G.R. No.

L-10033

December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant,

vs.
LEONILA GINEZ, defendant-appellee.
Florencio Dumapias for appellant.
Numeriano Tanopo, Jr. for appellee.

FELIX, J.:
This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion
of the defendant, the case was dismissed. The order of dismissal was appealed to the Court of
Appeals, but said Tribunal certified the case to the Court on the ground that there is absolutely no
question of fact involved, the motion being predicated on the assumption as true of the very facts
testified to by plaintiff-husband.
The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the
United States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan,
Pangasinan, while on furlough leave. Immediately after their marriage, the couple lived with their
sisters who later moved to Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez left
the dwelling of her sister-in-law and informed her husband by letter that she had gone to reside with
her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a
local college there.
As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco
(plaintiff's sister-in-law) and some from anonymous writers(which were not produced at the
hearing) informing him of alleged acts of infidelity of his wife which he did not even care to mention.
On cross-examination, plaintiff admitted that his wife also informed him by letter, which she claims
to have destroyed, that a certain "Eliong" kissed her. All these communications prompted him in
October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation
between him and his wife on account of the latter's alleged acts of infidelity, and he was directed to
consult instead the navy legal department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the
house of one Mrs. Malalang, defendant's godmother. She came along with him and both proceeded
to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2
nights and 1 day as husband and wife. Then they repaired to the plaintiff's house and again passed
the night therein as husband and wife. On the second day, Benjamin Bugayong tried to verify from
his wife the truth of the information he received that she had committed adultery but Leonila,
instead of answering his query, merely packed up and left, which he took as a confirmation of the
acts of infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to locate
her and failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings".
On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a
complaint for legal separation against his wife, Leonila Ginez, who timely filed an answer vehemently

denying the averments of the complaint and setting up affirmative defenses. After the issues were
joined and convinced that a reconciliation was not possible, the court set the case for hearing on
June 9, 1953. Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiffhusband finished testifying in his favor, counsel for the defendant orally moved for the dismissal of
the complaint, but the Court ordered him to file a written motion to that effect and gave plaintiff 10
days to answer the same.
The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of
the allegations of the commission of "acts of rank infidelity amounting to adultery", the cause of
action, if any, is barred by the statute of limitations; (2) That under the same assumption, the act
charged have been condoned by the plaintiff-husband; and (3) That the complaint failed to state a
cause of action sufficient for this court to render a valid judgment.
The motion to dismiss was answered by plaintiff and the Court, considering only the second ground
of the motion to dismiss i. e., condonation, ordered the dismissal of the action. After the motion for
reconsideration filed by plaintiff was denied, the case was taken up for review to the Court of
Appeals, appellant's counsel maintaining that the lower court erred:
(a) In so prematurely dismissing the case;
(b) In finding that there were condonation on the part of plaintiff-appellant; and
(c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in the
answer or in a motion to dismiss.
As the questions raised in the brief were merely questions of law, the Court of Appeals certified the
case to Superiority.
The Civil Code provides:
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage for the part of the husband as defined
on the Penal Code; or
(2) An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been
no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a
legal separation cannot by either of them. Collusion between the parties to obtain legal separation
shall cause the dismissal of the petition.
ART. 102. An action for legal separation cannot be filed except within one year from and after the
date on which the plaintiff became cognizant of the cause and within five years from and after the
date when such cause occurred.
As the only reason of the lower Court for dismissing the action was the alleged condonation of the
charges of adultery that the plaintiff-husband had preferred in the complaint against his wife, We

will disregard the other 2 grounds of the motion to dismiss, as anyway they have not been raised in
appellant's assignment of errors.
Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as
stated in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission,
by a husband or wife of a matrimonial offense which the latter has committed". It is to be noted,
however, that in defendant's answer she vehemently and vigorously denies having committed any
act of infidelity against her husband, and even if We were to give full weight to the testimony of the
plaintiff, who was the only one that had the chance of testifying in Court and link such evidence with
the averments of the complaint, We would have to conclude that the facts appearing on the record
are far from sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank
infidelity amounting to adultery" preferred against the defendant. Certainly, the letter that plaintiff
claims to have received from his sister-in-law Valeriana Polangco, which must have been too vague
and indefinite as to defendant's infidelity to deserve its production in evidence; nor the anonymous
letters which plaintiff also failed to present; nor the alleged letter that, according to plaintiff, his wife
addressed to him admitting that she had been kissed by one Eliong, whose identity was not
established and which admission defendant had no opportunity to deny because the motion to
dismiss was filed soon after plaintiff finished his testimony in Court, do not amount to anything that
can be relied upon.
But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under
the assumption that he really believed his wife guilty of adultery. What did he do in such state of
mind. In August, 1952, he went to Pangasinan and looked for his wife and after finding her they lived
together as husband and wife for 2 nights and 1 day, after which he says that he tried to verify from
her the truth of the news he had about her infidelity, but failed to attain his purpose because his
wife, instead of answering his query on the matter, preferred to desert him, probably enraged for
being subjected to such humiliation. And yet he tried to locate her, though in vain. Now, do the
husband's attitude of sleeping with his wife for 2 nights despite his alleged belief that she was
unfaithful to him, amount to a condonation of her previous and supposed adulterous acts? In the
order appealed from, the Courta quo had the following to say on this point:
In the hearing of the case, the plaintiff further testified as follows:
Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell this
Hon. Court why you want to separate from your wife? A. I came to know that my wife is
committing adultery, I consulted the chaplain and he told me to consult the legal adviser. (p. 11,
t.s.n.)
Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went to the
house of our god-mother, and as a husband I went to her to come along with me in our house but
she refused. (p. 12, t.s.n.)lawphil.net
Q. What happened next? A. I persuaded her to come along with me. She consented but I did not
bring her home but brought her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.)
Q. How long did you remain in the house of your cousin Pedro Bugayong? A. One day and one
night. (p. 12. t.s.n.)

Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and wife, did
you slept together? A. Yes, sir. (p. 19, t.s.n.)
Q. On the next night, when you slept in your own house, did you sleep together also as husband and
wife? A. Yes, sir. (p. 19. t.s.n.)
Q. When was that? A. That was in August, 1952. (p. 19 t.s.n.)
Q. How many nights did you sleep together as husband and wife? A. Only two nights. (p. 19, t.s.n.)
The New Civil Code of the Philippines, in its Art. 97, says:
A petition for legal separation may be filed:
(1) For adultery on the part of the wife and concubinage on the part of the husband as defined on
the Penal Code.
and in its Art. 100 it says:lawphil.net
The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders, legal
separation cannot be claimed by either of them. Collusion between the parties to obtain legal
separation shall cause the dismissal of the petition.
A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted
above, clearly shows that there was a condonation on the part of the husband for the supposed
"acts of rank infidelity amounting to adultery" committed by defendant-wife. Admitting for the sake
of argument that the infidelities amounting to adultery were committed by the defendant, a
reconciliation was effected between her and the plaintiff. The act of the latter in persuading her to
come along with him, and the fact that she went with him and consented to be brought to the house
of his cousin Pedro Bugayong and together they slept there as husband and wife for one day and
one night, and the further fact that in the second night they again slept together in their house
likewise as husband and wife all these facts have no other meaning in the opinion of this court
than that a reconciliation between them was effected and that there was a condonation of the wife
by the husband. The reconciliation occurred almost ten months after he came to know of the acts of
infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation is
implied from sexual intercourse after knowledge of the other infidelity. such acts necessary implied
forgiveness. It is entirely consonant with reason and justice that if the wife freely consents to sexual
intercourse after she has full knowledge of the husband's guilt, her consent should operate as a
pardon of his wrong."
In Tiffany's Domestic and Family Relations, section 107 says:
Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the
right to a divorce. But it is on the condition, implied by the law when not express, that the
wrongdoer shall not again commit the offense; and also that he shall thereafter treat the other

spouse with conjugal kindness. A breach of the condition will revive the original offense as a ground
for divorce. Condonation may be express or implied.
It has been held in a long line of decisions of the various supreme courts of the different states of the
U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery of the
offense is ordinarily sufficient to constitute condonation, especially as against the husband'. (27
Corpus Juris Secundum, section 61 and cases cited therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted,
and of the various decisions above-cited, the inevitable conclusion is that the present action is
untenable.
Although no acts of infidelity might have been committed by the wife, We agree with the trial judge
that the conduct of the plaintiff-husband above narrated despite his belief that his wife was
unfaithful, deprives him, as alleged the offended spouse, of any action for legal separation against
the offending wife, because his said conduct comes within the restriction of Article 100 of the Civil
Code.
The only general rule in American jurisprudence is that any cohabitation with the guilty party, after
the commission of the offense, and with the knowledge or belief on the part of the injured party of
its commission, will amount to conclusive evidence of condonation; but this presumption may be
rebutted by evidence (60 L. J. Prob. 73).
If there had been cohabitation, to what extent must it be to constitute condonation?
Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute
condonation, and where the parties live in the same house, it is presumed that they live on terms of
matrimonial cohabitation (27 C. J. S., section 6-d).
A divorce suit will not be granted for adultery where the parties continue to live together after it was
known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after
knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single
night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199;
Collins vs. Collins, 193 So. 702), and many others. The resumption of marital cohabitation as a basis
of condonation will generally be inferred, nothing appearing to the contrary, from the fact of the
living together as husband and wife, especially as against the husband (Marsh vs. Marsh, 14 N. J. Eq.
315).
There is no ruling on this matter in our jurisprudence but we have no reason to depart from the
doctrines laid down in the decisions of the various supreme courts of the United States above
quoted.
There is no merit in the contention of appellant that the lower court erred in entertaining
condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion
to dismiss, because in the second ground of the motion to dismiss. It is true that it was filed after the
answer and after the hearing had been commenced, yet that motion serves to supplement the
averments of defendant's answer and to adjust the issues to the testimony of plaintiff himself
(section 4, Rule 17 of the Rules of Court).

Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with
costs against appellant. It is so ordered.

G.R. No. 11263

November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,

vs.
JOSE CAMPOS RUEDA, defendant-appellee.
Eduardo Gutierrez Repide and Felix Socias for appellant.
Sanz, Opisso and Luzuriaga for appellee.

TRENT, J.:
This is an action by the wife against her husband for support outside of the conjugal domicile. From
a judgment sustaining the defendant's demurrer upon the ground that the facts alleged in the
complaint do not state a cause of action, followed by an order dismissing the case after the plaintiff
declined to amend, the latter appealed.
It was urged in the first instance, and the court so held, that the defendant cannot be compelled to
support the plaintiff, except in his own house, unless it be by virtue of a judicial decree granting her
a divorce or separation from the defendant.
The parties were legally married in the city of Manila on January 7, 1915, and immediately thereafter
established their residence at 115 Calle San Marcelino, where they lived together for about a month,
when the plaintiff returned to the home of her parents. The pertinent allegations of the complaint
are as follows:
That the defendant, one month after he had contracted marriage with the plaintiff, demanded of
her that she perform unchaste and lascivious acts on his genital organs; that the plaintiff spurned
the obscene demands of the defendant and refused to perform any act other than legal and valid
cohabitation; that the defendant, since that date had continually on other successive dates, made
similar lewd and indecorous demands on his wife, the plaintiff, who always spurned them, which just
refusals of the plaintiff exasperated the defendant and induce him to maltreat her by word and deed
and inflict injuries upon her lips, her face and different parts of her body; and that, as the plaintiff
was unable by any means to induce the defendant to desist from his repugnant desires and cease
from maltreating her, she was obliged to leave the conjugal abode and take refuge in the home of
her parents.
Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities
established by General Orders No. 68, in so far as its civil effects are concerned requiring the consent
of the parties. (Garcia vs. Montague, 12 Phil. Rep., 480, citing article 1261 of Civil Code.) Upon the
termination of the marriage ceremony, a conjugal partnership is formed between the parties. (Sy Joc
Lieng vs. Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage partakes of the nature of an
ordinary contract. But it is something more than a mere contract. It is a new relation, the rights,
duties, and obligations of which rest not upon the agreement of the parties but upon the general
law which defines and prescribes those rights, duties, and obligations .Marriage is an institution, in
the maintenance of which in its purity the public is deeply interested. It is a relation for life and the
parties cannot terminate it at any shorter period by virtue of any contract they may make .The

reciprocal rights arising from this relation, so long as it continues, are such as the law determines
from time to time, and none other. When the legal existence of the parties is merged into one by
marriage, the new relation is regulated and controlled by the state or government upon principles of
public policy for the benefit of society as well as the parties. And when the object of a marriage is
defeated by rendering its continuance intolerable to one of the parties and productive of no possible
good to the community, relief in some way should be obtainable. With these principles to guide us,
we will inquire into the status of the law touching and governing the question under consideration.
Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De la
Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in the
Peninsula, were extended to the Philippine Islands by royal decree on April 13, 1883 (Ebreo vs.
Sichon, 4 Phil. Rep., 705). Articles 44, 45, and 48 of this law read:
ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each other.
ART. 45. The husband must live with and protect his wife. (The second paragraph deals with the
management of the wife's property.)
ART. 48. The wife must obey her husband, live with him, and follow him when he charges his
domicile or residence.
Notwithstanding the provisions of the foregoing paragraph, the court may for just cause relieve her
from this duty when the husband removes his residence to a foreign country.
And articles 143 and 149 of the Civil Code are as follows:
ART. 143. The following are obliged to support each other reciprocally to the whole extent specified
in the preceding article.
1. The consorts.
xxx

xxx

xxx

ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by paying the
pension that may be fixed or by receiving and maintaining in his own home the person having the
right to the same.
Article 152 of the Civil Code gives the instances when the obligation to give support shall cease. The
failure of the wife to live with her husband is not one of them.
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and
obligations of the spouses. The spouses must be faithful to, assist, and support each other. The
husband must live with and protect his wife. The wife must obey and live with her husband and
follow him when he changes his domicile or residence, except when he removes to a foreign
country. But the husband who is obliged to support his wife may, at his option, do so by paying her a
fixed pension or by receiving and maintaining her in his own home. May the husband, on account of
his conduct toward his wife, lose this option and be compelled to pay the pension? Is the rule
established by article 149 of the Civil Code absolute? The supreme court of Spain in its decision of
December 5, 1903, held:.

