[G.R. No. 5932. February 27, 1912.]

DEAN C. WORCESTER, plaintiff-appellee, vs. MARTIN OCAMPO, TEODORO M. KALAW, LOPE K. SANTOS, FIDEL A. REYES, FAUSTINO AGUILAR, ET AL.,defendants-appellants.

SYLLABUS

1. LIBEL AND SLANDER; CIVIL AND CRIMINAL ACTION; ESTOPPEL BY JUDGMENT. — A judgment in a criminal prosecution for libel, under Act No. 277, constitutes no bar or estoppel in a civil action based upon the same acts or transactions. (Stone vs. U.S., 167 U.S., 178; Boyd vs. U.S., 116 U.S., 616, 634; Lee vs. U.S., 150 U.S., 476, 480; U.S. vs. Jaedicke, 73 Fed. Rep., 100; U.S. vs. Schneider, 35 Fed. Rep., 107; Chamberlain vs. Pierson, 87 Fed. Rep., 420; Steel vs. Cazeaux, 8 Martin (La.) 318; 13 Am. Dec., 288; Betts vs. New Hartford, 25 Conn., 185.)

2. ID.; ID.; NATURE AND AMOUNT OF EVIDENCE. — In a criminal prosecution for libel, the State must prove its case by evidence which shows the guilt of the defendant beyond a reasonable doubt, while in a civil action it is sufficient for the plaintiff to sustain his case by a preponderance of evidence. (Ocampo vs. Jenkins, 14 Phil. Rep., 681; Reilly vs. Norton, 65 Iowa, 306; Sloane vs. Gilbert, 27 Am. Dec., 708; Cooley on Torts, sec. 208; Greenleaf on Evidence, 426; Wigmore on Evidence, secs. 2497-8.)

3. ID.; PROOF OF APPLICATION OF SLANDEROUS WORDS. — The fact that the slanderous words used apply to the plaintiff may be shown by the testimony of witnesses who knew the parties and circumstances and who can state their judgment and opinion upon the application and meaning of the terms used by the defendant. (Ocampo vs. Jenkins, 14 Phil. Rep., 681; Russell vs. Kelley, 44 Cal., 641; Odgers on Libel and Slander, 567; Falkard's Stockey on Libel and Slander,. 4th Eng. edition, 589.) The correctness of the opinion of the witnesses as to the identity of the person meant in the libelous publication may always be tested by cross-examination. (Enquirer Co. vs.Johnston, 72 Fed. Rep., 443; Nelson vs. Barchenius, 52 Ill., 236; Smith vs. Miles, 15 Vt., 245; Miller vs. Butler, 6 Cush. (Mass.), 71; 2 Greenleaf on Evidence, 417.)

4. ID.; FAILURE TO PRODUCE EVIDENCE IN REBUTTAL; PRESUMPTION. — When the circumstances in proof tend to fix the liability on a party who has it in his power to offer evidence of all the facts as they existed and rebut the inferences which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting would support the inferences against him, and the court is justified in acting upon that conclusion. (Railway Co. vs. Ellis, C. C. A. Reps., vol. 4, p. 454; Commonwealth vs. Webster, 5 Cush. (Mass.), 295; People vs. McWhorter, 4 Barb. (N. Y.), 438; Pacific Coast Co. vs.Bancroft Whitney Co., 36 C. C. A. Reps., 136, 153.)

5. DONATION, PUBLIC OR PRIVATE; EFFECT OF DONATION. — A donation may be made for the benefit of the public, but, in the very nature of things, it must be made to some definite person, association, or entity. A donation made to no person or entity would simply constitute an abandonment. Where a donation is made to a particular person without reservation, the donor is no longer the owner of the thing donated, and he can not be held responsible for the use made of it, provided the purpose of the donation was lawful.

6. ID.; ADMISSIBILITY OF JUDGMENT OF ACQUITTAL. — The failure of the trial court, in a civil suit, to admit in evidence a former judgment of acquittal in a criminal action against the defendant is not error. The fact that the evidence in the criminal prosecution was insufficient to show that the defendant was guilty of a crime does not bar the right of the offended party to maintain a civil action for damages. (Ocampo vs. Jenkins, 14 Phil. Rep., 681; Greenleaf on Evidence, secs. 426, 524, 536; Cooley on Torts, 208; Reilly vs. Norton, 65 Iowa, 306; Sloane vs. Gilbert, 23 Am. Dec., 708; Steel vs. Cazeaux, 8 Martin (La.), 318; 13 Am. Dec., 288; Betts vs. New Hartford, 25 Conn., 180; Hutchinson vs. Bank of Wheeling, 41 Pa. St., 42; Beausoleil vs. Brown, 12 La. Ann., 543; McDonald vs. Stark, 176 Ill., 456, 468.)

7. LIABILITY OF JOINT TORT FEASORS. — Joint tort feasors are jointly and severally liable for the tort which they commit. The person injured may sue all of them, or any number less than all. Each is liable for the whole damage caused by all, and all together are liable for the whole damage. It is not defense, for one sued alone, that the others, who participated in the wrongful act, are not joint with him as defendants; nor is it any excuse for him that his participation in the tort was insignificant as compared with that of the others. (Forebrother vs. Ansley, 1 Campbell (Eng.), 343; Pitcher vs. Bailey, 8 East 171; Booth vs. Hodgson, 6 Term Reps., 405; Vose vs. Grant, 15 Mass., 505; Acheson vs. Miller, 18 Ohio, 1; Wallace vs. Miller, 15 La. Ann., 449; Murphy vs. Wilson, 44 Mo., 313; Bishop vs. Ealey, 9 Johnson ( N. Y. ), 294.)

8. ID.; ID. — Joint tort feasors are not liable pro rata. The damages can not be apportioned among them, except by themselves. They can not insist upon apportionment, for the purpose of each paying an aliquot part. They are jointly and severally liable for the whole amount. (Pardridge vs. Brady, 7 Ill. App., 639; Carney vs.Read, 11 Ind., 417; Lee vs. Black, 27 Ark., 337; Bevins vs. McElroy, 52 Am. Dec., 258.)

9. ID.; ID.; DISCHARGE OF LIABILITY. — A payment in full, by one of the joint tort feasors, of all the damage done, satisfies any claim which may exist against the others. There can be but one satisfaction. The release of one of the joint tort feasors, by agreement, generally operates to discharge all. (Wright vs. Lathrop, 2 Ohio, 33; Livingston vs. Bishop, 1 Johnson (N. Y.), 290; Brown vs. Marsh, 7 Vt., 327; Ayer vs. Ashmead, 31 Conn., 447; Eastman vs. Grant, 34 Vt., 387; Turner vs. Hitchcock, 20 Iowa, 310; Ellis vs. Esson, 50 Wis., 149.)

10. ID.; ID.; JOINT TORT FEASORS DEFINED. — As a general rule, the term "joint tort feasors" includes all persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it, after it is done, if done for their benefit. They are each liable as principals, to the same extent and in the same manner as if they had performed the wrongful act themselves. (Cooley on Torts, 133; Moir vs. Hopkins, 16 Ill., 313; 63 Am. Dec., 312, and note; Berry vs. Fletch, 1 Dill. (C. C. Reps.), 67; Smithwick vs. Ward, 7 Jones L. (N. C.3, 64; Smith vs. Felt, 6 Barb (N.Y.), 612; Shepard vs. MacQuilkin, 2 W. Va., 90; Lewis vs.Johns., 34 Cal., 369.)

11. ID.; ID.; FIGHT TO BE LET ALONE. — The enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property. It is one of those rights necessary to human society that underlie the whole scheme of civilization. The law recognizes the value of such reputation and imposes upon him who attacks it, by slanderous words or libelous publication, the liability to make full compensation for the damage done.

12. ID.; EXEMPLARY DAMAGES. — Exemplary damages for libel may be recovered in civil actions if the defendant or defendants were actuated by malice. Section 11 of Act No. 277 allows the court, in an action for libel, to render judgment for punitive damages in an amount which the court thinks will be a just punishment to the libeler and an example to others.

D E C I S I O NJOHNSON, J p:

On the 23d day of January, 1909, the plaintiff commenced an action against the defendants in the Court of First Instance of the city of Manila, for the purpose of recovering damages resulting from an alleged libelous publication. The complaint was in the following language:

"COMPLAINT

"I.

"That the plaintiff as well as the defendants are residents of the city of Manila, Philippine Islands.

"II.

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"That for a long time before the 30th of October, 1908, the defendants, Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Fidel A. Reyes, Faustino Aguilar, Leoncio G. Liquete, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, were the owners, directors, writers (redactores), editors (editores) and administrators of a certain daily newspaper known as 'El Renacimiento' and 'Muling Pagsilang,' which newspaper during all the time mentioned in this complaint was published and circulated daily in the Spanish and Tagalog languages in the city of Manila, having a large circulation throughout the Philippine Islands.

"III.

"That for a long time the defendants have been maliciously persecuting and attacking the plaintiff in said newspaper, until at last on the 30th of October, 1908, with the malicious intention of injuring the plaintiff, who on said date was, and still is a member of the Civil Commission of the Philippines and Secretary of the Interior in the Government of the Philippines, they attacked the honesty and reviled the fame of the plaintiff, not only as a private person but also as an official of the Government of the Philippine Islands, and with the object of exposing him to the odium, contempt, and ridicule of the public, printed. wrote (redactaron), and published in said newspaper in its ordinary number of the 30th of October, 1908, a malicious defamation and false libel which was injurious (injurioso) to the plaintiff, said libel reading as follows:

"'EDITORIAL.

"'BIRDS OF PREY.

"'On the surface of the globe some were born to eat and devour, others to be eaten and devoured.

"'Now and then the latter have bestirred themselves, endeavoring to rebel against an order of things which makes them the prey and food of the insatiable voracity of the former. At times they have been fortunate, putting to flight the eaters and devourers, but in the majority of cases they did not obtain anything but a change of name or plumage.

"'The situation is the same in all the spheres of creation: the relation between the ones and the others is that dictated by the appetite and the power to satisfy it at the fellow-creatures' expense.

"'Amongst men it is very easy to observe the development of this daily phenomenon. And for some psychological reason the nations who believe themselves powerful have taken the fiercest and most harmful creatures as emblems; it is either the lion, or the eagle, or the serpent. Some have done so by a secret impulse of affinity and others in the nature of simulation, of infatuated vanity, making themselves appear that which they are not nor ever can be.

"'The eagle, symbolizing liberty and strength, is the bird that has found the most adepts. And men, collectively and individually, have desired to copy and imitate the most rapacious bird in order to triumph in the plundering of their fellow-men.

"'There are men who, besides being eagles, have the characteristics of the vulture, the owl and the vampire.

"'Ascending the mountains of Benguet to classify and measure the skulls of the Igorots and study and civilize them and to espy in his flight, with the eye of the bird of prey, where are the large deposits of gold, the prey concealed amidst the lonely mountains, to

appropriate them to himself afterwards, thanks to legal facilities made and unmade at will, but always for his own benefit.

"'Authorizing, despite laws and ordinances, an illegal slaughtering of diseased cattle in order to derive benefit from the infected and putrid meat which he himself was obliged to condemn by virtue of his official position.

"'Presenting himself on all occasions with the wrinkled brow of the scientist who consumes his life in the mysteries of the laboratory of science, when his whole scientific labor is confined to dissecting insects and importing fish eggs, as if the fish eggs of this country were less nourishing and less savory, so as to make it worth the while replacing them with species coming from other climes.

"'Giving an admirable impulse to the discovery of wealthy lodes in Mindoro, in Mindanao, and in other virgin regions of the Archipelago, with the money of the people, and under the pretext of the public good, when, as a strict matter of truth, the object is to possess all the data and the key to the national wealth for his essentially personal benefit, as is shown by the acquisition of immense properties registered under the names of others.

"'Promoting, through secret agents and partners, the sale to the city of worthless land at fabulous prices which the city fathers dare not refuse, from fear of displeasing the one who is behind the motion, and which they do not refuse for their own good.

"'Patronizing concessions for hotels on filled-in-land, with the prospects of enormous profits, at the expense of the blood of the people.

"'Such are the characteristics of the man who is at the same time an eagle who surprises and devours, a vulture who gorges himself on the dead and putrid meats, an owl who affects a petulent omniscience and a vampire who silently sucks the blood of the victim until he leaves it bloodless.

"'It is these birds of prey who triumph. Their flight and their aim are never thwarted.

"'Who will detain them?

"'Some share in the booty and the plunder. Others are too weak to raise a voice of protest. And others die in the disconsolating destruction of their own energies and interests.

"'And then there appears, terrifying, the immortal legend:

"'MANE, TECEL, PHARES.'

"IV.

"That the plaintiff was, on the date of said publication, and still is, well known to the officials of the Government of the Philippine Islands, and to the inhabitants of the Philippine Islands, and to the public in general, personally as well as a member of the Civil Commission of the Philippines and as Secretary of the Interior, and the defamation and libel, and the words, terms and language used in said defamation and libel were employed by the said defendants with the intention of indicating the said plaintiff, and that they should be understood, as in effect they were understood, by the public officials of the Government and the inhabitants of the Philippine Islands in general, as referring to the plaintiff, by reason of the publicly known fact that said plaintiff in compliance with his duties in his position as such member of the Civil Commission of the Philippines and as such Secretary of the Interior of the Philippine Islands, ascended on a previous occasion the mountains of the Province of Benguet to study the native tribe known as Igorot, residing in said region; by reason of the publicly known fact that in the said mountains of Benguet there exist large deposits of gold, and for the reason that, as member of the Civil Commission of the Philippines, which is the

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legislative body of the Philippine Islands, the plaintiff takes part in the enactment and repealing of laws in said Islands; by reason furthermore of the fact, publicly known, that the plaintiff, as such Secretary of the Interior of the Philippine Islands, has had under his direction and control the enforcement of the laws; of the Philippine Islands and the ordinances of the city of Manila relating to the slaughtering of cattle; by reason furthermore of the fact, publicly known that said plaintiff, as such Secretary of the Interior of the Philippine Islands, had under his direction and control the Bureau of Science of the Government of the Philippine Islands, and he is generally known as a man devoted to the study of science; by reason furthermore of the publicly known fact that the said plaintiff, as such Secretary of the Interior of the Philippine Islands, at a previous time, caused the importation into the Philippine Islands of fish eggs for the purpose of supplying the mountain streams of the Philippine Islands with fish-hatcheries; by reason furthermore of the publicly known fact that said plaintiff, as such Secretary of the Interior of the Philippine Islands, has journeyed to and explored the Islands of Mindoro, Mindanao, and other regions of the Philippine Archipelago; by reason furthermore of the publicly known fact that said plaintiff, as such Secretary of the Interior of the Philippine Islands, at one time investigated and prepared a report for the Civil Commission of the Philippines in regard to a certain proposition for the purchase of a parcel of land for the city of Manila; by reason furthermore of the publicly known fact that said plaintiff, as member of said Civil Commission of the Philippines together with the other members of said legislative body, once opened negotiations with a certain firm engaged in the hotel business in regard to the location of a prospective hotel on one of the filled-in lands of the city of Manila.

"That said defendants charged said plaintiff with the prostitution of his office as member of the Civil Commission of the Philippines and as Secretary of the Interior of said Islands, for personal ends; with wasting public funds for the purpose of promoting his personal welfare; with the violation of the laws of the Philippine Islands and the ordinances of the city of Manila; with taking part in illegal combinations for the purpose of robbing the people; with the object of gain for himself and for others; and lastly with being 'a bird of prey ;' and that said defamation should be understood, as in effect it was understood, by the public officials of the Government and the people of the Philippine Islands in general, as charging the said plaintiff with the conduct, actions and things above specified; all of which allegations relating to the character and conduct of the said plaintiff, as above stated, were and are false and without any foundation whatsoever.

"That said defamation and libel were published by the defendants under a heading in large and showy type, and every effort made by said defendants to see that said defamation and libel should attract the attention of the public and be read by all the subscribers to said newspaper and the readers of the same.

"V.

"Besides assailing the integrity and reviling the reputation of the plaintiff, said defendants, in publishing the said libel, did so with the malicious intention of inciting the Filipino people to believe that the plaintiff was a vile despot and a corrupt person, unworthy of the position which he held, and for this reason to oppose his administration of the office in his charge as Secretary of the Interior, and in this way they endeavored to create enormous difficulties for him in the performance of his official duties, and to make him so unpopular that he would have to resign his office as member of the Civil Commission of the Philippines and Secretary of the Interior.

"In fact said defendants, by means of said libel and other false statements in said mentioned newspaper, have been deliberately trying to destroy the confidence of the public in the plaintiff and to incite the people to place obstacles in his way in the performance of his official duties, in consequence of which the plaintiff has met with a great many difficulties

which have increased to a great extent his labors as a public official in every one of the Departments.

"VI.

"And for all these reasons the plaintiff alleges: That he has been damaged and is entitled to an indemnity for the additional work to which he has been put, by the said defendants, in the compliance of his duties, both in the past and the future, as well as for the injuries to his reputation and feelings, in the sum of fifty thousand pesos (P50,000) Philippine currency, and besides this said amount he is entitled to collect from the defendants the additional sum of fifty thousand pesos (P50,000) Philippine currency, in the way of punitive damages, as a warning to the defendants.

"Wherefore the plaintiff files this complaint, praying the court

"(1) That the defendants be summoned according to law.

"(2) That judgment be rendered ordering the defendants to pay the damages as above stated, and the costs of the action."

On the 23d of February, 1909, the defendants presented the following demurrer to the said complaint:

"DEMURRER.

"Now come the defendants, through their undersigned attorney, and demur to the complaint filed herein, upon the following grounds:

"First. That the complaint is vague and unintelligible.

"Second. That the facts alleged in the complaint do not constitute a cause or right of action.

"Third. That there is another action pending between 'the plaintiff and several of the defendants for the same cause; and

"Fourth. That some of the defendants have been erroneously included therein.

"Therefore, they respectfully ask the court to dismiss the complaint, with costs against the plaintiff."

On the 27th of February, 1909, the Honorable Charles S. Lobingier, judge, overruled said demurrer in the following decision, to which the defendants duly excepted:

"ORDER.

"The defendants demur upon several grounds:

"(1) The first ground is that the complaint is vague and unintelligible and this is directed principally to paragraph 2, in which it is alleged that the defendants were 'duenos, directores, redactores,' etc., but it is not alleged that they were such simultaneously. If this were the sole averment of the defendants' connection with the alleged libel, the objection might be well taken, but paragraph 3 of the complaint alleges that the defendants 'imprimieron, redactaron y publicaron,' etc., the article complained of. Under section 2 of Act 277 'every person' who 'publishes or procures to be published any libel' is made responsible. (Cf. U.S. vs. Ortiz, 8 Phil. Rep., 752.) We think, therefore, that the connection of the defendants with the publication complained of is sufficiently charged.

"(2) It is also claimed that the facts alleged are not sufficient to state a cause of action and it is urged in support of this that the article complained of and which is copied in the complaint, fails to mention the plaintiff or to show an its face that it refers to him. It is,

3

however, specifically alleged in paragraph 4 that the article was intended to refer to the plaintiff and was so understood by the public, and this allegation is admitted by the demurrer. Under the rule announced in Causin vs. Jakosalem (5 Phil. Rep., 155), where the words complained of do refer to the plaintiff 'an action for libel may be maintained even though the defamatory publication does not refer to the plaintiff by name.'

"(3) It is further urged that there is another action pending between the parties for the same cause. This, it is true, is made a ground for demurrer by the Code of Civil Procedure, sec. 91 (3), but like all grounds therein mentioned, it must 'appear upon the face' of the pleading objected to, and where it does not so appear 'the objection can only be taken by answer.' (Code C. P., sec. 92.) There is no averment in the complaint which indicates that there is another action pending.

"The fourth ground of the demurrer is not one recognized by law (Code C. P., sec. 91) nor do we find anything in Sanidad vs. Cabotaje (5 Phil. Rep., 204) which would necessitate any change in the views already expressed.

"The demurrer is, therefore, overruled and defendants are given the usual five days to answer."

On the 15th day of November, 1909, the defendants presented their amended answer, which was as follows:

"ANSWER:

"The defendants in the above-entitled cause, through their undersigned attorney, by their answer to the complaint, state

"That the defendants deny generally the allegations of the complaint.

"As a special defense, the defendants allege:

"First. That the plaintiff has no legal capacity to institute this action, as it clearly appears from the allegations of the complaint and which the defendants hereby deny.

"Second. That the facts set out as constituting a cause of action in the complaint, are insufficient to constitute such cause of action in favor of the plaintiff and against the defendants.

"Third. That the said complaint is manifestly improper, for the reason that there is now pending in the Court of First Instance of this city a criminal cause, No. 4295, for the crime of libel against the defendants herein, Martin Ocampo, Teodoro M. Kalaw, and Fidel A. Reyes, ;both actions, criminal and civil, being based upon the same facts which the plaintiff herein, who is also a party to the said criminal action, now alleges as the basis of his action.

