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Philippine Decisions

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Parilo Ahrea, J1rlilio11er-appella11t, 1•s. lsabelo A. Llore11, respo11de11t-appellee, G. R. No. L-2078, October 26, 1948, OZAETA, j. I . ELECTIONS; STATUTES; CONSTRUCTION AND INTERPRETATION; EFFECT OF NONINCORPORATION OF A PRO\IISlON OF PREVIOUS ELECTION LAW IN THE REVISED ELECTION CODE. - The nonincorporation in the Revised Ekction Code of the provision of a previous election law (Act No. 42031 section 16), which said: "* •f * Nor sh:ill any vote be counted on which the c:rndidate is designated by his nickna n~ or alias, although mention thereof is made on his certificate of c:rndidacy," is indicative of the int.:ntion of the Congress to abandon it. 2. ID.; BALL 0 TS; N ICKNAMES; CAND I D ATE SUFFIC IENTLY IDENTIFIED BY N ICKNAMES.Appellee was sufficiently identified by his nickname Beloy or Biloy, first, becaus.e such nickname is a derivative, or a contraction of his Christian name Isabelo; second, because he was popularly and commonly known in the entire municipality of lnopacan by that nickname; and, third, because there was no other candidate for mayor with same nickname, 3. ID.; ID.; CANDIDATE SUFFICIENTLY IDENTIFIED BY HIS CHRISTIAN NAME OR SURNAME ONLY; RULES LAID DOWN IN CAILIES VS. GOMES AND BARBAJA, 42 PHIL. 496 AND CECILIO VS. TOMACRUZ, 62 PHIL. 689, CHANGED OR ABANDONED.Rule No. I contained in section 149 of Republic Act No. 180 reverses the doctrine or rule laid down by the Supreme Court regarding the use of the Christian name alone of a candidate by providing that-contrary to said docn ine-any ballot where onlr the Christian name of a candidate or only his surname appears is valid for such candidate if there is no other candidate with the same name or surname for the same office. The purpose of this new rule is co validate the vote provided the name written on the ballot identifies the candidate voted for ~yond any question or possible confusion wlth any other candidate for the same office. 4. ID.; ID.; N ICKNAMES; BALLOT BEARING N ICKNAME OF CANDIDATE ONLY, VALID. - W hen the nickname of a candidate is a derivative or contraction of his Christian name or of his surname, and if he is popularly and commonly known by May 31, 1949 PHILIPPINE DECISIONS that nickname, a ballot where only such nickname appears is valid for such candidate if there is no oth:r candidate with the same nickname for the.same office. 5. ID.; ID.; APPRECIATION OF BALLOTS.-A ballot is indicative of the will of the voter. It docs not require that it should be nicely or accurately written, or that the name of the candid:ite voted for should be correctly spelled. It should be read in the light of all the circumstances surrounding the el.ection and the voter, and the object should · be to ascertain and carry into effect the intention of the voter, if it can be determined with reasonable certainty. The ballot should be liberally construed, and the intendments should . be in favor of :i reading anJ construction which will render the ballot effective, r:it~-er than in favor of a conclusion which will, on some technical ground~, render it indfective. At the same time, it is not admissible to say that something was intended which is contrary to what was done; and if the ballot is so defective as to fail to show any intention whatever, it mUst be disreg.1rded. (Mandac vs. Samonte, 49 Phil. 284) 6. ID.; IO.; N ICKNAMES; EVIDENCE; PROOF OF CANDIDATE'S IDENTITY BY NICKNAME. - Tho protestee had the right to prove th1t he was popularly and commonly known by his nickname to overcome the contention of the protestant th.it the use of such nickname on the ballots in question did not sufficiently identify the protestee as rhe candidate voted for. 7. ID.; IO.; ID.; INQUIRY TO VOTES CAST LIMITED.- The trial court acted properly in limiting rhe inqu~~, to the number of votes cast for the protestee with only his nickname written on the ballots, bcc:iuse the basis of the protest was not th:it the election inspectors had erred in counting all the votes cast for e:ich of the two can<lidates but rh:it they .erred in co1inting in favor of the protestee 417 votes in which only his nick nam~ was used. No fraud, mistake, or misreading of the ballots was alleged in the protesr. The issue presented to the court was confined to whether there were really 417 vor.es for the protestee in which the nickname Beloy alone was written and whether those votes \\'ere valid or PERFECTO, /., concurring: 8 NICKNAMES.