That in accordance with the ruling of the supreme court of Spain in its decisions dated May 11, 1897,
November 25, 1899, and July 5, 1901, the option which article 149 grants the person, obliged to
furnish subsistence, between paying the pension fixed or receiving and keeping in his own house the
party who is entitled to the same, is not so absolute as to prevent cases being considered wherein,
either because this right would be opposed to the exercise of a preferential right or because of the
existence of some justifiable cause morally opposed to the removal of the party enjoying the
maintenance, the right of selection must be understood as being thereby restricted.
Whereas the only question discussed in the case which gave rise to this appeal was whether there
was any reason to prevent the exercise of the option granted by article 149 of the Civil Code to the
person obliged to furnish subsistence, to receive and maintain in his own house the one who is
entitled to receive it; and inasmuch as nothing has been alleged or discussed with regard to the
parental authority of Pedro Alcantara Calvo, which he ha not exercised, and it having been set forth
that the natural father simply claims his child for the purpose of thus better attending to her
maintenance, no action having been taken by him toward providing the support until, owing to such
negligence, the mother was obliged to demand it; it is seen that these circumstances, together with
the fact of the marriage of Pedro Alcantara, and that it would be difficult for the mother to maintain
relations with her daughter, all constitute an impediment of such a nature as to prevent the exercise
of the option in the present case, without prejudice to such decision as may be deemed proper with
regard to the other questions previously cited in respect to which no opinion should be expressed at
this time.
The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576),
wherein the court held that the rule laid down in article 149 of the Civil Code "is not absolute." but it
is insisted that there existed a preexisting or preferential right in each of these cases which was
opposed to the removal of the one entitled to support. It is true that in the first the person claiming
the option was the natural father of the child and had married a woman other than the child's
mother, and in the second the right to support had already been established by a final judgment in a
criminal case. Notwithstanding these facts the two cases clearly established the proposition that the
option given by article 149 of the Civil Code may not be exercised in any and all cases.
Counsel for the defendant cite, in support of their contention, the decision of the supreme court of
Spain, dated November 3, 1905. In this case Don Berno Comas, as a result of certain business
reverses and in order no to prejudice his wife, conferred upon her powers to administer and dispose
of her property. When she left him he gave her all the muniments of title, mortgage credits, notes,
P10,000 in accounts receivable, and the key to the safe in which he kept a large amount of jewels,
thus depriving himself of all his possessions and being reduced in consequence to want.
Subsequently he instituted this civil action against his wife, who was then living in opulence, for
support and the revocation of the powers heretofore granted in reference to the administration and
disposal of her property. In her answer the wife claimed that the plaintiff (her husband) was not
legally in a situation to claim support and that the powers voluntarily conferred and accepted by her
were bilateral and could not be canceled by the plaintiff. From a judgment in favor of the plaintiff
the defendant wife appealed to the Audencia Territorial wherein, after due trial, judgment was
rendered in her favor dismissing the action upon the merits. The plaintiff appealed to the supreme
court and that high tribunal, in affirming the judgment of the Audencia Territorial, said:

Considering that article 143, No. 1, of the Civil Code, providing that the spouses are mutually obliged
to provide each other with support, cannot but be subordinate to the other provisions of said Code
which regulates the family organization and the duties of spouses not legally separated, among
which duties are those of their living together and mutually helping each other, as provided in article
56 of the aforementioned code; and taking this for granted, the obligation of the spouse who has
property to furnish support to the one who has no property and is in need of it for subsistence, is to
be understood as limited to the case where, in accordance with law, their separation has been
decreed, either temporarily or finally and this case, with respect to the husband, cannot occur until a
judgment of divorce is rendered, since, until then, if he is culpable, he is not deprived of the
management of his wife's property and of the product of the other property belonging to the
conjugal partnership; and
Considering that, should the doctrine maintained in the appeal prevail, it would allow married
persons to disregard the marriage bond and separate from each other of their own free will, thus
establishing, contrary to the legal provision contained in said article 56 of the Civil Code, a legal
status entirely incompatible with the nature and effects of marriage in disregard of the duties
inherent therein and disturbing the unity of the family, in opposition to what the law, in conformity
with good morals, has established; and.
Considering that, as the spouses D. Ramon Benso and Doa Adela Galindo are not legally separated,
it is their duty to live together and afford each other help and support; and for this reason, it cannot
be held that the former has need of support from his wife so that he may live apart from her without
the conjugal abode where it is his place to be, nor of her conferring power upon him to dispose even
of the fruits of her property in order therewith to pay the matrimonial expenses and, consequently,
those of his own support without need of going to his wife; wherefore the judgment appealed from,
denying the petition of D. Ramon Benso for support, has not violated the articles of the Civil Code
and the doctrine invoked in the assignments of error 1 and 5 of the appeal.
From a careful reading of the case just cited and quoted from it appears quite clearly that the
spouses separated voluntarily in accordance with an agreement previously made. At least there are
strong indications to this effect, for the court says, "should the doctrine maintained in the appeal
prevail, it would allow married persons to disregard the marriage bond and separate from each
other of their own free will." If this be the true basis upon which the supreme court of Spain rested
its decision, then the doctrine therein enunciated would not be controlling in cases where one of the
spouses was compelled to leave the conjugal abode by the other or where the husband voluntarily
abandons such abode and the wife seeks to force him to furnish support. That this is true appears
from the decision of the same high tribunal, dated October 16, 1903. In this case the wife brought an
action for support against her husband who had willfully and voluntarily abandoned the conjugal
abode without any cause whatever. The supreme court, reversing the judgment absolving the
defendant upon the ground that no action for divorce, etc., had been instituted, said:
In the case at bar, it has been proven that it was Don Teodoro Exposito who left the conjugal abode,
although he claims, without however proving his contention, that the person responsible for this
situation was his wife, as she turned him out of the house. From this state of affairs it results that it
is the wife who is party abandoned, the husband not having prosecuted any action to keep her in his
company and he therefore finds himself, as long as he consents to the situation, under the

ineluctable obligation to support his wife in fulfillment of the natural duty sanctioned in article 56 of
the Code in relation with paragraph 1 of article 143. In not so holding, the trial court, on the
mistaken ground that for the fulfillment of this duty the situation or relation of the spouses should
be regulated in the manner it indicates, has made the errors of law assigned in the first three
grounds alleged, because the nature of the duty of affording mutual support is compatible and
enforcible in all situations, so long as the needy spouse does not create any illicit situation of the
court above described.lawphil.net
If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of
November 3, 1905, and if the court did hold, as contended by counsel for the defendant in the case
under consideration, that neither spouse can be compelled to support the other outside of the
conjugal abode, unless it be by virtue of a final judgment granting the injured one a divorce or
separation from the other, still such doctrine or holding would not necessarily control in this
jurisdiction for the reason that the substantive law is not in every particular the same here as it is in
Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the Peninsula are not
in force in the Philippine Islands. The law governing the duties and obligations of husband and wife
in this country are articles 44 to 78 of the Law of Civil Marriage of 1870 .In Spain the complaining
spouse has, under article 105 of the Civil Code, various causes for divorce, such as adultery on the
part of the wife in every case and on the part of the husband when public scandal or disgrace of the
wife results therefrom; personal violence actually inflicted or grave insults: violence exercised by the
husband toward the wife in order to force her to change her religion; the proposal of the husband to
prostitute his wife; the attempts of the husband or wife to corrupt their sons or to prostitute their
daughters; the connivance in their corruption or prostitution; and the condemnation of a spouse to
perpetual chains or hard labor, while in this jurisdiction the only ground for a divorce is adultery.
(Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and absolute doctrine was announced
by this court in the case just cited after an exhaustive examination of the entire subject. Although
the case was appealed to the Supreme Court of the United States and the judgment rendered by this
court was there reversed, the reversal did not affect in any way or weaken the doctrine in reference
to adultery being the only ground for a divorce. And since the decision was promulgated by this
court in that case in December, 1903, no change or modification of the rule has been announced. It
is, therefore, the well settled and accepted doctrine in this jurisdiction.
But it is argued that to grant support in an independent suit is equivalent to granting divorce or
separation, as it necessitates a determination of the question whether the wife has a good and
sufficient cause for living separate from her husband; and, consequently, if a court lacks power to
decree a divorce, as in the instant case, power to grant a separate maintenance must also be lacking.
The weakness of this argument lies in the assumption that the power to grant support in a separate
action is dependent upon a power to grant a divorce. That the one is not dependent upon the other
is apparent from the very nature of the marital obligations of the spouses. The mere act of marriage
creates an obligation on the part of the husband to support his wife. This obligation is founded not
so much on the express or implied terms of the contract of marriage as on the natural and legal duty
of the husband; an obligation, the enforcement of which is of such vital concern to the state itself
that the laws will not permit him to terminate it by his own wrongful acts in driving his wife to seek
protection in the parental home. A judgment for separate maintenance is not due and payable
either as damages or as a penalty; nor is it a debt in the strict legal sense of the term, but rather a
judgment calling for the performance of a duty made specific by the mandate of the sovereign. This

is done from necessity and with a view to preserve the public peace and the purity of the wife; as
where the husband makes so base demands upon his wife and indulges in the habit of assaulting
her. The pro tanto separation resulting from a decree for separate support is not an impeachment of
that public policy by which marriage is regarded as so sacred and inviolable in its nature; it is merely
a stronger policy overruling a weaker one; and except in so far only as such separation is tolerated as
a means of preserving the public peace and morals may be considered, it does not in any respect
whatever impair the marriage contract or for any purpose place the wife in the situation of a feme
sole.
The foregoing are the grounds upon which our short opinion and order for judgment, heretofore
filed in this case, rest.
Torres, Johnson and Carson, JJ., concur.

Separate Opinions

MORELAND, J., concurring:

I based my vote in this case upon the ground that a husband cannot, by his own wrongful acts,
relieve himself from the duty to support his wife imposed by law; and where a husband, by
wrongful, illegal, and unbearable conduct, drives his wife from the domicile fixed by him, he cannot
take advantage of her departure to abrogate the law applicable to the marital relation and repudiate
his duties thereunder. In law and for all purposes within its purview, the wife still remains an inmate
of the conjugal domicile; for I regard it as a principle of law universally recognized that where a
person by his wrongful and illegal acts creates a condition which under ordinary circumstances
would produce the loss of rights or status pertaining to another, the law will, whenever necessary to
protect fully the rights or status of the person affected by such acts, regard the condition by such
acts created as not existing and will recur to and act upon the original situation of the parties to
determine their relative rights or the status of the person adversely affected.
I do not believe, therefore, that the case is properly conceived by defendant, when the consideration
thereof proceeds solely on the theory that the wife is outside the domicile fixed by the husband.
Under the facts alleged in the complainant the wife is legally still within the conjugal domicile.

G.R. No. L-3047

May 16, 1951

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
GUADALUPE ZAPATA and DALMACIO BONDOC, defendants-appellees.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Jaime de los Angeles for appellant.
Francisco M. Ramos and Moises Sevilla Ocampo for appellee Dalmacio Bondoc.
Hernandez and Laquian for appellee Guadalupe Zapata.
PADILLA, J.:
In the Court of First Instance of Pampanga a complaint for adultery was filed by Andres Bondoc
against Guadalupe Zapata, his wife, and Dalmacio Bondoc, her paramour, for cohabiting and having
repeated sexual intercourse during the period from the year 1946 14 March 1947, the date of the
filing of the complaint, Dalmacio Bondoc knowing his codefendant to be a married woman (criminal
case No. 426). The defendant wife entered the plea of guilty and was sentenced to suffer four
months of arresto mayor which penalty she served. In the same court, on 17 September 1948, the
offended husband filed another complaint for adulterous acts committed by his wife and her
paramour from 15 March 1947 to 17 September 1948, the date of the filing of the second complaint
(criminal case No. 735). On 21 February 1949, each of the defendants filed a motion to quash the
complaint of the ground that they would be twice put in jeopardy of punishment for the same
offense. The trial court upheld the contention of the defendants and quashed the second complaint.
From the other sustaining the motions to quash the prosecution has appealed.
The trial court held that the adulterous acts charged in the first and second complains must be
deemed one continuous offense, the defendants in both complaints being the same and identical
persons and the two sets of unlawful acts having taken place continuously during the years 1946,
1947 and part of 1948, and that the acts or two sets of acts that gave rise to the crimes of adultery
complained of in both cases constitute one and the same offense, within the scope and meaning of
the constitutional provision that "No person shall be twice put in jeopardy of punishment for the
same offense.".
Adultery is a crime of result and not of tendency, as the Supreme Court of Spain has held (S. 10
December 1945); it is a instantaneous crime which is consummated and exhausted or completed at
the moment of the carnal union. Each sexual intercourse constitutes a crime of adultery (Cuello
Calon, Derecho Penal, Vol. II, p. 569). True, two or more adulterous acts committed by the same
defendants are against the same person the offended husband, the same status the union of
the husband and wife by their marriage, and the same community represented by the State for its
interest in maintaining and preserving such status. But this identity of the offended party, status
society does not argue against the commission of the crime of adultery as many times as there were
carnal consummated, for as long as the status remain unchanged, the nexus undissolved and
unbroken, an encroachment or trespass upon that status constitutes a crime. There is no
constitutional or legal provision which bars the filing of as many complaints for adultery as there
were adulterous acts committed, each constituting one crime.