"Fourth. That the civil action in the above-entitled cause has been extinguished for the reason that plaintiff did not expressly reserve his right to enforce the same in the aforesaid cause 4295, for the crime of libel, after the said criminal cause had been finally disposed of.

"Fifth. That the defendants, Lope K. Santos, Faustino Aguilar, Leoncio G. Liquete, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, were erroneously included in the complaint, for the simple reason that the first two were acquitted in said criminal cause No. 4295, for libel, the third was used as a witness for the prosecution in the said criminal cause, and the others have no interest, either directly or indirectly, in the newspaper 'El Renacimiento' in which it is alleged by the plaintiff the editorial, which is the basis of the complaint, and which it is claimed to be libelous, was published.

"Wherefore the defendants pray that they be acquitted of the complaint, with the costs against the plaintiff."

After hearing the evidence adduced during the trial of the cause, the arguments of the respective attorneys, the Honorable James C. Jenkins, judge, on the 14th of January, 1910. rendered the following decision:

"DECISION.

"This is a civil action sounding in damages to the amount of P100,000 for an alleged libel of the plaintiff by the defendants.

"The plaintiff is the Honorable Dean C. Worcester, a member of the Civil Commission of the Philippine Islands, and Secretary of the Interior of the Insular Government. The defendants are twelve persons designated by name in the complaint and alleged therein to be the owners, directors, writers (redactores),editors (editores),and administrators of a certain daily newspaper known as 'El Renacimiento' and 'Muling Pagsilang,' which defendants, as well as the plaintiff, are residents of the city of Manila, Philippine Islands.

"It is further alleged in the complaint that for a long time prior to the 30th of October, 1908, the defendants were the owners, directors, writers; editors, and administrators of said daily newspaper, and that said newspaper, during all the time mentioned in the complaint, was published and circulated daily in the Spanish and Tagalog languages in the city of Manila, having a large circulation throughout the Philippine Islands.

"It is also alleged that for a long time the defendants had been maliciously persecuting and attacking the plaintiff in said newspaper, until at last, on said date, with the malicious intention of injuring the plaintiff, who then was and still is a member of the Civil Commission of the Philippines and Secretary of the Interior in the Government of the Philippines, they attacked the integrity and reviled the reputation of the plaintiff, not only as a private citizen, but also as an official of the Government of the Philippine Islands; and with the object of exposing him to the odium, contempt, and ridicule of the public, they wrote, printed, and published in said newspaper in its ordinary number of the said 30th of October, 1908, a malicious defamation and false libel, which was injurious to the plaintiff, said libel, as translated from the Spanish, reading as follows:

'EDITORIAL.

" 'BIRDS OF PREY.

"'On the surface of the globe some were born to eat and devour, others to be eaten and devoured.

"'Now and then the latter have bestirred themselves, endeavoring to rebel against an order of things which makes them the prey and food of the insatiable voracity of the former. At times they have been fortunate, putting to flight the eaters and devourers, but in a majority of cases they do not obtain anything but a change of name or plumage.

"'The situation is the same in all the spheres of creation; the relation between the ones and the others is that dictated by the appetite and the power to satisfy it at the fellow-creature's expense.

"'Among men it is easy to observe the development of this daily phenomenon. And for some psychological reason the nations who believe themselves powerful have taken the fiercest and most harmful creatures as emblems; it is either the lion, or the eagle, or the serpent. Some have done so by a secret impulse of affinity and others in the nature of simulation, of infatuated vanity, making themselves appear that which they are not nor ever will be.

4

"'The eagle, symbolizing liberty and strength, is the bird that has found the most adepts. And men, collectively and individually, have desired to copy and imitate the most rapacious bird in order to triumph in the plundering of their fellow-men.

"'There are men who, besides being eagles, have the characteristics of the vulture, the owl and the vampire.

"'Ascending the mountains of Benguet to classify and measure the skulls of the Igorots and study and civilize them, and to espy in his flight with the eye of the bird of prey, where are the large deposits of gold, the prey concealed amongst the lonely mountains, to appropriate them to himself afterwards, thanks to legal facilities made and unmade at will, but always for his own benefit:

"'Authorizing, despite laws and ordinances, an illegal slaughtering of diseased cattle in order to derive benefit from the infected and putrid meat which he himself was obliged to condemn by virtue of his official position.

"'Presenting himself on all occasions with the wrinkled brow of the scientist who consumes his life in the mysteries of the laboratory of science, when his whole scientific labor is confined to dissecting insects and importing fish eggs, as if the fish eggs of this country were less nourishing and savory, so as to make it worth the while replacing them with species coming from other climes.

"'Giving an admirable impulse to the discovery of wealthy lodes in Mindanao, in Mindoro, and in other virgin regions of the archipelago, with the money of the people, and under the pretext of the public good, when, as a strict matter of truth, the object is to possess all the data and the key to the national wealth for his essentially personal benefit, as is shown by the acquisition of immense properties registered under the names of others.

"'Promoting through secret agents and partners, the sale to the city of worthless land at fabulous prices which the city fathers dare not refuse from fear of displeasing the one who is behind the motion, and which they do not refuse for their own good.

"'Patronizing concessions for hotels on filled-in lands, with the prospects of enormous profits, at the expense of the blood of the people.

"'Such are the characteristics of the man who is at the same time an eagle who surprises and devours, a vulture who gorges himself on the dead and putrid meats, an owl who affects a petulant omniscience and a vampire who silently sucks the blood of the victim until he leaves it bloodless.

"'It is these birds of prey who triumph. Their flight and aim are never thwarted.

"'Who will detain them?

"'Some share in the booty and plunder. Others are too weak to raise a voice of protest. And others die in the disconsolating destruction of their own energies and interests.

"'And then there appears, terrifying, the immortal legend:

"'MANE, TECEL, PHARES.

"It is alleged, among other things, in paragraph four of the complaint, that the plaintiff was on the date of said publication, and still is, well known to the officials of the Government of the Philippine Islands, and to the inhabitants of the Philippine Islands, and to the public generally, personally as well as a member of the Civil Commission of the Philippines and as Secretary of the Interior; and the defamation and libel, and the words, terms, and language used in said defamation and libel were employed by the said defendants with the intention of indicating the said plaintiff, and that they should be

understood, as in fact they were understood, by the public officials of the Government and the inhabitants of the Philippine Islands in general, as referring to the plaintiff." (Here follow the reasons for saying the editorial referred to plaintiff and why the public understood it as referring to him.)

"The said defendants charged said plaintiff with the prostitution of his office as a member of the Civil Commission of the Philippines and as Secretary of the Interior of said Islands, for personal ends; with wasting public funds for the purpose of promoting his personal welfare; with the violation of the laws of the Philippine Islands and the ordinances of the city of Manila; with taking part in illegal combinations for the purpose of robbing the people, with the object of gain for himself and for others; and lastly, with being a bird of prey; and that said defamation should be understood, as in effect it was understood by the public officials of the Government and the people of the Philippine Islands in general, as charging the said plaintiff with the conduct, actions and things above specified; all of which allegations relating to the character and conduct of the said plaintiff, as above stated, were and are false and without any foundation whatever. That said defamation and libel were published by the defendants under a heading in large and showy type, and every effort was made by said defendants to see that said defamation and libel should attract the attention of the public and be read by all the subscribers to said newspaper and the readers of the same.

"In paragraph five of the complaint it is further alleged that, besides assailing the integrity and reviling the reputation of the plaintiff, said defendants, in publishing said libel, did so with the malicious intention of inciting the Filipino people to believe that the plaintiff was a vile despot and a corrupt person, unworthy of the position which he held, and for this reason to oppose his administration of the office in his charge as Secretary of the Interior, and in this way they endeavored to create enormous difficulties for him in the performance of his official duties, and to make him so unpopular that he would have to resign his office as a member of the Civil Commission of the Philippines and Secretary of the Interior. In fact, said defendants, by means of said libel and other false statements in said mentioned newspaper, have been deliberately trying to destroy the confidence of the public in the plaintiff, and to incite the people to place obstacles in his way in the performance of his official duties, in consequence of which said plaintiff has met with a great many difficulties which have increased to a great extent his labors as a public official in every one of the Departments.

"And the allegations end with paragraph six, in which the plaintiff states that for all these reasons he has been damaged and is entitled to an indemnity for the additional work to which he has been put by the said defendants in the compliance with his duties, both in the past and in the future, as well as for the injuries to his reputation and feelings, in the sum of P50,000, and that besides this said amount he is entitled to collect from the defendants the additional sum of fifty thousand pesos in the way of punitive damages, as a warning to the defendants.

"The complaint concludes with a prayer, among other things, that judgment be rendered ordering the defendants to pay the damages as above stated and the costs of the action; and is dated and signed, Manila, P. I., January 23, 1909, Hartigan and Rohde, Kincaid and Hurd, attorneys for plaintiff.

"A demurrer to this complaint was filed by the defendants, through their attorney, Sr. Felipe Agoncillo, which demurrer was heretofore heard and overruled by the court, and the defendants required to answer. Accordingly, the defendants within the prescribed time, filed their answer; and on November 16, 1909, through their attorney, filed an amended answer, which is as follows (after stating the case):

5

"'The defendants in the above-entitled action, through their undersigned attorney, answering the complaint, state: That they make a general denial of the allegations in the complaint, and as a special defense allege:

"'(1) That the plaintiff lacks the necessary personality to institute the complaint in question, as evidently appears from the allegations in the same, and which the defendants deny;

"'(2) That the facts set forth as a cause of action in the complaint are insufficient to constitute a cause of action in favor of the plaintiff and against the defendants;

"'(3) That the said complaint is in every sense contrary to law, criminal case No. 4295, for libel, against the defendants Martin Ocampo, Teodoro M. Kalaw, and Fidel A. Reyes, in the Court of First Instance of this city, being still pending, inasmuch as both causes, criminal and civil, are based upon the same facts which the plaintiff, who is also interested in said criminal cause, considers a cause of action;

"'(4) That the civil action in the above-entitled cause has been destroyed as a consequence of the fact that the plaintiff did not expressly reserve his right to the same in the said mentioned cause No. 4295 for libel, in order to exercise it after the termination of said criminal cause:

"'(5) That the defendants Lope K. Santos, Faustino Aguilar, Leoncio G. Liquete, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit have been erroneously included in the complaint, for the simple reason that the first two were acquitted in the said cause No. 4295 for libel, the third was used as a witness by the prosecution in the same cause, and the latter ones have no interest, directly or indirectly, in the newspaper "El Renacimiento," in which, the plaintiff presumes, was published the editorial which forms the basis of the complaint, and which is said to be libelous; and concluding with a prayer to the court to dismiss the case, with costs against the plaintiff.'

"The second paragraph of this 'special defense' is nothing other than a general demurrer to the complaint, which has been overruled, as already stated.

"The first paragraph is not clearly stated, but the court construes it as meaning a simple denial that the plaintiff is the person referred to in the alleged libelous article 'Birds of Prey,' which issue is sufficiently raised by the general denial of the allegations in the complaint.

"The third paragraph is not a valid defense in law, for the simple reason that section 11 of Act 277 of the Philippine Commission, under which this suit is brought, especially provides for a separate civil action for damages, as well as for a criminal prosecution. (See Mr. Justice Johnson's recent decision.) This third paragraph is therefore without merit; and the same may be said of the fourth paragraph thereof. As to paragraph five, it contains no material averment which could not have been set up and insisted upon under the general issue.

"One part of this so-called special defense is therefore a demurrer already adjudicated, another part is covered by the general issue, and the residue is without merit as a legal defense, and might have been stricken out. The defense is therefore tantamount to the general issue only, there being no special plea that these charges are true, nor any plea of justification.

"The trial of this case on its merits began November 16, and ended December 10, 1909, and the proceedings and evidence introduced are to be found in the exhibits and stenographic notes taken by the court's official reporter. At the trial Judge Kincaid and Major Hartigan appeared for the plaintiff and Señores Agoncillo, Cruz Herrera, and Ferrer for the defendants.

"After hearing the testimony and arguments of counsel and a due consideration of the case, the court finds the following-facts established by the admissions and a decided preponderance of the evidence:

"That the defendants Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, seven in number, are the proprietors and owners of the said daily newspaper known as 'El Renacimiento' and 'Muling Pagsilang,' and that 'El Renacimiento' and 'Muling Pagsilang' are one and the same newspaper, owned, managed, printed, and published by the same persons; that Teodoro M. Kalaw and Lope K. Santos were the editors in chief or directors of this paper on the 30th of October, 1908, and that said nine defendants named were the owners, editors, proprietors, managers, and publishers of said newspaper on said 30th of October, 1908, for a long time prior thereto, and during all the time mentioned in the complaint.

"As to the defendants, Reyes, Aguilar, and Liquete, they appear from the evidence to have been editors of said paper, but in a subordinate position to the chief editors or directors, Kalaw and Santos, and to have acted under the direction of the latter two defendants.

"The court further finds that every essential or material allegation of the complaint is true substantially as therein stated, with the exception noted as to Fidel A. Reyes, Faustino Aguilar, and Leoncio G. Liquete, and as may be hereinafter indicated. The case is therefore dismissed as to these three defendants

"The only serious contention of the defense is (1) that the editorial 'Birds of Prey' does not refer to a determinate person; and (2) that, conceding that it does refer to the plaintiff, none of the defendants, except Teodoro M. Kalaw, is responsible for the writing, printing, or publication of the alleged libelous article or the damage to the plaintiff resulting therefrom.

"In the opinion of the court this article so indubitably refers to the plaintiff, and was so easily and well understood by the readers of said paper as indicating the plaintiff, that it would be an act of superrogation to elaborately discuss the evidence adduced in support of or against the proposition. It is as clear to the court from the evidence adduced as the noonday sun, that the plaintiff is the identical and only person meant and referred to in said article 'Birds of Prey ;' and it requires no argument to prove that it does mean and refer to him and was so intended by the writer, and therefore by said nine defendants, and could not have been otherwise understood by any intelligent reader or subscriber of said paper, in view of the reasons assigned in the complaint, which reasons are clearly disclosed and fully established by the evidence. And it may be added that much valuable time was needlessly consumed by the defense at the trial in an effort to establish the contrary.

"It seems to the court a reflection upon the intelligence of the subscribers and readers of 'El Renacimiento' to contend that this editorial was not well understood by them as referring to the plaintiff, and as fully as if his name had been mentioned in every paragraph thereof. And assuredly the omission of his name from the editorial has made the libel none the less hurtful and disastrous in its results to the reputation and feelings of the plaintiff.

6

"Much time was consumed also in adducing evidence to show that none of the twelve defendants were the owners of 'El Renacimiento' and 'Muling Pagsilang,' but that six of them had originally contributed their money as a patriotic donation to the Filipino people, and that Martin Ocampo simply held the money and property of the paper as trustees for this people, and that the paper was being devoted exclusively to philanthropic and patriotic ends, and that Galo Lichauco had agreed to contribute to the same ends, but had not done so.

"This proposition in the light of the evidence is so preposterous as to entitle it to little, if any, serious consideration. To ask the court to believe it is tantamount to asking the court to stultify reason and common sense. That those seven defendants named contributed their respective sums of money, as shown by the evidence, to the foundation of said newspaper in 1901 for their own personal benefit and profit is fully and unmistakably established. It is equally well established that Martin Ocampo is and was, not only a part owner, but that he has been and is still the administrator or business manager of said newspaper, and that the other six persons named are shareholders, part owners and proprietors thereof, and were such on said 30th of October, 1908.

"Arcadio Arellano testified positively that Galo Lichauco was one of the seven founders, and that Lichauco contributed P1,000. Martin Ocampo testified that Galo Lichauco promised to contribute an amount which he (the witness) did not remember but that Lichauco did not keep his promise. (See pp. 107, 108, and 231 of the evidence.)

"The other evidence and circumstances strongly corroborate Arcadio Arellano, and the court is constrained to believe that Arellano told the truth and Ocampo did not. See Exhibit B-J, a copy of 'El Renacimiento' containing the article 'Infamy Among Comrades,' page 87 of the evidence, in which there was published that these seven persons named are the shareholders of the paper.

"Furthermore, Galo Lichauco failed to appear and testify, so as to enlighten the court as to which witness, Arellano or Ocampo, told the truth, or whether chief editor Kalaw had his authority to publish in said paper, as he did on November 22, 1907. that he, Galo Lichauco, was one of the shareholders. The presumptions are therefore against Galo Lichauco. See S. S. Co. vs. Brancroft-Whitney Co. (36 C. C. A., 136 and 153).

"It also appears from the evidence that Teodoro M. Kalaw was the chief editor or director of the Spanish section of said paper, and that Lope K. Santos was the chief editor or director of the Tagalog section on said 30th of October, 1908, and that the Spanish and Tagalog sections are, and then were, one and the same newspaper, but printed and published in different languages.

"It is alleged that said newspaper has a large circulation throughout the Philippine Islands, and was published and circulated daily in the Spanish and Tagalog languages in the city of Manila. Not only are these allegations true, but it is also true that said newspaper has a daily circulation and subscribers in other parts of the world, notably in the United States and Spain; and it has subscribers numbering in toto not less than 5,200, and a daily issue of 6,000 copies.

"It is also true as alleged, and the court so finds that since the year 1906 to said 30th of October, 1908, these nine defendants had been maliciously persecuting and attacking the plaintiff in their said newspapers, until at last, on said 30th of October, 1908 with the malicious intention of injuring the plaintiff, who on said date was and still is a member of the Civil Commission and Secretary of the Interior in the Government of the Philippine Islands; and with the object of exposing him to the odium, contempt, and ridicule of the public, they wrote, printed, and published in their said newspaper, in its ordinary number of said 30th of October, 1908, the malicious defamation and false libel of and concerning the plaintiff, entitled and herein alluded to as the editorial 'Birds of Prey,' which

libel was and is highly injurious to the plaintiff and from which the plaintiff has sustained serious damage.

"This editorial, when properly interpreted and read between the lines, means, besides other things, and was intended by the writer to mean and be understood by the readers thereof as meaning substantially the following:

"That the plaintiff, Dean C. Worcester, was born on the surface of the globe to eat and devour, like a bird of prey, and that others, born to be eaten and devoured, are the prey and food of the insatiable voracity of the plaintiff; that the plaintiff has a desire to copy and imitate the most rapacious bird, the eagle, in order to triumph in plundering his fellowman; that the plaintiff besides being an eagle, has the characteristics of the vulture, the owl, and the vampire.

"That the plaintiff ascended the mountains of Benguet to classify and measure the skulls of the Igorots, and study and civilize them and to espy in his flight with the eye of the bird of prey the large deposits of gold — the prey concealed amidst the lonely mountains — and to appropriate them to himself afterwards, and that to this end the plaintiff had the legal facilities, made and unmade at his own will, and that this is always done for his own benefit.

"That the plaintiff authorized, in spite of laws and ordinances, the illegal slaughtering of diseased cattle in order to derive benefit from the infected and putrid meat which he himself was obliged to condemn by virtue of his official  position; that while the plaintiff presents himself on all occasions with the wrinkled brow of the scientist who consumes his life in the mysteries of the laboratory of science, his whole scientific labor is confined to dissecting insects and importing fish eggs.

"That although the plaintiff gave an admirable impulse to the discovery of wealthy lodes in Mindanao and Mindoro, and in other virgin regions of the Archipelago, with the money of the people, under the pretext of the public good, as a strict matter of truth his object was to possess all the data and the key to the national wealth for his essentially personal benefit, and that this is shown by his acquisition of immense properties registered under the names of others.

"That the plaintiff promoted, through secret agents and partners, the sale to the city of Manila of worthless land at fabulous prices, which the city fathers dared not refuse from fear of displeasing the plaintiff, who was behind the project, and which they did not refuse for their own good; that the plaintiff favored concessions for hotels in Manila on filled-in land; with the prospect of enormous profits, at the expense of the blood of the people.

"That such are the characteristics of the plaintiff, who is at the same time an eagle that surprises and devours, a vulture that gorges himself on dead and rotten meats, an owl that affects a petulant omniscience, and a vampire that sucks the blood of the victim until he leaves it bloodless. And this libelous article concludes with the asseveration in substance that the plaintiff has been 'weighed in the balance and found wanting' — 'Mane, Tecel, Phares.'

"That this editorial is malicious and injurious goes without saying. Almost every line thereof teems with malevolence, ill will, and wanton and reckless disregard of the rights and feelings of the plaintiff; and from the very nature and number of the charges therein contained the editorial is necessarily very damaging to the plaintiff.

"That this editorial, published as it was by the nine defendants, tends to impeach the honesty and reputation of the plaintiff and publishes his alleged defects, and thereby exposes him to public hatred, contempt, and ridicule, is clearly seen by a bare reading of the editorial.

7

"It suffices to say that not a line is to be found in all the evidence in support of these malicious, defamatory, and injurious charges against the plaintiff; and there was at the trial no pretense whatever by the defendants that any of them are true, nor the slightest evidence introduced to show the truth of a solitary charge; nor is there any plea of justification or that the charges are true, much less evidence to sustain such a plea.

