1. HUSBAND AND WIFE; FACT OF MARRIAGE BETWEEN APPELLANT AND APPELLEE NOT ESTABLISHED; APPELLEE CANNOT USE SURNAME OF APPELLANT. — There being no marriage between appellant "S" and appellee "P", it would be improper for he latter to continue using the former’s surname and representing herself as his wife. Article 370 of the Civil Code of the Philippines authorizes a married woman to use the surname of her husband; and impliedly, it also excludes others from doing likewise.

2. DAMAGES; MORAL DAMAGES; CLAIM NOT SATISFACTORILY PROVED; CLEAR SHOWING OF FACT GIVING RISE TO SUCH DAMAGES NECESSARY. — As to plaintiff E.S.’s claim for moral damages, the lower court correctly found that her claims of humiliation and distress are not satisfactorily proved and this Court has no ground for disturbing such findings, considering the trial judge’s ample opportunity to observe the witness at the stand. Plaintiff alleged distress upon learning from her lawyer that her husband had a child by the defendant, and was being sued for its support, confers no right to claim damages, in the absence of proof that the suit was malicious; and although Art. 2216 of the Civil Code expressly provides that no proof of pecuniary loss is necessary in order that moral, nominal, . . . or exemplary damages may be adjudicated, and the assessment thereof is left to the discretion of the court, there should be a clear showing of the facts giving rise to such damages (Art. 2217).

3. ID.; PECUNIARY DAMAGES; APPELLANT’S DECEPTION AND FRAUD PRACTICED ON APPELLEE JUSTIFY THE AWARD THEREOF. — No great effort is needed to discern that appellee would never have agreed to live maritally with appellant nor beget a child by him had not appellant concealed that he was already married; and in that case, appellee would not have been compelled to relinquish her employment to attend to the case filed by her in Manila for the support of her child which appellant refused to give. It is thus clear that appellee’s loss of employment is ultimately a result of appellants’ deception and she should be indemnified therefor. Besides, appellant’s act in hiding from appellee that he could not legally marry her, because he is a married man, was not mere negligence, but actual fraud (dolo). Consequently, he should stand liable for any and all damages arising therefrom, which include the expenses of maintaining the offspring and the expenses of litigation to protect the child’s rights, and the loss of the mother’s own earnings.

4. ID.; MORAL DAMAGES AS A CONSEQUENCE OF SEXUAL RELATIONS OUTSIDE OF WEDLOCK ALLOWED UNDER THE NEW CIVIL CODE. — Granting that under the old law, no moral damages were allowable as a consequence of sexual relations outside of wedlock, still, there is here an obvious pattern of harassment, with a view to forcing appellee into abandoning the interest of her child; and that such deliberate maneuvers caused the mother mental anguish and even physical suffering (she actually became ill as a result), can easily be understood and needs no special demonstration beyond her testimony to that effect; and as this injury was inflicted upon the appellee from 1954 onwards, after the new Civil Code has become operative, it constitutes a jurisdiction for the award of moral damages (Art. 2217).

5. PLEADING AND PRACTICE; AMENDED COMPLAINT, ADMISSION OF DISCRETIONARY. — As to the admission of the amended complaint, the same is discretionary in the trial court, and we do not see that the appellants were substantially prejudiced by the admission.

Direct appeal on both questions of fact and law from the decision of the Court of First Instance of Davao, the amount involved being more than P2000,000.00.

This action was commenced in the Court of First Instance of Davao on December 27, 1954 by Elenita Ledesma Silva, assisted by her husband Saturnino R. Silva, against Esther Peralta, seeking to enjoin the latter from representing herself as Mrs. Esther Peralta Silva; to order said defendant to pay Elenita Silva the sum of P250,000.00 as moral, nominal and exemplary damages, allegedly suffered by reason of such misrepresentation, plus P10,000.00 by way of attorney’s fees. Defendant’s answer contains both specific denials and counterclaims for actual damages and fees due to harassment and moral damages caused by Silva’s marital relation with defendant, without disclosing to her that he was married; and his subsequent refusal to acknowledge their offspring.

After trial the lower court rendered judgment, the dispositive portion of which reads, to wit:jgc:chanrobles.com.ph

"EN SU VIRTUD, el Juzgado dicta decision en esta causa contra de los demandantes, y a favor de la demandada;.

a) Ordena el sobreseimiento de la demanda en autos por falta de meritos;

b) Condena a los demandantes, mancomunada y solidariamente a pagar a la demandada la suma de P30,000.00 por los conceptos in dicados,

c) Condena a los demandantes a pagar la suma de P5,000.00 por honorarios de abodago; y

d) Las costas del juicio.