The notion or concept of a continuous crime has its origin in the juridical fiction favorable to the law
transgressors and in many a case against the interest of society (Cuello Calon, Derecho Penal, Vol. II,
p. 521). For it to exist there would be plurality of acts performed seperately during a period of time;
unity of penal provision infringed upon or violated; and unity of criminal intent or purpose, which
means that two or more violations of the same penal provision are united in one and the same
intent leading to the perpetration of the same criminal purpose or aim (Ibid. p. 520).In the instant
case the last unity does not exist, because as already stated the culprits perpetrate the crime in
every sexual intercourse and they need not to another or other adulterous acts to consummate it.
After the last acts of adultery had been committed as charged in the first complaint, the defendants
again committed adulterous acts not included in the first complaint and for which the second
complaint was filed. It was held by the Supreme Court of Spain that another crime of adultery was
committed, if the defendants, after their provincional release during the pendency of the case in
which they were sent to prison to serve the penalty imposed upon them(S. 28 February 1906; 76 Jur.
Crim. pp. 208-210).
Another reason why a second complaint charging the commission of adulterous acts not included in
the first complaint does not constitute a violation of the double jeopardy clause of the constitution is
that, if the second places complaint the defendants twice in jeopardy of punishment for the same
offense, the adultery committed by the male defendant charged in the second complaint, should he
be absolved from, or acquitted of, the first charge upon the evidence that he did not know that his
codefendant was a married woman, would remain or go unpunished. The defense set up by him
against the first charge upon which he was acquitted would no longer be available, because at the
time of the commission of the crime charged in the second complaint, he already knew that this
defendant was a married woman and he continued to have carnal knowledge of her. Even if the
husband should pardon his adulterous wife, such pardon would not exempt the wife and her
paramour from criminal liability for adulterous acts committed after the pardon was granted
because the pardon refers to previous and not to subsequent adulterous acts(Viada [5th ed.] Vol. 5,
p. 208; Groizard [2nd ed.] Vol. 5, pp. 57-58).
The order appealed from, which quashed the second complaint for adultery, is hereby reversed and
set aside, and trial court directed to proceed with the trial of the defendants in accordance with law,
with costs against the appellees.

G.R. No. L-48183

November 10, 1941

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RODOLFO A. SCHNECKENBURGER, ET AL., defendants-appellants.
Cardenas & Casal for appellants.
Office of the Solicitor-General Ozaeta and Acting Solicitor Luciano for appellee.
MORAN, J.:
On March 16, 1926, the accused Rodolfo A. Schneckenburger married the compliant Elena Ramirez
Cartagena and after seven years of martial life, they agreed, for reason of alleged incompatibility of
character, to live separately each other and on May 25, 1935 they executed a document which in
part recites as follows:
Que ambos comparecientes convienen en vivir separados el uno del otro por el resto de su vida y se
comprometen, y obligan reciprocamente a no molastarse ni intervenir ni mezclarse bajo ningun
concepto en la vida publica o privada de los mismos, entre si, quendado cada uno de los otorgantes
en completa libertad de accion en calquier acto y todos concepto.
On June 15, 1935, the accused Schneckenburger, without leaving the Philippines, secured a decree
of divorce from the civil court of Juarez, Bravos District, State of Chihuahua, Mexico. On May 11,
1936, he contracted another marriage with his co-accused, Julia Medel, in the justice of the peace
court of Malabon, Rizal, and since then they lived together as husband and wife in the city of Manila.
Because of the nullity of the divorce decreed by the Mexico Court, complaint herein instituted two
actions against the accused, one for bigamy in the Court of First Instance of Rizal and the other
concubinage in the court of First Instance of Manila. The first culminated in the conviction of the
accused for which he was sentenced to penalty of two months and one day of arresto mayor. On the
trial for the offense of concubinage accused interposed the plea of double jeopardy, and the case
was dismissed; but, upon appeal by the fiscal, this Court held the dismissal before the trial to be
premature this was under the former procedure and without deciding the question of double
jeopardy, remanded the case to the trial court for trial on the merits. Accused was convicted of
concubinage through reckless imprudence and sentenced to a penalty of two months and one day
of arresto mayor. Hence this appeal.
As to appellant's plea of double jeopardy, it need only be observed that the office of bigamy for
which he was convicted and that of concubinage for which he stood trial in the court below are two
distinct offenses in law and in fact as well as in the mode of their prosecution. The celebration of the
second marriage, with the first still existing, characterizes the crime of bigamy; on the other hand, in
the present case, mere cohabitation by the husband with a woman who is not his wife characterizes
the crime of concubinage. The first in an offense against civil status which may be prosecuted at the
instance of the state; the second, an offense against chastity and may be prosecuted only at the
instance of the offended party. And no rule is more settled in law than that, on the matter of double
jeopardy, the test is not whether the defendant has already been tried for the same act, but
whether he has been put in jeopardy for the same offense. (Diaz v. U. S., 223 U. S., 422;
People v. Cabrera, 43 Phil., 82)

Upon the other hand, we believe and so hold that the accused should be acquitted of the crime of
concubinage. The document executed by and between the accused and the complaint in which they
agreed to be "en completa libertad de accion en cualquier acto y en todos conceptos," while illegal
for the purpose for which it was executed, constitutes nevertheless a valid consent to the act of
concubinage within the meaning of section 344 of the Revised Penal Code. There can be no doubt
that by such agreement, each party clearly intended to forego to illicit acts of the other.
We said before (People vs. Guinucod, 58 Phil., 621) that the consent which bars the offended party
from instituting a criminal prosecution in cases of adultery, concubinage, seduction, abduction, rape
and acts of lasciviousness is that which has been given expressly or impliedly after the crime has
been committed. We are now convinced that this is a narrow view in way warranted by the
language, as well as the manifest policy, of the law. The second paragraph of article 344 of the
Revised Penal Code provides:
The offended party cannot institute criminal prosecution without including both the guilty parties, if
they are both alive, nor, in any case, if he shall have consented or pardoned the offenders. (Emphasis
ours.)
As the term "pardon" unquestionably refers to the offense after its commission, "consent" must
have been intended agreeably with its ordinary usage, to refer to the offense prior to its
commission. No logical difference can indeed be perceived between prior and subsequent consent,
for in both instances as the offended party has chosen to compromise with his/her dishonor, he/she
becomes unworthy to come to court and invoke its aid in the vindication of the wrong. For instance,
a husband who believers his wife another man for adultery, is as unworthy, if not more, as where,
upon acquiring knowledge of the adultery after its commission, he says or does nothing. We,
therefore, hold that the prior consent is as effective as subsequent consent to bar the offended
party from prosecuting the offense.
In this arriving at this conclusion we do not with to be misconstrued as legalizing an agreement to do
an illicit act, in violation of law. Our view must be taken only to mean that an agreement of the tenor
entered into between the parties herein, operates, within the plain language and manifest policy of
the law, to bar the offended party from prosecuting the offense. If there is anything morally
condemnatory in a situation of his character, the remedy lies not with us but with the legislative
department of the government. What the law is, not what it should be, defines the limits of our
authority.
Judgment is reversed and the accused is hereby acquitted, without costs.

G.R. No. L-13553

February 23, 1960

JOSE DE OCAMPO, petitioner,

vs.
SERAFINA FLORENCIANO, respondent.
Joselito J. Coloma for petitioner.
BENGZON, J.:
Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery.
The court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there
was confession of judgment, plus condonation or consent to the adultery and prescription.
We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code,
which for convenience are quoted herewith:
ART. 100.The legal separation may be claimed only by the innocent spouse, provided there has
been no condonation of or consent to the adultery or concubinage. Where both spouses are
offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to
obtain legal separation shall cause the dismissal of the petition.
ART. 101.No decree of legal separation shall be promulgated upon a stipulation of facts or by
confession of judgment.
In case of non-appearance of the defendant, the court shall order the prosecuting attorney to
inquire whether or not a collusion between the parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the State in order to take care that the evidence for the
plaintiff is not fabricated.
The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it
described their marriage performed in 1938, and the commission of adultery by Serafina, in March
1951 with Jose Arcalas, and in June 1955 with Nelson Orzame.
Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above,
directed the provincial fiscal to investigate whether or not collusion existed between the parties. The
fiscal examined the defendant under oath, and then reported to the Court that there was no
collusion. The plaintiff presented his evidence consisting of the testimony of Vicente Medina,
Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat.
According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant
were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived
thereafter as husband and wife. They begot several children who are now living with plaintiff. In
March, 1951, plaintiff discovered on several occasions that his wife was betraying his trust by
maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital
relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where
she stayed for one year. Again, plaintiff discovered that while in the said city defendant was going
out with several other men, aside from Jose Arcalas. Towards the end of June, 1952, when

defendant had finished studying her course, she left plaintiff and since then they had lived
separately.
"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man
by the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation,
to which defendant manifested her conformity provided she is not charged with adultery in a
criminal action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal separation."
The Court of Appeals held that the husband's right to legal separation on account of the defendant's
adultery with Jose Arcalas had prescribed, because his action was not filed within one year from
March 1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must agree with
the Court of Appeals on this point.1
As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955,
the husband upon discovering the illicit connection, expressed his wish to file a petition for legal
separation and defendant readily agreed to such filing. And when she was questioned by the Fiscal
upon orders of the court, she reiterated her conformity to the legal separation even as she admitted
having had sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a
confession of judgment the Appellate Court declared that under Art. 101, legal separation could not
be decreed.
As we understand the article, it does not exclude, as evidence, any admission or confession made by
the defendant outside of the court. It merely prohibits a decree of separation upon a confession of
judgment. Confession of judgment usually happens when the defendant appears in court and
confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff's
demand.2 This is not occur.
Yet, even supposing that the above statement of defendant constituted practically a confession of
judgment, inasmuch as there is evidence of the adultery independently of such statement, the
decree may and should be granted, since it would not be based on her confession, but upon
evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly
on defendant's confession. If a confession defeats the actionipso facto, any defendant who opposes
the separation will immediately confess judgment, purposely to prevent it.
The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated
from her husband, is no obstacle to the successful prosecution of the action. When she refused to
answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the
dismissal. Allowing the proceeding to continue, it takes precautions against collusion, which implies
more than consent or lack of opposition to the agreement.
Needless to say, when the court is informed that defendant equally desires the separation and
admitted the commission of the offense, it should be doubly careful lest a collusion exists. (The
Court of Appeals did not find collusion.)
Collusion in divorce or legal separation means the agreement.
. . . between husband and wife for one of them to commit, or to appear to commit, or to be
represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid

defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express,
may be implied from the acts of the parties. It is a ground for denying the divorce. (Griffiths vs.
Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.).
In this case, there would be collusion if the parties had arranged to make it appear that a
matrimonial offense had been committed although it was not, or if the parties had connived to bring
about a legal separation even in the absence of grounds therefor.
Here, the offense of adultery had really taking place, according to the evidence. The defendant could
not havefalsely told the adulterous acts to the Fiscal, because her story might send her to jail the
moment her husband requests the Fiscal to prosecute. She could not have practiced deception at
such a personal risk.
In this connection, it has been held that collusion may not be inferred from the mere fact that the
guilty party confesses to the offense and thus enables the other party to procure evidence necessary
to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y.
Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.).
And proof that the defendant desires the divorce and makes no defense, is not by itself collusion.
(Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.).
We do not think plaintiff's failure actively to search for defendant and take her home (after the latter
had left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. It
will be remembered that she "left" him after having sinned with Arcalas and after he had discovered
her dates with other men. Consequently, it was not his duty to search for her to bring her home.
Hers was the obligation to return.
Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the
husband's consent to or condonation of his wife's misconduct. However, upon careful examination,
a vital difference will be found: in both instances, the husband had abandoned his wife; here it was
the wife who "left" her husband.
Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed
decision and decree a legal separation between these spouse, all the consequent effects. Costs of all
instances against Serafina Florenciano. So ordered.