"In the opinion of the court 'Birds of Prey,' when read and considered in its relation to and connection with the other articles libelous and defamatory in nature, published of and concerning the plaintiff by these nine defendants anterior and subsequent to the publication of this article, and having reference to the same subject matter as shown by the evidence, is one of the worst libels of record. It is safe to say that in all the court reports of the Philippine Islands, or of Spain, of England, or the United States, there is not to be found a libel case in which there is a more striking exemplification of the spirit of hatred, bad faith, evil motive, mischievous intent, actual malice, nefarious purpose, base malignity, or gross malevolence.

"It is proper to observe also that since the beginning of this attack on the plaintiff in the year 1906 down almost to the present time, so far from there being any apology, retraction, or effort to repair the injury already done as far as lay in the power of the defendants, the persecution, wrong, and tortious injury to the plaintiff have been steadily kept up and persisted in, without the slightest abatement of the malevolent spirit.

"There has been neither retraction, apology, nor reparation; per contra, the libel has been repeated, reiterated, and accentuated, and widely and extensively propagated by these nine defendants through the columns of their said paper and otherwise; and it appears from the evidence that especial effort has been made by these same defendants to give as much publicity as possible to the libelous and defamatory words used of and concerning the plaintiff in said editorial.

"Through their instrumentality and persistency in asserting and reasserting its truth, this diabolical libel has been spread broadcast over the Philippine Islands and to other parts of the world. In said criminal case No. 4295 some of these nine defendants pleaded the truth of the charges; and in Exhibit A-Q is to be found this language: 'The defense will adduce its evidence demonstrating the truth of every one of the facts published.'

"In their said paper of the 11th of January, 1909, there is published this statement:

"'The brief period of time allowed us by the court, at the request of our counsel, to gather evidence which we are to adduce in our effort to demonstrate the truth of the accusations that we have formulated in the article which is the subject of the agitation against us, having expired, the trial of the case against our director has been resumed.' (See pp. 63 and 67 of the evidence.)

"And about the same time they also declared in their said paper that 'there is more graft than fish in the rivers of Benguet.' And this in the year of our Lord 1909! the persecution having begun in 1905; thus indicating that there is to be no 'let-up' or cessation of the hostile attitude toward the plaintiff or the vilification of his name and assaults upon his character, much less a retraction or an apology, unless drastic means and measures are made use of to the end that there may be no further propagation of the libel, or asseveration, or reiteration of its truth.

"This article 'Birds of Prey' charges the plaintiff with malfeasance in office and criminal acts, and is therefore libelous per se. It in substance charges the plaintiff with the prostitution of his office as a member of the Civil commission of the Philippine Islands and Secretary of the Interior of said Islands for personal ends. It is charge also substantially that plaintiff in his official capacity wasted the public funds for the purpose of promoting his own

personal welfare, and that he violated the laws of the Philippine Islands and the ordinances of the city of Manila.

"In its essence he is charged with taking part in illegal combinations for the purpose of robbing the people with the object of gain for himself and for others; with being a bird of prey, a vulture (buzzard), an owl, and a vampire that sucks the blood of the victim (meaning the people) until he leaves it bloodless; that is to say, robs the people, until he leaves them wretched and poverty-stricken, deprived of all worldly possessions; and lastly, that he, the plaintiff, like Belshazzar, has been weighed in the balance and found wanting as a high Government functionary; all of which charges are false and malicious and without any foundation whatever in fact, as the evidence fully demonstrates.

"It is also a matter of fact, and the court so finds, that said defamation was written and published that it might be understood, and it was understood, by the public officials of the Government and the people of the Philippine Islands in general, and wherever else said newspaper may have circulated and been read, as charging the plaintiff with the tortious and criminal acts and conduct charged in said editorial as hereinbefore specified and interpreted.

"The court finds it also true that, besides assailing the integrity and reviling the reputation of the plaintiff, said nine defendants, in publishing said libel, did so with the malicious intention of inciting the Filipino people to believe that the plaintiff was despotic and corrupt and unworthy of the position which he held, and for this reason to oppose his administration of the office in his charge as Secretary of the Interior, and in this way they endeavored to create enormous difficulties for him in the performance of his official duties, and to make him so unpopular that he would have to resign his office as a member of the Civil Commission of the Philippines and Secretary of the Interior.

"It is also true that the said nine defendants, by means of said libel, and other like false statements in their said newspaper, have been deliberately trying to destroy the confidence of the public in the plaintiff and to incite the people to place obstacles in his way in the performance of his official duties, in consequence of which the plaintiff has met with many difficulties which have greatly increased his labors as a public official.

"It further appears from the evidence that not only has an effort been made by these nine defendants to give as much publicity as possible to the charges, but in order that said defamation should attract the attention of the public, they published the same under a heading in large, bold and showy type, so that it might be easily seen and read by all the subscribers and readers of said paper.

"In full view of all the evidence, therefore, it is clearly seen that every essential allegation of the complaint is true substantially as therein claimed, and that the whole of the said editorial relating to the misconduct and bad character of the plaintiff is false and without the slightest foundation in fact. Not a scintilla of evidence was introduced in support of any injurious charge made therein against the plaintiff, to say nothing of the plaintiff's evidence that each and every charge of malfeasance therein contained is false, and without reference to whether a failure to plead the truth admits the falsity of the charge.

"The evidence shows no 'special' or 'actual pecuniary damage,' and none is alleged in the complaint. Two other kinds of damages, however, are claimed, to wit, general damages for injuries to the feelings and reputation of the plaintiff and additional work to which he has been put by the conduct of the defendants, which are laid in the sum of P50,000, and 'punitive,' exemplary, or vindictive damages, 'as a warning to the defendants,' or as expressed in Act 277 of the Philippine Commission, 'as a just punishment to the libelers and an example to others,' which are laid in the same sum of P50,000.

8

"The nine defendants being liable to the plaintiff for damages, the next question to be decided is what amount of damages should be awarded the plaintiff for the injury to his reputation and feelings and this being a proper case for punitive damages, the further question is, what sum shall be awarded as a just punishment to these nine libelers and as an example to others. In neither of these cases is there any precise measure of damages.

"In determining the amount to be awarded in the first instance it is proper to consider the previous character, influence, reputation, standing, official position, hope of advancement, prospect of promotion, and social status of the plaintiff and his family, and all the circumstances connected with the case.

"The plaintiff is a man in the prime of life, holding, as he has held for the last ten years an important, responsible, lucrative, high and exalted position of trust and honor in the service of the Government of the United States, in the Philippine Islands, without a blotch on his family escutcheon, so far as the evidence shows, and with an untarnished reputation as a man, as a citizen, and as a Government official.

"He is a man of honesty, integrity, and high social position; a man of learning, famous as a scientist, and scientific achievements and scholarly attainments, a man of industrious habits, genuine worth, and intellectual force. He has read, studied, traveled, and learned much, and is an author of merit and distinction. He was for a long while a professor in one of the largest and most renowned institutions of learning in the world; he is a man of vast experience, broad and liberal views, and an extensive acquaintanceship, not only in the Philippine Islands, but in the United States and other countries of the world. He was well and favorably received by the people wherever he journeyed previous to this atrocious libel upon his integrity and reputation.

"He has discharged the duties of his lofty official position in a manner that reflects credit upon himself as well as the Government which he represents, and apparently with entire satisfaction to all of his superiors in office and the people generally; and but for this pernicious, outrageous, and highly reprehensible assault upon his good name, fame and reputation, there were prospects of promotion to higher honors. And so far as his personal and private record is concerned it was without a blemish anterior to the time when these unfounded and dastardly aspersions were cast upon it by these nine defendants.

"Indeed, it is only necessary to advert to the testimony of the defense itself to ascertain that the plaintiff is an honorable man, and without a stain upon his character, officially or otherwise. It would be interesting to note here in parallel columns and compare the charges made in 'Birds of Prey' and the testimony of one of the witnesses for the defendants.

"Felipe Buencamino, an intelligent witness for the defense, in his testimony (p. 240) when asked the question, 'Do you know Mr. Worcester?' he answers. 'Yes, sir; I know him as an honorable man. I also know him as an honest, honorable public official.' In answer to another question he says, 'As I have said, I know Mr. Worcester as a private citizen and as a public official, and my opinion of him is that of an honorable man and an upright official.' And no other witness testified anything to the contrary.

"'A good name is rather to be chosen than great riches and loving favor rather than silver or gold.'

"'Who steals my purse steals trash;

xxx xxx xxx

But he that filches from me my good name,

Robs me of that which not enriches him

And makes me poor indeed.'

"The enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property. It is one of those rights necessary to human society that underlie the whole scheme of human civilization.

"'The respect and esteem of his fellows are among the highest rewards of a well-spent life vouchsafed to man in this existence. The hope of it is the inspiration of youth, and their possession the solace of later years. A man of affairs, a business man, who has been seen and known of his fellowmen in the active pursuits of life for many years, and who has developed a great character and an unblemished reputation, has secured a possession more useful, and more valuable than lands, or houses, or silver, or gold . . .

" 'The law recognizes the value of such a reputation, and constantly strives to give redress for its injury. It imposes upon him who attacks it by slanderous words, or libelous publication, a liability to make full compensation for the damage to the reputation, for the shame and obloquy, and for the injury to the feelings of the owner, which are caused by the publication of the slander or the libel.

"'It goes further. If the words are spoken, or the publication is made, with the intent to injure the victim, or with criminal indifference to civil obligation, it imposes such damages as a jury (in this case the judge), in view of all the circumstances of the particular case adjudge that the wrongdoer ought to pay as an example to the public, to deter others from committing like offenses, and as a punishment for the infliction of the injury.

"'In the ordinary acceptance of the term, malice signifies ill will, evil intent, or hatred, while its legal signification is defined to be "a wrongful act done intentionally, without legal justification.' (36 C. C. A., 475.)

"Surely in the case at bar there was a wrongful or tortious act done intentionally and without the semblance of justification or excuse, or proof that the libelous charges against the plaintiff were 'published with good motives and for justifiable ends.'

"But the Legislature and the highest judicial authority of these Islands have spoken in no uncertain words with regard to the rights of the plaintiff in this case; and we need not necessarily turn to the law of libel elsewhere, or the decisions of the courts in other jurisdictions to ascertain or determine his rights.

"In sections 1, 2, 3, 4, 6, and 11 of the Libel Law (Act 277, Philippine Commission) is to be found the law of these Islands especially applicable to this case. Section 1 thereof defines libel. Section 2 provides that every person who willfully and with a malicious intent to injure another publishes, or procures to be published, any libel shall be punished as therein provided. Section 3 provides that an injurious publication is presumed to have been malicious if no justifiable motive for making it is shown. Section 4 provides, among other things, that in all criminal prosecutions the truth may be given in evidence; but to establish this defense, not only must the truth of the matter charged as libelous be proven, but also that it was published with good motives and for justifiable ends; and the presumptions, rules of evidence, and special defenses are equally applicable in civil and criminal actions, according to section 11: of said Act.

"Section 6 is as follows:

"'Every author, editor, or proprietor of any book, newspaper, or serial publication is chargeable with the publication of any words contained in any part of such book or number of each newspaper or serial as fully as if he were the author of the same.'

"And section 11 provides as follows:

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"'In addition to such criminal action, any person libeled as hereinbefore set forth shall have a right to a civil action against the person libeling him for damages sustained by reason of such libel, and the person so libeled shall be entitled to recover in such civil action not only the actual pecuniary damages sustained by him, but also damages for injury to his feelings and reputation, and in addition such punitive damages as the court may think will be a just punishment to the libeler and an example to others. Suit may be brought in any Court of First Instance having jurisdiction of the parties. The presumptions, rules or evidence and special defenses provided for in this chapter for criminal prosecutions shall be equally applicable in civil actions under this section.'

"'The proprietor of a printing plant is responsible for publishing a libel. According to the legal doctrines and jurisprudence of the United States, the printer of a publication containing libelous matter is liable for the same. (Mr. Justice Torres, in U.S. vs. Ortiz, 8 Phil. Rep., 757.) But said section 6 plainly fixes the liability of editors and proprietors of newspapers, and is clear enough for all the purposes of this ease.

"Mr. Justice Carson (5 Phil. Rep., 155 1 ), speaking for our Supreme Court, says:

"'When there is an averment in the complaint that the defamatory words used refer to the plaintiff, and it is proven that the words do in fact refer to him and are capable of bearing such special application, an action for libel may be maintained even though the defamatory publication does not refer to the plaintiff by name.'

"And Mr. Justice Willard (12 Phil. Rep., 428 ), for the same high authority, says:

"'In an action for libel damages for injury to feeling and reputation may be recovered though no actual pecuniary damages are proven.

"'Punitive damages can not be recovered unless the tort is aggravated by evil motive, actual malice, deliberate violence or oppression.'

"That is to say, if there is evil motive, or actual malice, or deliberate violence, or oppression then punitive damages, or 'smart money,' may be recovered.

"And Justice Carson (U.S. vs. Sedano, 14 Phil. Rep., 338), also says:

"'Actual or express malice of an alleged libelous publication may be inferred from the style and tone of the publication.

"'The publication of falsehood and calumny against public officers or candidates for public office is specially reprehensible and is an offense most dangerous to the people and to the public welfare.

"'The interests of society require that immunity should be granted to the discussion of public affairs, and that all acts and matters of a public nature may be freely published with fitting comments and strictures; but they do not require that the right to criticize public officers shall embrace the right to base such criticism upon false statements of fact, or to attack the private character of the officer, or to falsely impute to him malfeasance or misconduct in office.'

"And there are almost numberless English and American authorities in perfect harmony with these decisions of our Supreme Court too numerous indeed to be cited here; and it is not necessary.

"Among the leading cases, however, in the United States, is that of Scott vs. Donald (165 U.S., 58) and cases therein cited. In this case the court says: 'Damages have been defined to be the compensation which law will allow for an injury done, and are said to be exemplary and allowable in excess of the actual loss when the tort is aggravated by evil motive, actual malice, deliberate violence or oppression,' which is in entire harmony with Justice Willard's decision hereinbefore cited.

"And quoting from the decision in Day vs. Woodworth (13 Howard, 371) the same high court says:

"'In actions of trespass, where the injury has been wanton and malicious, or gross or outrageous, courts permit juries (here the court) to add to the measured compensation of the plaintiff which he would have been entitled to recover, had the injury been inflicted without design or intention, something further by way of punishment or example, which has sometimes been called "smart money." ' "It thus clearly appears that the facts established in the case at bar are more than sufficient to bring it within the rule of law here laid down by the highest judicial authority.

"Section 11 of the Libel Law expressly allows general damages; and Mr. Justice Willard, in Macleod vs. Philippine Publishing Company, says:

"'The general damages which are allowed in actions of libel are not for mental suffering alone, but they are allowed for injury to the standing and reputation of the person libeled, and the common law of England and America presumed that such damages existed without proof thereof from the mere fact of publication of the libel.'

"In Day vs. Woodworth, the Supreme Court of the United States recognized the power of a jury in certain actions in tort to assess against the tort feasor punitive damages. Where the injury has been inflicted maliciously or wantonly, and with circumstances of contumely, or indignity, the judge or jury, as the case may be, is not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person.

"'The public position of the plaintiff, as an officer of the Government, and the evil example of libels, are considerations with the jury (here the judge) for increasing damages.' (Tillotson vs. Cheetham, 3 Johns, 56.)

"'The character, condition, and influence of the plaintiff are relevant on the matter of the extent of damages.' (Littlejohn vs. Greely, 22 How. Prac., 345; 13 Abb. Prac., 41, 311.)

"'Where a publication is libelous, the law presumes that it was made with malice — technical, legal malice, but not malice in fact — and the amount of damages depends in a large degree upon the motives which actuated the defendants in its publication; and in such cases the law leaves it to the jury (here the judge) to find and return such damages as they think right and just, by a sound, temperate, deliberate and reasonable exercise of their functions as jurymen.' (Erber vs. Dun, (G. C.) 12 Fed., 526.)

"'Actions of libel, so far as they involve questions of exemplary damages, and the law of principal and agent; are controlled by the same rules as are other actions of tort. The right of a plaintiff to recover exemplary damages exists wherever a tortious injury has been inflicted recklessly or wantonly, and it is not limited to cases where the injury resulted from personal malice or recklessness of the defendant. It follows that the owner of a newspaper is as responsible for all the acts of omission and commission of those he employs to edit it and manage its affairs, as he would be if personally managing the same.' (Malloy vs. Bennett, (C. C.) 15 Fed., 371.)

"'The fact that a publication, libelous per se, was made without any attempt to ascertain its correctness is sufficient to justify a finding that defendant committed libel with a wanton indifference, and with actual malice sufficient to sustain exemplary damages.' (Van Ingen vs. Star Co., 1 App. Div., 429, 37 N. Y., 114.)

"'The court is not authorized to set aside a verdict for $45,000 in an action for libel, where it appears that plaintiff was persistently persecuted in the columns of

10

defendant's newspaper, and that he and his family were held up to public contempt and ridicule, and defendants withdraw from the case after failing to establish a plea of justification.' (Smith vs. Times Co., (Com. p. 1) 4 Pa. Dist. Rep., 399. )

"'In considering the amount which the defendant shall pay, on this account (exemplary damages) the turpitude of his conduct and his financial ability are only considered; and such consideration is not in view of the injury or distress of the plaintiff, but in behalf of the public; the wrongful act is regarded as an indication of the actor's vicious mind — an overt deed of vindictive or wanton wrong, offensive and dangerous to the public good. This is the view of those damages which generally prevails.' (Sutherland on Damages, vol. 2, p. 1092, title Exemplary Damages.)

"'Punitive damages are recoverable not to compensate the plaintiff, but solely to punish the defendant. This legal motive would suffer defeat if punitive damages could not be given for a malicious attack on a reputation too well established to receive substantial injury at the hands of a libeler.' (Judge Bond in Fergusonvs. Pub. Co., 72 Mo. App., 462.)

"It may be suggested that the reputation of the plaintiff in this case is too well established to be seriously affected by the defamatory words used of and concerning him in 'Birds of Prey,' but it would not be proper to gravely consider this suggestion.

"The conditions in these Islands are peculiar. The minds, thoughts, and opinions of the people are easily molded, and the public is credulous and perhaps frequently too ready to believe anything that may be said in derogation of an American official, especially so when it is published and vouched for by the editorial and business management and proprietors of a newspaper of the prominence, pretensions, circulation, and influence of 'El Renacimiento,' which paper is everlastingly proclaiming in its columns that it is being conducted and published solely in the interests of the Filipino people —  pro   bono publico. There is stronger disposition to give credence to what is said in a newspaper here in the Islands than elsewhere, and when abuse, vilification, and defamation are persistently practiced for a period of several years, without modification or retraction, but with renewed emphasis, the people naturally come to believe in its verity and authenticity.

"It is apparent from the evidence that as an effect of the persecution of the plaintiff by 'El Renacimiento' and the libel published in its columns, the minds of the major part of the Filipino people have been poisoned and prejudiced against the plaintiff to such an extent that he is regarded by these people as odious, dishonest, unscrupulous and tyrannical.

"It may be that his reputation has not suffered so severely with those of his own race, but when it is considered that his vocation has tenfold more to do with the Filipinos than with his own people, that his official duties place him in constant contact with them, and that his success in his chosen career is largely dependent upon their good will and support, it is manifest that the damage to his reputation has been very great and that a large sum of money should be awarded to indemnify him, as far as money can indemnify, for the loss of his good name with the Filipino people.

"The plaintiff came to the Philippine Islands when a young man, full of hope and ambition. Since his arrival he has devoted himself incessantly and indefatigably to the uplifting of the inhabitants of the Archipelago and to the faithful performance, as far as he was able, of the pledges and promises of the Government to the Filipino people. The duties of his particular office were such as brought him in more immediate and constant contact with the people than any other official of the same category in these Islands.

"It is clearly shown that the plaintiff faithfully endeavored to perform, and did efficiently perform, all of these duties, doing everything that he could in an unselfish and disinterested manner for the welfare and development of the country and its people,

knowing full well that his career, as well as his advancement, depended largely upon the good will of these people, and that by incurring their censure or displeasure he would have little hope of success in his chosen work.

"Imagine, therefore, the chagrin, disappointment, mortification, mental suffering, and distress, and perturbation of spirit that would necessarily be occasioned him when he discovered that through the nefarious, studied, and practiced persecution of the paper in question, these high hopes were blasted, and that, instead of having gained the respect and gratitude of the people for the assiduous labors devoted to their uplifting, they had been made to believe that, instead of being a benefactor, he was a vampire that was sucking their life blood, a corrupt politician who was squandering the money wrung from the people by means of taxation, in schemes for his own personal aggrandizement and enrichment.

"That instead of developing the mineral wealth of the Islands he was taking up all the rich veins and appropriating them in the names of subservient tools, to his own personal use, benefit and profit. That instead of protecting the people from disease, he was, by means of infected meat and for his own personal gain, spreading contagion among them.