ASI SE ORDENA."cralaw virtua1aw library

The findings of fact of the lower court may be briefly summarized as follows:chanrob1es virtual 1aw library

At the outbreak of the war in 1941, the defendant Esther Peralta abandoned her studies as a student nurse at the Zamboanga General Hospital. In June of 1942, she resided with her sister, Mrs. Pedro Pia, in Maco, Tagum, Mabini Davao. Saturnino Silva, then an American citizen and an officer of the United States Army and married to one Prescilla Isabel of Australia, had been ordered sent to the Philippines during the enemy occupation to help unite the guerrillas in their fight for freedom. In 1944, he was the commanding officer of the 130th Regiment, under the overall command of Colonel Claro Laureta of the 107th Division, with general headquarters at Magugpo, Tagum, Davao.

Some time during the year 1944, Florence, a younger sister of the defendant, was accused of having collaborated with the enemy, and for this she was arrested, and, accompanied by Esther, brought to Anibongan and later to the general headquarters at Magugpo for investigation. It was during said investigation that Silva first met Esther. Florence was exonerated of the charges made against her and was ordered released, but with the advice that she should not return to Maco for the time being. Heeding such advice, Florence and her sister, appellee herein, went to live with the spouses Mr. and Mrs. Camilo Doctolero at Tipas, Magugpo, Davao.

Silva started to frequent the house of the Doctoleros, and soon professed love for Esther. Having been made to believe that he was single, she accepted his marriage proposal; and the two were married on January 14, 1945 by one Father Cote on the occasion of a house blessing. No. documents of marriage were prepared nor executed, allegedly because there were no available printed forms for the purpose. Hence, the lovers lived together as husband and wife. From the "marriage", a child, named Saturnino Silva, Jr., was born.

On May 8, 1945, Silva sustained serious wounds in the battle of Ising, for which reason, he was transferred to Leyte, and later to the United States, for medical treatment. While in the States, he divorced Priscilla Isabel and later, on May 9, 1948, contracted marriage with plaintiff Elenita Ledesma Silva.

Upon his return to the Philippines, appellee Esther Peralta demanded support for their child, and, upon his refusal, instituted a suit for support in the Court of First Instance of Manila. Thereupon, the present action was filed against Esther, and another suit against her was instituted in Cotabato.

Except for the statement that a marriage actually took place between Saturnino Silva and Esther Peralta; the evidence on record fully supports the foregoing findings of fact of the lower court. No evidence was offered, other than the testimonies of the defendant herself and her counsel, Atty. Juan Quijano, to prove any such alleged marriage, although there is convincing proof that the defendant and Saturnino Silva, for a time, actually lived together as common-law husband and wife. But the witnesses’ asseverations regarding the marriage, taken by themselves and considered with other circumstances appearing on record, reveal too much uncertainty and incoherence as to be convincing.

In the course of the pre-tail conference, Esther Peralta testified as follows:jgc:chanrobles.com.ph

"COURT, (To the defendant)

Do you have any evidence to show that you are married?

DEFENDANT:chanrob1es virtual 1aw library

That was during guerrilla days and it was the justice of the peace of free Davao who solemnized our marriage." (pp. 2-3, t.s.n.) (Italics supplied).

On cross-examination, however, she declared.

"Q. — Who was the justice of the peace who performed the marriage?

"A. — It was Father Cote who asked us the questions and after that he said I pronounce you as husband and wife. The justice of the peace was also there (p. 411 t.s.n.) (Italics supplied).

It is difficult to imagine how appellee could have easily forgotten or be confused as to who performed the alleged marriage when such fact, if true, heralded an important and memorable event in her life. But this is not all. In her written statement to the President of the Davao Local Council, Girl Scouts of the Philippines, when asked to explain on her use of the surname Silva, this witness-defendant never revealed any marriage contracted by herself and Silva. In fact, she declared —

"Sometime later, he proposed marriage to me. As was natural, I told him to talk to my sisters and to the oldest relative of mine living in Magugpo. With all sincerity, he complied with my request and in due time my relatives gave their consent to our marriage.

