at the legal rate to be tacked to the award. The petitioners now pray that the award of attorney's fees be with interest at the legal rate from the date of the filing of the complaint. There is merit in this prayer. The attorney's fees were awarded in the concept of damages in a quasi-delict case and under the circumstances interest as part thereof may be adjudicated at the discretion of the court. (See Art. 2211, Civil Code.) As with the other damages awarded, the interest should accrue only from the date of the trial court's decision. The private respondents invoke Elcano vs. Hill, L-24803, May 26,1977; 77 SCRA 98, where it was held that Article 2180 of the Civil Code applied to Atty. Marvin Hill notwithstanding the emancipation by marriage of Reginald Hill, his son but since Reginald had attained age, as a matter of equity, the liability of Atty. Hill had become merely subsidiary to that of his son. It is now said that Luis dela Rosa, is now married and of legal age and that as a matter of equity the liability of his father should be subsidiary only. We are unwilling to apply equity instead of strict law in this case because to do so will not serve the ends of justice. Luis dela Rosa is abroad and beyond the reach of Philippine courts. Moreover, he does not have any property either in the Philippines or elsewhere. In fact his earnings are insufficient to support his family. WHEREFORE, the resolution of the Court of Appeals dated June 19, 1981, is hereby set aside; its decision dated May 22, 1979, is reinstated with the sole modification that the award for attorney's fees shall earn interest at the legal rate from July 5, 1973, the date of the trial court's decision. Costs against the private respondents.

SO ORDERED. Aquino, Concepcion, Jr., Gutierrez, Jr. and De la Fuente, * JJ., concur. Makasiar (Chairman), J., I reserve my vote. LIBI V. IAC 437 SANGCO G.R. No. 85044 June 3, 1992 MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO, petitioners, vs. HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch 20, Vigan, Ilocos Sur; VICTOR BUNDOC; and CLARA BUNDOC, respondents. FELICIANO, J.: On 20 October 1982, AdelbertoBundoc, then a minor of 10 years of age, shot Jennifer Tamargo with an air rifle causing injuries which resulted in her death. Accordingly, a civil complaint for damages was filed with the Regional Trial Court, Branch 20, Vigan, Ilocos Sur, docketed as Civil Case No. 3457-V, by petitioner MacarioTamargo, Jennifer's adopting parent, and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural parents against respondent spouses Victor and Clara Bundoc, Adelberto's natural parents with whom he was living at the time of the tragic incident. In addition to this case for damages, a criminal information or Homicide through Reckless Imprudence was filed [Criminal Case No. 1722-V] against AdelbertoBundoc. Adelberto, however, was acquitted and exempted from criminal liability on the ground that he bad acted without discernment. Prior to the incident, or on 10 December 1981, the spouses Sabas and FelisaRapisura had filed a petition to adopt the minor AdelbertoBundoc in Special Proceedings No. 0373-T before the then Court of First Instance of Ilocos Sur. This petition for adoption was grunted on, 18 November 1982, that is, afterAdelberto had shot and killed Jennifer. In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the result of the foregoing petition for adoption, claimed that not they, but rather the adopting parents, namely the spouses Sabas and FelisaRapisura, were indispensable parties to the action since parental authority had shifted to the adopting parents from the moment the successful petition for adoption was filed. Petitioners in their Reply contended that since AdelbertoBundoc was then actually living with his natural parents, parental authority had not ceased nor been relinquished by the mere filing and granting of a petition for adoption. The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that respondent natural parents of Adelberto indeed were not indispensable parties to the action. Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the 15-day reglementary period, or on 14 December 1987, petitioners filed a motion for reconsideration followed by a supplemental motion for reconsideration on 15 January 1988. It appearing, however, that the motions failed to comply with Sections 4 and 5 of Rule 15 of the Revised Rules of Court that notice of the motion shall be given to all parties concerned at least three (3) days before the hearing of said motion; and that said notice shall state the time and place of hearing both motions were denied by the trial court in an Order dated 18 April 1988. On 28 April 1988, petitioners filed a notice of appeal. In its Order dated 6 June 1988, the trial court dismissed the notice at appeal, this time ruling that the notice had been filed beyond the 15-day reglementary period ending 22 December 1987. Petitioners went to the Court of Appeals on a petition for mandamus and certiorari questioning the trial court's Decision dated 3 December 1987 and the Orders dated 18 April 1988 and 6 June 1988, The Court of Appeals dismissed the petition, ruling that petitioners had lost their right to appeal. In the present Petition for Review, petitioners once again contend that respondent spouses Bundoc are the indispensable parties to the action for damages caused by the acts of their minor child, AdelbertoBundoc. Resolution of this Petition hinges on the following issues: (1) whether or not petitioners, notwithstanding loss of their right to appeal, may still file the instant Petition; conversely, whether the Court may still take cognizance of the case even through petitioners' appeal had been filed out of time; and (2) whether or not the effects of adoption, insofar as parental authority is concerned may be given retroactive effect so as to make the adopting parents the indispensable parties in a damage case filed against their adopted child, for acts committed by the latter, when actual custody was yet lodged with the biological parents. 