-As a general rule, votes cast in nicknames written i11 isolated ballots, should not be given effect in accordance with paragnph 9, Sec. 149, in connection with Sec. 34 of the Election Code. 9 C L E A R INTENTION OF THE ELECTORATE.-Wh.:n the evidence on record shows that the nickname written in the ballots express the intention of the electorate to vote for a candidate, that intention must be given effect. 10 CONCLUSIVE EVIDENCE.-T he fact that 602 ballots were cast with the names of Beloy, Biloy and Belog, nicknames of the Christian name Isabclo of a candidate, is conclusive evidence that the electorate vored in fact for said candidate. 11 LEGAL TECHNICALIT IES.-Legal technicalities should be brushed aside for the sake of the fundamenta l purpose of popular suffrage: that of giving effect to the will of the people as freely and clearly expressed in the ballots. 12 . BASIC PRINCIPLE OF POPULAR SOVEREIGNTY. - Statutory provisions and judicial doctrines on elections arc enacted and laid down to insure the determination of tltz true will of the people in consonance with the basic principle of the Constitution that "sovereignty resides in the people and all government authority emanates from them." 13 THE SUPREME LA W.-All provisions of law and legal doctrines should be interpreted, applied and enforced not to defeat but to give effect to the basic principles of the Constitution. The Constitution is the supreme law and all leg:il provisions are and should give way to its paramount authority. Afl)'S. Do111i11ador M. Tan, Braulio G. Af/1H'O f5 Co11rado G. Abirra ;rnd Dominador i\ I. H. 1fr }uy11 for tlw petilioner-appcllant. Allys. Domingo Vl'foso ;ind Ciulre11cr Veloso for the r~spondent-app<'llee. DEC I SION 0zAETA, /.: In the general elections of November 11, 1947, appellant Pacito Abrea and appellee lsabclo A. Lloren were the candidates for the office of municipal mayor of lnopacan, leyte. In his certificate of candidacy appellee Isabelo Lloren stated that he was also known by th.z followin!; names: Isabelo A. Lloren, lsabclo Lloren Abrea, Beloy Lloren, I. Lloren Abrca, Loy Lloren, and Loy Abrea. 247 Philippine Decisions The municipal board of canvassers proclaimed Jsabelo Llorcn municipal-mayorelcct with 1,010 votes, which g:ivc him a majority of 198 votes over Pacito Abrca, who obtained only 812 votes. Pacito Abrea protested the election of his opponent on four grounds, only the first of which is rdied upon by him in chis apappe:il, co wit: "(a) That a cot:il of 417 votes c:ist in :ill the prccints in said municipality in favor of one Beloy :is clearly wrim:-n in the ballots were credited and read in favor of the above respondent." In the course of t~ trial the b:illot boxes were opened, and it resulted that 517 votes wer.e cast for the office of municipal mayor in che name of Beloy, 77 votes in the name of Biloy, :md 8 votes in the name of Belog. The trial court found-and its finding is not questioned in this appeal-that it had b.een clearly proved that the protestee Isabelo A. Lloren was popularly :ind commonly known in the whole municipality of Jnopacan by his nickname Beloy or Bi\oy; and that the pro1estant himself proved that before and on the day of the election the protestee distributed sample ballots on which was written the name Beloy on the line corresponding to the office of municipal mayor. The trial court ::ilso found th::it in the said elections in Inopacan there was no other candidate for mayor or :iny other office who was known by the name Beloy. Declaring that the votes for municip:il mayor in t~ names of Belay, Biloy, anJ Belog had been correctly counted in favor of the protest.cc, the trial court confirmed the procbmation made by the municip:d bo:ud of canv:issers :ind declared the protestee municipal-m:iyor-clect of lnop:ican, ordering the protestant 10 pay the costs. From th::it judgment the protest:int has appealed to this court upon the questions of law which we shall now discuss. I. Appellant's main contention is t hat the 602 ballots in which only the nickname Beloy, Biloy, or Bclog was voted for municjpal mayor should have been rejected, thereby adjudicating only 408 votes to the appdlee :igainst the appelbnt's 812 votes. In other words he contends that :ill ballots in which only the nickname of the :ippcllee was written were invalid for said candid:itc. In support of his contention he cires paragr:iph 9 of section 149 of the Revised Election Code (Republic Act No. 180), :tpprovcd June 21, 1947, which reads as follows: "9. The use of the nicknames 1nd 1ppdladons