For some reason or another, and because I myself wished that our marriage take place after liberation — which was then nearing — marriage was delayed. But he pleaded to me that he needs me and that I join him and live with him in his quarters. After thinking the matter over, I agreed. I have nothing to be ashamed of for this because I was convinced of the sincerity of his request and of the fact that we were going to get married soon after liberation.

We started living together as man and wife in December, 1944. As a result of our living together, I bore a child, named after him. He was baptized and registered as Saturnino Silva, Jr., and he has been carrying that name ever since. . . ." (Exh. 22-C).

Noteworthy also is the fact that while in her foregoing declarations she asserted that they started living together as man and wife since December, 1944, in her testimony in court, however, she attested as follows:jgc:chanrobles.com.ph

"Q. — And it was also on that day (January 14, 1945) when you said you were married to Mr. Silva?

A. — Yes, sir.



Q. — Do we understand from you now that it was the first time that you began to live together as husband and wife with Mr. Silva?

A. — Yes, sir, because that was time when we were legally married." (p. 411, t.s.n.) .

Again, Juan Quijano, presented as witness for the defendant, only testified to the following:chanrob1es virtual 1aw library



Q. — And you affirm to this Court that plaintiff Saturnino R. Silva is lawfully wedded to the defendant Esther Peralta?

A. — Except for the fact of final formal marriage contract, for all intents and purposes they were legally married.



Q. — Would you, Mr. Quijano, say that a man and woman are legally married without the marriage contract having been signed by both contracting parties to the marriage, and he marriage solemnized?

A. — I would say, in my humble way of thinking, having in mind the provisions of the new civil code, that even without the signing of marriage contract by the parties, but if the parties have acted and believed that they are husband and wife, to my humble way of thinking, that is even better than singing marriage contract which the parties cannot agree.

Q. — Do I understand from you that between plaintiff Saturnino R. Silva and defendant Esther Peralta, no marriage was ever solemnized?.



A. — I did not say that there was marriage solemnized, but I was present when Silva asked the hands of Esther Peralta in marriage from her older sister." (t.s.n., pp. 223-226, Exhibit A-1).

The records also disclose that in a complaint for support in Civil Case No. 22816 of the Court of First Instance of Manila, filed by appellee herein on behalf of her son, Saturnino Silva, Jr., it was alleged that appellant Saturnino Silva maintained appellee "as his common-law-wife" (Exhs. "H" and "H-1"). In the affidavit (Exhibit "H- 2") attached to the aforementioned complaint she affirmed under oath that she was "single." Appellee Esther Peralta, being a woman of sufficient schooling, must have known the significance of the terms thus employed.

All the foregoing circumstances, coupled with the admitted fact that no marriage documents of any kind prior to, during or after the marriage were ever prepared or executed by anybody, and that a vigorous denial of the supposed marriage was made by Saturnino Silva, the alleged consort, lead to the conclusion that no marriage had really taken place.

In the face of the evidence, we cannot give value on the presumption of the marriage under section 69 (bb) of the Rules of Court, especially because, at the time of the alleged marriage on January 14, 1945, Saturnino Silva was still married to one Priscilla Isabel, an Australian national.

In view of the non-existence of appellee’s marriage with Saturnino Silva and the latter’s actual marriage to plaintiff Ledesma,, it is not proper for Esther to continue representing herself as the wife of Saturnino. Article 370 of the Civil Code of the Philippines authorizes a married woman to use the surname of her husband; impliedly, it also excludes others from doing likewise.

As to plaintiff Elenita Silva’s claim for moral damages, the Court below has carefully analyzed the evidence in its decision and found (Rec. App., p. 47-49) that her claims of humiliation and distress are not satisfactorily proved; and we have found no ground to disturb such findings, considering the trial judge’s ample opportunity to observe the witnesses at the stand. The plaintiff’s distress upon learning from her lawyer that her husband had a child by the defendant, and was being sued for its support, confers no right to claim damages, in the absence of proof that the suit was reckless or malicious. Although Article 2216 of the Civil Code expressly provided that "no proof of pecuniary loss is necessary in order that moral, nominal, . . . or exemplary damages may be adjudicated", and the assessment thereof, "is left to the discretion of the court, there should be a clear showing of the facts giving rise to such damages (Art. 2217). This is particularly the case here, since it appears that appellee had acted in good faith, Silva having formerly introduced and appellee to other persons as Mrs. Silva, and sent her letters thus addressed (Exh. 2), implying authority to use the disputed appellation prior to his subsequent marriage to Elenita Ledesma.