1. It will be recalled that, petitioners' motion (and supplemental motion) for reconsideration filed before the trial court, not having complied with the requirements of Section 13, Rule 41, and Section 4, Rule 15, of the Revised Rules of Court, were considered pro forma and hence did not interrupt and suspend the reglementary period to appeal: the trial court held that the motions, not having contained a notice of time and place of hearing, had become useless pieces of paper which did not interrupt the reglementary period. 1 As in fact repeatedly held by this Court, what is mandatory is the service of the motion on the opposing counsel indicating the time and place of hearing. 2 In view, however, of the nature of the issue raised in the instant. Petition, and in order that substantial justice may be served, the Court, invoking its right to suspend the application of technical rules to prevent manifest injustice, elects to treat the notice of appeal as having been seasonably filed before the trial court, and the motion (and supplemental motion) for reconsideration filed by petitioner in the trial court as having interrupted

the reglementary period for appeal. As the Court held in Gregorio v. Court of Appeals: 3 Dismissal of appeal; purely on technical grounds is frowned upon where the policy of the courts is to encourage hearings of appeal on their merits. The rules of procedure ought not be applied in a very rigid technical sense, rules of procedure are used only to help secure not override, substantial justice. if d technical and rigid enforcement of the rules is made their aim would be defeated. 4 2. It is not disputed that AdelbertoBundoc's voluntary act of shooting Jennifer Tamargo with an air rifle gave rise to a cause of action on quasidelictagainst him. As Article 2176 of the Civil Code provides: 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 . . . Upon the other hand, the law imposes civil liability upon the father and, in case of his death or incapacity, the mother, for any damages that may be caused by a minor child who lives with them. Article 2180 of the Civil Code reads: The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. xxx xxxxxx The responsibility treated of in this Article shall cease when the person herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (Emphasis supplied) This principle of parental liability is a species of what is frequently designated as vicarious liability, or the doctrine of "imputed negligence" under Anglo-American tort law, where a person is not only liable for torts committed by himself, but also for torts committed by others with whom he has a certain relationship and for whom he is responsible. Thus, parental liability is made a natural or logical consequence of the duties and responsibilities of parents their parental authority which includes the instructing, controlling and disciplining of the child. 5 The basis for the doctrine of vicarious liability was explained by the Court inCangco v. Manila Railroad Co.6 in the following terms: With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for the legislature to elect and our Legislature has so elected to limit such liability to cases in which the person upon whom such an obligation is imposed is morally culpable or, on the contrary, for reasons of public policy. to extend that liability, without regard to the lack of moral culpability, so as to include responsibility for the negligence of those persons whose acts or omissions are imputable, by a legal fiction, to others who are in a position to exercise an absolute or limited control over them . The legislature which adopted our Civil Code has elected to limit extra-contractual liability with certain well-defined exceptions to cases in which moral culpability can be directly imputed to the persons to be charged. This moral responsibility may consist in having failed to exercise due care in one's own acts, or in having failed to exercise due care in the selection and control of one's agent or servants, or in the control of persons who, by reasons of their status, occupy a position of dependency with respect to the person made liable for their conduct. 7 (Emphasis Supplied) The civil liability imposed upon parents for the torts of their minor children living with them, may be seen to be based upon the parental authority vested by the Civil Code upon such parents. The civil law assumes that when an unemancipated child living with its parents commits a tortious acts, the parents were negligent in the performance of their legal and natural duty closely to supervise the child who is in their custody and control. Parental liability is, in other words, anchored upon parental authority coupled with presumed parental dereliction in the discharge of the duties accompanying such authority. The parental dereliction is, of course, only presumed and the presumption can be overtuned under Article 2180 of the Civil Code by proof that the parents had exercised all the diligence of a good father of a family to prevent the damage. In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured when parental authority was still lodged in respondent Bundoc spouses, the natural parents of the minor Adelberto. It would thus follow that the natural parents who had then actual custody of the minor Adelberto, are the indispensable parties to the suit for damages. The natural parents of Adelberto, however, stoutly maintain that because a decree of adoption was issued by the adoption court in favor of the Rapisura spouses, parental authority was vested in the latter as adopting parents as of the time of the filing of the petition for adoption that is, beforeAdelberto had shot Jennifer which an air rifle. The Bundoc spouses contend that they were therefore free of any parental responsibility for Adelberto's allegedly tortious conduct. Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare Code 8 which reads as follows: Art. 36. Decree of Adoption . If, after considering the report of the Department of Social Welfare or duly licensed child placement agency and the evidence submitted before it, the court is satisfied that the petitioner is qualified to maintain, care for, and educate the child, that the trial custody period has been completed, and that the best interests of the child will be promoted by the adoption, a decree of adoption shall be entered, which shall be effective he date the original petition was filed. The decree shall state the name by which the child is thenceforth to be known. (Emphasis supplied)

The Bundoc spouses further argue that the above Article 36 should be read in relation to Article 39 of the same Code: Art. 39. Effect of Adoption. The adoption shall: xxx xxxxxx (2) Dissolve the authority vested in the natural parents, except where the adopter is the spouse of the surviving natural parent; xxx xxxxxx (Emphasis supplied) and urge that their Parental authority must be deemed to have been dissolved as of the time the Petition for adoption was filed. The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental liability for the torts of a minor child is the relationship existing between the parents and the minor child living with them and over whom, the law presumes, the parents exercise supervision and control. Article 58 of the Child and Youth Welfare Code, re-enacted this rule: Article 58 Torts Parents and guardians are responsible for the damage caused by the child under their parental authority in accordance with the civil Code. (Emphasis supplied) Article 221 of the Family Code of the Philippines 9 has similarly insisted upon the requisite that the child, doer of the tortious act, shall have beer in the actual custody of the parents sought to be held liable for the ensuing damage: Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. (Emphasis supplied) We do not believe that parental authority is properly regarded as having been retroactively transferred to and vested in the adopting parents, the Rapisura spouses, at the time the air rifle shooting happened. We do not consider that retroactive effect may be giver to the decree of adoption so as to impose a liability upon the adopting parents accruing at a time when adopting parents had no actual or physically custody over the adopted child. Retroactive affect may perhaps be given to the granting of the petition for adoption where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. In the instant case, however, to hold that parental authority had been retroactively lodged in the Rapisura spouses so as to burden them with liability for a tortious act that they could not have foreseen and which they could not have prevented (since they were at the time in the United States and had no physical custody over the child Adelberto) would be unfair and unconscionable. Such a result, moreover, would be inconsistent with the philosophical and policy basis underlying the doctrine of vicarious liability. Put a little differently, no presumption of parental dereliction on the part of the adopting parents, the Rapisura spouses, could have arisen since Adelberto was not in fact subject to their control at the time the tort was committed. Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above. Article 35 provides as follows: Art. 35. Trial Custody . No petition for adoption shall be finally granted unless and until the adopting parents are given by the courts a supervised trial custody period of at least six months to assess their adjustment and emotional readiness for the legal union. During the period of trial custody, parental authority shall be vested in the adopting parents. (Emphasis supplied) Under the above Article 35, parental authority is provisionally vested in the adopting parents during the period of trial custody, i.e., before the issuance of a decree of adoption, precisely because the adopting parents are given actual custody of the child during such trial period . In the instant case, the trial custody period either had not yet begun or bad already been completed at the time of the air rifle shooting; in any case, actual custody of Adelberto was then with his natural parents, not the adopting parents. Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents, were indispensable parties to the suit for damages brought by petitioners, and that the dismissal by the trial court of petitioners' complaint, the indispensable parties being already before the court, constituted grave abuse of discretion amounting to lack or excess of jurisdiction. WHEREFORE, premises considered, the Petition for Review is hereby GRANTED DUE COURSE and the Decision of the Court of Appeals dated 6 September 1988, in C.A.-G.R. No. SP-15016 is hereby REVERSED and SET ASIDE. Petitioners' complaint filed before the trial court is hereby REINSTATED and this case is REMANDED to that court for further proceedings consistent with this Decision. Costs against respondent Bundoc spouses. This Decision is immediately executory. SO ORDERED. Gutierrez, Jr., Bidin, Davide, Jr. and Romero, concur. G.R. No. L-24101 September 30, 1970 MARIA TERESA Y. CUADRA, minor represented by her father ULISES P. CUADRA, ET AL., plaintiffs-appellees, vs. ALFONSO MONFORT, defendant-appellant. Rodolfo J. Herman for plaintiffs-appellees. Luis G. Torres and Abraham E. Tionko for defendant-appellant. MAKALINTAL, J.: This is an action for damages based on quasi-delict, decided by the Court of First Instance of Negros Occidental favorably to the plaintiffs and