"That he united in his person all the bad qualities of the vulture, the eagle, and the vampire; that, in short, he was a 'bird of prey,' with all that is implied in that term in its worst acceptation; that he was a corrupt tyrant, who never lost an opportunity to do the people hurt; that instead of wishing them well and seeking their advancement, he was their enemy, who never lost an opportunity to degrade and humiliate them; that instead of preferring them for office and ,positions of official trust, he treated them with all sorts of contempt and indifference.

"It is difficult to appreciate the feelings of a refined soul in its contemplation of a result so disastrous, so unjust, and so unmerited.

"It is furthermore shown that when the plaintiff came to these Islands a young scientist he had already won fame in his own country; that he is a fellow of the important scientific associations of the world. His election as a fellow or member of these scientific bodies shows that his labors in the Philippines were the object of solicitude by the prominent scientific and learned men not only of his own race, but in many other civilized countries of the world. Important results were evidently expected of him by them, and it can not be doubted that they expected of him a life honestly devoted to the conscientious discharge of his duties as a trusted public functionary of the American Government in the Philippine Islands.

"And yet he is falsely denounced in the columns of said newspaper to his fellows of these societies as a man who is so absolutely corrupt, so inordinately selfish and avaricious that he has not considered for a moment the duties incumbent upon him; that he has been oblivious to every obligation of trust and confidence, and that he is unworthy of the respect of honest men.

"One witness testified that he read this libel in the public library of the city of Boston. It is furthermore shown that copies of this paper went to Spain, England, and to different parts of the United States; and inasmuch as the plaintiff is a man of prominence in the scientific world, it is to be inferred that his fellows became more or less aware of these heinous charges.

"Thus we find that the plaintiff is here confronted with disappointed ambition and frustrated hopes, and placed in the humiliating attitude of having to explain to his fellows that the charges are untrue, of adducing evidence to clear himself, perhaps never with complete success, of the stain that has been cast upon his reputation by the libelous and defamatory declarations contained in 'Birds of Prey.'

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"In view of the foregoing findings of fact and circumstances of the case and the law applicable thereto,

"It is the opinion of the court, and the court so finds, that the plaintiff has sustained damages on account of wounded feelings and mental suffering and injuries to his standing and reputation in the sum of thirty-five thousand (P35,000) pesos, and that he is entitled to recover this sum of the nine defendants named, as being responsible for having written, printed, and published said libel; and that the plaintiff is entitled to recover of them the further sum of twenty-five thousand (P25,000) pesos, as punitive damages, which the court thinks will be a just punishment to these nine libelers and an example to others.

"Wherefore, it is ordered and adjudged that the plaintiff, Dean C. Worcester, have and recover of the defendants, Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, jointly and severally, the sum of sixty thousand (P60,000) pesos, and the costs of suit, for which execution may issue.

"It is ordered. At Manila, P. I., this 14th day of January, 1910."

From said decision the defendants appealed and made the following assignments of error in this court:

"I.

"The court erred in overruling our motions for suspension of this case, in its present state, until final judgment should be rendered in criminal cause No. 4295 of the Court of First Instance of Manila, pending appeal in the Honorable Supreme Court, for libel based also on the editorial, 'Birds of Prey.'

"II.

"The court erred in admitting as evidence mere opinion adduced by counsel for the plaintiff with the intention of demonstrating to whom the editorial, alleged to be libelous, refers.

"III.

"The court erred in giving greater preponderance to the opinions of the witnesses for the plaintiff than to the expert testimony of the defense.

"IV.

"The court erred in declaring the editorial on which the complaint is based to be libelous per se and to refer necessarily to the plaintiff, Dean C. Worcester.

V

"The court erred in declaring the defendants Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Felipe Barretto, Gregorio M. Cansipit, and Galo Lichauco to be owners of 'El Renacimiento '

'VI.

"The court erred in not admitting Exhibits 1 and 3 presented by counsel for the defendants.

"VII.

"The court erred in rendering judgment against the defendants.

"VIII.

"The court erred in sentencing the defendants jointly 'and severally' to pay to the plaintiff, Dean C. Worcester, the sum of P60,000.

"IX.

"The court erred in not ordering that execution of the judgment be confined to the business known as 'El Renacimiento' and to the defendant Teodoro M. Kalaw, without extending to property of the alleged owners of said newspaper which was not invested therein by them at its establishment.

"X

"The court erred in granting damages to the plaintiff by virtue of the judgment rendered against the defendants.

"XI.

"The court, finally, erred in granting to the plaintiff punitive damages against the alleged owners of 'El Renacimiento,' admitting the hypothesis that said editorial is libelous per se and refers to the Honorable Dean C. Worcester."

The theory of the defendants, under the first assignment of error, is that the civil action could not proceed until the termination of the criminal action, relying upon the provisions of the Penal Code in support of such theory. This court, however, has decided in the case of Ocampo et al. vs. Jenkins (14 Phil. Rep., 681) that a judgment in a criminal prosecution for libel, under the provisions of Act 277 of the Civil Commission, constitutes no bar or estoppel in a civil action based upon the same acts or transactions. The reason most often given for this doctrine is that the two proceedings are not between the same parties. Different rules as to the competency of witnesses and the weight of evidence necessary to the findings in the two proceedings always exist. As between civil and criminal actions under said Act (No. 277) a judgment in one is no bar or estoppel to the prosecution of the other. A judgment in a criminal cause, under said Act, can not be pleaded as res  adjudicata in a civil action. (Stone vs. U.S., 167 U.S., 178; Boyd vs. U.S., 116 U.S., 616, 634; Lee vs. U.S., 150 U.S., 476, 480; U.S. vs. Jaedicke, 73 Fed. Rep., 100; U.S. vs. Schneider, 35 Fed. Rep., 107; Chamberlain vs. Pierson, 87 Fed. Rep., 420; Steel vs. Cazeaux, 8 Martin (La.), 318, 13 American Decisions, 288; Betts vs. New Hartford, 25 Conn., 185.)

In a criminal action for libel the State must prove its case by evidence which shows the guilt of the defendant, beyond a reasonable doubt, while in a civil action it is sufficient for the plaintiff to sustain his cause by a preponderance of evidence only. (Ocampo vs. Jenkins (supra); Reilly vs. Norton, 65 Iowa, 306; Sloane vs. Gilbert, 27 American Decisions, 708; Cooley on Torts, sec. 208; Greenleaf on Evidence, 426; Wigmore on Evidence, secs. 2497,2498.)

With reference to the second assignment of error above noted, we find that this court has already decided the question raised thereby, in the case of U.S. vs.Ocampo et al. (18 Phil. Rep., 1).

During the trial of the cause the plaintiff called several witnesses for the purpose of showing that the statements made in said alleged libelous editorial were intended to apply to the Honorable Dean C. Worcester, Secretary of the Interior. The defendants duly objected to these questions and excepted to the ruling of the court admitting them.

In the case of Russell vs. Kelley (44 Cal., 641, 642) the same question was raised and the court, in its decision, said:

"The rule laid down in 2 Stockey on Slander (p. 51) is that the application of the slanderous words to the plaintiff and the extrinsic matters alleged in the declaration may be shown by the testimony of witnesses who knew the parties and circumstances and who can state their judgment and opinion upon the application and meaning of the terms used by the defendant: It is said that where the words are ambiguous on the face of the libel, to whom it was intended to be applied, the judgment and opinion of witnesses, who from their

12

knowledge of the parties and circumstances are able to form a conclusion as to the defendant's intention and application of the libel is evidence for the information of the jury."

Mr. Odgers, in his work on Libel and Slander (p. 567), says:

"The plaintiff may also call at the trial his friends or others acquainted with the circumstances, to state that, in reading the libel, they at once concluded it was aimed at the plaintiff. It is not necessary that all the world should understand the libel. It is sufficient if those who know the plaintiff can make out that he is the person meant." (See also Falkard's Stockey on Libel and Slander, 4th English edition, 589.)

The correctness of this rule is not only established by the weight of authority but is supported by every consideration of justice and sound policy. The lower court committed no error in admitting the opinion of witnesses offered during the trial of the cause. One's reputation is the sum or composite of the impressions spontaneously made by him from time to time, and in one way or another, upon his neighbors and acquaintances. The effect of a libelous publication upon the understanding of such persons, involving necessarily the identity of the person libeled is of the very essence of the wrong. The issue in a libel case concerns not only the sense of the publication, but, in a measure its effect upon a reader acquainted with the person referred to. The correctness of the opinion of the witnesses as to the identity of the person meant in the libelous publication may always be tested by cross-examination. (Enquirer Co. vs. Johnston, 72 Fed. Rep., 443; 2nd Greenleaf on Evidence, 417; Nelson vs. Barchenius, 52 Ill., 236; Smith vs. Miles, 15 Vt., 245; Miller vs. Butler, 6 Cushing (Mass.), 71.)

It is true that some of the courts have established a different rule. We think, however, that a large preponderance of the decisions of the supreme courts of the different States is in favor of the doctrine which we have announced here.

We are of the opinion that assignments of error Nos. 3, 4, and 7 may fairly be considered together, the question being whether or not the evidence adduced during the trial of the cause in the lower court shows, by a preponderance of the evidence, that the said editorial was libelous in its character. Here again we find that this question has been passed upon by this court in the case of U.S. vs. Ocampo et al. (18 Phil. Rep., 1), and we deem it unnecessary to discuss this question again, for the reason that the evidence adduced in the present cause was practically the same, or at least to the same effect, as the evidence adduced in the cause of U.S. vs. Ocampo et al. It is sufficient here to say that the evidence adjudged during the trial of the present cause shows, by a large preponderance of the evidence, that said editorial was one of the most pernicious and malicious libels upon a just, upright and honorable official, which the courts have ever been called upon to consider. There is not a scintilla of evidence in the entire record, notwithstanding the fact that the defendants from time to time attempted to make a show of proving the truthfulness of the statements made in said editorial, which  in  any  way  reflects  upon  the character  and  high  ideals  of  Mr.  Dean C.  Worcester,   in   the administration of his department of the Government.

With reference to the fifth assignment of error, to wit: That the court erred in holding that the defendants, Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Felipe Barretto, Gregorio M. Cansipit, and Galo Lichauco, were the proprietors of "El Renacimiento," the lower court said:

"Much time was consumed also in adducing evidence to show that none of the twelve defendants were the owners of 'El Renacimiento' and 'Muling Pagsilang,' but that six of them had originally contributed their money as a patriotic donation to the Filipino people, and that Martin Ocampo simply held the money and property of the paper as trustee for this people, and that the paper was being devoted exclusively to philanthropic and patriotic ends, and that Galo Lichauco had agreed to contribute to the same ends but had not done so.

"This proposition," said the lower court, "in the light of the evidence, is so preposterous as to entitle it to little, if any, serious consideration. To ask the court to believe it is tantamount to asking the court to stultify reason and common sense. That those seven defendants named contributed their respective sums of money, as shown by the evidence, to the foundation of said newspaper in 1901, for their own personal benefit and profit, is fully and unmistakably established. It is equally well established that Martin Ocampo is and was, not only a part owner, but that he has been and is still the administrator or business manager of said newspaper, and that the other six persons named are shareholders, part owners and proprietors thereof and were such on the said 30th of October, 1908."

Examining the evidence adduced during the cause in the lower court, we find, sometime before the commencement of the present action and before any question was raised with reference to who were the owners of the said newspaper, that the defendant, Arcadio Arellano, in the case of United States vs. Jose Sedano (14 Phil. Rep., 338), testified upon that question as follows:

Q. "Who are the proprietors of 'El Renacimiento'?" — A. "I, Martin Ocampo, Gregorio Mariano (Cansipit), Mr. Barreto, and Galo Lichauco."

Q. "Who else?" — A. "No one else."

Q. "And Rafael Palma — is it not so?" — A. "No, sir; Manuel Palma, the brother of Rafael Palma."

During the trial of the present cause, Arcadio Arellano testified that his declarations in the other cause were true.

It also appears from the record (Exhibit B-J) that in the month of November, 1907, long before the commencement of the present action, "El Renacimiento," in reply to an article which was published in "El Comercio," published the following statement:

"They (it) say (s) that this enterprise" (evidently meaning the publication of "El Renacimiento") "is sustained by Federal money; that we are inspired by Federal personages. We declare that this, besides being false, is calumnious. The   shareholders   of   this company are persons well known by the public, and never at any moment of their lives have they acted with masks on — those masks for which 'El Comercio' seems to have so great an affection. They are, as the public knows: Señores Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio Cansipit."

Arcadio Arellano also testified during the trial of the present cause that he contributed P750 to the establishment of "El Renacimiento;" that Martin Ocampo contributed the sum of P500; that Mariano Cansipit, Felipe Barretto and Angel Jose contributed the sum of P250 or P500 each; that Galo Lichauco contributed the sum of P1,000 and that Manuel Palma contributed P3,000.

During the trial of the present cause Arcadio Arellano, Martin Ocampo, and Angel Jose testified as witnesses, relating to the ownership of the newspaper called "El Renacimiento." They testified that whatever money they gave for the purpose of establishing said newspaper, was given as a donation, and that they were neither the owners nor coowners of said periodical. The defendants, Manuel Palma, Galo Lichauco, Felipe Barretto, and Gregorio Cansipit, did not testify as witnesses during the trial of the cause in the lower court. No reason is given for their failure to appear and give testimony in their own behalf. The record does not disclose whether or not the declarations of Arcadio Arellano, in the case of U.S. vs. Sedano (14 Phil. Rep., 338) at the time they were made, were called to the attention of Manuel Palma, Galo Lichauco, Felipe Barretto, and Gregorio Cansipit, as well as the reply to "El Comercio," above noted. Proof of said declarations and publication was adduced during the trial of the cause in the present case, and the attorney of these particular defendants well knew the purpose and effect of such evidence, if not disputed; but, notwithstanding the fact that said declarations and publication were presented in evidence, and notwithstanding the fact that the attorney for the defendants knew of the purpose of such proof, the defendants, Palma, Lichauco, Barretto, and Cansipit, were not called as witnesses for the purpose of

13

rebutting the same. It is a well settled rule of evidence, that when the circumstances in proof tend to fix the liability on a party who has it in his power to offer evidence of all the facts as they existed and rebut the inferences which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting would support the inferences   against   him,   and   the   court   is   justified   in   acting   upon   that   conclusion. (Railway Company vs. Ellis, C. C. A. Reports, vol. 4, p. 454; Commonwealth vs. Webster, 5 Cush. ( Mass. ), 295; People vs. McWhorter 4 Barb. (N. Y.), 438.)

Lord Mansfield, in the case of Blatch vs. Archer (Cowper, 63, 65) said:

"It is certainly a maxim that all the evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted."

Mr. Starkey, in his valuable work on evidence (vol. 1, p. 64), lays down the rule that:

"The conduct of a party in omitting to produce evidence in elucidation of the subject matter in dispute, which is within his power and which rests peculiarly within his own knowledge, frequently offers occasion for presumptions against him, since it raises the strong suspicion that such evidence, if adduced, would operate to his prejudice." (Pacific Coast et al. Co. vs. Bancroft-Whitney Co., 36 C. C. A. Reports, 136, 153.)

At the time of the said declarations of Arcadio Arellano in the case of Sedano and at the time of the said publication in reply to "El Comercio," there was no reason for stating anything except the truth: neither   does   there   seem   to   have   been   any   reason   for   publishing   the   fact   that   the defendants were the owners of "El Renacimiento" unless it was true.

At that time there seemed to be no reason to have it appear that they were donors and public benefactors only. They seemed to be proud of the fact that they were the owners. The editors, publishers, and managers of "El Renacimiento," at the time the reply to "El Comercio" was published, seemed to be anxious to announce to the public who its owners were. It ( "El Renacimiento" ) had not then realized that it belonged to no one; that it had been born into the community without parentage ;.that it had been created a terrible machine for the purpose of destroying the good character and reputation of men without having any one to respond for its malicious damage occasioned to honorable men; that it was a cast-off, without a past or the hope of a future; that it was liable to be kicked and buffetted about and persecuted and destroyed without any one to protect it; that its former friends and creators had scattered hither and thither and had disappeared like feathers before a cyclone, declaring, under oath, that they did not know their offspring and were not willing to recognize it in public. It seems to have been a Moses found in the bulrushes, destined by its creators to be a great good among the Filipino people, in teaching them to respect the rights of persons and property; but, unlike its Biblical prototype, it became, by reason of its lack of parentage, an engine of destruction let loose in the State, to enter the private abode of law abiding citizens and to take from them their honor and reputation, which neither it nor the State could restore. To rob a man of his wealth is to rob him of trash, but to take from him his good name and reputation is to rob him of that which does not make the robber richer and leaves the person robbed poor indeed.

The appellants tried to make it appear that the money which they gave for the establishment of "El Renacimiento" was a pure donation. They claim that it was a donation to the Filipino people. They do not state, however, or attempt to show what particular persons were to manage, control, and direct the enterprise for which the donation was made. A donation must be made to definite persons or associations. A donation to an indefinite person or association is an anomaly in law, and we do not believe, in view of all of the facts, that it was in fact made. A donation must be made to some definite person or association and the donee must be some ascertained or ascertainable person or association.

A donation may be made for the benefit of the public, but it must be made, in the very nature of things, to some definite person or association. A donation made to no person or

association could not be regarded as a donation in law. It could not be more than an abandonment of property. Of course where a donation is in fact made, without reservation to a particular person or association, the donor is no longer the owner of the thing donated nor responsible, in any way, for its use, provided that the object, for which the donation was made, was legal. A person does not become an owner or part owner of a church, for example, to the construction of which he has made a donation; neither is he responsible for the use to which said edifice may be applied. No one disputes the fact that donations may be made for the public use, but they must be made to definite persons or associations, to be administered in accordance with the purpose of the gift.

We can not believe, in the light of the whole record, that the defendants and appellants, at   the   time   they   presented   the   defense   that   they  were   donors   simply   and   not   owners,   had   a reasonable hope that their declarations as to said donation, given in the manner alleged, would be believed by the court.

After a careful examination of the evidence brought to this court and taking into consideration the failure of the other defendants to testify, we are of the opinion that a preponderance of such evidence shows that the defendants, Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, were the coowners of the newspaper known as "El Renacimiento," at the time of the publication of the said alleged libel.

With reference to the sixth assignment of error above noted, to wit: That the lower court committed an error in not admitting in evidence the judgment of acquittal of the defendant, Lope K. Santos, rendered in the criminal cause, we are of the opinion that the refusal to admit said evidence in the civil cause was not error. The fact that the evidence in the criminal cause was insufficient to show that Lope K. Santos was guilty of the crime charged, in no way barred the right of the person injured by said alleged libel to maintain the present civil action against him. (Ocampo vs. Jenkins, 14 Phil. Rep., 681.) The criminal action had to be sustained by evidence showing the culpability of the defendant beyond a reasonable doubt, while in the civil action it is sufficient to show that the defendants injured the plaintiff by the alleged libelous publication, by a preponderance of the evidence only. (Greenleaf on Evidence, sec. 426; Cooley on Torts, 208; Reilley  vs. Norton, 65 Iowa, 306; Sloane vs. Gilbert, 23 Am. Dec., 708.)

In the case of Steel vs. Cazeaux (8 Martin, La., 318; 13 American Decisions, 288), the supreme court of Louisiana said:

"A judgment of conviction in a criminal prosecution can not be given in evidence in a civil action."

In the case of Betts et al. vs. New Hartford (25 Conn 180) Mr. Justice Ellsworth said (in a case where a judgment in a criminal case was offered in evidence):

"A conviction in a criminal case is not evidence of facts upon which judgment was rendered, when those facts come up in a civil case, for this evidence would not be material; and so the law is perfectly well settled. (1 Greenleaf on Evidence, secs. 536, 524; 1 Phillips on Evidence, 231; Hutchinson vs. Bank of Wheeling, 41 Pa. St., 42; Beausolei; vs. Brown, 12 La. Ann., 543; McDonald vs. Stark, 176 Ill., 456, 468.)"

While we believe that the lower court committed no error in refusing to admit the sentence acquitting Lope K. Santos in the criminal case, we are of the opinion, after a careful examination of the record brought to this court, that it is insufficient to show that Lope K. Santos was responsible, in any way, for the publication of the alleged libel, and without discussing the question whether or not the so-called Tagalog edition of "El Renacimiento" and "El Renacimiento" constituted one and the same newspaper, we find that the evidence is insufficient to show that Lope K. Santos is responsible in damages, in any way, for the publication of the said alleged libel.