G.R. No. L-13553

February 23, 1960

JOSE DE OCAMPO, petitioner,

vs.
SERAFINA FLORENCIANO, respondent.
Joselito J. Coloma for petitioner.
BENGZON, J.:
Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery.
The court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there
was confession of judgment, plus condonation or consent to the adultery and prescription.
We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code,
which for convenience are quoted herewith:
ART. 100.The legal separation may be claimed only by the innocent spouse, provided there has
been no condonation of or consent to the adultery or concubinage. Where both spouses are
offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to
obtain legal separation shall cause the dismissal of the petition.
ART. 101.No decree of legal separation shall be promulgated upon a stipulation of facts or by
confession of judgment.
In case of non-appearance of the defendant, the court shall order the prosecuting attorney to
inquire whether or not a collusion between the parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the State in order to take care that the evidence for the
plaintiff is not fabricated.
The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it
described their marriage performed in 1938, and the commission of adultery by Serafina, in March
1951 with Jose Arcalas, and in June 1955 with Nelson Orzame.
Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above,
directed the provincial fiscal to investigate whether or not collusion existed between the parties. The
fiscal examined the defendant under oath, and then reported to the Court that there was no
collusion. The plaintiff presented his evidence consisting of the testimony of Vicente Medina,
Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat.
According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant
were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived
thereafter as husband and wife. They begot several children who are now living with plaintiff. In
March, 1951, plaintiff discovered on several occasions that his wife was betraying his trust by
maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital
relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where
she stayed for one year. Again, plaintiff discovered that while in the said city defendant was going
out with several other men, aside from Jose Arcalas. Towards the end of June, 1952, when

defendant had finished studying her course, she left plaintiff and since then they had lived
separately.
"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man
by the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation,
to which defendant manifested her conformity provided she is not charged with adultery in a
criminal action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal separation."
The Court of Appeals held that the husband's right to legal separation on account of the defendant's
adultery with Jose Arcalas had prescribed, because his action was not filed within one year from
March 1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must agree with
the Court of Appeals on this point.1
As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955,
the husband upon discovering the illicit connection, expressed his wish to file a petition for legal
separation and defendant readily agreed to such filing. And when she was questioned by the Fiscal
upon orders of the court, she reiterated her conformity to the legal separation even as she admitted
having had sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a
confession of judgment the Appellate Court declared that under Art. 101, legal separation could not
be decreed.
As we understand the article, it does not exclude, as evidence, any admission or confession made by
the defendant outside of the court. It merely prohibits a decree of separation upon a confession of
judgment. Confession of judgment usually happens when the defendant appears in court and
confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff's
demand.2 This is not occur.
Yet, even supposing that the above statement of defendant constituted practically a confession of
judgment, inasmuch as there is evidence of the adultery independently of such statement, the
decree may and should be granted, since it would not be based on her confession, but upon
evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly
on defendant's confession. If a confession defeats the actionipso facto, any defendant who opposes
the separation will immediately confess judgment, purposely to prevent it.
The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated
from her husband, is no obstacle to the successful prosecution of the action. When she refused to
answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the
dismissal. Allowing the proceeding to continue, it takes precautions against collusion, which implies
more than consent or lack of opposition to the agreement.
Needless to say, when the court is informed that defendant equally desires the separation and
admitted the commission of the offense, it should be doubly careful lest a collusion exists. (The
Court of Appeals did not find collusion.)
Collusion in divorce or legal separation means the agreement.
. . . between husband and wife for one of them to commit, or to appear to commit, or to be
represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid

defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express,
may be implied from the acts of the parties. It is a ground for denying the divorce. (Griffiths vs.
Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.).
In this case, there would be collusion if the parties had arranged to make it appear that a
matrimonial offense had been committed although it was not, or if the parties had connived to bring
about a legal separation even in the absence of grounds therefor.
Here, the offense of adultery had really taking place, according to the evidence. The defendant could
not havefalsely told the adulterous acts to the Fiscal, because her story might send her to jail the
moment her husband requests the Fiscal to prosecute. She could not have practiced deception at
such a personal risk.
In this connection, it has been held that collusion may not be inferred from the mere fact that the
guilty party confesses to the offense and thus enables the other party to procure evidence necessary
to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y.
Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.).
And proof that the defendant desires the divorce and makes no defense, is not by itself collusion.
(Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.).
We do not think plaintiff's failure actively to search for defendant and take her home (after the latter
had left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. It
will be remembered that she "left" him after having sinned with Arcalas and after he had discovered
her dates with other men. Consequently, it was not his duty to search for her to bring her home.
Hers was the obligation to return.
Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the
husband's consent to or condonation of his wife's misconduct. However, upon careful examination,
a vital difference will be found: in both instances, the husband had abandoned his wife; here it was
the wife who "left" her husband.
Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed
decision and decree a legal separation between these spouse, all the consequent effects. Costs of all
instances against Serafina Florenciano. So ordered.

G.R. No. L-37720

March 27, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
URSULA SENSANO and MARCELO RAMOS, defendants-appellants.
Emilio L. Medina for appellants.
Attorney-General Jaranilla for appellee.
BUTTE, J.:
The appellants were sentenced by the Court of First Instance of Ilocos Norte for the crime of
adultery to three years, six months and twenty-one days of prision correccional and appealed to this
court, assigning the following error: "The court below erred in not holding that the offended
husband contested to the adultery committed by his wife Ursula Sensano in that he refused to live
with her after she extinguished her previous sentence for the same offense, and by telling her then
that she could go where she wanted to and do what she pleased, and by his silence for seven years
notwithstanding that he was informed of said adultery."
The facts briefly stated as follows:
Ursula Sensano and Mariano Ventura were married on April 29, 1919. They had one child. Shortly
after the birth of his child, the husband left his wife to go to the Province of Cagayan where he
remained for three years without writing to his wife or sending her anything for the support of
herself and their son. Poor and illiterate, without relatives upon whom she could call, she struggled
for an existence for herself and her son until a fatal day when she met the accused Marcelo Ramos
who took her and the child to live with him. On the return of the husband (in 1924), he filed a charge
against his wife and Marcelo Ramos for adultery and both were sentenced to four months and one
day of arresto mayor. The court, in its decision, stated the following: "In the opinion of the court, the
husband of the accused has been somewhat cruel in his treatment of his wife having abandoned her
as he did." After completing her sentence, the accused left her paramour. She thereupon appealed
to this municipal president and the justice of the peace to send for her husband so that she might
ask his pardon and beg him to take her back. At the house of the president she begged his pardon
and promised to be a faithful wife it he would take care her back. He refused to pardon her to live
with her and said she could go where she wished, that he would have nothing more to do with her,
and she could do as she pleased. Abandoned for the second time, she and her child went back to her
coaccused Marcelo Ramos (this was in the year 1924) and they have lived with him ever since. The
husband, knowing that she resumed living with her codefendant in 1924, did nothing to interfere
with their relations or to assert his rights as husband. Shortly thereafter he left for the Territory of
Hawaii where she remained for seven years completely abandoning his said wife and child. On his
return to these Islands, he presented the second charge of adultery here involved with the sole
purpose, as he declared, of being able to obtain a divorce under the provisions of Act No. 2710.
Article 344 of the Revised Penal Code, paragraphs 1 and 2, are as follows:
Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of
lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.

The offended party cannot institute criminal prosecution without including both the guilty parties, if
they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.
Apart from the fact that the husband in this case was assuming a mere pose when he signed the
complaint as the "offended" spouse, we have come to the conclusion that the evidence in this case
and his conduct warrant the inference that he consented to the adulterous relations existing
between the accused and therefore he is not authorized by law to institute this criminal proceeding.
We cannot accept the argument of the Attorney-General that the seven years of acquiescence on his
part in the adultery of his wife is explained by his absence from the Philippine Islands during which
period it was impossible for him to take any action against the accused. There is no merit in the
argument that it was impossible for the husband to take any action against the accused during the
said seven years.
The judgment below is reversed with costs de oficio.

G.R. No. 1056

March 13, 1907

AGUEDA BENEDICTO DE LA RAMA, appellee,

vs.
ESTEBAN DE LA RAMA, appellant.
Ledesma, Sumulong & Quintos for appellant.
Coudert Brothers, Aylett R. Cotton & Lionel D. Hargis for appellee.
WILLARD, J.:
On July 5, 1902, the Court of First Instance of the Province of Iloilo entered a final judgment in this
case, decreeing a divorce to the plaintiff on the ground of the husband's adultery, as well as the
payment of 81,042.76 pesos due her as her unpaid share of the property belonging to the conjugal
partnership, as well as the sum of 3,200 pesos as an allowance for their support since the date on
which the action was instituted.
From the judgment the defendant appealed to this court, which, on December 8, 1903, reversed the
decree of the Court of First Instance, incorporated in its opinion certain findings of fact, and ordered
judgment absolute that the complaint be dismissed. (Benedicto vs. De la Rama, 3 Phil. Rep., 34.)
Thereafter the plaintiff appealed to the Supreme Court of the United States, which on April 2, 1906,
reversed the judgment of this Court. (De la Rama, vs. De la Rama, 201, U. S., 303.) The opinion of the
supreme court of the United States concludes as follows:
We have reached the conclusion that there is no such preponderance of evidence in favor of the
theory of plaintiffs guilt as authorized the Supreme Court to set aside the conclusions of the court
below upon the ground that these findings were plainly and manifestly against the weight of the
evidence. In this connection it is proper to bear in mind that the trial judge had all these witnesses
before him and doubtless formed his conclusions largely from their appearance on the stand, their
manner of giving testimony, and their apparent credibility. Under the circumstances we think the
Supreme Court should have affirmed rather than reversed the action of the lower court.
While the right of the plaintiff to her proportion of the original property, to alimony pending suit,
and to other allowances claimed is the basis of our jurisdiction, the decree of the Supreme Court in
dismissing plaintiff's petition renders it unnecessary to review the action of the Court of First
Instance in fixing the amount that it held plaintiff was entitled to recover. We are, therefore, of the
opinion that the decree of the Supreme Court dismissing the action must be reversed and the cause
remanded to that court for further proceedings not inconsistent with this opinion.
After the case had been remanded to this court, and on the 2d of November, 1906, the plaintiff
made a motion that the judgment of the Court of First Instance be affirmed an order was made for
the submission of printed briefs upon certain questions of adultery. This court sustained those
assignments and said:
Our conclusion is that neither one of the parties is entitled to a divorce. The result makes in
unnecessary to consider that part of the judgment which relates to the settlement of the conjugal
partnership.

The action of this court upon those four assignment of error relating to adultery was reversed by the
Supreme Court of the United States, and by the decision of that court there were definitely disposed
of. The other assignment of error relate to that part of the decision of the Court of First Instance
with treats of the division of the conjugal property, the allowance of alimony, and the order of the
court below that the case be referred to the fiscal for criminal proceedings against the defendant. As
has been said, these assignments of error were not considered by this court in view of the result
which it reached upon the other assignments. Nor were they discussed by the Supreme Court of the
United States.
The claim of the appellant now is, however, that the whole case was finally disposed of by the
decision of the latter court, and that the only thing remaining for this court as to do is to affirm the
judgment of the Court of First Instance in its entirely.
With this view we can not agree. The only thing considered by the Supreme Court of the United
States was that part of the decision of the Court of First Instance which related to the right of the
plaintiff to a divorce. It did not pass upon the division of the conjugal property. Its order was that the
case be remanded to this court for further proceedings not inconsistent with its opinion. If the
contention of the plaintiff is true, it seems that the order of that court and affirming that of the
Court of First Instance. By remanding the case to this court for further proceedings not inconsistent
with the opinion of the Supreme Court, it seems to have been the intention of that court that this
court should dispose of the assignments of error not already of.
The fifth assignment of error is as follows:
Se ha infringido el articulo 1418 y otros del Codigo Civil al admitir el Juzgado, dentro del presente
juicio, el avaluo y division efectiva de los supuestos bienes gananciales.
It was claimed by this defendant, in his brief in his original appeal to this court in support of this
assignment of error, that it was not proper to settle the affairs of the conjugal partnership in divorce
proceedings, and that no such settlement of a conjugal partnership could ever be made until there
had been a final judgment ordering the divorce, from which no appeal had been taken, or as to
which the time to appeal had expired, and in his argument in this court in the motion presented on
the 2ds of November, 1906, the repeats the same claim.
In our opinion, however, this assignment of error was disposed of by the decision of the Supreme
Court of the United States. As was said in that decision , the jurisdiction of that court depended
entirely upon that part of the judgment of the Court of First Instance which directed the payment of
81,000 pesos. If the Court of First Instance had no jurisdiction to make any order for the payment of
money in a divorce proceeding, that part of the judgment would have to be eliminated. In taking
jurisdiction of the case the Supreme Court of the United States necessarily held that a liquidation of
the affairs of the conjugal partnership could be had in a divorce proceeding. The fifth assignment of
error, therefore, can not be urged by the defendant.
The sixth assignment of error was as follows:
Ha incurrido en error en cuanto fija la cuantia de la mitad de dichos supuestos bienes gananciales en
81,042 pesos y 75 centimos, sin haber tenido a la vista los antecedentes y datos necesarios y sin

haber tenido en cuenta ademas las perdidas sufridas y las deudas contraidas por la razon social Hijos
de I. de la Rama.
This assignment of error not having been considered either by the Supreme Court of the United
States or by his court, be sustained. The Civil Code states in detail the manner in which the affairs of
a conjugal partnership shall be settled after the same has been dissolved. Article 1418 provides,
except in certain cases not here important, that an inventory shall at once be made. We have held in
the case of Alfonso vs. Natividad 1 (4 Off. Gaz., 461), that when the partnership is dissolved by the
death of the husband this inventory be made in the proceedings for the settlement of his estate.
And in the case of Prado vs. Lagera 2 (5 Off. Gaz., 146), that the inventory thus formed must include
the bienes parafernales of the wife. It is very evident from the provisions of the Civil Code that the
inventory includes the capital of the husband, the dowry of the wife, in the second place the bienes
parafernales of the wife, in the third place the debts and obligations of the conjugal partnership, and
in the fourth place the capital of the husband. Articles 1424 and 1426 then provide as follows:
ART. 1424. After the deductions from the inventoried estate specified in the three preceding articles
have been made, the remainder of the same estate shall constitute the assets of the conjugal
partnership.
ART. 1426. The net remainder of the partnership property shall be divided, share and share alike,
between the husband and wife, or their respective heirs.
It is thus seen that the conjugal property which is to be divided when the partnership is dissolved, is
determined not with reference to the income or profits, which may have been received during the
partnership by the spouses but rather by the amount of the actual property possessed by them at
such dissolution after making the deductions and payments aforesaid. This is positively provided by
article 1424.
An examination of the decision of the Court of First Instance shows that no attempt was made to
comply with any of these statutory provisions. No inventory of the partnership property existing at
the time of the trial, at which the liquidation was made, was ever formed. No provision was made
for paying to the wife the sum of 2,000 pesos, which was either the dowry or bienes parafernales of
the wife. No provision was made for returning to the husband his capital in the partnership, which
amounted to at least one third of the assets of the firm of hijos de I. de la Rama, which assets,
according to the inventory made January 30, 1901, amounted to 1,130,568 pesos. The court below
rejected entirely the method prescribed and in fact liquidated it, as appears from the decision, upon
an entirely different basis. He determined in the first place the income which each person had
received from his or her property, during the partnership, finding that the wife during that time had
received from her property 345 pesos as income and that the husband had received 162,430.53
pesos. He then says:
The total value therefore of the conjugal partnership existing between the plaintiff and the
defendant in the present case amounts to 162,775,53 pesos. The words of the statute say that the
same must be divided share and share alike. The means that each should have 81,387.76 pesos. The
wife already having in her possession 345 pesos of this sum, she is entitled to receive from the
husband 81,042.76 pesos as being the sum necessary to equalize the holdings of the property which,
according to the statute, must be regarded as belonging to the conjugal partnership.