Regarding the counterclaim for damages, the lower court awarded damages to the defendant appellee, stating in its decision;

"El Juzgado estima en P15,000.00, los daños que la demandada ha sufridi por haber perdido el puesto en la Davao Council, y por los sufrimientos moral que aquella ha sufrido, la suma de P15,000.00, mas la adicional de P5,000.00 por honorarios de abogado."cralaw virtua1aw library

This award is contested by appellants on the ground that defendant appellee’s resignation from the Girl Scouts Davao Council was voluntary; according to her own letter Exhibit "S", she applied for an indefinite leave of absence to attend to a personal matter in Manila, which turned out to be the civil case that she had filed against Silva for the support for her child by him. Witness Felicidad Santos, asked about the reason why Esther Peralta left her position, testified:jgc:chanrobles.com.ph

"She resigned. She told me there was a case. In fact that was the time when she told me that there was a case which (she) filed in Manila and to attend that case it will interfere too much of her activities as an Executive of the Davao Girl Scout." (t.s.n., pp. 245- 246, Restauro)

No great effort is needed to discern that Esther Peralta would never have agreed to live maritally with appellant Silva nor beget a child by him had not Silva concealed that he was already married; and in that case appellee Peralta would not have been compelled to relinquish her employment to attend to the litigation filed to obtain for the child the support that Silva refused. Wherefore, Esther’s loss of employment is ultimately a result of Silva’s deception and she should be indemnified therefor. It is well to note in this connection, that Silva’s act in hiding from the appellee that he could not legally marry her, because he already had an Australian wife, was not mere negligence, but actual fraud (dolo) practiced upon the appellee. Consequently, he should stand liable for any and all damages arising therefrom, which included the expense of maintaining the offspring and the expenses of litigation to protect the child’s rights, and the loss of the mother’s own earnings. This is a liability that flows even from Articles 1902 and 1107 (par. 2) of 1889 (Arts. 2176 and 2202 of the New Code).

"ART. 1902. Any person who by an act or omission causes damage to another by his fault or negligence shall be liable for the damage so done."cralaw virtua1aw library

"ART. 1107. In case of fraud (dolo) the debtor shall be liable for all losses and damages which clearly arise from the failure to fulfill the obligation."cralaw virtua1aw library

Considering that the child was born on October 30, 1945, and has had to be supported exclusively by his mother since then up to the present, because the appellant Silva has refused to pay or even contribute to such support, and that appellee was earning P150.00 a month until she had to leave Davao to attend to her son’s case, we can not say that P15,000.00 pecuniary damages awarded by the Court below are excessive or inequitable.

The lower court’s award of moral damages is, likewise, assailed as unjustified and not allowable under the law and jurisprudence governing before the effectivity of the new Civil Code of the Philippines.

Granting arguendo the correctness of the proposition that, under the old law, no moral damages were allowable as a consequence of sexual relations outside of wedlock, still the evidence of record satisfies us that after the filing in May of 1954 of the first action by Esther Peralta against appellant Saturnino Silva, seeking support of their minor child, said appellant managed to avoid the service of summons, which were still unserved on him until the case at bar was tried, and in addition exercised improper pressure upon the appellee to make her withdraw the suit; that to this effect, appellant’s brother and one Mrs. Misa, Girl Scouts executive of Iloilo, went to see Esther Peralta to press her to drop the case, warning her of untoward consequences otherwise; and when she refused, appellants, through counsel, filed against her the present action in Davao and another one in the Court of First Instance of Cotabato, charging her with conversion of Silva’s properties in addition to bringing to the attention of the higher authorities of the Girl Scouts organization (wherein Esther Peralta was then employed) appellee’s claim to be the wife of Col. Saturnino Silva, to whom "she must have been wedded in contemplation" (sic, Exh. 22), and unchaining a series of investigations that brought to light her condition as an unwedded mother, there is apparent here an obvious pattern of harassment, with a view to forcing appellee into abandoning the interests of her child. That such deliberate maneuvers caused the mother mental anguish and even physical suffering (she actually became ill as a result), can be easily understood and needs no special demonstration beyond her testimony to that effect.

As this injury was inflicted upon the appellee from 1954 onwards, after the new Civil Code had become operative, it constitutes a justification for the award of moral damages (Art. 2217), claimed by appellee in the first counterclaim of her amended answer (Record on Appeal, pp. 26-27). The court below, as already noted, awarded her P15,000.00 as moral damages and P5,000.00 attorney’s fees; and taking all the circumstances of record, we are not inclined to disturb the award. However we agree with appellants that it was error for the court to sentence both appellants to the solidary payment of the damages. The liability therefor should be exclusively shouldered by the husband Saturnino Silva.