14

The appellants discussed the eighth and ninth assignments of error together, and claim that the lower court committed an error in rendering a judgment jointly andseverally against the defendants and in allowing an execution against the individual property of said owners, and cite provisions of the Civil and Commercial Codes in support of their contention. The difficulty in the contention of the appellants is that they fail to recognize that the basis of the present action is a tort. They fail to recognize the universal doctrine that each joint tort feasor is not only individually liable for the tort in which he participates, but is also jointly liable with his tort feasors. The defendants might have been sued separately for the commission of the tort. They might have been sued jointly and severally, as they were. (Nicoll vs. Glennie, 1 M. & S. (English Common Law Reports), 588.) If several persons jointly commit a tort, the plaintiff or person injured, has his election to sue all or some of the parties jointly, or one of them separately, because the tort is in its nature a separate act of each individual. (1 Chiddey, Common Law Pleadings, 86.) It is not necessary that the cooperation should be a direct, corporeal act, for, to give an example, in a case of assault and battery committed by various persons, under the common law all are principals. So also is the person who counsels, aids or assists in any way the commission of a wrong. Under the common law, he who aided or assisted or counseled, in any way, the commission of a crime, was as much a principal as he who inflicted or committed the actual tort. (Page vs. Freeman, 19 Mo., 421.)

It may be stated as a general rule, that joint tort feasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit. They are each liable as principals, to the same extent and in the same manner as if they had performed the wrongful act themselves. (Cooley on Torts. 133; Moir vs. Hopkins, 16 Ill., 313 (63 Am. Dec., 312 and note); Berry vs. Fletch, 1st Dill., 67; Smithwick vs. Ward, 7 Jones L. 64; Smith vs. Felt, 50 Barb. (N. Y.), 612; Shepard vs. McQuilkin, 2 W. Va., 90; Lewis vs. Johns, 34 Cal., 269.)

Joint tort feasors are jointly and severally liable for the tort which they commit. The person injured may sue all of them, or any number less than all. Each is liable for the whole damage caused by all, and all together are jointly liable for the whole damage. It is no defense for one sued alone, that the others who participated in the wrongful act are not joined with him as defendants; nor is it any excuse for him that his participation in the tort was insignificant as compared with that of the others. (Forebrother vs. Ansley, 1 Campbell (English Reports), 343; Pitcher vs. Bailey, 8 East, 171; Booth vs. Hodgson, 6 Term Reports, 405; Vose vs. Grant, 15 Mass., 505; Achesonvs. Miller, 18 Ohio, 1; Wallace vs. Miller, 15 La. Ann., 449; Murphy vs. Wilson, 44 Mo., 313; Bishop vs. Ealey, 9 Johnson (N. Y.), 294.)

Joint tort feasors are not liable pro rata. The damages can not be apportioned among them, except among themselves. They can not insist upon an apportionment, for the purpose of each paying an aliquot part. They are jointly and severally liable for the full amount. (Pardrige vs. Brady, 7 Ill. App., 639; Carney vs. Read, 11 Ind., 417; Leevs. Black, 27 Ark., 337; Bevins vs. McElroy, 52 Am. Dec., 258.)

A payment in full of the damage done, by one of the joint tort feasors, of course satisfies any claim which might exist against the others. There can be but one satisfaction. The release of one of the joint tort feasors by agreement, generally operates to discharge all. (Wright vs. Lathrop, 2 Ohio, 33; Livingston vs. Bishop, 1 Johnson (N. Y.), 290; Brown vs. Marsh, 7 Vt., 327; Ayer vs. Ashmead, 31 Conn., 447; Eastman vs. Grant, 34 Vt.,- 387; Turner vs. Hitchcock, 20 Iowa, 310; Ellis vs. Esson, 50 Wis., 149.)

Of course the courts during the trial may find that some of the alleged joint tort feasors are liable and that others are not liable. The courts may release some for lack of evidence while condemning others of the alleged tort feasors. And this is true even though they are charged jointly and severally. (Lansing vs. Montgomery, 2 Johnson (N. Y.), 382; Drake vs. Barrymore, 14 Johnson, 166; Owens vs. Derby, 3 Ill., 126.)

This same principle is recognized by Act 277 of the Philippine Commission. Section 6 provides that:

"Every author, editor or proprietor . . . is chargeable with the publication of any words in any part . . . or number of each newspaper, as fully as if he were the' author of the same."

In our opinion the lower court committed no error in rendering a joint and several judgment against the defendants and allowing an execution against their individual property. The provisions of the Civil and Commercial Codes cited by the defendants and appellants have no application whatever to the question presented in the present case.

The tenth assignment of error above noted relates solely to the amount of damages suffered on account of wounded feelings, mental suffering and injury to the good name and reputation of Mr. Worcester, by reason of the alleged libelous publication. The lower court found that the damages thus suffered by Mr. Worcester amounted to P35,000. This assignment of error presents a most difficult question. The amount of damages resulting from a libelous publication to a man's good name and reputation is difficult of ascertainment. It is not difficult to realize that the damage thus done is great and almost immeasurable. The specific amount of damages to be awarded must depend upon the facts in each case and the sound discretion of the court. No fixed or precise rules can be laid down governing the amount of damages in cases of libel. It is difficult to include all of the facts and conditions which enter into the measure of such damages. A man's good name and reputation are worth more to him than all the wealth which he can accumulate during a lifetime of industrious labor. To have them destroyed may be eminently of more damage to him personally than the   destruction   of   his   physical   wealth. The loss is immeasurable. No amount of money can compensate him for his loss. Notwithstanding the great loss which he, from his standpoint, sustains, the courts must have some tangible basis upon which to estimate such damages.

In discussing the element of damages in a case of libel, the Honorable James C. Jenkins, who tried the present case in the court below, correctly said that, "The enjoyment of  a  private reputation is as much a constitutional right as the possession of life, liberty or property. It is one of those rights necessary to human society, that underlie the whole scheme of human civilization. The respect and esteem of his fellows are among the highest rewards of a wellspent life vouchsafed to man in this existence. The hope of it is the inspiration of youth and its possession is a solace in later years. A man of affairs, a business man, who has been seen and known by his fellowmen in the active pursuits of life for many years, and who has developed a great character and an unblemished reputation, has secured a possession more useful and more valuable than lands or houses or silver or gold. The law recognizes the value of such a reputation and constantly strives to give redress for its injury. It imposes upon him who attacks it by slanderous words or libelous publications, the liability to make full compensation for the damage to the reputation, for the shame, obloquy and for the injury to the feelings of its owner, which are caused by the publication of the slander or libel. The law goes further. If the words are spoken or the publication is made with the intent to injure the victim or with criminal indifference to civil obligation, it imposes such damages as the jury, in view of all the circumstances of the particular case, adjudge that the wrongdoer ought to pay as an example to the public and to deter others from doing likewise, and for punishment for the infliction of the injury."

As the said above, the damages suffered by Mr. Worcester to his good name and reputation are most difficult of ascertainment. The attorney for the appellants, in his brief, lends the court but little assistance in reaching a conclusion upon this question. The appellants leave the whole question to the discretion of the court, without any argument whatever.

After a careful examination, we are of the opinion that part of the judgment of the lower court relating to the damages suffered by the Honorable Dean C. Worcester, should be modified, and that a judgment should be rendered in favor of Mr. Dean C. Worcester and against the defendants,

15

jointly and severally, for the sum of P15,000, with interest at 6 per cent from the 23d of January, 1909.

With reference to the eleventh assignment of error above noted, to wit: That the court erred in imposing punitive damages upon the defendants, we are of the opinion, after a careful examination of the evidence, and in view of all of the facts and circumstances and the malice connected with the publication of said editorial and the subsequent publications with relation to said editorial, that the lower court, by virtue of the provisions of Act No. 277 of the Philippine Commission, was justified in imposing punitive damages upon the defendants.

Section 11 of Act No. 277 allows the court, in an action for libel, to render a judgment for punitive damages, in an amount which the court may think will be a just punishment to the libeler and an example to others.

Exemplary damages in civil actions for libel may always be recovered if the defendant or defendants are actuated by malice. In the present case there was not the slightest effort on the part of the defendants to show the existence of probable cause or foundation whatever for the facts contained in said editorial. Malice, hatred, and ill will against the plaintiff are seen throughout the record. The said editorial not only attempted to paint the plaintiff as a villain, but upon every occasion, the defendants resorted to ridicule of the severest kind.

Here again we find difficulty in arriving at a conclusion relating to the damages which should be imposed upon the defendants for the purpose of punishment. Upon this question the courts must be governed in each case by the evidence, the circumstances and their sound discretion. Taking into consideration the fact that some of the defendants have been prosecuted criminally and have been sentenced, and considering that fact as a part of the punitive damages, we have arrived at the conclusion that the judgment of the lower court should be modified, and that a judgment should be rendered against the defendants, jointly and severally, and in favor of the plaintiff, the Honorable Dean C. Worcester, in the sum of P10,000, as punitive damages, with interest at 6 per cent from the 23d day of January, 1909.

Therefore, after a full consideration of all of the facts contained in the record and the errors assigned by the appellants in this court, we are of the opinion that the judgment of the lower court should be modified and that a judgment should be rendered in favor of Dean C. Worcester and against the defendants Martin Ocampo, Teodoro M. Kalaw, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, jointly and severally, for the sum of P25,000 with interest at 6 per cent from the 23d day of January, 1909, with costs, and that a judgment should be entered absolving Lope K. Santos from any liability under said complaint. So ordered.

||| (Worcester v. Ocampo, G.R. No. 5932, February 27, 1912)

[G.R. No. 9010. March 28, 1914.]16

J. H. CHAPMAN, plaintiff-appellant, vs. JAMES M. UNDERWOOD, defendant-appellee.

SYLLABUS

1. MASTER AND SERVANT; NEGLIGENCE OF AUTOMOBILE DRIVER. — The owner of an automobile, present in the vehicle, is not liable for the negligent acts of a competent driver unless such acts are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct the driver to desist therefrom, and to fail to do so.

2. ID.; ID. — If a competent driver of an automobile in which the owner thereof is at the time present, by a sudden act of negligence, without the owner having a reasonable opportunity to prevent the act or its continuance, violates the law, the owner of the automobile is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length of time that he, by acquiescence, makes his driver's act his own.

3. ID.; ID. — Quaere. Whether the owner of an automobile would be responsible for the acts of a competent driver, whether present or not, where the automobile causing the injury is a part of a business enterprise and is being driven in furtherance of the owner's business at the time the injury complained of is caused.

MORELAND, J p:

At the time the accident occurred, which is the basis of this action, there was a single-track street-car line running along Calle Herran, with occasional switches to allow cars to meet and pass each other. One of these switches was located at the scene of the accident.

The plaintiff had been visiting his friend, a man by the name of Creveling, in front of whose house the accident happened. He desired to board a certain "San Marcelino" car coming from Santa Ana and bound for Manila. Being told by Creveling that the car was approaching, he immediately, and somewhat hurriedly, passed from the gate into the street for the purpose of signaling and boarding the car. The car was a closed one, the entrance being from the front or the rear platform. Plaintiff attempted to board the front platform but, seeing that he could not reach it without extra exertion, stopped beside the car, facing toward the rear platform, and waited for it to come abreast of him in order to board. While in this position he was struck from behind and run over by the defendant's automobile.

The defendant entered Calle Herran at Calle Peñafrancia in his automobile driven by his chauffeur, a competent driver. A street car bound from Manila to Santa Ana being immediately in front of him, he followed along behind it. Just before reaching the scene of the accident the street car which he was following took the switch — that is, went off the main line to the left upon the switch lying alongside of the main track. Thereupon the defendant no longer followed that street car nor went to the left, but either kept straight ahead on the main street-car track or a bit to the right. The car which the plaintiff intended to board was on the main line and bound in an opposite direction to that in which defendant was going. When the front of the "San Marcelino" car, the one the plaintiff attempted to board, was almost in front of defendant's automobile, defendant's driver suddenly went to the right and struck and ran over the plaintiff, as above described.

The judgment of the trial court was for defendant.

A careful examination of the record leads us to the conclusion that defendant's driver was guilty of negligence in running upon and over the plaintiff. He was passing an oncoming car

upon the wrong side. The plaintiff, in coming out to board the car, was not obliged for his own protection, to observe whether a car was coming upon him from his left hand. He had only to guard against those coming from the right. He knew that, according to the law of the road, no automobile or other vehicle coming from his left should pass upon his side of the car. He needed only to watch for cars coming from his right, as they were the only ones under the law permitted to pass upon that side of the street car.

The defendant, however, is not responsible for the negligence of his driver, under the facts and circumstances of this case. As we have said in the case of Johnson vs.David (5 Phil. Rep., 663), the driver does not fall within the list of persons in article 1903 of the Civil Code for whose acts the defendant would be responsible.

Although in the David case the owner of the vehicle was not present at the time the alleged negligent acts were committed by the driver, the same rule applies where the owner is present, unless the negligence acts of the driver are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a violation of the law by the performance of negligent acts, after he has had reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible for such acts. The owner of an automobile who permits his chauffeur to drive up the Escolta, for example, at a speed of 60 miles an hour, without any effort to stop him, although he has had a reasonable opportunity to do so, becomes himself responsible, both criminally and civilly, for the results produced by the acts of his chauffeur. On the other hand, if the driver, by a sudden act of negligence, and without the owner having a reasonable opportunity to prevent the act or its continuance, injures a person or violates the criminal law, the owner of the automobile, although present therein at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length of time that the owner, by his acquiescence, makes his driver's act his own.

In the case before us it does not appear from the record that, from the time the automobile took the wrong side of the road to the commission of the injury, sufficient time intervened to give the defendant an opportunity to correct the act of his driver. Instead, it appears with fair clearness that the interval between the turning out to meet and pass the street car and the happening of the accident was so small as not to be sufficient to charge defendant with the negligence of the driver.

Whether or not the owner of an automobile driven by a competent driver, would be responsible, whether present or not, for the negligence acts of his driver when the automobile was a part of accident in furthermore of the owner's business, we do not now decide.

The judgment appealed from is affirmed, with costs against the appellant.

||| (Chapman v. Underwood, G.R. No. 9010, March 28, 1914)

17

[G.R. No. L-20392. December 18, 1968.]

MARCIAL T. CAEDO, JUANA SANGALANG CAEDO, and the Minors, EPHRAIM CAEDO, EILEEN CAEDO, ROSE ELAINE CAEDO, suing through their father,MARCIAL T. CAEDO, as guardian ad litem, plaintiffs-appellants, vs. YU KHE THAI and RAFAEL BERNARDO, defendants-appellants.

SYLLABUS

1. CIVIL LAW; DAMAGES; EMPLOYER'S LIABILITY FOR DRIVER'S NEGLIGENCE THEREFOR. — The applicable law relative to the solidary liability of the employer with the driver is Article 2184 of the Civil Code. Under the foregoing provision if the causative factor was the driver's negligence the owner of the vehicle who was present is likewise held liable if he could have prevented the mishap by the exercise of the due diligence. The rule is not new, although formulated as law for the first time in the new Civil Code.

2. ID.; ID.; ID.; BASIS THEREOF. — The basis of the master's liability in civil law is not respondent superior but rather the relationship of paterfamilias. The theory is that ultimately the negligence of the servant, if known to the master and susceptible of timely correction by him, reflects his own negligence if he fails to correct it in order to prevent injury or damage.

3. ID.; ID.; ID.; TEST OF NEGLIGENCE. — The test of imputed negligence under Article 2184 of the Civil Code is, to a great degree, necessarily subjective. Car owners are not held to a uniform and inflexible standard of diligence as are professional drivers. In many cases they refrain from driving their own cars and instead hire other persons to drive for them precisely because they are not trained or endowed with sufficient discernment to know the rules of traffic or to appreciate the relative dangers posed by the different situations that are continually encountered on the road. What would be a negligent omission under the aforesaid Article on the part of a car owner who is in the prime of age and knows how to handle a motor vehicle is not necessarily so on the part, say, of an old and infirm person who is not similarly equipped.

4. ID.; ID.; ID.; EMPLOYER IS NOT NEGLIGENT IN THE INSTANT CASE. — In the present case the defendant's evidence is that Rafael Bernardo had been Yu Khe Thai's driver since 1937, and before that had been employed by Yutivo Sons Hardware Co. in the same capacity for over ten years. During that time he had no record of violation of traffic laws and regulations. No negligence for having employed him at all may be imputed to his master. Negligence on the part of the latter, if any, must be sought in the immediate setting and circumstances of the accident, that is, in his failure to detain the driver from pursuing a course which not only gave him clear notice of the danger but also sufficient time to act upon it. Such negligence may not be imputed. The car was not running at an unreasonable speed. The road was wide and open, and devoid of traffic that early morning. There was no reason for the car owner to be in any special state of alert. He had reason to rely on the skill and experience of his driver. He became aware of the presence of the carretela when his car was only twelve meters behind it, but then his failure to see it earlier did not constitute negligence for he was not himself at the wheel. And even he did see it at the distance, he could not have anticipated his driver's sudden decision to pass the carretela on its left side in spite of the fact that another car was approaching from the opposite direction. The time element was that there was such no reasonable opportunity for Yu Khe Thai to assess the risks involved and warn the driver accordingly. The thought that entered his mind, he said, was that if he sounded a sudden warning it might only make the other man nervous and make the situation worse. It was a thought that, wise or not, connotes no absence of that due diligence required by law

to present the misfortune. We hold that the imputation of liability to Yu Khe Thai solidarily with Rafael Bernardo is an error.

MAKALINTAL, J p:

As a result of a vehicular accident in which plaintiff Marcial Caedo and several members of his family were injured they filed this suit for recovery of damages from the defendants. The judgment, rendered by the Court of First Instance of Rizal on February 26, 1960 (Q-2952), contains the following disposition:

"IN VIEW OF THE FOREGOING, the court renders a judgment, one in favor of the plaintiffs and against the defendants, Yu Khe Thai and Rafael Bernardo, jointly and severally, to pay to plaintiffs Marcial Caedo et al., the sum of P1,929.70 for actual damages; P48,000 for moral damages; P10,000 for exemplary damages; and P5,000.00 for attorney's fees, with costs against the defendants. The counterclaim of the defendants against the plaintiffs is hereby ordered dismissed, for lack of merits.

On March 12, 1960 the judgment was amended so as to include an additional award of P3,705.11 in favor of the plaintiffs for the damage sustained by their car in the accident.

Both parties appealed to the Court of Appeals, which certified the case to us in view of the total amount of the plaintiffs' claim.

There are two principal questions posed for resolution: (1) who was responsible for the accident? and (2) if it was defendant Rafael Bernardo, was his employer, defendant Yu Khe Thai, solidarily liable with him? On the first question the trial court found Rafael Bernardo negligent; and on the second, held his employer solidarily liable with him.

The mishap occurred at about 5:30 in the morning of March 24, 1958 on Highway 54 (now E. de los Santos Avenue) in the vicinity of San Lorenzo Village. Marcial was driving his Mercury car on his way from his home in Quezon City to the airport, where his son Ephraim was scheduled to take a plane for Mindoro. With them in the car were Mrs. Caedo and three daughters. Coming from the opposite direction was the Cadillac of Yu Khe Thai, with his driver Rafael Bernardo at the wheel, taking the owner from his Parañaque home to Wack Wack for his regular round of golf. The two cars were traveling at fairly moderate speeds, considering the condition of the road and the absence of traffic — the Mercury at 40 to 50 kilometers per hour, and the Cadillac at approximately 30 to 35 miles (48 to 56 kilometers). Their headlights were mutually noticeable from a distance. Ahead of the Cadillac, going in the same direction, was a carretela owned by a certain Pedro Bautista. The carretela was towing another horse by means of a short rope coiled around the rig's vertical post on the right side and held at the other end by Pedro's son, Julian Bautista.

Rafael Bernardo testified that he was almost upon the rig when he saw it in front of him, only eight meters away. This is the first clear indication of his negligence. The carretelawas provided with two lights, one on each side, and they should have given him sufficient warning to take the necessary precautions. And even if he did not notice the lights, as he claimed later on at the trial, the carretela should anyway have been visible to him from afar if he had been careful, as it must have been in the beam of his headlights for a considerable while.

In the meantime the Mercury was coming on its own lane from the opposite direction. Bernardo, instead of slowing down or stopping altogether behind the carretela until that lane was clear, veered to the left in order to pass. As he did so the curved end of his car's right rear bumper caught the forward rim of the rig's left wheel wrenching it off and carrying it along as the car skidded obliquely to the other lane, where it collided with the oncoming vehicle . On his part Caedo had seen the Cadillac on its own lane; he slackened his speed, judged the distances in relation to the carretela and concluded that the Cadillac would wait behind. Bernardo, however, decided to take a gamble - beat the Mercury to the

18

point where it would be in line with the carretela, or else squeeze in between them in any case. It was a risky maneuver either way, and the risk should have been quite obvious. Or, since the car was moving at from 30 to 35 miles per hour (or 25 miles according to Yu Khe Thai) it was already too late to apply the brakes when Bernardo saw the carretela only eight meters in front of him, and so he had to swerve to the left in spite of the presence of the oncoming car on the opposite lane. As it was, the clearance Bernardo gave for his car's right side was insufficient. Its rear bumper, as already stated, caught the wheel of the carretela and wrenched it loose. Caedo, confronted with the unexpected situation, tried to avoid the collision at the last moment by going farther to the right, but was unsuccessful. The photographs taken at the scene show that the right wheels of his car were on the unpaved shoulder of the road at the moment of impact.