of affeetion and friendship, if 1ccompanied by the name or surname of the candidate, does not annul tuch vote, ucept when they were used as a means to identify their Hsptctive voters." The foregoing is one of twenty-three rules for the appreci:ition of ballots contained in section 149 of the Revised Election Code, the first two n.iles being the following: "!. Any ballot where only 1he Chrinian name of candiduc or only his surname appurs i1 valid for such candidne, if there is no other candidate with the umt name or 1urname for the umc office; but when rhc word written in the ballot is at the same time the Christian name of a candidate rnd the surname of hi, opponent, 1lic vote shall bl: counted in favor of the hucr. .. 2. A name or surname incorrccdy written which, when- read, has a sound equal or simi!u to the rul name or surname of the candi.late shall be counted in his favor." Rule No. 9, wbich is,relied upon by appelbnt, provides only for the determin1tion of whcdu:r a b:illoc or vote shall or shall not be annulled on the ground th:it it is marked by means of a nickname. It s::iys that it sh:ill not be annulled on dat ground unless the nickname, ::iccomp:inied by the name or surn:ime of the candidate, was used as :t means to identify the voter. It does not s:iy that when a nickname alone is written to identify the· candidate voted for the \'Ote is invalid. If it h:id been the i n ten~ tion of the Congress to annul such vote it would h:ive preserved in the Revised Election Code the provision of a previous election l:iw (Act No. 4203, section 16), which said: •• • • • Nor shall any vote bl: counted on "'·hich the ondidHe ;, de•lgnatcd by hi1 nickname or alias, although mtntion 1huco( ;, made on his ccrtificnc of cmdidacy." The nonincorporation of th:it provision or rul.c in the Revised Election Code is indicative of che inten1ion of the Congress to abandon it. It is not conunded by the ::ippcllant that the 602 votes in question should be annulled as marked b::illots. His comcntion is th:it they should noc be counted in favor of th.':! appellee because the latter was not JUDICIARY ACT ... (Co11ti1111rd from p11gr 246 ) sufficiently identifi.ed by his nickname Deloy, Biloy or Bclog. We agree, however, with the trial court' th:it the appellce was sufficiently identified by his n,ickname Bcloy or Biloy, first, because such nickname is a derivative, or a contraction, of his Christian name Isabelo; second, because hr. was popularly and commonly known in the entire municipality of Inopacan by that nickname; and, third, because there was no other c:indidate for mayor with the s:ime nickname. We do not deem it necessary to decide whether the eight votes for " Belog" are valid or not, because they arc immaterial to the result. Previous to the enactment in 1938 of the Election Code (Commonwealth Act No. 35 7) the rules were: ( 1) that ballots bc::iring the Christian name only or the Christi:in name and th.c initial of the surn:ime of one candidate should be rejected as insufficient to identify the person voted for · (Cailles vs. Gomez and Barbaza [1921], 42 Phil. 496, 533); and (2) that, for the same re:ison, votes cast with only the nickname or the familiar name should not be counted in favor of any candid'.l.tC (Cecilio vs. Tomacruz [ 1935], 62 Phil. 689). But such rules were ch:inged or abandoned by the legislature when it enacted section 144 of Commonwealth Act No. 357 and, subs.equently, section 149 of Republic Act No. 180, which provided rules for the appreci:ition of ballots. Said section is a compilation in statutory form of most of the doctrines theretofore laid down by the Supreme Court reg:irding the app1·cci:irion of b:illots. Rule No. 1 contained in section 149 reverses the doctrine or rule bid down by the Supreme Court regarding the use of the Christirn name alone of a c:1ndidatc by providing tlut-contrary to said doctrine-any b:illot where only the Christi:in n:ime of a candidate or only his surname appears is valid for such c:indidate if there is no other c:indidate with the same name or surname for the same office. The purpose of this new rule is co valid:ite the vote provided the name written on the ballot identifies the candidate voted for beyond any question or possible confusion with any other c:indidate for the same office. Hence, conformably to such purpose we hold that when the nickname of a candidate is a derivative or contraction of his Christim name or of his surname, :ind if he is popubrly and commonly known by ated. from of~ice where he apparently is acting in good