It needs no argument to show that this manner of liquidating the affairs of the conjugal partnership
is entirely unwarranted by the law. The Theory of the Civil Code is that the conjugal property is the
actual property which is left at the dissolution of the partnership. It, can therefore, never be
determined by adding up the profits, which had been made each year during its existence, and then
saying that the result is the conjugal property. The difference between the two systems of
liquidation is well illustrated in this case., The court below found that the profits of the partnership
of Hijos de I. de la Rama from the time of its organization up to June 30, 1901, amounted to
290,101,31 pesos. The evidence in this case shows, however, that the capital with which the firm
started was 1,058.192 pesos, and that on June 30, 1901, the value of its entire property was
1,130,568 pesos, an increase of only 72,376 pesos. Taking the method adopted by the court below, if
the conjugal partnership had been dissolved on June 30, 1901, it would have had as an asset one
fourth of this sum of 290,101.31 pesos, but following the rule laid by the Civil Code it would have
only had one fourth of 72,376 pesos, the difference between the value of the property of said firm
when it was organized and its value of the 39th of June, 1901.
The other assignments of error were not urged in the last brief presented by the appellant and in
any event we do not think they can be sustained.
The result is that part of the judgment of the Court of First Instance ordering the divorce, ordering
the payment of 3,200 pesos, Mexican currency, by the defendant to the plaintiff, and the costs of
the action, is affirmed. That part of it ordering the payment by the defendant to the plaintiff of
81,042.76 pesos, Mexican currency, is set aside, and the case is remanded to the court below for the
purpose of liquidating in this action the affairs of the conjugal partnership (considering the same to
have been dissolved on the 5th of July, 1902) in accordance with the rules laid down in the Civil
Code, and a judgment will be entered in that court for the amount which appears from such
liquidation to be due from the defendant to the plaintiff. No costs will be allowed to either party in
this court.
After the expiration of twenty days let judgment be entered in accordance herewith, and ten days
thereafter the record be remanded to the court from whence it came for execution. So ordered.
Arellano, C.J., Torres, Mapa and Tracey, JJ., concur.

Separate Opinions
JOHNSON, J., dissenting:
This cause was originally tried in the Court of First Instance of the Province of Iloilo. A judgment was
there rendered in favor of the plaintiff and against the defendant. The defendant appealed to this
court and the judgment was reversed. The plaintiff appealed to the Supreme Court of the United
States, were the judgment of this court was reversed, and the cause was remanded for further
proceedings not inconsistent with the opinion of the Supreme Court of the United States.
On the 9th day of November, 1906, the plaintiff presented a motion in this court asking that the
original judgment of the Court of First Instance be affirmed. The attorney for the defendant opposed

this motion, and this court ordered that the respective parties submit briefs. These briefs were duly
submitted and on the 23d day of January 1907, a majority of this court, after an examination of the
evidence adduced during the trial of said cause in the Court of First Instance of the Province of Iloilo,
decided that the inventory, made by the Court of First Instance, had not been made in accordance
with the provisions of the Civil Code. We are of the opinion that this court has no right or authority
to examine the evidence adduced during the trial of said cause in the court below for the reason that
the defendant and appellant did not there make a property motion for a new trial, justifying this
court in examining the evidence. We are of the opinion that this court have no authority to examine
the evidence adduced during the trial in the Court of First Instance unless the appellant has made a
motion for a new trial in that court "upon the ground that the findings of fact are plainly and
manifestly against the weight of the evidence" (paragraph 3, section 497 of the Coddfe of Procedure
in Civil Actions), and the judge of the said lower court has overruled said motion, and the defendant
has duly excepted to such ruling.
By reference to the motion for a new trial presented in this cause in the court below, it will be seen
that the same was not based upon these grounds. We are of the opinion that the motion presented
for a new trial comes under the provisions of sections 145 and 146 of said code, and the overruling
of the same does not constitute a ground of exception upon which an appeal can be based for the
purpose of securing a reexamination of the evidence in this court.
Admitting, however, that said motion was sufficient to justify this court in examining the evidence,
we are of the opinion that even then the evidence adduced during the trial upon the question of the
conjugal property is sufficient to justify the conclusions of the said Court of First Instance and that
the judgment of the lower court should be affirmed in this particular. And, moreover, in view of the
fact that the defendant made no appearance in the Supreme Court of the United States when the
case was pending there, and made no defense when the very question was being considered by that
court which is presented to this court now, we are of the opinion that a new trial should not be
granted, and that the plaintiff, who is clearly entitled to the relief granted by the lower court, at the
close of the trial should not be further annoyed or kept out of that portion of the conjugal property
to which she is clearly entitled.
Torres, Mapa and Tracey, JJ., concurs.

G.R. No. L-10699

October 18, 1957

WILLIAM H. BROWN, plaintiff-appellant,

vs.
JUANITA YAMBAO, defendant-appellee.
Jimenez B. Buendia for appellant.
Assistant City Fiscal Rafel A. Jose for appellee.
REYES, J.B.L., J.:
On July 14, 1955, William H. Brown filed suit in the Court of First Instance of Manila to obtain legal
separation from his lawful wife Juanita Yambao. He alleged under oath that while interned by the
Japanese invaders, from 1942 to 1945, at the University of Sto. Tomas internment camp, his wife
engaged in adulterous relations with one Carlos Field of whom she begot a baby girl that Brown
learned of his wifes misconduct only in 1945, upon his release from internment; that thereafter the
spouse lived separately and later executed a document (Annex A ) liquidating their conjugal
partnership and assigning certain properties to the erring wife as her share. The complaint prayed
for confirmation of the liquidation agreement; for custody of the children issued of the marriage;
that the defendant be declared disqualified to succeed the plaintiff; and for their remedy as might
be just and equitable.
Upon petition of the plaintiff, the court subsequently declared the wife in default, for failure to
answer in due time, despite service of summons; and directed the City Fiscal or his representatives
to
investigate, in accordance with Article 101 of the Civil Code, whether or not a collusion exists
between the parties and to report to this Court the result of his investigation within fifteen (15) days
from receipt of copy of this order. The City Fiscal or his representative is also directed to intervene in
the case in behalf of the State. (Rec. App. p. 9).
As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and cross-examined plaintiff
Brown. His questions (strenuously objected to by Brown's counsel) elicited the fact that after
liberation, Brown had lived maritally with another woman and had begotten children by her.
Thereafter, the court rendered judgment denying the legal separation asked, on the ground that,
while the wife's adultery was established, Brown had incurred in a misconduct of similar nature that
barred his right of action under Article 100 of the new Civil Code, providing:
ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been
no condonation or of consent to the adultery or concubinage. Where both spouses are offenders, a
legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal
separation shall cause the dismissal of the petition.
that there had been consent and connivance, and because Brown's action had prescribed under
Article 102 of the same Code:

ART. 102 An action for legal separation cannot be filed except within one year from and after the
date on which the plaintiff became cognizant of the cause and within five years from and after date
when such cause occurred.
since the evidence showed that the learned of his wife's infidelity in 1945 but only filed action in
1945.
Brown appeared to this Court, assigning the following errors:
The court erred in permitting the Assistant Fiscal Rafel Jose of Manila to act as counsel for the
defendant, who defaulted.
The court erred in declaring that there was condonation of or consent to the adultery.
The court erred in dismissing the plaintiff's complaint.
Appellant Brown argues that in cross-examining him with regard to his marital relation with Lilia
Deito, who was not his wife, the Assistant Fiscal acted as consel for the defaulting wife, "when the
power of the prosecuting officer is limited to finding out whether or not there is collusion, and if
there is no collusion, which is the fact in the case at bar, to intervene for the state which is not the
fact in the instant case, the truth of the matter being that he intervened for Juanita Yambao, the
defendant-appellee, who is private citizen and who is far from being the state.".
The argument is untenable. Collusion in matrimonial cases being "the act of married persons in
procuring a divorceby mutual consent, whether by preconcerted commission by one of a
matrimonial offense, or by failure, in pursuance of agreement to defend divorce proceedings"
(Cyclopedia Law Dictionary; Nelson, Divorce and Separation, Section 500), it was legitimate for the
Fiscal to bring to light any circumstances that could give rise to the inference that the wife's default
was calculated, or agreed upon, to enable appellant to obtain the decree of legal separation that he
sought without regard to the legal merits of his case. One such circumstance is obviously the fact of
Brown's cohabitation with a woman other than his wife, since it bars him from claiming legal
separation by express provision of Article 100 of the new Civil Code. Wherefore, such evidence of
such misconduct, were proper subject of inquiry as they may justifiably be considered circumstantial
evidence of collusion between the spouses.
The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in
case of uncontested proceedings for legal separation (and of annulment of marriages, under Article
88), is to emphasize that marriage is more than a mere contract; that it is a social institution in which
the state is vitally interested, so that its continuation or interruption cannot be made depend upon
the parties themselves (Civil Code, Article 52; Adong vs, Cheong Gee, 43 Phil, 43; Ramirez vs. Gmur
42 Phil. 855; Goitia vs. Campos, 35 Phil. 252). It is consonant with this policy that the injury by the
Fiscal should be allowed to focus upon any relevant matter that may indicate whether the
proceedings for separation or annulment are fully justified or not.
The court below also found, and correctly held that the appellant's action was already barred,
because Brown did not petition for legal separation proceedings until ten years after he learned of
his wife's adultery, which was upon his release from internment in 1945. Under Article 102 of the
new Civil Code, action for legal separation can not be filed except within one (1) year from and after

the plaintiff became cognizant of the cause and within five years from and after the date when such
cause occurred. Appellant's brief does not even contest the correctness of such findings and
conclusion.
It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can
take cognizance thereof, because actions seeking a decree of legal separation, or annulment of
marriage, involve public interest and it is the policy of our law that no such decree be issued if any
legal obstacles thereto appear upon the record.
Hence, there being at least two well established statutory grounds for denying the remedy sought
(commission of similar offense by petitioner and prescription of the action), it becomes unnecesary
to delve further into the case and ascertain if Brown's inaction for ten years also evidences
condonation or connivance on his part. Even if it did not, his situation would not be improved. It is
thus needless to discuss the second assignment of error.
The third assignment of error being a mere consequence of the others must necessarily fail with
them.
The decision appealed from is affirmed, with costs against appellant. So ordered.

G.R. No. L-29138 May 29, 1970

ELENA CONTRERAS, plaintiff-appellant,
vs.
CESAR J. MACARAIG, defendant-appellee.
Jose T. Nery for plaintiff-appellee.
The City fiscal for defendant-appellant.
Cesar J. Macaraig in his own behalf.