There is no doubt at all that the collision was directly traceable on Rafael Bernardo's negligence and that he must be held liable for the damages suffered by the plaintiffs. The next question is whether or not Yu Khe Thai, as owner of the Cadillac, is solidarily liable with the driver. The applicable law is Article 2184 of the Civil Code, which reads:

"ART. 2184.In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of due diligence, prevented the misfortune. It is disputably presumed that driver was negligent, if he has been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months."

Under the foregoing provision, if the causative factor was the driver's negligence, the owner of the vehicle who was present is likewise held liable if he could have prevented the mishap by the exercise of due diligence. The rule is not new, although formulated as law for the first time in the new Civil Code. It was expressed Chapman vs. Underwood (1914) 27 Phil. 374, where this Court held:

". . . The same rule applies where the owner is present, unless the negligent acts of the driver are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a violation of the law by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible for such acts. The owner of an automobile who permits his chauffeur to drive up the Escolta, for example, at a speed of 60 miles an hour, without any effort to stop him, although he has had a reasonable opportunity to do so, becomes himself responsible, both criminally and civilly, for the results produced by the acts of the chauffeur. On the otherhand, if the driver, by a sudden act of negligence, and without the owner having a reasonable opportunity to prevent the act or its continuance, injures a person or violates the criminal law, the owner of the automobile, although present therein at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length of time that the owner, by his acquiescence, makes his driver's act his own."

The basis of the master's liability in civil law is not respondent superior but rather the relationship of pater familias. The theory is that ultimately the negligence of the servant, if known to the master and susceptible of timely correction by him, reflects his own negligence if he fails to correct it in order to prevent injury or damage.

In the present case the defendants' evidence is that Rafael Bernardo had been Yu Khe Thai's driver since 1937, and before that had been employed by Yutivo Sons Hardware Co. in the same capacity for over ten years. During that time he had no record of violation of traffic laws and regulations. No negligence for having employed him at all may be imputed to his master. Negligence on the part of the latter, if any, must be sought in the immediate setting and circumstances of the accident, that is, in his failure to detain the driver from pursuing a course which not only gave him clear notice of the danger but also sufficient time to act upon it. We do not see that such negligence may be imputed. The car, as has been stated, was not running at an unreasonable speed. The road was wide and open, and devoid of traffic

that early morning. There was no reason for the car owner to be in any special state of alert. He had reason to rely on the skill and experience of his driver. He became aware of the presence of the carretela when his car was only twelve meters behind it, but then his failure to see it earlier did not constitute negligence, for he was not himself at the wheel. And even when he did see it at the distance, he could not have anticipated his driver's sudden decision to pass the carretela on its left side in spite of the fact that another car was approaching from the opposite direction. The time element was such that there was no reasonable opportunity for Yu Khe Thai to assess the risks involved and warn the driver accordingly. The thought that entered his mind, he said, was that if he sounded a sudden warning it might only make the other man nervous and make the situation worse. It was a thought that, wise or not, connotes no absence of that due diligence required by law to prevent the misfortune.

The test of imputed negligence under Article 2184 of the Civil Code is, to a great degree, necessarily subjective. Car owners are not held to a uniform and inflexible standard of diligence as are professional drivers. In many cases they refrain from driving their own cars and instead hire other persons to drive for them precisely because they are not trained or endowed with sufficient discernment to know the rules of traffic or to appreciate the relative dangers posed by the different situations that are continually encountered on the road. What would be a negligent omission under aforesaid Article on the part of a car owner who is in the prime of age and knows how to handle a motor vehicle is not necessarily so on the part, say, of an old and infirm person who is not similarly equipped.

The law does not require that a person must possess a certain measure of skill or proficiency either in the mechanics of driving or in the observance of traffic rules before he may own a motor vehicle. The test of his negligence, within the meaning of Article 2184, is his omission to do that which the evidence of his own senses tells him he should do in order to avoid the accident. And as far as perception is concerned, absent a minimum level imposed by law, a maneuver that appears to be fraught with danger to one passenger may appear to be entirely safe and commonplace to another. Were the law to require a uniform standard of perceptiveness, employment of professional drivers by car owners who, by their very inadequacies, have real need of drivers' services, would be effectively prescribed.

We hold that the imputation of liability to Yu Khe Thai, solidarily with Rafael Bernardo, is an error. The next question refers to the sums adjudged by the trial court as damages. The award of P48,000 by way of moral damages is itemized as follows:.

1.Marcial Caedo ................ P20,000.00

2.Juana S. Caedo ................ 15,000.00

3.Ephraim Caedo ................ 3,000.00

4.Eileen Caedo ................. 4,000.00

5.Rose Elaine Caedo .............. 3,000.00

6.Merilyn Caedo ................ 3,000.00

Plaintiffs appealed from the award, claiming that the Court should have granted them also actual or compensatory damages, aggregating P225,000, for the injuries they sustained. Defendants, on the other hand, maintain that the amounts awarded as moral damages are excessive and should be reduced. We find no justification for either side. The amount of actual damages suffered by the individual plaintiffs by reason of their injuries, other than expenses for medical treatment, has not been shown by the evidence. Actual damages, to be compensable, must be proven. Pain and suffering are not capable of pecuniary estimation, and constitute a proper ground for granting moral, not actual, damages, as provided in Article 2217 of the Civil Code.

The injuries sustained by plaintiffs are the following:

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"MARCIAL T. CAEDO:

1. Contusion, with hematoma, scalp, frontal left; abrasions, chest wall, anterior;

2. Multiple fractures, ribs, right, 1st to 5th inclusive. Third rib has a double fracture; Subparieto-pleural hematoma; Basal disc atelectasis, lung, right lower lobe, secondary;

3. Pseudotosis, left, secondary to probable basal fracture, skull.

JUANA SANGALANG CAEDO:

1. Abrasions, multiple:(1) frontal region, left; (2) apex of nose; (3) upper eyelid,

left; (4) knees.2. Wound, lacerated, irregular, deep, frontal;3. Fracture, simple, 2nd rib posterior; left with displacement.4. Fracture, simple, base, proximal phalanx, right big toe.5. Fracture, simple, base, metatarsals, III and V right.6. Concussion, cerebral.

EPHRAIM CAEDO:

1. Abrasions, multiple:(1) left temporal area; (2) left frontal; (3) left supraorbital.

EILEEN CAEDO:

1. Lacerated wound (V-shaped), base, 5th finger, right, lateral aspect.2. Abrasions, multiple:

(1)dorsum, proximal phalanx, middle finger; (2) Knee, anterior, bilateral (37 shin, lower 1/3).

ROSE ELAINE CAEDO:

1. Abrasions, multiple:(1) upper and lower lids; (2) left temporal; (3) nasobial region; (4) leg, lower third, anterior.

MARILYN CAEDO:

1. Abrasions, multiple:shin, lower 1/3 right; (2) arm, lower third.

2. Contusion with hematoma, shin, lower 1/3, anterior aspect, right. (See Exhibits, D, D-1, D-2, D-3, D-4 and D-5)".

It is our opinion that, considering the nature and extent of the above-mentioned injuries, the amounts of moral damages granted by the trial court are not excessive.

WHEREFORE, the judgment appealed from is modified in the sense of declaring defendant-appellant Yu Khe Thai free from liability, and is otherwise affirmed with respect to defendant Rafael Bernardo, with costs against the latter.

||| (Caedo v. Yu Khe Thai, G.R. No. L-20392, December 18, 1968)

[G.R. No. 62988. February 28, 1985.]

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FELINA RODRIGUEZ-LUNA, JOSE R. LUNA and ROBERTO R. LUNA, JR. , petitioners, vs. THE HON. INTERMEDIATE APPELLATE COURT, JOSE E. DELA ROSA and LUIS DELA ROSA, respondents.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; FINDINGS OF THE TRIAL COURT PREVIOUSLY AFFIRMED ON APPEAL; ERRONEOUSLY DISTURBED ON MOTION FOR RECONSIDERATION. — The Court of Appeals, in reducing Luna's life expectancy from 30 to 10 years said that his habit and manner of life should be taken into account, i.e. that he had been engaged in car racing as a sport both here and abroad — a dangerous and risky activity tending to shorten his life expectancy. That Luna had engaged in car racing is not based on any evidence on record. That Luna was engaged in go-kart racing is the correct statement but then go-kart racing cannot be categorized as a dangerous sport for go-karts are extremely low slung, low powered vehicles, only slightly larger than foot-pedalled four wheeled conveyance. It was error on the part of the Court of Appeals to have disturbed the determination of the trial court which it had previously affirmed. Similarly, it was error for the Court of Appeals to reduce the net annual income of the deceased by increasing his annual personal expenses but without at the same time increasing his annual gross income. It stands to reason that if his annual personal expenses should increase because of the "escalating price of gas which is a key expenditure in Roberto R. Luna's social standing" [a statement which lacks complete basis], it would not be unreasonable to suppose that his income would also increase considering the manifold sources thereof.

2. CIVIL LAW; QUASI-DELICT; DAMAGES; INTEREST IN DAMAGES ACCRUE FROM DATE OF TRIAL COURT'S DECISION. — The petitioners now pray that the award of attorney's less be with interest at the legal rate from the date of the filing of the complaint. There is merit in this prayer. The attorney's fees were awarded in the concept of damages in a quasi-delicate case and under the circumstances interest as part thereof may be adjudicated at the discretion of the court. (See Art. 2211, Civil Code.) As with the other damages awarded, the interest should accrue only from the date of the trial court's decision.

3. ID.; ID.; ID.; EQUITY NOT APPLIED WHEN ENDS OF JUSTICE NOT SERVED. — The private respondents invoke Elcano vs. Hill, L-24803, May 26, 1977; 77 SCRA 98, where it was held that Article 2180 of the Civil Code applied. to Atty. Marvin Hill notwithstanding the emancipation by marriage of Reginald Hill, his son but since Reginald had attained age, as a matter of equity, the liability of Atty. Hill had become merely subsidiary to that of his son. It is now said that Luis dela Rosa, is now married and of legal age and that as a matter of equity the liability of his father should be subsidiary only. We are unwilling to apply equity instead of strict law in this case because to do so will not serve the ends of justice. Luis dela Rosa is abroad and beyond the reach of Philippine courts. Moreover, he does not have any property either in the Philippines or elsewhere. In fact his earnings are insufficient to support his family.

ABAD SANTOS, J p:

This is a petition to review a decision of the defunct Court of Appeals. The petitioners are the heirs of Roberto R. Luna who was killed in a vehicular collision. The collision took place on January 18, 1970, at the go-kart practice area in Greenhills, San Juan, Metro Manila. Those involved were the go-kart driven by the deceased, a business executive, and a Toyota car driven by Luis dela Rosa, a minor of 13 years who had no driver's license. LibLex

In a suit for damages brought by the heirs of Roberto R. Luna against Luis dela Rosa and his father Jose dela Rosa, the Court of First Instance of Manila in Civil Case No. 81078, rendered the following judgment:

"WHEREFORE, judgment is hereby rendered sentencing the defendants Luis dela Rosa and Jose dela Rosa to pay, jointly and severally, to the plaintiffs the sum of

P1,650,000.00 as unearned net earnings of Roberto Luna, P12,000.00 as compensatory damages, and P60,000.00 for the loss of his companionship, with legal interest from the date of this decision; plus attorney's fees in the sum of P50,000.00, and the costs of suit." (Record on Appeal, p. 35.)

The defendants appealed to the defunct Court of Appeals which in a decision dated May 22, 1979, affirmed in toto that of the trial court. (Rollo, p. 48.) However, upon a motion for reconsideration filed by the defendants-appellants, the Court of Appeals, in a resolution dated June 19, 1981, modified its judgment thus:

"WHEREFORE", the decision rendered in this case is hereby modified insofar as the judgment ordering the defendants to pay, jointly and severally, the sum of P1,650,000.00 to plaintiffs with legal interest from July 5, 1973, is concerned. In lieu thereof, defendants are hereby ordered to pay plaintiffs, jointly and severally, the sum of Four Hundred Fifty Thousand Pesos (P450,000.00) as unearned net earnings of Roberto R. Luna, with legal interest thereon from the date of the filing of the complaint until the whole amount shall have been totally paid.

"The rest of the other dispositions in the judgment a quo stand." (Rollo, pp. 33-34.)

Both parties filed separate petitions for review of the appellate court's decision.

In G.R. No. 57362, the petition for review of Jose and Luis dela Rosa was denied for lack of merit on October 5, 1981. Subsequently, they informed that the decision sought to be reviewed was not yet final because the Lunas had a pending motion for reconsideration. For prematurity, this Court set aside all previous resolutions. On February 16, 1983, acting upon the motion and manifestation of the petitioners, they were required to file an amended petition within thirty days from notice. On June 20, 1983, this Court resolved: "For failure of the petitioners to file an amended petition as required, this case is hereby DISMISSED and the dismissal is final.

The instant case — G.R. No. 62988 - is the separate appeal of the Lunas. Their petition contains the following prayer: cdphil

"1. That the petition be given due course;

"2. That after notice and hearing, judgment be rendered, setting aside or modifying the RESOLUTION of respondent Court of Appeals dated June 19, 1981, attached as Annex "A" to the petition, only insofar as it reduced the unearned net earnings to P450.000.00, so as to affirm the trial court's finding as to the unearned net earnings of the deceased in the amount of P1,650,000.00;

"3. Ordering that the award of attorney's fees shall also be with interest, at the legal rate."

(Rollo, p. 27.)

On June 27, 1983, the petition was given due course. (Rollo, pp. 122-123.)

In the light of the foregoing, the resolution stated:

"It thus appears that the questions in esse are with respect to the award for unearned net earnings — should the award be P450,000.00 only or should it be P1,650,000.00 as originally adjudged; and whether the award for attorney's fees shall also be with interest at the legal rate.

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"The Court takes notice that the wrongful death occurred as early as January 18, 1970, and that until now the process of litigation is not yet over. In the meantime the value of the Philippine peso has been seriously eroded so that the heirs of the deceased may ultimately have a greatly depreciated judgment. In the interest of justice, the private respondents are hereby ordered to PAY to the petitioners within thirty (30) days from notice the following amounts adjudged against them: P450,000.00 for unearned net earnings of the deceased; (P12,000.00 as compensatory damages; P50,000.00 for the loss of his companionship with legal interest from July 3, 1973; and P50,000.00 as attorney's fees.

"Still to be resolved shall be the following: whether the award for unearned net earnings shall be increased to P1,650 000.00; and whether the award for attorney's fees shall also be with interest at the legal rate. The costs will be adjudged as a matter of course." (Rollo, p. 123.)

The private respondents failed to pay the amounts and when required to explain they said that they had no cash money. Accordingly, this Court directed the trial court to issue a writ of execution but the attempt of the special sheriff to enter the private respondent's premises so that he could make an inventory of personal properties was thwarted by guards and this Court had to direct the Chief of the Philippine Constabulary to assist in enforcing the writ of execution. The execution yielded only a nominal amount. In the meantime, Luis dela Rosa is now of age, married with two children, and living in Madrid, Spain with an uncle but only casually employed. It is said: "His compensation is hardly enough to support his family. He has no assets of his own as yet." (Rollo, p. 208.) cdrep

1. On the amount of the award.

The award of P1,650,000.00 was based on two factors, namely: (a) that the deceased Roberto R. Luna could have lived for 30 more years; and (b) that his annual net income was P55,000.00, computed at P75,000.00 annual gross income less P20,000.00 annual personal expenses.

This is what the trial court said on Luna's life expectancy:

"According to the American Experience Table of Mortality, at age 33 the life expectancy of Roberto Luna was 33.4 years, and under the Commissioner Standard Ordinary, used by our domestic insurance companies since 1968 for policies above P5,000.00 his life expectancy was 38.51 years. Dr. Vicente Campa, medical director of San Miguel Corporation, testified that he was the regular physician of Roberto Luna since his marriage to Felina Rodriguez in 1957. He said that except for a slight anemia which he had ten years earlier, Roberto Luna was of good health. Allowing for this condition, he could reasonably expect to have a life expectancy of 30 years." (Record on Appeal, p. 33.)

The Court of Appeals in sustaining the trial court's conclusion said:

"We have not been persuaded to disturb the conclusion that the deceased had a life expectancy of thirty years. At the time of Luna's death, he was only thirty-three years old and in the best of health. With his almost perfect physical condition and his sound and, the expectation that he could have lived for another thirty years is reasonable, considering that with his educational attainment, his social and financial standing, he had the means of staying fit and preserving his health and well-being. That he could have lived at least until the age of sixty-three years is an assessment which is more on the conservative side in view of the testimony of Dr. Vicente Campa that the general life expectancy nowadays had gone up to seventy years." (Rollo, p. 45.)

The Court of Appeals likewise sustained the trial court in respect of Luna's annual income and expense. This is what the trial court said:

"Roberto Luna was 33 years old when he died, and was survived by his wife Felina Rodriguez-Luna, and two children, Roberto Jr., 13 years, and Jose, 12 years. His wife was 35 years old at the time. He declared a gross income of P16,900.00 for 1967 (Exhibit I), P29,700,000 for 1968 (Exhibit H) and P45,117.69 for 1969 (Exhibit G). He had investments in various corporations amounting to P136,116.00 (Exhibits K, M, M-1, N, N-1 to N-3, O, O-1, P, Q and R) and was the president and general manager of Rodlum, Inc.; general manager of Esso Greenhills Service Center; Assistant manager of Jose Rodriguez Lanuza Sons; director of Steadfast Investment Corporation; chairman and treasurer of Greenhills Industrial Corporation; vice-president of Oasis, Inc.; director of Nation Savings Association; director of Arlun Taxi; and treasurer of National Association of Retired Civil Employees.

". . . His income tax returns show an increase in his income in the short period of three years. It is reasonable to expect that it would still go higher for the next fifteen years and reach a minimum of P75,000.00 a year. The potential increase in the earning capacity of a deceased person is recognized by the Supreme Court . . . the court believes that the expected gross earnings of Roberto Luna should be fixed in the sum of P75,000.00 a year for the period of his life expectancy of 30 years, but deducting his personal expenses which, because of his business and social standing the court in the amount of P20,000.00 a year, in accordance with the rulings of the Supreme Court." (Record on Appeal, pp. 32-34.)

Acting on a motion for reconsideration filed by the dela Rosas, the Court of Appeals took into account the fact "that the deceased Roberto R. Luna had been engaged in car racing as a sport, having participated in tournaments both here and abroad;" it said that Luna's habit and manner of life should be "one of the factors affecting the value of mortality table in actions for damages;" and, consequently, concluded that Luna could not have lived beyond 43 years. The result was that the 30-year life expectancy of Luna was reduced to 10 years only.

Further on the motion for reconsideration, the Court of Appeals ruled in respect of Luna's annual personal expenses:

". . . Considering the escalating price of automobile gas which is a key expenditure in Roberto R Luna's social standing, We should increase that amount to P30,000.00 as the would be personal expenses of the deceased per annum." (Rollo, p. 33.)

The Court of Appeals then determined the amount of the award thus: P75,000.00 annual gross income less P30,000.00 annual personal expenses leaves P45,000.00 multiplied by 10 years of life expectancy and the product is P450,000.00.

The petitioners contend that the Court of Appeals erred when by its resolution of June 19, 1981, it reduced Luna's life expectancy from 30 to 10 years and increased his annual personal expenses from P20,000.00 to P30,000.00. We sustain the petitioners.

The Court of Appeals, in reducing Luna's life expectancy from 30 to 10 years said that his habit and manner of life should be taken into account, i.e. that he had been engaged in car racing as a sport both here and abroad - a dangerous and risky activity tending to shorten his life expectancy. That Luna had engaged in car racing is not based on any evidence on record. That Luna was engaged in go-kart racing is the correct statement but then go-kart racing cannot be categorized as a dangerous sport for go-karts are extremely low slung, low powered vehicles, only slightly larger than foot-pedalled four wheeled

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conveyance. It was error on the part of the Court of Appeals to have disturbed the determination of the trial court which it had previously affirmed.

Similarly, it was error for the Court of Appeals to reduce the net annual income of the deceased by increasing his annual personal expenses but without at the same time increasing his annual gross income. It stands to reason that if his annual personal expenses should increase because of the "escalating price of gas which is a key expenditure in Roberto R. Luna's social standing" [a statement which lacks complete basis], it would not be unreasonable to suppose that his income would also increase considering the manifold sources thereof. cdrep

In short, the Court of Appeals erred in modifying its original decision.

2. Attorney's fees — with or without interest at the legal rate.

The trial court awarded attorney's fees to the petitioners in the sum of P50,000.00. This award was affirmed by the Court of Appeals in its decision of May 22, 1979. The resolution of June 19, 1981, reaffirmed the award. The two decisions as well as the resolution do not provide for interest at the legal rate to be tacked to the award.