appealed by the defendant to the Court of Appeals, which certified the same to us since the facts are not in issue. Maria Teresa Cuadra, 12, and Maria Teresa Monfort, 13, were classmates in Grade Six at the Mabini Elementary School in Bacolod City. On July 9, 1962 their teacher assigned them, together with three other classmates, to weed the grass in the school premises. While thus engaged Maria Teresa Monfort found a plastic headband, an ornamental object commonly worn by young girls over their hair. Jokingly she said aloud that she had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at her. At that precise moment the latter turned around to face her friend, and the object hit her right eye. Smarting from the pain, she rubbed the injured part and treated it with some powder. The next day, July 10, the eye became swollen and it was then that the girl related the incident to her parents, who thereupon took her to a doctor for treatment. She underwent surgical operation twice, first on July 20 and again on August 4, 1962, and stayed in the hospital for a total of twenty-three days, for all of which the parents spent the sum of P1,703.75. Despite the medical efforts, however, Maria Teresa Cuadra completely lost the sight of her right eye. In the civil suit subsequently instituted by the parents in behalf of their minor daughter against Alfonso Monfort, Maria Teresa Monfort's father, the defendant was ordered to pay P1,703.00 as actual damages; P20,000.00 as moral damages; and P2,000.00 as attorney's fees, plus the costs of the suit. The legal issue posed in this appeal is the liability of a parent for an act of his minor child which causes damage to another under the specific facts related above and the applicable provisions of the Civil Code, particularly Articles 2176 and 2180 thereof, which read: ART. 2176. 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-delictand is governed by provisions of this Chapter. ART 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity are responsible for the damages caused by the minor children who live in their company. xxx xxxxxx The responsibility treated of in this Article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. The underlying basis of the liability imposed by Article 2176 is the fault or negligence accompanying the act or the omission, there being no willfulness or intent to cause damage thereby. When the act or omission is that of one person for whom another is responsible, the latter then becomes himself liable under Article 2180, in the different cases enumerated therein, such as that of the father or the mother under the circumstances above quoted. The basis of this vicarious, although primary, liability is, as in Article 2176, fault or negligence, which is presumed from that which accompanied the causative act or omission. The presumption is merely prima facie and may therefore be rebutted. This is the clear and logical inference that may be drawn from the last paragraph of Article 2180, which states "that the responsibility treated of in this Article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage." Since the fact thus required to be proven is a matter of defense, the burden of proof necessarily rests on the defendant. But what is the exact degree of diligence contemplated, and how does a parent prove it in connection with a particular act or omission of a minor child, especially when it takes place in his absence or outside his immediate company? Obviously there can be no meticulously calibrated measure applicable; and when the law simply refers to "all the diligence of a good father of the family to prevent damage," it implies a consideration of the attendant circumstances in every individual case, to determine whether or not by the exercise of such diligence the damage could have been prevented. In the present case there is nothing from which it may be inferred that the defendant could have prevented the damage by the observance of due care, or that he was in any way remiss in the exercise of his parental authority in failing to foresee such damage, or the act which caused it. On the contrary, his child was at school, where it was his duty to send her and where she was, as he had the right to expect her to be, under the care and supervision of the teacher. And as far as the act which caused the injury was concerned, it was an innocent prank not unusual among children at play and which no parent, however careful, would have any special reason to anticipate much less guard against. Nor did it reveal any mischievous propensity, or indeed any trait in the child's character which would reflect unfavorably on her upbringing and for which the blame could be attributed to her parents. The victim, no doubt, deserves no little commiseration and sympathy for the tragedy that befell her. But if the defendant is at all obligated to compensate her suffering, the obligation has no legal sanction enforceable in court, but only the moral compulsion of good conscience. The decision appealed from is reversed, and the complaint is dismissed, without pronouncement as to costs. Reyes, J.B.L., Actg. C.J., Dizon, Zaldivar, Castro, Teehankee, Villamor and Makasiar, JJ., concur. Concepcion, C.J., is on leave. Fernando, J., took no part.