DIZON, J.:
Appeal taken by Elena Contreras from a decision of the Juvenile and Domestic Relations Court of
Manila in Civil Case No. 00138 dismissing her complaint upon the ground that the same was filed
more than one year from and after the date on which she had become cognizant of the cause for
legal separation.
The following, facts found by the trial court are not in dispute:
Plaintiff and defendant were married on March 16, 1952 in the Catholic Church of Quiapo, Manila.
Out of their Marriage, three children were born: Eusebio C. Macaraig, on January 11, 1953; Victoria
C. Macaraig, on March 26, 1956; and Alexander C. Macaraig, on August 4, 1958. All the children are
in the care of plaintiff wife.
Sometime in 1958, the couple acquired rights, as lessee and purchaser under a conditional sale
agreement, to own a house and lot, known as Lot 4, Block 8 of the Philamlife Homes in Quezon City
which they transferred in favor of their three children on October 29, 1958 (Exh. F). Installment
payments are being made by plaintiff's father. The spouses own no other conjugal property.
Immediately before the election of 1961, defendant was employed as manager of the printing
establishment owned by plaintiff's father known as the MICO Offset. In that capacity, defendant met
and came to know Lily Ann Alcala, who place orders with MICO Offset for propaganda materials for
Mr. Sergio Osmea, who was then a Vice-Presidential candidate. After the elections of 1961,
defendant resigned from MICO Offset to be a special agent at Malacaang. He began to be away so
often and to come home very late. Upon plaintiff's inquiry, defendant explained that he was out on a
series of confidential missions.
In September, 1962, Avelino Lubos, driver of the family car, told plaintiff that defendant was living in
Singalong with Lily Ann Alcala. When defendant, the following October, returned to the conjugal
home, plaintiff refrained from verifying Lubos' report from defendant in her desire not to anger nor
drive defendant away. Although plaintiff, in April 1963, also received rumors that defendant was
seen with a woman who was on the family way on Dasmarias St., she was so happy that defendant
again return to the family home in May, 1963 that she once more desisted from discussing the
matter with him because she did not wish to precipitate a quarrel and drive him away. All this while,

defendant, if and whenever he returned to the family fold, would only stay for two or three days but
would be gone for a period of about a month.
After plaintiff received reports that Lily Ann Alcala had given birth to a baby, she sent Mrs. Felicisima
Antioquia, her father's employee, to verify the reports. The latter was driven by Lubos to the house
in Singalong and between 5:00 and 6:00 o'clock that afternoon, she saw defendant was carrying a
baby in his arms. Mrs. Antioquia then went to the parish priest of Singalong where she inquired
about the child of Cesar Macaraig and Lily Ann Alcala and she was given a copy of the baptismal
certificate of Maria Vivien Mageline Macaraig (Exh. G) which she gave to plaintiff sometime in
October, 1963.
Plaintiff then entreated her father-in-law, Lucilo Macaraig, to intercede with defendant and to
convince him to return to his family. Mr. Macaraig, after talking to his son and seeking him with the
latter's child told plaintiff that he could not do anything.
In November, 1963, plaintiff requested the cooperation of defendant's older sister, Mrs. Enriqueta
Majul, and the latter obliged and arranged a meeting at her home in Buendia between plaintiff and
Lily Ann Alcala. Lily Ann said she was willing to give up defendant as she had no desire to be accused
criminally but it was defendant who refused to break relationship with her.
In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and
Alexander, and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on Espaa
Extension in front of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant, where
plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal home,
assuring him that she was willing to forgive him. Defendant informed plaintiff that he could no
longer leave Lily Ann and refused to return to his legitimate family.
On December 14, 1963, plaintiff instituted the present action for legal separation. When defendant
did not interpose any answer after he was served summons, the case was referred to the Office of
the City Fiscal of Manila pursuant to the provisions of Article 101 of the Civil Code. After a report was
received from Asst. Fiscal Primitivo M. Pearanda that he believed that there was no collusion
present, plaintiff was allowed to present her evidence. Defendant has never appeared in this case.
The reasons relied upon by the trial court in dismissing the complaint are set forth in the appealed
decision as follows:
Under the facts established by plaintiff's evidence, although the infidelity of the husband is
apparent, yet the case will have to be dismissed. Article 102 provides that, an action for legal
separation cannot be instituted except within one year after plaintiff "became cognizant of the
cause." In the absence of a clear-cut decision of the Supreme Court as to the exact import of the
term "cognizant," the practical application of said Article can be attended with difficulty. For one
thing; that rules might be different in case of adultery, which is an act, and for concubinage, which
may be a situation or a relationship.
In respect of concubinage, the word 'cognizant' may not connote the date when proof thereof
sufficient to establish the cause before a court of law is possessed. Otherwise, the one year period
would be meaningless for practical purposes because all a wife would have to do would be to claim
that the necessary proof was secured only within one year before the filing of the complaint. On the

other hand, it should be hard to concede that what the law envisages (and, in a way, encourages) is
the filing of a complaint within one year after the innocent spouses has received information of the
other's infidelity, howsoever baseless the report might be.
The Court believes that the correct rule lies between the two extremes. At the time a wife acquired
information, which can be reasonably relied upon as true, that her husband is living in concubinage
with another woman, the one-year period should be deemed to have started even if the wife shall
not then be in possession of proof sufficient to establish the concubinage before a court of law. The
one-year period may be viewed, inter alia, as an alloted time within which proof should be secured.
It is in the light of this rule that the Court will determine whether or not plaintiff's action for legal
separation has prescribed.
After her husband resigned from MICO Offset to be a special agent in Malacaan, subsequent to the
elections of 1961, he would seldom come home. He allayed plaintiff's suspicions with the
explanation that he had been away on 'confidential missions.' However, in September, 1962, Avelino
Lubos, plaintiff's driver, reported to plaintiff that defendant was living in Singalong with Lily Ann
Alcala. As a matter of fact, it was also Lubos who brought Mrs. F. Antioquia (when plaintiff had asked
to verify the reports) to the house in Singalong where she saw defendant, Lily Ann and the baby.
The requirement of the law that a complaint for legal separation be filed within one year after the
date plaintiff become cognizant of the cause is not of prescriptive nature, but is of the essence of the
cause of action. It is consonant with the philosophy that marriage is an inviolable social institution so
that the law provides strict requirements before it will allow a disruption of its status.
In the instant action, the Court has to find that plaintiff became cognizant of defendant's infidelity in
September, 1962. Plaintiff made successive attempts to induce the husband to amend his erring
ways but failed. Her desire to bring defendant back to the connubial fold and to preserve family
solidarity deterred her from taking timely legal action.
The only question to be resolved is whether the period of one year provided for in Article 102 of the
Civil Code should be counted, as far as the instant case is concerned from September 1962 or from
December 1963. Computing the period of one year from the former date, it is clear that plaintiff's
complaint filed on December 14, 1963 came a little too late, while the reverse would be true if said
period is deemed to have commenced only in the month of December 1963.
The period of "five years from after the date when such cause occurred" is not here involved.
Upon the undisputed facts it seems clear that, in the month of September 1962, whatever
knowledge appellant had acquired regarding the infidelity of her husband, that is, of the fact that he
was then living in Singalong with Lily Ann Alcala, was only through the information given to her by
Avelino Lubos, driver of the family car. Much as such hearsay information had pained and anguished
her, she apparently thought it best and no reasonable person may justifiably blame her for it
not to go deeper into the matter herself because in all probability even up to that time,
notwithstanding her husband's obvious neglect of his entire family, appellant still cherished the
hope however forlorn of his coming back home to them. Indeed, when her husband returned
to the conjugal home the following October, she purposely refrained from bringing up the matter of
his marital infidelity "in her desire not to anger nor drive defendant away" quoting the very words

of the trial court. True, appellant likewise heard in April 1963 rumors that her husband was seen
with a woman on the family way on Dasmarias Street, but failed again to either bring up the matter
with her husband or make attempts to verify the truth of said rumors, but this was due, as the lower
court itself believed, because "she was so happy that defendant again returned to the family home
in May 1963 that she once more desisted from discussing the matter with him because she did not
wish to precipitate a quarrel and drive him away." As a matter of fact, notwithstanding all these
painful informations which would not have been legally sufficient to make a case for legal separation
appellant still made brave if desperate attempts to persuade her husband to come back home. In
the words of the lower court, she "entreated her father-in-law, Lucilo Macaraig, to intercede with
defendant and to convince him to return to his family" and also "requested the cooperation of
defendant's older sister, Mrs. Enriqueta Majul" for the same purpose, but all that was of no avail.
Her husband remained obdurate.
After a careful review of the record, We are persuaded that, in the eyes of the law, the only time
when appellant really became cognizant of the infidelity of her husband was in the early part of
December 1963 when, quoting from the appealed decision, the following happened
In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and
Alexander, and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on Espaa
Extension in front of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant, where
plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal home,
assuring him that she was willing to forgive him. Defendant informed plaintiff that he could no
longer leave Lily Ann and refused to return to his legitimate family.
From all the foregoing We conclude that it was only on the occasion mentioned in the preceding
paragraph when her husband admitted to her that he was living with and would no longer leave Lily
Ann to return to his legitimate family that appellant must be deemed to be under obligation to
decide whether to sue or not to sue for legal separation, and it was only then that the legal period of
one year must be deemed to have commenced.
WHEREFORE, the decision appealed from is set aside and another is hereby rendered holding that
appellant is entitled to legal separation as prayed for in her complaint; and the case is hereby
remanded to the lower court for appropriate proceedings in accordance with law.

[G.R. No. L-9667. July 31, 1956.]

LUIS MA. ARANETA, Petitioner, vs. HONORABLE HERMOGENES CONCEPCION, as judge of the Court
of First Instance of Manila, Branch VI and EMMA BENITEZ ARANETA, Respondents.

DECISION
LABRADOR, J.:
The main action was brought by Petitioner against his wife, one of the Respondent herein, for legal
separation on the ground of adultery. After the issues were joined Defendant therein filed an
omnibus petition to secure custody of their three minor children, a monthly support of P5,000 for
herself and said children, and the return of her passport, to enjoin Plaintiff from ordering his
hirelings from harassing and molesting her, and to have Plaintiff therein pay for the fees of her
attorney in the action. The petition is supported by her affidavit. Plaintiff opposed the petition,
denying the misconduct imputed to him and alleging that Defendant had abandoned the
children;chan roblesvirtualawlibraryalleging that conjugal properties were worth only P80,000, not
one million pesos as alleged byDefendant; chan roblesvirtualawlibrarydenying the taking of her
passport or the supposed vexation, and contesting her right to attorneys fees. Plaintiff prayed that
as the petition for custody and support cannot be determined without evidence, the parties be
required to submit their respective evidence. He also contended that Defendant is not entitled to
the custody of the children as she had abandoned them and had committed adultery, that by her
conduct she had become unfit to educate her children, being unstable in her emotions and unable to
give the children the love, respect and care of a true mother and without means to educate them. As
to the claim for support, Plaintiff claims that there are no conjugal assets and she is not entitled to
support because of her infidelity and that she was able to support herself. Affidavits and documents
were submitted both in support and against the omnibus petition.
The Respondent judge resolved the omnibus petition, granting the custody of the children
toDefendant and a monthly allowance of P2,300 for support for her and the children, P300 for a
house and P2,000 as attorneys fees. Upon refusal of the judge to reconsider the
order, Petitionerfiled the present petition for certiorari against said order and for mandamus to
compel theRespondent judge to require the parties to submit evidence before deciding the omnibus
petition. We granted a writ of preliminary injunction against the order.
The main reason given by the judge, for refusing Plaintiffs request that evidence be allowed to be
introduced on the issues, is the prohibition contained in Article 103 of the Civil Code, which reads as
follows:chanroblesvirtuallawlibrary
ART. 103. An action for legal separation shall in no case be tried before six months shall have
elapsed since the filing of the petition.
Interpreting the spirit and policy of the provision the trial judge says:chanroblesvirtuallawlibrary
This provision of the code is mandatory. This case cannot be tried within the period of six months
from the filing of the complaint. The court understands that the introduction of any evidence, be it

on the merits of the case or on any incident, is prohibited. The law, up to the last minute, exerts
efforts at preserving the family and the home from utter ruin. Interpreting the intent of said article,
the court understands that every step it should take within the period of six months above stated
should be taken toward reconciling the parties. Admitting evidence now will make reconciliation
difficult if not impossible. In this case the court should act as if nothing yet had happened. The
children must be given for custody to him or her who by family custom and tradition is the custodian
of the children. The court should ignore that Defendant had committed any act of adultery or
the Plaintiff, any act of cruelty to his wife. The status quo of the family must be restored as much as
possible. In this country, unlike perhaps in any other country of the globe, a family or a home is a
petite corporation. The father is the administrator who earns the family funds, dictates rules in the
home for all to follow, and protects all members of his family. The mother keeps home, keeps
children in her company and custody, and keeps the treasure of that family. In a typical Filipino
family, the wife prepares home budget and makes little investment without the knowledge of her
husband. A husband who holds the purse is un-Filipino. He is shunned in Filipino community. The
court therefore, in taking action on petition No. 1 should be guided by the above considerations.
(pp. 116-117, Record on Appeal.)
It may be noted that since more than six months have elapsed since the filing of the petition the
question offered may not be allowed. It is, however, believed that the reasons for granting the
preliminary injunction should be given that the scope of the article cited may be explained.
It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently
intended as a cooling off period to make possible a reconciliation between the spouses. The recital
of their grievances against each other in court may only fan their already inflamed passions against
one another, and the lawmaker has imposed the period to give them opportunity for dispassionate
reflection. But this practical expedient, necessary to carry out legislative policy, does not have the
effect of overriding other provisions such as the determination of the custody of the children and
alimony and support pendente lite according to the circumstances. (Article 105, Civil Code.) The law
expressly enjoins that these should be determined by the court according to the circumstances. If
these are ignored or the courts close their eyes to actual facts, rank in justice may be caused.
Take the case at bar, for instance. Why should the court ignore the claim of adultery byDefendant in
the face of express allegations under oath to that effect, supported by circumstantial evidence
consisting of letter the authenticity of which cannot be denied. And why assume that the children
are in the custody of the wife, and that the latter is living at the conjugal dwelling, when it is
precisely alleged in the petition and in the affidavits, that she has abandoned the conjugal abode?
Evidence of all these disputed allegations should be allowed that the discretion of the court as to the
custody and alimony pendente lite may be lawfully exercised.
The rule is that all the provisions of the law even if apparently contradictory, should be allowed to
stand and given effect by reconciling them if necessary.
The practical inquiry in litigation is usually to determine what a particular provision, clause or word
means. To answer it one must proceed as he would with any other composition construe it with
reference to the leading idea or purpose of the whole instrument. A statute is passed as a whole and
not in parts or sections and is animated by one general purpose and intend. Consequently, each part
of section should be construed in connection with every other part or section so as to produce a

harmonious whole. Thus it is not proper to confine interpretation to the one section to be
construed. (Southerland, Statutory Construction section 4703, pp. 336-337.)
Thus the determination of the custody and alimony should be given effect and force provided it does
not go to the extent of violating the policy of the cooling off period. That is, evidence not affecting
the cause of the separation, like the actual custody of the children, the means conducive to their
welfare and convenience during the pendency of the case, these should be allowed that the court
may determine which is best for their custody.
The writ prayed for is hereby issued and the Respondent judge or whosoever takes his place is
ordered to proceed on the question of custody and support pendente lite in accordance with this
opinion. The courts order fixing the alimony and requiring payment is reversed. Without costs.