The petitioners now pray that the award of attorney's less be with interest at the legal rate from the date of the filing of the complaint. There is merit in this prayer. The attorney's fees were awarded in the concept of damages in a quasi-delicate case and under the circumstances interest as part thereof may be adjudicated at the discretion of the court. (See Art. 2211, Civil Code.) As with the other damages awarded, the interest should accrue only from the date of the trial court's decision.

The private respondents invoke Elcano vs. Hill, L-24803, May 26, 1977; 77 SCRA 98, where it was held that Article 2180 of the Civil Code applied. to Atty. Marvin Hill notwithstanding the emancipation by marriage of Reginald Hill, his son but since Reginald had attained age, as a matter of equity, the liability of Atty. Hill had become merely subsidiary to that of his son. It is now said that Luis dela Rosa, is now married and of legal age and that as a matter of equity the liability of his father should be subsidiary only.

We are unwilling to apply equity instead of strict law in this case because to do so will not serve the ends of justice. Luis dela Rosa is abroad and beyond the reach of Philippine courts. Moreover, he does not have any property either in the Philippines or elsewhere. In fact his earnings are insufficient to support his family.

WHEREFORE, the resolution of the Court of Appeals dated June 19, 1981, is hereby set aside; its decision dated May 22, 1979, is reinstated with the sole modification that the award for attorney's fees shall earn interest at the legal rate from July 5, 1973, the date of the trial court's decision. Costs against the private respondents. cdrep

SO ORDERED.

||| (Rodriguez-Luna v. Intermediate Appellate Court, G.R. No. 62988, February 28, 1985)

G.R. No. L-10134 June 29, 1957

SABINA EXCONDE, plaintiff-appellant, vs. DELFIN CAPUNO and DANTE CAPUNO, defendants-appellees.

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BAUTISTA ANGELO, J.:

Dante Capuno, son of Delfin Capuno, was accused of double homicide through reckless imprudence for the death of Isidoro Caperina and Amado Ticzon on March 31, 1949 in the Court of First Instance of Laguna (Criminal Case No. 15001). During the trial, Sabina Exconde, as mother of the deceased Isidoro Caperina, reserved her right to bring a separate civil action for damages against the accused. After trial, Dante Capuno was found guilty of the crime charged and, on appeal, the Court Appeals affirmed the decision. Dante Capuno was only (15) years old when he committed the crime.

In line with her reservation, Sabina Exconde filed the present action against Delfin Capuno and his son Dante Capuno asking for damages in the aggregate amount of P2,959.00 for the death of her son Isidoro Caperiña. Defendants set up the defense that if any one should be held liable for the death of Isidoro Caperina, he is Dante Capuno and not his father Delfin because at the time of the accident, the former was not under the control, supervision and custody, of the latter. This defense was sustained by the lower court and, as a consequence it only convicted Dante Capuno to pay the damages claimed in the complaint. From decision, plaintiff appealed to the Court of Appeals but the case was certified to us on the ground that the appeal only involves questions of law.

It appears that Dante Capuno was a member of the Boy Scouts Organization and a student of the Bilintawak Elementary School situated in a barrio in the City of San Pablo and on March 31, 1949 he attended a parade in honor of Dr. Jose Rizal in said city upon instruction of the city school's supervisor. From the school Dante, with other students, boarded a jeep and when the same started to run, he took hold of the wheel and drove it while the driver sat on his left side. They have not gone far when the jeep turned turtle and two of its passengers, Amado Ticzon and Isidore Caperiña, died as a consequence. It further appears that Delfin Capuno, father of Dante, was not with his son at the time of the accident, nor did he know that his son was going to attend a parade. He only came to know it when his son told him after the accident that he attended the parade upon instruction of his teacher.

The only issue involved in this appeal is whether defendant Delfin Capuno can be held civilly liable, jointly and severally with his son Dante, for damages resulting from the death of Isidoro Caperiña caused by the negligent act of minor Dante Capuno.

The case comes under Article 1903 of the Spanish Civil Code, paragraph 1 and 5, which provides:

ART. 1903. The obligation impossed by the next preceding articles is enforceable not only for personal acts and omissions, but also for those of persons for whom another is responsible.

The father, and, in case of his death or incapacity, the mother, are liable for any damages caused by the minor children who live with them.

x x x x x x x x x

Finally, teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices while they are under their custody.

Plaintiff contends that defendant Delfin Capuno is liable for the damages in question jointly and severally with his son Dante because at the time the latter committed the negligent act which resulted in the death of the victim, he was a minor and was then living with his father, and inasmuch as these facts are not disputed, the civil liability of the father is evident. And so, plaintiff contends, the lower court erred in relieving the father from liability.

We find merit in this claim. It is true that under the law above quoted, "teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices while they are under their custody", but this provision only applies to an institution of arts and trades and not to any academic educational institution (Padilla, Civil Law, 1953, Ed., Vol. IV, p. 841; See 12 Manresa, 4th Ed., p. 557). Here Dante capuno was then a student of the Balintawak Elementary School and as part of his extra-curricular activity, he attended the parade in honor of Dr. Jose Rizal upon instruction of the city school's supervisor. And it was in connection with that parade that Dante boarded a jeep with some companions and while driving it, the accident occurred. In the circumstances, it is clear that neither the head of that school, nor the city school's supervisor, could be held liable for the negligent act of Dante because he was not then a student of an institute of arts and trades as provided by law.

The civil liability which the law impose upon the father, and, in case of his death or incapacity, the mother, for any damages that may be caused by the minor children who live with them, is obvious. This is necessary consequence of the parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating them and instructing them in proportion to their means", while, on the other hand, gives them the "right to correct and punish them in moderation" (Articles 154 and 155, Spanish Civil Code). The only way by which they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good father of a family to prevent the damage(Article 1903, last paragraph, Spanish Civil Code). This defendants failed to prove.

WHEREFORE, the decision appealed from is modified in the sense that defendants Delfin Capuno and Dante Capuno shall pay to plaintiff, jointly and severally, the sum of P2,959.00 as damages, and the costs of action.

Bengzon, Montemayor, Labrador and Endencia, JJ., concur.Paras, C.J., concurs in the result.

G.R. No. L-14414 April 27, 1960

SEVERINO SALEN and ELENA SALBANERA, plaintiffs-appellants, vs. JOSE BALCE, defendant-appellee.

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BAUTISTA ANGELO, J.:

On February 5, 1957, plaintiffs brought this action against defendant before the Court of First Instance of Camarines Norte to recover the sum of P2,000.00, with legal interest thereon from July 18, 1952, plus attorney' fees and other incidental expenses.

Defendant, in his answer, set up the defense that the law upon which plaintiffs predicate their right to recover does not here apply for the reason that law refers to quasi-delicts and not to criminal cases.

After trial, the court sustained the theory of defendant and dismissed the complaint with costs. Hence the present appeal.

Plaintiffs are the legitimate parents of Carlos Salen who died single from wounds caused by Gumersindo Balce, a legitimate son of defendant. At the time, Gumersindo Balce was also Single, a minor below 18 years of age, and was living with defendant. As a result of Carlos Salen's death, Gumersindo Balce accused and convicted of homicide and was sentenced to imprisonment and to pay the heirs of the deceased an indemnity in the amount of P2,000.00. Upon petition of plaintiff, the only heirs of the deceased, a writ of execution was issued for the payment of the indemnity but it was returned unsatisfied because Gumersindo Balce was insolvent and had no property in his name. Thereupon, plaintiffs demanded upon defendant, father of Gumersindo, the payment of the indemnity the latter has failed to pay, but defendant refused, thus causing plaintiffs to institute the present action.

The question for determination is whether appellee can be held subsidiary liable to pay the indemnity of P2,000.00 which his son was sentenced to pay in the criminal case filed against him.

In holding that the civil liability of the son of appellee arises from his criminal liability and, therefore, the subsidiary liability of appellee must be determined under the provisions of the Revised Penal Code, and not under Article 2180 of the new Civil Code which only applies to obligations which arise from quasi-delicts, the trial court made the following observation:

The law provides that a person criminally liable for a felony is also civilly liable (Art. 100 of the Revised Penal Code). But there is no law which holds the father either primarily or subsidiarily liable for the civiliability inccured by the son who is a minor of 8 years. Under Art. 101 of the Penal Code, the father is civilly liable for the acts committed by his son if the latter is an imbecile, or insane, or under 9 years of age or over 9 but under 15, who has acted without discernment. Under Art. 102, only in keepers and tavern-keepers are held subsidiarily liable and under Art. 103 of the same Penal Code, the subsidiary liability established in Art. 102 shall apply only to "employers, teachers, persons and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices or employees in the discharge of their duties." By the principle of exclusio unus exclusio ulterius, the defendant in this case cannot be held subsidiary liable for the civil liability of Gumersindo Balce who has been convicted of homicide for the killing of the plaintiff's son Carlos Salen.

Art. 2180 of the Civil Code, relied by the plaintiff's, is not applicable to the case at bar. It applies to obligations which arise from quasi-delicts and not obligations which arise from criminal offenses. Civil liability arising from criminal negligence or offenses is governed by the provisions of the Penal Code and civil liability arising from civil negligence is governed by the provision of the Civil Code. The obligation imposed by Art. 2176 of the New Civil Code expressly refers to obligations which arise from quasi-delicts. And obligations arising from

quasi-delict (Commissioner's note). And according to Art. 2177, the 'responsibility for fault of negligence under Art. 2176 is entirely separate and distinct from the civil liabilty arising from negligence under the Penal Code. . . .

While we agree with the theory that, as a rule, the civil liability arising from a crime shall be governed by the provisions of the Revised Penal Code, we disagree with the contention that the subsidiary liability of persons for acts of those who are under their custody should likewise be governed by the same Code even in the absence of any provision governing the case, for that would leave the transgression of certain right without any punishment or sanction in the law. Such would be the case if we would uphold the theory of appellee as sustained by the trial court.

It is true that under Article 101 of the Revised Penal Code, a father is made civilly liable for the acts committed by his son only if the latter is an imbecile, an insane, under 9 years of age, over 9 but under 15 years of age, who act without discernment, unless it appears that there is no fault or negligence on his part. This is because a son who commits the act under any of those conditions is by law exempt from criminal liability (Article 12, subdivisions 1, 2 and 3, Revised Penal Code). The idea is not to leave the act entirely unpunished but to attach certain civil liability to the person who has the deliquent minor under his legal authority or control. But a minor over 15 who acts with discernment is not exempt from criminal liability, for which reason the Code is silent as to the subsidiary liability of his parents should he stand convicted. In that case, resort should be had to the general law which is our Civil Code.

The particular law that governs this case is Article 2180, the pertinent portion of which provides: "The father and, in case of his death or incapacity, the mother, are responsible for damages caused by the minor children who lived in their company." To hold that this provision does not apply to the instant case because it only covers obligations which arise from quasi-delicts and not obligations which arise from criminal offenses, would result in the absurdity that while for an act where mere negligence intervenes the father or mother may stand subsidiarily liable for the damage caused by his or her son, no liability would attach if the damage is caused with criminal intent. Verily, the void that apparently exists in the Revised Penal Code is subserved by this particular provision of our Civil Code, as may be gleaned from some recent decisions of this Court which cover equal or identical cases.

A case in point is Exconde vs. Capuno, 101 Phil., 843, the facts of which are as follows:

Dante Capuno, a minor of 15 years of age, lives in the company of his father, Delfin Capuno. He is a student of the Balintawak Elementary School in the City of San Pablo and a member of the Boy Scout Organization of his school. On Marcy 31, 1949, on the occasion of a certain parade in honor of Dr. Jose Rizal in the City of San Pablo, Dante Capuno was one of those instructed by the City School Supervisor to join the parade. From the school, Dante Capuno, together with other students, boarded a jeep. When the jeep started to run, Dante Capuno took hold of the wheel and drove it while the driver sat on his left side. They have not gone far when the jeep turned turtle and two of its passengers, Amando Ticson and Isidro Caperina died as a consequence. The corresponding criminal action for double homicide through reckless imprudence was instituted against Dante Capuno. During the trial, Sabina Exconde, as mother of the deceased Isidro Caperina, reserved her right to bring a separate civil action for damages against the accused. Dante Capuno was found guilty of the criminal offense charged against him. In line with said reservation of Sabina Exconde, the corresponding civil action for damages was filed against Delfin Capuno, Dante Capuno and others.

In holding Delfin Capuno jointly and severally liable with his minor son Dante Capuno arising from the criminal act committed by the latter, this Court made the following ruling:

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The civil liability which the law imposes upon the father and, in case of his death or incapacity, the mother, for any damages that may be caused by the minor children who live with them, is obvious. This is a necessary consequence of the parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating them in proportion to their means", while, on the other hand, gives them the "right to correct and punish them in moderation" (Arts. 134 and 135, Spanish Civil Code). The only way by which they can relieved themselves of this liability is if they prove that they exercised all the diligence of a good father of a family to prevent the damage (Art. 1903, last paragraph, Spanish Civil Code.) This defendants failed to prove.

Another case in point is Araneta vs. Arreglado 104 Phil., 524; 55 Off. Gaz. [9] 1961. The facts of this case are as follows:

On March 7, 1951, while plaintiff Benjamin Araneta was talking with the other students of the Ateneo de Manila while seated atop a low ruined wall bordering the Ateneo grounds along Dakota Street, in the City of Manila, Dario Arreglado, a former student of the Ateneo, chanced to pass by. Those on the wall called Dario and conversed with him, and in the course of their talk, twitted him on his leaving the Ateneo and enrolling in the De La Salle College. Apparently, Arreglado resented the banter and suddenly pulling from his pocket a Japanese Luger pistol (licensed in the name of his father Juan Arreglado), fired the same at Araneta, hitting him in the lower jaw, causing him to drop backward, bleeding profusely. Helped by his friends, the injured lad was taken first to the school infirmary and later to the Singian Hospital, where he lay hovering between life and death for three days. The vigor of youth came to his rescue; he rallied and after sometime finally recovered, the gunshot would left him with a degenerative injury to the jawbone (mandible) and a scar in the lower portion of the face, where the bullet had plowed through. The behavior of Benjamin was likewise affected, he becoming inhibited and morose after leaving the hospital.

Dario Arreglado was indicted for frustrated homicide and pleaded guilty, but in view of his youth, he being only 14 years of age, the court suspended the proceedings as prescribed by Article 80 of the Revised Penal Code. Thereafter, an action was instituted by Araneta and his father against Juan Arreglado, his wife, and their son Dario, to recover material, moral and exemplary damages. The court of first instance, after trial, sentenced the Arreglados to pay P3,943.00 as damages and attorney's fees. From this decision, the Araneta appealed in view of the meager amount of indemnity awarded. This Court affirmed the decision but increased the indemnity to P18,000.00. This is a typical case of parental subsidiary liability arising from the criminal act of a minor son.

Wherefore, the decision appealed from is reversed. Judgement is hereby rendered ordering appellee to pay appellants the sum of P2,000.00, with legal interest thereon from the filing of the complaint, and the costs.

G.R. No. L-14409 October 31, 1961

AGAPITO FUELLAS, petitioner, vs. ELPIDIO CADANO, ET AL., respondents.

PAREDES, J.:

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For serious physical injuries sustained by Pepito Cadano, son of plaintiff-appellee Elpidio Cadano, two separate actions were instituted, Civil Case No. 583, filed on October 1, 1954, for damages against Agapito Fuellas, father of the minor Rico Fuellas, who caused the injuries, and Criminal Case No. 1765, against Rico Fuellas, filed on November 11, 1954, for serious physical injuries. They were tried jointly. On May 18, 1956, a judgment of conviction in the criminal case was rendered, finding Rico Fuellas guilty of the offense charged. No pronouncement as to his civil liability was made, the trial judge having ruled that the same "shall be determined in Civil Case No. 583 of this Court." On May 25, 1956, the same court, rendered judgment in the civil case making defendant therein, now appellant Agapito Fuellas, liable under Art. 2180 of the new Civil Code for the following damages: —

For medicine, etc. P1,000.00

For moral damages 6,000.00

As exemplary damages 2,000.00

As attorney's fees 600.00

T o t a l P9,600.00

with 6% annual interest thereon until paid. The Court of Appeals modified the judgment by reducing the moral damages to P3,000.00. An appeal was taken to this tribunal solely on questions of law.

Pepito Cadano and Rico Fuellas, son of defendant-appellant Agapito Fuellas, were both 13 years old, on September 16, 1954. They were classmates at St. Mary's High School, Dansalan City. In the afternoon of September 16, 1954, while Pepito was studying his lessons in the classroom, Rico took the pencil of one Ernesto Cabanok and surreptitiously placed it inside the pocket of Pepito. When Ernesto asked Rico to return the pencil, it was Pepito who returned the same, an act which angered Rico, who held the neck of Pepito and pushed him to the floor. Villamira, a teacher, separated Rico and Pepito and told them to go home. Rico went ahead, with Pepito following. When Pepito had just gone down of the schoolhouse, he was met by Rico, still in an angry mood. Angelito Aba, a classmate, told the two to shake hands. Pepito extended his hand to Rico. Instead of accepting the proffer to shake hands, Rico held Pepito by the neck and with his leg, placed Pepito out of balance and pushed him to the ground. Pepito fell on his right side with his right arm under his body, whereupon, Rico rode on his left side. While Rico was in such position, Pepito suddenly cried out "My arm is broken." Rico then got up and went away. Pepito was helped by others to go home. That same evening Pepito was brought to the Lanao General Hospital for treatment (Exh. 4). An X-Ray taken showed that there was a complete fracture of the radius and ulna of the right forearm which necessitated plaster casting (Exhs. A, B and D). On November 20, 1954, more than a month after Pepito's release from the hospital, the plaster cast was removed. And up to the last day of hearing of the case, the right forearm of Pepito was seen to be shorter than the left forearm, still in bandage and could not be fully used.

It is contended that in the decision of the Court of Appeals, the petitioner-appellant was ordered to pay damages for the deliberate injury caused by his son; that the said court held the petitioner liable pursuant to par. 2 of Art. 2180 of the Civil Code, in connection with Art. 2176 of the same Code; that according to the last article, the act of the minor must be one wherein "fault or negligence" is present; and that there being no fault or negligence on the part of petitioner-appellant's minor son, but deliberate intent, the above mentioned articles are not applicable, for the existence of deliberate intent in the commission of an act negatives the presence of fault or negligence in its commission. Appellant,

therefore, submits that the appellate Court erred in holding him liable for damages for the deliberate criminal act of his minor son.

The above-mentioned provisions of the Civil Code states: —

Whoever by act or omission causes damage to another, there being fault or negligence is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties is called a quasi-delict and is governed by the provisions of this chapter. (Article 2176)

The obligations imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company.

xxx xxx xxx (Article 2180).

In the case of Araneta vs. Arreglado, G.R. No. L-11394, prom. September 9, 1958, Benjamin Araneta was talking with other students of the Ateneo de Manila, seated atop a low ruined wall. Dario Arreglado, a former student of the Ateneo, chanced to pass by. The boys twitted him on his leaving the Ateneo and enrolling in the De la Salle College. Arreglado, resenting the banter, pulled a Japanese luger pistol (licensed in the name of his father Juan Arreglado), fired the same at Araneta, hitting him in the lower jaw. Dario was indicted for frustrated homicide and pleaded guilty. But in view of his youth, he being only 14 years of age, the Court suspended the proceedings (Art. 80 of the Revised Penal Code). Thereafter, action was instituted by Araneta and his father against Juan Arreglado, his wife and their son Dario to recover material, moral and exemplary damages. The Court of First Instance sentenced the Arreglados to pay P3,943.00 as damages and attorney's fees. The Aranetas appealed in view of the meager amount of indemnity awarded. This tribunal affirmed the decision but increased the indemnity to P18,000.00. This decision was predicated upon the fact that Arreglado's father had acted negligently in allowing his son to have access to the pistol used to injure Benjamin. And this was the logical consequence of the case, considering the fact that the civil law liability under Article 2180 is not respondeat  superior but the relationship of pater   familias which bases the liability of the father ultimately on his own negligence and not on that of his minor son (Cuison vs. Norton & Harrison, 55 Phil. 23), and that if an injury is caused by the fault or negligence of his minor son, the law presumes that there was negligence on the part of his father (Bahia vs. Litonjua y Leynes, 30 Phil., 625).

In an earlier case (Exconde vs. Capuno, et al., G.R. No. L-10132, prom. June 29, 1957), holding the defendants jointly and severally liable with his minor son Dante for damages, arising from the criminal act committed by the latter, this tribunal gave the following reasons for the rule: —

The civil liability which the law imposes upon the father and, in case of his death or incapacity, the mother, for any damages that may be caused by the minor children who live with them, is obvious. This is a necessary consequence of the parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating them in proportion to their means", while on the other hand, gives them the "right to correct and punish them in moderation" (Arts. 134 and 135, Spanish Civil Code). The only way by which they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good father of a family to prevent the damage (Art. 1903, last paragraph, Spanish Civil Code). This, defendants failed to prove.