Separate Opinions BARREDO, J., dissenting: I am afraid I cannot go along with my esteemed colleagues in holding that the act of appellant's daughter does not constitute fault within the contemplation of our law or torts. She was 13 years and should have known that by jokingly saying "aloud that she had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at her," it was likely that something would happen to her friend, as in fact, she was hurt. As to the liability of appellant as father, I prefer to hold that there being no evidence that he had properly advised his daughter to behave properly and not to play dangerous jokes on her classmate and playmates, he can be liable under Article 2180 of the Civil Code. There is nothing in the record to show that he had done anything at all to even try to minimize the damage caused upon plaintiff child. # Separate Opinions BARREDO, J., dissenting: I am afraid I cannot go along with my esteemed colleagues in holding that the act of appellant's daughter does not constitute fault within the contemplation of our law or torts. She was 13 years and should have known that by jokingly saying "aloud that she had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at her," it was likely that something would happen to her friend, as in fact, she was hurt. As to the liability of appellant as father, I prefer to hold that there being no evidence that he had properly advised his daughter to behave properly and not to play dangerous jokes on her classmate and playmates, he can be liable under Article 2180 of the Civil Code. There is nothing in the record to show that he had done anything at all to even try to minimize the damage caused upon plaintiff child. Vicarious liability. The imposition of liability on one person for the actionable conduct of another, based solely on a relationship between the two persons. Indirect or imputed legal responsibility for acts of another; for example, the liability of an employer for the acts of an employee, or, a principal for torts and contracts of an agent PD 603 CHAPTER IV Liabilities of Parents Article 58. Torts. - Parents and guardians are responsible for the damage caused by the child under their parental authority in accordance with the Civil Code. PENAL CODE Art. 216. Possession of prohibited interest by a public officer. The penalty of arresto mayor in its medium period to prision correccional in its minimum period, or a fine ranging from 200 to 1,000 pesos, or both, shall be imposed upon a public officer who directly or indirectly, shall become interested in any contract or business in which it is his official duty to intervene. This provisions is applicable to experts, arbitrators and private accountants who, in like manner, shall take part in any contract or transaction connected with the estate or property in appraisal, distribution or adjudication of which they shall have acted, and to the guardians and executors with respect to the property belonging to their wards or estate. Art. 218. Failure of accountable officer to render accounts. Any public officer, whether in the service or separated therefrom by resignation or any other cause, who is required by law or regulation to render account to the Insular Auditor, or to a provincial auditor and who fails to do so for a period of two months after such accounts should be rendered, shall be punished by prision correccional in its minimum period, or by a fine ranging from 200 to 6,000 pesos, or both. Art. 219. Failure of a responsible public officer to render accounts before leaving the country. Any public officer who unlawfully leaves or attempts to leave the Philippine Islands without securing a certificate from the Insular Auditor showing that his accounts have been finally settled, shall be punished by arresto mayor, or a fine ranging from 200 to 1,000 pesos or both. Art. 218. Failure of accountable officer to render accounts. Any public officer,

whether in the service or separated therefrom by resignation or any other cause, who is required by law or regulation to render account to the Insular Auditor, or to a provincial auditor and who fails to do so for a period of two months after such accounts should be rendered, shall be punished by prision correccional in its minimum period, or by a fine ranging from 200 to 6,000 pesos, or both. Art. 219. Failure of a responsible public officer to render accounts before leaving the country. Any public officer who unlawfully leaves or attempts to leave the Philippine Islands without securing a certificate from the Insular Auditor showing that his accounts have been finally settled, shall be punished by arresto mayor, or a fine ranging from 200 to 1,000 pesos or both. RA 9344 SEC. 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. ARTICLE 2180 The obligation imposed by article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be applicable. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (1903a) ARTICLE 2181 Whoever pays for the damage caused by his dependents or employees may recover from the latter what he has paid or delivered in satisfaction of the claim. (1904) ARTICLE 2182 If the minor or insane person causing damage has no parents or guardian, the minor or insane person shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed. (n)