G.R. No. L-30977 January 31, 1972

CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:p

Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29
July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387,
dismissing said case for legal separation on the ground that the death of the therein plaintiff,
Carmen O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as
well as the action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir
of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have
the case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S.
Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically
on 30 September 1934; that they had lived together as husband and wife continuously until 1943
when her husband abandoned her; that they had no child; that they acquired properties during their
marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at
1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal
separation, which, among others, would order that the defendant Eufemio S. Eufemio should be
deprived of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged
affirmative and special defenses, and, along with several other claims involving money and other
properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O.
Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law
and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective evidence. But
before the trial could be completed (the respondent was already scheduled to present surrebuttal
evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31
May 1969. Counsel for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two
(2) grounds, namely: that the petition for legal separation was filed beyond the one-year period
provided for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal
separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio opposed the motion.

On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the
order, the court stated that the motion to dismiss and the motion for substitution had to be resolved
on the question of whether or not the plaintiff's cause of action has survived, which the court
resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15
September 1969.
After first securing an extension of time to file a petition for review of the order of dismissal issued
by the juvenile and domestic relations court, the petitioner filed the present petition on 14 October
1969. The same was given due course and answer thereto was filed by respondent, who prayed for
the affirmance of the said order. 3
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he
did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said
counterclaims by praying for the affirmance of the order that dismissed not only the petition for
legal separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and
void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court did
not act on the motion for substitution) stated the principal issue to be as follows:
When an action for legal separation is converted by the counterclaim into one for a declaration of
nullity of a marriage, does the death of a party abate the proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to
one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that
"the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22).
Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self
same marriage can stand independent and separate adjudication. They are not inseparable nor was
the action for legal separation converted into one for a declaration of nullity by the counterclaim, for
legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage
as a pre-condition.
The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for
legal separation, abate the action? If it does, will abatement also apply if the action involves
property rights? .
An action for legal separation which involves nothing more than the bed-and-board separation of
the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of
the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one
else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their
reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of one party to the action causes the
death of the action itself actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved.
The heirs cannot even continue the suit, if the death of the spouse takes place during the course of
the suit (Article 244, Section 3). The action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass.
req., May 8, 1933, D. H. 1933, 332.") 4 .

Marriage is a personal relation or status, created under the sanction of law, and an action for divorce
is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one
of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to
such action abates the action, for the reason that death has settled the question of separation
beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to
the action and of the subject-matter of the action itself. For this reason the courts are almost
unanimous in holding that the death of either party to a divorce proceeding, before final decree,
abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 Ill. 236;
Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v.
Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v.
McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5
The same rule is true of causes of action and suits for separation and maintenance (Johnson vs.
Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows that they are solely
the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it
occurs prior to the decree. On the point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not
be severed; .
(2) The conjugal partnership of gains or the absolute conjugal community of property shall be
dissolved and liquidated, but the offending spouse shall have no right to any share of the profits
earned by the partnership or community, without prejudice to the provisions of article 176;
(3) The custody of the minor children shall be awarded to the innocent spouse, unless otherwise
directed by the court in the interest of said minors, for whom said court may appoint a guardian;
(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent
one shall be revoked by operation of law.
From this article it is apparent that the right to the dissolution of the conjugal partnership of gains
(or of the absolute community of property), the loss of right by the offending spouse to any share of
the profits earned by the partnership or community, or his disqualification to inherit by intestacy
from the innocent spouse as well as the revocation of testamentary provisions in favor of the
offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of
the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and
intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a
claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under Section
17, Rule 3, of the Rules of Court, to warrant continuation of the action through a substitute of the
deceased party.

Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court shall
order, upon proper notice, the legal representative of the deceased to appear and to be substituted
for the deceased, within a period of thirty (30) days, or within such time as may be granted...
The same result flows from a consideration of the enumeration of the actions that survive for or
against administrators in Section 1, Rule 87, of the Revised Rules of Court:
SECTION 1. Actions which may and which may not be brought against executor or administrator. No
action upon a claim for the recovery of money or debt or interest thereon shall be commenced
against the executor or administrator; but actions to recover real or personal property, or an interest
therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury
to person or property, real or personal, may be commenced against him.
Neither actions for legal separation or for annulment of marriage can be deemed fairly included in
the enumeration..
A further reason why an action for legal separation is abated by the death of the plaintiff, even if
property rights are involved, is that these rights are mere effects of decree of separation, their
source being the decree itself; without the decree such rights do not come into existence, so that
before the finality of a decree, these claims are merely rights in expectation. If death supervenes
during the pendency of the action, no decree can be forthcoming, death producing a more radical
and definitive separation; and the expected consequential rights and claims would necessarily
remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his
marriage to Carmen Lapuz, it is apparent that such action became moot and academic upon the
death of the latter, and there could be no further interest in continuing the same after her demise,
that automatically dissolved the questioned union. Any property rights acquired by either party as a
result of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a
proper action for partition by either the appellee or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife
having been an absentee for seven consecutive years, or when she had been generally believed
dead, still the action for annulment became extinguished as soon as one of the three persons
involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for
annulment should be brought during the lifetime of any one of the parties involved. And
furthermore, the liquidation of any conjugal partnership that might have resulted from such
voidable marriage must be carried out "in the testate or intestate proceedings of the deceased
spouse", as expressly provided in Section 2 of the Revised Rule 73, and not in the annulment
proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is
hereby affirmed. No special pronouncement as to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar,
JJ., concur.

G.R. No. L-39587

March 24, 1934

ALEKO E. LILIUS, ET AL., plaintiffs-appellants,

vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.
Harvey and O'Brien for plaintiffs-appellants.
Jose C. Abreu for defendant-appellant.
VILLA-REAL, J.:
This case involves two appeals, one by the defendant the Manila Railroad Company, and the other
by the plaintiffs Aleko E. Lilius et al., from the judgment rendered by the Court of First Instance of
Manila, the dispositive part of which reads as follows:
Wherefore, judgment is rendered ordering the defendant company to pay to the plaintiffs, for the
purposes above stated, the total amount of P30,865, with the costs of the suit. And although the suit
brought by the plaintiffs has the nature of a joint action, it must be understood that of the amount
adjudicated to the said plaintiffs in this judgment, the sum of P10,000 personally belongs to the
plaintiff Sonja Maria Lilius; the sum of P5,000, to the plaintiff Brita Marianne Lilius; the sum of P250,
to Dr. Marfori of the Calauan Hospital, Province of Laguna, and the balance to the plaintiff Aleko E.
Lilius.
In support of its appeal, the appellant the Manila Railroad Company assigns nine alleged errors
committed by the trial court in its said judgment, which will be discussed in the course of this
decision.
As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign two alleged errors as
committed by the same court a quo in its judgment in question, which will be discussed later.
This case originated from a complaint filed by Aleko E. Lilius et al., praying, under the facts therein
alleged, that the Manila Railroad Company be ordered to pay to said plaintiffs, by way of indemnity
for material and moral damages suffered by them through the fault and negligence of the said
defendant entity's employees, the sum of P50,000 plus legal interest thereon from the date of the
filing of the complaint, with costs.
The defendant the Manila Railroad Company, answering the complaint, denies each and every
allegation thereof and, by way of special defense, alleges that the plaintiff Aleko E. Lilius, with the
cooperation of his wife and coplaintiff, negligently and recklessly drove his car, and prays that it be
absolved from the complaint.
The following facts have been proven at the trial, some without question and the others by a
preponderance of evidence, to wit:
The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed journalist, author
and photographer. At the time of the collision in question, he was a staff correspondent in the Far
East of the magazines The American Weekly of New York and The Sphere of London.

Some of his works have been translated into various languages. He had others in preparation when
the accident occurred. According to him, his writings netted him a monthly income of P1,500. He
utilized the linguistic ability of his wife Sonja Maria Lilius, who translated his articles and books into
English, German, and Swedish. Furthermore, she acted as his secretary.
At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja Maria Lilius, and his
4-year old daughter Brita Marianne Lilius, left Manila in their Studebaker car driven by the said
plaintiff Aleko E. Lilius for the municipality of Pagsanjan, Province of Laguna, on a sight-seeing
trip. It was the first time that he made said trip although he had already been to many places, driving
his own car, in and outside the Philippines. Where the road was clear and unobstructed, the plaintiff
drove at the rate of from 19 to 25 miles an hour. Prior thereto, he had made the trip as far as
Calauan, but never from Calauan to Pagsanjan, via Dayap. He was entirely unacquainted with the
conditions of the road at said points and had no knowledge of the existence of a railroad crossing at
Dayap. Before reaching the crossing in question, there was nothing to indicate its existence and
inasmuch as there were many houses, shrubs and trees along the road, it was impossible to see an
approaching train. At about seven or eight meters from the crossing, coming from Calauan, the
plaintiff saw an autotruck parked on the left side of the road. Several people, who seemed to have
alighted from the said truck, were walking on the opposite side. He slowed down to about 12 miles
an hour and sounded his horn for the people to get out of the way. With his attention thus occupied,
he did not see the crossing but he heard two short whistles. Immediately afterwards, he saw a huge
black mass fling itself upon him, which turned out to be locomotive No. 713 of the defendant
company's train coming eastward from Bay to Dayap station. The locomotive struck the plaintiff's
car right in the center. After dragging the said car a distance of about ten meters, the locomotive
threw it upon a siding. The force of the impact was so great that the plaintiff's wife and daughter
were thrown from the car and were picked up from the ground unconscious and seriously hurt. In
spite of the efforts of engineer Andres Basilio, he was unable to stop the locomotive until after it had
gone about seventy meters from the crossing.
On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the City of Manila
where they were treated by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a fractured
nose, a contusion above the left eye and a lacerated wound on the right leg, in addition to multiple
contusions and scratches on various parts of the body. As a result of the accident, the said plaintiff
was highly nervous and very easily irritated, and for several months he had great difficulty in
concentrating his attention on any matter and could not write articles nor short stories for the
newspapers and magazines to which he was a contributor, thus losing for some time his only means
of livelihood.
The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia and fibula of the
right leg, below the knee, and received a large lacerated wound on the forehead. She underwent
two surgical operations on the left leg for the purpose of joining the fractured bones but said
operations notwithstanding, the leg in question still continues deformed. In the opinion of Dr.
Waterous, the deformity is permanent in character and as a result the plaintiff will have some
difficulty in walking. The lacerated wound, which she received on her forehead, has left a disfiguring
scar.

The child Brita Marianne Lilius received two lacerated wounds, one on the forehead and the other
on the left side of the face, in addition to fractures of both legs, above and below the knees. Her
condition was serious and, for several days, she was hovering between life and death. Due to a
timely and successful surgical operation, she survived her wounds. The lacerations received by the
child have left deep scars which will permanently disfigure her face, and because of the fractures of
both legs, although now completely cured, she will be forced to walk with some difficulty and
continuous extreme care in order to keep her balance.
Prior to the accident, there had been no notice nor sign of the existence of the crossing, nor was
there anybody to warn the public of approaching trains. The flagman or switchman arrived after the
collision, coming from the station with a red flag in one hand and a green one in the other, both of
which were wound on their respective sticks. The said flagman and switchman had many times
absented himself from his post at the crossing upon the arrival of a train. The train left Bay station a
little late and therefore traveled at great speed.
Upon examination of the oral as well as of the documentary evidence which the parties presented at
the trial in support of their respective contentions, and after taking into consideration all the
circumstances of the case, this court is of the opinion that the accident was due to negligence on the
part of the defendant-appellant company, for not having had on that occasion any semaphore at the
crossing at Dayap, to serve as a warning to passers-by of its existence in order that they might take
the necessary precautions before crossing the railroad; and, on the part of its employees the
flagman and switchman, for not having remained at his post at the crossing in question to warn
passers-by of the approaching train; the stationmaster, for failure to send the said flagman and
switchman to his post on time; and the engineer, for not having taken the necessary precautions to
avoid an accident, in view of the absence of said flagman and switchman, by slackening his speed
and continuously ringing the bell and blowing the whistle before arriving at the crossing. Although it
is probable that the defendant-appellant entity employed the diligence of a good father of a family
in selecting its aforesaid employees, however, it did not employ such diligence in supervising their
work and the discharge of their duties because, otherwise, it would have had a semaphore or sign at
the crossing and, on previous occasions as well as on the night in question, the flagman and
switchman would have always been at his post at the crossing upon the arrival of a train. The
diligence of a good father of a family, which the law requires in order to avoid damage, is not
confined to the careful and prudent selection of subordinates or employees but includes inspection
of their work and supervision of the discharge of their duties.
However, in order that a victim of an accident may recover indemnity for damages from the person
liable therefor, it is not enough that the latter has been guilty of negligence, but it is also necessary
that the said victim has not, through his own negligence, contributed to the accident, inasmuch as
nobody is a guarantor of his neighbor's personal safety and property, but everybody should look
after them, employing the care and diligence that a good father of a family should apply to his own
person, to the members of his family and to his property, in order to avoid any damage. It appears
that the herein plaintiff-appellant Aleko E. Lilius took all precautions which his skill and the presence
of his wife and child suggested to him in order that his pleasure trip might be enjoyable and have a
happy ending, driving his car at a speed which prudence demanded according to the circumstances
and conditions of the road, slackening his speed in the face of an obstacle and blowing his horn upon
seeing persons on the road, in order to warn them of his approach and request them to get out of