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And a noted Spanish commentator said: —

Since children and wards do not yet have the capacity to govern themselves, the law imposes upon the parents and guardians the duty of exercising special vigilance over the acts of their children and wards in order that damages to third persons due to the ignorance, lack of foresight or discernment of such children and wards may be avoided. If the parents and guardians fail to comply with this duty, they should suffer the consequences of their abandonment or negligence by repairing the damage caused" (12 Manresa, 649-650). (See also Arts. 311 and 316, Civil Code).

It is further argued that the only way by which a father can be made responsible for the criminal act of his son committed with deliberate intent and with discernment, is an action based on the provisions of the Revised Penal Code on subsidiary liability of the parents; that the minor Fuellas having been convicted of serious physical injuries at the age of 13, the provisions of par. 3 of Art. 12, Revised Penal Code, could have been applied, but having acted with discernment, Art. 101 of the same Code can not include him. And as par. 2, of Art. 101, states that "the exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Art. 11 of this Code does not include exemption from civil liability, which shall be enforced subject to the following rules: First, in cases of subdivisions 1, 2 and 3 of Article 12, the civil liability for acts committed by an imbecile or insane person and by a person under nine years of age or by one over nine but under fifteen years of age, who has acted without discernment, shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or negligence on their part," the appellant concluded that this provision covers only a situation where a minor under 15 but over 9 years old commits a criminal act "without discernment."

In the recent case of Salen and Salbanera vs. Jose Balce, G.R. No. L-14414, April 27, 1960; 57 Off. Gaz. No. 37, p. 6603, September 11, 1961, the defendant Balce was the father of a minor Gumersindo Balce, below 18 years of age who was living with him. Gumersindo was found guilty of homicide for having killed Carlos Salen, minor son of plaintiffs. The trial court rendered judgment dismissing the case, stating that the civil liability of the minor son of defendant arising from his criminal liability must be determined under the provisions of the Revised Penal Code and not under Art. 2180 of the new Civil Code. In reversing the decision, this tribunal held: —

It is true that under Art. 101 of the Revised Penal Code, a father is made civilly liable for the acts committed by his son only if the latter is an imbecile, an insane, under 9 years of age, or over 9 but under 15 years of age, who acts without discernment, unless it appears that there is no fault or negligence on his part. This is because a son who commits the act under any of those conditions is by law exempt from criminal liability (Article 12, subdivisions 1, 2 and 3, Revised Penal Code). The idea is not to leave the act entirely unpunished but to attach certain civil liability to the person who has the delinquent minor under his legal authority or control. But a minor over 15 who acts with discernment is not exempt from criminal liability, for which reason the Code is silent as to the subsidiary liability of his parents should he stand convicted. In that case, resort should be had to the general law which is our Civil Code.

The particular law that governs this case is Article 2180, the pertinent portion of which provides: "The father and, in case of his death or incapacity, the mother, are responsible for damages caused by the minor children who live in their company." To hold that this provision does not apply to the instant case because it only covers obligations which arise from quasi-delicts and not obligations which arise from criminal offenses, would result in the absurdity that while for an act where mere negligence intervenes the father or mother may stand subsidiarily liable for the damage caused by his or her son, no liability would attach if

the damage is caused with criminal intent. Verily, the void apparently exists in the Revised Penal Code is subserved by this particular provision of our Civil Code, as may be gleaned from some recent decisions of this Court which cover equal or identical cases.

Moreover, the case at bar was decided by the Court of Appeals on the basis of the evidence submitted therein by both parties, independently of the criminal case. And responsibility for fault or negligence under Article 2176 upon which the action in the present case was instituted, is entirely separate and distinct from the civil liability arising from fault of negligence under the Penal Code (Art. 2177), and having in mind the reasons behind the law as heretofore stated, any discussion as to the minor's criminal responsibility is of no moment.

IN VIEW HEREOF, the petition is dismissed, the decision appealed from is affirmed, with costs against the petitioner.

G.R. No. 34840 September 23, 1931

NARCISO GUTIERREZ, plaintiff-appellee, vs. BONIFACIO GUTIERREZ, MARIA V. DE GUTIERREZ, MANUEL GUTIERREZ, ABELARDO VELASCO, and SATURNINO CORTEZ, defendants-appellants.

MALCOLM, J.:

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This is an action brought by the plaintiff in the Court of First Instance of Manila against the five defendants, to recover damages in the amount of P10,000, for physical injuries suffered as a result of an automobile accident. On judgment being rendered as prayed for by the plaintiff, both sets of defendants appealed.

On February 2, 1930, a passenger truck and an automobile of private ownership collided while attempting to pass each other on the Talon bridge on the Manila South Road in the municipality of Las Piñas, Province of Rizal. The truck was driven by the chauffeur Abelardo Velasco, and was owned by Saturnino Cortez. The automobile was being operated by Bonifacio Gutierrez, a lad 18 years of age, and was owned by Bonifacio's father and mother, Mr. and Mrs. Manuel Gutierrez. At the time of the collision, the father was not in the car, but the mother, together will several other members of the Gutierrez family, seven in all, were accommodated therein. A passenger in the autobus, by the name of Narciso Gutierrez, was en route from San Pablo, Laguna, to Manila. The collision between the bus and the automobile resulted in Narciso Gutierrez suffering a fracture right leg which required medical attendance for a considerable period of time, and which even at the date of the trial appears not to have healed properly.

It is conceded that the collision was caused by negligence pure and simple. The difference between the parties is that, while the plaintiff blames both sets of defendants, the owner of the passenger truck blames the automobile, and the owner of the automobile, in turn, blames the truck. We have given close attention to these highly debatable points, and having done so, a majority of the court are of the opinion that the findings of the trial judge on all controversial questions of fact find sufficient support in the record, and so should be maintained. With this general statement set down, we turn to consider the respective legal obligations of the defendants.

In amplification of so much of the above pronouncement as concerns the Gutierrez family, it may be explained that the youth Bonifacio was in incompetent chauffeur, that he was driving at an excessive rate of speed, and that, on approaching the bridge and the truck, he lost his head and so contributed by his negligence to the accident. The guaranty given by the father at the time the son was granted a license to operate motor vehicles made the father responsible for the acts of his son. Based on these facts, pursuant to the provisions of article 1903 of the Civil Code, the father alone and not the minor or the mother, would be liable for the damages caused by the minor.

We are dealing with the civil law liability of parties for obligations which arise from fault or negligence. At the same time, we believe that, as has been done in other cases, we can take cognizance of the common law rule on the same subject. In the United States, it is uniformly held that the head of a house, the owner of an automobile, who maintains it for the general use of his family is liable for its negligent operation by one of his children, whom he designates or permits to run it, where the car is occupied and being used at the time of the injury for the pleasure of other members of the owner's family than the child driving it. The theory of the law is that the running of the machine by a child to carry other members of the family is within the scope of the owner's business, so that he is liable for the negligence of the child because of the relationship of master and servant. (Huddy On Automobiles, 6th ed., sec. 660; Missell vs. Hayes [1914], 91 Atl., 322.) The liability of Saturnino Cortez, the owner of the truck, and of his chauffeur Abelardo Velasco rests on a different basis, namely, that of contract which, we think, has been sufficiently demonstrated by the allegations of the complaint, not controverted, and the evidence. The reason for this conclusion reaches to the findings of the trial court concerning the position of the truck on the bridge, the speed in operating the machine, and the lack of care employed by the chauffeur. While these facts are not as clearly evidenced as are those which convict the other defendant, we nevertheless hesitate to disregard the points emphasized by the trial judge. In its broader aspects, the case is one of two drivers approaching a narrow bridge from opposite directions, with neither being willing to slow up and give the right of way to the other, with the inevitable result of a collision and an accident.

The defendants Velasco and Cortez further contend that there existed contributory negligence on the part of the plaintiff, consisting principally of his keeping his foot outside the truck, which occasioned his injury. In this connection, it is sufficient to state that, aside from the fact that the defense of contributory negligence was not pleaded, the evidence bearing out this theory of the case is contradictory in the extreme and leads us far afield into speculative matters.

The last subject for consideration relates to the amount of the award. The appellee suggests that the amount could justly be raised to P16,517, but naturally is not serious in asking for this sum, since no appeal was taken by him from the judgment. The other parties unite in challenging the award of P10,000, as excessive. All facts considered, including actual expenditures and damages for the injury to the leg of the plaintiff, which may cause him permanent lameness, in connection with other adjudications of this court, lead us to conclude that a total sum for the plaintiff of P5,000 would be fair and reasonable. The difficulty in approximating the damages by monetary compensation is well elucidated by the divergence of opinion among the members of the court, three of whom have inclined to the view that P3,000 would be amply sufficient, while a fourth member has argued that P7,500 would be none too much.

In consonance with the foregoing rulings, the judgment appealed from will be modified, and the plaintiff will have judgment in his favor against the defendants Manuel Gutierrez, Abelardo Velasco, and Saturnino Cortez, jointly and severally, for the sum of P5,000, and the costs of both instances.

G.R. No. L-62988 February 28, 1985

FELINA RODRIGUEZ-LUNA, JOSE R. LUNA and ROBERTO R. LUNA, JR., petitioners, vs. THE HON. INTERMEDIATE APPELLATE COURT, JOSE E. DELA ROSA and LUIS DELA ROSA, respondents.

ABAD SANTOS, J.:

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This is a petition to review a decision of the defunct Court of Appeals. The petitioners are the heirs of Roberto R. Luna who was killed in a vehicular collision. The collision took place on January 18, 1970, at the go-kart practice area in Greenhills, San Juan, Metro Manila. Those involved were the go-kart driven by the deceased, a business executive, and a Toyota car driven by Luis dela Rosa, a minor of 13 years who had no driver's license.

In a suit for damages brought by the heirs of Roberto R. Luna against Luis dela Rosa and his father Jose dela Rosa, the Court of First Instance of Manila in Civil Case No. 81078, rendered the following judgment:

WHEREFORE, judgment is hereby rendered sentencing the defendants Luis dela Rosa and Jose dela Rosa to pay, jointly and severally, to the plaintiffs the sum of P1,650,000.00 as unearned net earnings of Roberto Luna, P12,000.00 as compensatory damages, and P50,000.00 for the loss of his companionship, with legal interest from the date of this decision; plus attorney's fees in the sum of P50,000.00, and the costs of suit. (Record on Appeal, p. 35.)

The defendants appealed to the defunct Court of Appeals which in a decision dated May 22, 1979, affirmed in toto that of the trial court. (Rollo, p. 48.) However, upon a motion for reconsideration filed by the defendants-appellants, the Court of Appeals, in a resolution dated June 19, 1981, modified its judgment thus:

WHEREFORE, the decision rendered in this case is hereby modified insofar as the judgment ordering the defendants to pay, jointly and severally, the sum of P 1,650,000.00 to plaintiffs with legal interest from July 5, 1973, is concerned. In lieu thereof, defendants are hereby ordered to pay plaintiffs, jointly and severally, the sum of Four Hundred Fifty Thousand Pesos (P450,000.00) as unearned net earnings of Roberto R. Luna, with legal interest thereon from the date of the filing of the complaint until the whole amount shall have been totally paid.

The rest of the other dispositions in the judgment a quo stand. (Rollo, pp. 33-34.)

Both parties filed separate petitions for review of the appellate court's decision.

In G.R. No. 57362, the petition for review of Jose and Luis dela Rosa was denied for lack of merit on October 5, 1981. Subsequently, they informed that the decision sought to be reviewed was not yet final because the Lunas had a pending motion for reconsideration. For prematurity, this Court set aside all previous resolutions. On February 16, 1983, acting upon the motion and manifestation of the petitioners, they were required to file an amended petition within thirty days from notice. On June 20, 1983, this Court resolved: "For failure of the petitioners to file an amended petition as required, this case is hereby DISMISSED and the dismissal is final."

The instant case — G.R. No. 62988 — is the separate appeal of the Lunas. Their petition contains the following prayer:

1. That the petition be given due course;

2. That after notice and hearing, judgment be rendered, setting aside or modifying the RESOLUTION of respondent Court of Appeals dated June 19, 1981, attached as Annex "A" to the petition, only insofar as it reduced the unearned net earnings to P450,000.00, s as to�

affirm the trial court's finding as to the unearned net earnings of the deceased in the amount of P1,650,000.00;

3. Ordering that the award of attorney's fees shall also be with interest, at the legal rate. (Rollo, p. 27.)

On June 27, 1983, the petition was given due course. (Rollo, pp. 122-123.)

In the light of the foregoing, the resolution stated:

It thus appears that the questions in esse are with respect to the award for unearned net earnings — should the award be P450,000.00 only or should it be P1,650,000.00 as originally adjudged; and whether the award for attorney's fees shall also be with interest at the legal rate.

The Court takes notice that the wrongful death occurred as early as January 18, 1970, and that until now the process of litigation is not yet over. In the meantime the value of the Philippine peso has been seriously eroded so that the heirs of the deceased may ultimately have a greatly depreciated judgment. In the interest of justice, the private respondents are hereby ordered to PAY to the petitioners within thirty (30) days from notice the following amounts adjudged against them: P450,000.00 for unearned net earnings of the deceased; (P12,000.00 as compensatory damages; P50,000.00 for the loss of his companionship with legal interest from July 3, 1973; and P50,000.00 as attorney's fees.

Still to be resolved shall be the following: whether the award for unearned net earnings shall be increased to P1,650,000.00; and whether the award for attorney's fees shall also be with interest at the legal rate. The costs will be adjudged as a matter of course. (Rollo, p. 123.)

The private respondents failed to pay the amounts and when required to explain they said that they had no cash money. Accordingly, this Court directed the trial court to issue a writ of execution but the attempt of the special sheriff to enter the private respondent's premises so that he could make an inventory of personal properties was thwarted by guards and this Court had to direct the Chief of the Philippine Constabulary to assist in enforcing the writ of execution. The execution yielded only a nominal amount. In the meantime, Luis dela Rosa is now of age, married with two children, and living in Madrid, Spain with an uncle but only casually employed. It is said: "His compensation is hardly enough to support his family. He has no assets of his own as yet." (Rollo, p. 208.)

1. On the amount of the award.

The award of P1,650,000.00 was based on two factors, namely: (a) that the deceased Roberto R. Luna could have lived for 30 more years; and (b) that his annual net income was P55,000.00, computed at P75,000.00 annual gross income less P20,000.00 annual personal expenses.

This is what the trial court said on Luna's life expectancy:

According to the American Experience Table of Mortality, at age 33 the life expectancy of Roberto Luna was 33.4 years, and under the Commissioner Standard Ordinary, used by our domestic insurance companies since 1968 for policies above P5,000.00 his life expectancy was 38.51 years. Dr. Vicente Campa, medical director of San Miguel Corporation, testified

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that he was the regular physician of Roberto Luna since his marriage to Felina Rodriguez in 1957. He said that except for a slight anemia which he had ten years earlier, Roberto Luna was of good health. Allowing for this condition, he could reasonably expect to have a life expectancy of 30 years. (Record on Appeal, p. 33.)

The Court of Appeals in sustaining the trial court's conclusion said:

We have not been persuaded to disturb the conclusion that the deceased had a life expectancy of thirty years. At the time of Luna's death, he was only thirty-three years old and in the best of health. With his almost perfect physical condition and his sound mind, the expectation that he could have lived for another thirty years is reasonable, considering that with his educational attainment, his social and financial standing, he had the means of staying fit and preserving his health and well-being. That he could have lived at least until the age of sixty-three years is an assessment which is more on the conservative side in view of the testimony of Dr. Vicente Campa that the general life expectancy nowadays had gone up to seventy years. (Rollo, p. 45.)

The Court of Appeals likewise sustained the trial court in respect of Luna's annual income and expense. This is what the trial court said:

Roberto Luna was 33 years old when he died, and was survived by his wife Felina Rodriguez-Luna, and two children, Roberto Jr., 13 years, and Jose, 12 years. His wife was 35 years old at the time. He declared a gross income of P16,900.00 for 1967 (Exhibit I), P29,700,000 for 1968 (Exhibit H) and P45,117.69 for 1969 (Exhibit G). He had investments in various corporations amounting to P136,116.00 (Exhibits K, M, M-1, N, N-1 to N-3, O, O-1, P, Q and R) and was the president and general manager of Rodlum Inc.; general manager of Esso Greenhills Service Center; Assistant manager of Jose Rodriguez Lanuza Sons; director of Steadfast Investment Corporation; chairman and treasurer of Greenhills Industrial Corporation; vice-president of Oasis, Inc.; director of Nation Savings Association; director of Arlun Taxi; and treasurer of National Association of Retired Civil Employees.

... . His income tax returns show an increase in his income in the short period of three years. It is reasonable to expect that it would still go higher for the next fifteen years and reach a minimum of P75,000.00 a year. The potential increase in the earning capacity of a deceased person is recognized by the Supreme Court. ... the court believes that the expected gross earnings of Roberto Luna should be fixed in the sum of P75,000.00 a year for the period of his life expectancy of 30 years, but deducting his personal expenses which, because of his business and social standing the court in the amount of P20,000.00 a year, in accordance with the rulings of the Supreme Court. (Record on Appeal, pp. 32-34.)

Acting on a motion for reconsideration filed by the dela Rosas, the Court of Appeals took into account the fact "that the deceased Roberto R. Luna had been engaged in car racing as a sport, having participated in tournaments both here and abroad;" it said that Luna's habit and manner of life should be "one of the factors affecting the value of mortality table in actions for damages;" and, consequently, concluded that Luna could not have lived beyond 43 years. The result was that the 30-year life expectancy of Luna was reduced to 10 years only.

Further on the motion for reconsideration, the Court of Appeals ruled in respect of Luna's annual personal expenses:

... . Considering the escalating price of automobile gas which is a key expenditure in Roberto R. Luna's social standing, We should increase that amount to P30,000.00 as the would be personal expenses of the deceased per annum. (Rollo, p. 33.)

The Court of Appeals then determined the amount of the award thus: P75,000.00 annual gross income less P30,000.00 annual personal expenses leaves P45,000.00 multiplied by 10 years of life expectancy and the product is P450,000.00.

The petitioners contend that the Court of Appeals erred when by its resolution of June 19, 1981, it reduced Luna's life expectancy from 30 to 10 Years and increased his annual personal expenses from P20,000.00 to P30,000.00. We sustain the petitioners.

The Court of Appeals, in reducing Luna's life expectancy from 30 to 10 years said that his habit and manner of life should be taken into account, i.e. that he had been engaged in car racing as a sport both here and abroad - a dangerous and risky activity tending to shorten his life expectancy. That Luna had engaged in car racing is not based on any evidence on record. That Luna was engaged in go-kart racing is the correct statement but then go-kart racing cannot be categorized as a dangerous sport for go-karts are extremely low slung, low powered vehicles, only slightly larger than foot-pedalled four wheeled conveyances. It was error on the part of the Court of Appeals to have disturbed the determination of the trial court which it had previously affirmed.

Similarly, it was error for the Court of Appeals to reduce the net annual income of the deceased by increasing his annual personal expenses but without at the same time increasing his annual gross income. It stands to reason that if his annual personal expenses should increase because of the "escalating price of gas which is a key expenditure in Roberto R. Luna's social standing" [a statement which lacks complete basis], it would not be unreasonable to suppose that his income would also increase considering the manifold sources thereof.

In short, the Court of Appeals erred in modifying its original decision.

2. Attorney's fees — with or without interest at the legal rate.

The trial court awarded attorney's fees to the petitioners in the sum of P50,000.00. This award was affirmed by the Court of Appeals in its decision of May 22, 1979. The resolution of June 19, 1981, reaffirmed the award. The two decisions as well as the resolution do not provide for interest at the legal rate to be tacked to the award.

The petitioners now pray that the award of attorney's fees be with interest at the legal rate from the date of the filing of the complaint. There is merit in this prayer. The attorney's fees were awarded in the concept of damages in a quasi-delict case and under the circumstances interest as part thereof may be adjudicated at the discretion of the court. (See Art. 2211, Civil Code.) As with the other damages awarded, the interest should accrue only from the date of the trial court's decision.

The private respondents invoke Elcano vs. Hill, L-24803, May 26,1977; 77 SCRA 98, where it was held that Article 2180 of the Civil Code applied to Atty. Marvin Hill notwithstanding the emancipation by marriage of Reginald Hill, his son but since Reginald had attained age, as a matter of equity, the liability of Atty. Hill had become merely subsidiary to that of his son. It is now said that Luis dela Rosa, is now married and of legal age and that as a matter of equity the liability of his father should be subsidiary only.

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We are unwilling to apply equity instead of strict law in this case because to do so will not serve the ends of justice. Luis dela Rosa is abroad and beyond the reach of Philippine courts. Moreover, he does not have any property either in the Philippines or elsewhere. In fact his earnings are insufficient to support his family.

WHEREFORE, the resolution of the Court of Appeals dated June 19, 1981, is hereby set aside; its decision dated May 22, 1979, is reinstated with the sole modification that the award for attorney's fees shall earn interest at the legal rate from July 5, 1973, the date of the trial court's decision. Costs against the private respondents.

SO ORDERED.

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