As to the admission of the amended complaint, the same is discretionary in the trial court, and we do not see that the appellants were substantially prejudiced by the admission.

In view of the foregoing, the judgment appealed from is modified and defendant appellee Esther Peralta is enjoined from representing herself, directly or indirectly to be the wife of appellant Saturnino R. Silva; and appellant Saturnino R. Silva is in turn ordered to pay Esther Peralta the amount of P30,000.00 by way of pecuniary and moral damages, plus P5,000.00 as attorneys’ fees. No costs.

Paras, C.J. Bengzon, Padilla, Bautista Angelo, Labrador, Barrera Gutiérrez David, Paredes, and Dizon, JJ., concur.

RESOLUTION

August 29, 1961

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

Appellants spouses Saturnino Silva and Elenita Ledesma Silva pray for the reconsideration of this court’s decision of November 25, 1960, claiming that:chanrob1es virtual 1aw library

(1) Appellant Elenita Silva should be awarded moral damages for Esther Peralta’s unauthorized use of the designation in "Mrs. Esther Silva."

(2) The award of pecuniary damages against appellant Saturnino Silva is unwarranted by the facts of the law.



It is contended that the prohibition imposed upon appellee Esther Peralta from representing herself, directly or indirectly, as the wife of Saturnino Silva should result in an award of moral damages in favor of appellant Elenita Ledesma, whose exclusive right to the appellation is recognized by the decision.

This argument misapprehends the basis of the decision. Esther Peralta was forbidden from representing herself as Mrs. Saturnino Silva for the reason that it was proved in the case that she was not legally married to him, and because he is now lawfully married to Elenita Ledesma. But an award of damages in the latter’s favor would require a further finding that he assumption of the disputed status by Esther Peralta was made in bad faith or through culpable negligence and no such finding has been made in the decision. The facts are that Esther in good faith regarded herself as Saturnino’s lawful wife, and that the man himself led her into this belief prior to his desertion. That later on, unknown to Esther, Silva should have married his co- appellant in the United States is not sufficient to impose upon Esther any liability for damages or to destroy her original good faith, there being no proof that the existence of a valid marriage between Saturnino and Elenita was adequately driven home to Esther before this case was instituted. That the two appellants Silva were living together as husband and wife was certainly not sufficient proof, considering Saturnino Silva’s past history and conduct. How was appellee to know that Saturnino’s connection with Elenita Ledesma was any more legitimate than his previous one with appellee herself?

Moreover, the trial court found Elenita Silva’s claim for damages not adequately proved, and he have not found in the record any justification to depart from that finding.



As to the award of damages, against Saturnino Silva, it is to be noted that while the latter’s liability was extra-contractual in origin, still, under the Civil Code in 1889, the damages resulting from a tort are measured in the same manner as those due from a contractual debtor in bad faith, since he must answer for such damages, whether he had foreseen them or not, just as he must indemnify not only for damnum emergens but also for lucrum cessans, as required by Article 1106. Article 1002 of the 1889 Civil Code of Spain formulated no standard for measuring quasi-delictual damages, the article merely prescribing that the guilty party "shall be liable for the damages so done." This indefiniteness led modern civil law writers to hold that the standards set is articles 1106 and 1107, placed in the general rules on obligations, "rigen por igual para las contractuales y las extras contractuales, las preestablecidas y las que borten ex-lege de actos ilicitos." (Roces, Notes to Fisher)" Los Daños Civiles y su Reparación," (1927). Since liability for damages arises in either case from a breach of a pre-existing obligation (to behave without fault or negligence in case of quasi-delicts, and, in case of contracts, to observe the conduct required by the stipulation), it is logical to conclude with Planiol that "La responsibilidad contractual y la extra contractual tienen el mismo fundamento, por lo que se hallan sujetas en principio a idénticas reglas" (6 Planiol-Ripert, Derecho Civil, p. 529, sec. 378). Giogi is of the same opinion (5 Teoria de Obligaciones, pp. 133, 207-208). So is de Cossio y Corral ("El Dolo en el Derecho Civil,’, pp. 132-133):jgc:chanrobles.com.ph

"Pero si ello es asi, resulta claro que la aproximación entre esta clase de culpa y la contractual, es cada dia mayor, hasta el extremo de que, seg