the way, as he did when he came upon the truck parked on the left hand side of the road seven or
eight meters from the place where the accident occurred, and upon the persons who appeared to
have alighted from the said truck. If he failed to stop, look and listen before going over the crossing,
in spite of the fact that he was driving at 12 miles per hour after having been free from obstacles, it
was because, his attention having been occupied in attempting to go ahead, he did not see the
crossing in question, nor anything, nor anybody indicating its existence, as he knew nothing about it
beforehand. The first and only warning, which he received of the impending danger, was two short
blows from the whistle of the locomotive immediately preceding the collision and when the accident
had already become inevitable.
In view of the foregoing considerations, this court is of the opinion that the defendant the Manila
Railroad Company alone is liable for the accident by reason of its own negligence and that of its
employees, for not having employed the diligence of a good father of a family in the supervision of
the said employees in the discharge of their duties.
The next question to be decided refers to the sums of money fixed by the court a quo as indemnities
for damages which the defendant company should pay to the plaintiffs-appellants.
With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes his claim of a net
income of P1,500 a month to be somewhat exaggerated, however, the sum of P5,000, adjudicated
to him by the trial court as indemnity for damages, is reasonable.
As to the sum of P10,635 which the court awards to the plaintiffs by way of indemnity for damages,
the different items thereof representing doctor's fees, hospital and nursing services, loss of personal
effects and torn clothing, have duly been proven at the trial and the sum in question is not excessive,
taking into consideration the circumstances in which the said expenses have been incurred.
Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff Aleko E.
Lilius is in the language of the court, which saw her at the trial "young and beautiful and the big
scar, which she has on her forehead caused by the lacerated wound received by her from the
accident, disfigures her face and that the fracture of her left leg has caused a permanent deformity
which renders it very difficult for her to walk", and taking into further consideration her social
standing, neither is the sum of P10,000, adjudicated to her by the said trial court by way of
indemnity for patrimonial and moral damages, excessive. In the case of Gutierrez vs. Gutierrez (56
Phil., 177), the right leg of the plaintiff Narciso Gutierrez was fractured as a result of a collision
between the autobus in which he was riding and the defendant's car, which fractured required
medical attendance for a considerable period of time. On the day of the trial the fracture had not yet
completely healed but it might cause him permanent lameness. The trial court sentenced the
defendants to indemnify him in the sum of P10,000 which this court reduced to P5,000, in spite of
the fact that the said plaintiff therein was neither young nor good-looking, nor had he suffered any
facial deformity, nor did he have the social standing that the herein plaintiff-appellant Sonja Maria
Lilius enjoys.1vvphi1.ne+
As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter of Aleko E. Lilius
and Sonja Maria Lilius, neither is the same excessive, taking into consideration the fact that the
lacerations received by her have left deep scars that permanently disfigure her face and that the
fractures of both her legs permanently render it difficult for her to walk freely, continuous extreme

care being necessary in order to keep her balance in addition to the fact that all of this unfavorably
and to a great extent affect her matrimonial future.
With respect to the plaintiffs' appeal, the first question to be decided is that raised by the plaintiff
Aleko E. Lilius relative to the insufficiency of the sum of P5,000 which the trial court adjudicated to
him by way of indemnity for damages consisting in the loss of his income as journalist and author as
a result of his illness. This question has impliedly been decided in the negative when the defendantappellant entity's petition for the reduction of said indemnity was denied, declaring it to be
reasonable.
As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages for the loss of his
wife's services in his business as journalist and author, which services consisted in going over his
writings, translating them into English, German and Swedish, and acting as his secretary, in addition
to the fact that such services formed part of the work whereby he realized a net monthly income of
P1,500, there is no sufficient evidence of the true value of said services nor to the effect that he
needed them during her illness and had to employ a translator to act in her stead.
The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of what is called
Anglo-Saxon common law "consortium" of his wife, that is, "her services, society and conjugal
companionship", as a result of personal injuries which she had received from the accident now
under consideration.
In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256), this court, interpreting the
provisions of the Civil Marriage Law of 1870, in force in these Islands with reference to the mutual
rights and obligations of the spouses, contained in articles 44-48 thereof, said as follows:
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and
obligations of the spouses. The spouses must be faithful to, assist, and support each other. The
husband must live with and protect his wife. The wife must obey and live with her husband and
follow him when he changes his domicile or residence, except when he removes to a foreign
country. . . .
Therefore, under the law and the doctrine of this court, one of the husband's rights is to count on his
wife's assistance. This assistance comprises the management of the home and the performance of
household duties, including the care and education of the children and attention to the husband
upon whom primarily devolves the duty of supporting the family of which he is the head. When the
wife's mission was circumscribed to the home, it was not difficult to assume, by virtue of the
marriage alone, that she performed all the said tasks and her physical incapacity always redounded
to the husband's prejudice inasmuch as it deprived him of her assistance. However, nowadays when
women, in their desire to be more useful to society and to the nation, are demanding greater civil
rights and are aspiring to become man's equal in all the activities of life, commercial and industrial,
professional and political, many of them spending their time outside the home, engaged in their
businesses, industry, profession and within a short time, in politics, and entrusting the care of their
home to a housekeeper, and their children, if not to a nursemaid, to public or private institutions
which take charge of young children while their mothers are at work, marriage has ceased to create
the presumption that a woman complies with the duties to her husband and children, which the law
imposes upon her, and he who seeks to collect indemnity for damages resulting from deprivation of

her domestic services must prove such services. In the case under consideration, apart from the
services of his wife Sonja Maria Lilius as translator and secretary, the value of which has not been
proven, the plaintiff Aleko E. Lilius has not presented any evidence showing the existence of
domestic services and their nature, rendered by her prior to the accident, in order that it may serve
as a basis in estimating their value.
Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship are purely
personal and voluntary acts which neither of the spouses may be compelled to render (Arroyo vs.
Vazquez de Arroyo, 42 Phil., 54), it is necessary for the party claiming indemnity for the loss of such
services to prove that the person obliged to render them had done so before he was injured and
that he would be willing to continue rendering them had he not been prevented from so doing.
In view of the foregoing considerations this court is of the opinion and so holds: (1) That a railroad
company which has not installed a semaphore at a crossing an does not see to it that its flagman and
switchman faithfully complies with his duty of remaining at the crossing when a train arrives, is guilty
of negligence and is civilly liable for damages suffered by a motorist and his family who cross its line
without negligence on their part; (2) that an indemnity of P10,000 for a permanent deformity on the
face and on the left leg, suffered by a young and beautiful society woman, is not excessive; (3) that
an indemnity of P5,000 for a permanent deformity on the face and legs of a four-year old girl
belonging to a well-to-do family, is not excessive; and (4) that in order that a husband may recover
damages for deprivation of his wife's assistance during her illness from an accident, it is necessary
for him to prove the existence of such assistance and his wife's willingness to continue rendering it
had she not been prevented from so doing by her illness.
The plaintiffs-appellants are entitled to interest of 6 percent per annum on the amount of the
indemnities adjudicated to them, from the date of the appealed judgment until this judgment
becomes final, in accordance with the provisions of section 510 of Act No. 190.
Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with
the sole modification that interest of 6 per cent per annum from the date of the appealed judgment
until this judgment becomes final will be added to the indemnities granted, with the costs of both
instances against the appellant. So ordered.
Malcolm, Hull, Imperial, and Goddard, JJ., concur.

G.R. No. L-4089

January 12, 1909

ARTURO PELAYO, plaintiff-appellant,

vs.
MARCELO LAURON, ET AL., defendants-appellees.
J.H. Junquera, for appellant.
Filemon Sotto, for appellee.
TORRES, J.:
On the 23rd of November, 1906, Arturo Pelayo, a physician residing in Cebu, filed a complaint
against Marcelo Lauron and Juana Abella setting forth that on or about the 13th of October of said
year, at night, the plaintiff was called to the house of the defendants, situated in San Nicolas, and
that upon arrival he was requested by them to render medical assistance to their daughter-in-law
who was about to give birth to a child; that therefore, and after consultation with the attending
physician, Dr. Escao, it was found necessary, on account of the difficult birth, to remove the fetus
by means of forceps which operation was performed by the plaintiff, who also had to remove the
afterbirth, in which services he was occupied until the following morning, and that afterwards, on
the same day, he visited the patient several times; that the just and equitable value of the services
rendered by him was P500, which the defendants refuse to pay without alleging any good reason
therefor; that for said reason he prayed that the judgment be entered in his favor as against the
defendants, or any of them, for the sum of P500 and costs, together with any other relief that might
be deemed proper.
In answer to the complaint counsel for the defendants denied all of the allegation therein contained
and alleged as a special defense, that their daughter-in-law had died in consequence of the said
childbirth, and that when she was alive she lived with her husband independently and in a separate
house without any relation whatever with them, and that, if on the day when she gave birth she was
in the house of the defendants, her stay their was accidental and due to fortuitous circumstances;
therefore, he prayed that the defendants be absolved of the complaint with costs against the
plaintiff.
The plaintiff demurred to the above answer, and the court below sustained the demurrer, directing
the defendants, on the 23rd of January, 1907, to amend their answer. In compliance with this order
the defendants presented, on the same date, their amended answer, denying each and every one of
the allegations contained in the complaint, and requesting that the same be dismissed with costs.
As a result of the evidence adduced by both parties, judgment was entered by the court below on
the 5th of April, 1907, whereby the defendants were absolved from the former complaint, on
account of the lack of sufficient evidence to establish a right of action against the defendants, with
costs against the plaintiff, who excepted to the said judgment and in addition moved for a new trial
on the ground that the judgment was contrary to law; the motion was overruled and the plaintiff
excepted and in due course presented the corresponding bill of exceptions. The motion of the
defendants requesting that the declaration contained in the judgment that the defendants had
demanded therefrom, for the reason that, according to the evidence, no such request had been
made, was also denied, and to the decision the defendants excepted.

Assuming that it is a real fact of knowledge by the defendants that the plaintiff, by virtue of having
been sent for by the former, attended a physician and rendered professional services to a daughterin-law of the said defendants during a difficult and laborious childbirth, in order to decide the claim
of the said physician regarding the recovery of his fees, it becomes necessary to decide who is bound
to pay the bill, whether the father and mother-in-law of the patient, or the husband of the latter.
According to article 1089 of the Civil Code, obligations are created by law, by contracts, by quasicontracts, and by illicit acts and omissions or by those in which any kind of fault or negligence occurs.
Obligations arising from law are not presumed. Those expressly determined in the code or in special
laws, etc., are the only demandable ones. Obligations arising from contracts have legal force
between the contracting parties and must be fulfilled in accordance with their stipulations. (Arts.
1090 and 1091.)
The rendering of medical assistance in case of illness is comprised among the mutual obligations to
which the spouses are bound by way of mutual support. (Arts. 142 and 143.)
If every obligation consists in giving, doing or not doing something (art. 1088), and spouses are
mutually bound to support each other, there can be no question but that, when either of them by
reason of illness should be in need of medical assistance, the other is under the unavoidable
obligation to furnish the necessary services of a physician in order that health may be restored, and
he or she may be freed from the sickness by which life is jeopardized; the party bound to furnish
such support is therefore liable for all expenses, including the fees of the medical expert for his
professional services. This liability originates from the above-cited mutual obligation which the law
has expressly established between the married couple.
In the face of the above legal precepts it is unquestionable that the person bound to pay the fees
due to the plaintiff for the professional services that he rendered to the daughter-in-law of the
defendants during her childbirth, is the husband of the patient and not her father and mother- inlaw, the defendants herein. The fact that it was not the husband who called the plaintiff and
requested his assistance for his wife is no bar to the fulfillment of the said obligation, as the
defendants, in view of the imminent danger, to which the life of the patient was at that moment
exposed, considered that medical assistance was urgently needed, and the obligation of the husband
to furnish his wife in the indispensable services of a physician at such critical moments is specially
established by the law, as has been seen, and compliance therewith is unavoidable; therefore, the
plaintiff, who believes that he is entitled to recover his fees, must direct his action against the
husband who is under obligation to furnish medical assistance to his lawful wife in such an
emergency.
From the foregoing it may readily be understood that it was improper to have brought an action
against the defendants simply because they were the parties who called the plaintiff and requested
him to assist the patient during her difficult confinement, and also, possibly, because they were her
father and mother-in-law and the sickness occurred in their house. The defendants were not, nor are
they now, under any obligation by virtue of any legal provision, to pay the fees claimed, nor in
consequence of any contract entered into between them and the plaintiff from which such
obligation might have arisen.

In applying the provisions of the Civil Code in an action for support, the supreme court of Spain,
while recognizing the validity and efficiency of a contract to furnish support wherein a person bound
himself to support another who was not his relative, established the rule that the law does impose
the obligation to pay for the support of a stranger, but as the liability arose out of a contract, the
stipulations of the agreement must be held. (Decision of May 11, 1897.)
Within the meaning of the law, the father and mother-in-law are strangers with respect to the
obligation that devolves upon the husband to provide support, among which is the furnishing of
medical assistance to his wife at the time of her confinement; and, on the other hand, it does not
appear that a contract existed between the defendants and the plaintiff physician, for which reason
it is obvious that the former can not be compelled to pay fees which they are under no liability to
pay because it does not appear that they consented to bind themselves.
The foregoing suffices to demonstrate that the first and second errors assigned to the judgment
below are unfounded, because, if the plaintiff has no right of action against the defendants, it is
needless to declare whether or not the use of forceps is a surgical operation.
Therefore, in view of the consideration hereinbefore set forth, it is our opinion that the judgment
appealed from should be affirmed with the costs against the appellant. So ordered.