faith, under a m1sconcepuon of the law. In re lmprachment of Flordrfi..,11 44 Phil. 608. - ' 12. SUSPENSION. . Statu.tes sometimes authorize the temporary suspension of a .Judge dunng the pcndency of proceedings for his remov:il. Such a statute is not .in con~lict with a constitutional provision fixing the ~e.rms of office of Judges :ind providing for their removal for specified c:iuses after a hearing. Notice and a hearing are not CS· 1:ential to due process of bw, and arc not rcquirCd where the statute does not provide for them. JO Am. fu r. 737. (To BE CONTINUED) 248 THE I.A WYERS JOURNAL tlut nickname, a ballot where only such nickname appears is valid for such candidate if there is no od1cr candidate with the same nickname for the same office. This ruling is in consonance with the wellknown principl.: of election law which this court reiterated in Mandac vs. Samonte, 49 Phil. 284, 301-302, as follows: "A bllot is indicuin of the will of chc voter. It d<X• not require thn it should be nicely or accuutcly written, or that the name of the candidHc voted for •hould be correctly spdlcd. It should be read in the light of all the circumstances surrounding the dcction and the voter, and the object should be to asccruin ond cury into effect the intention of the votu, if it can be determined with reasonable certainty. The ballot should be libcr•lly construed, and the intendmcnts should be in favor of a reading and construction .which will render the ballot effective, rothcr than in favor of a conclusion which will, on some technicol grounds, render it ineffective. At the Hme time, it is not admissible to uy thH something w.s intended which is contrary to what was done; ond if the ballot is so defective as to fai l 10 show any intention whatever, it must be disrcg.rdcd." 2. Appellant furthr.r contends that "the lower court erred in admitting evidence aliunde to determine the intention of the voter." Counsel in his brief does not specify what evidence he is referring to, nor does he show thJt it was admitted O\'er his objection and exception. He merely says: "The fact that in its decision the lower court makes a conclusion that the protestee is popularly known in his place by the nicknames already mentioned, presupposes consideration of testimonial evidence ro influence its mind in making said conclusion." He evidently refers to the proof upon which the trial courr based irs finding ,hat the protestce was popularly and commonly known in the whole municipality of lnopacan by the nickn~me Bcloy or Biloy. \Vie do not feel bound to consider the admissibility or inadmissibility of such proof in the absence of any showing th1t the adverse party duly interposed an objection co its :tdmission. But we think the protestee had the right to prove. that he was popularly and commonly known by his nickname to overcome the contention of the protestant that the me of such nickname on the ballots in question did not sufficiently identify the protestec as the candidate voted for. }. Lastly, appellant contends that the lower court erred in not ordering the recounting of all the votes of the contending candidates. We think the trial court acted properly in limiting the 'inquiry to the number of votes cast for the protestee with only his nickname written on the ballots, because the basis of the protest was not that the election inspectors had erred in counting all the votes cast for each of the two candidates but that they erred in counting in favor of the protcstce 417 votes in which May 31, 1949 only his nickname was used. No fraud, mistake, or misreading of the ballots was alleged in the protest. The issue presented to the court was confined to whether there were really 417 votes for the protestee in which the nickname Beloy alone was written and whether thos.e votes were valid or not. lf there were at least 417 of such votes and they were not valid, the protestant should win bec:tuse the protcstce's majority was only 198 votes. The inquiry brought out the fact that there were more than 417 of such votes; but as a matter of law the court found that they were valid. We confirm that finding. The judgment appealed from is affirmed, with costs. SO ORDERED. Mora11, C. ]., Paras, Pablo, Be11gzon, Briones, and. T11aso11, J /., concur. Feria, Montemayor :ind Rryrs, JJ., did not rake p:trt. PERFECTO,/., concurring: Two candidates ran for mayor of Inopa· can, Leyte, in the elections of November 11 , 1947: Isabelo A. Llorcn, Liberal, and Pacita. Abrea, Nacionalista. The Liberal candidate was proclaimed elected with 1,0 10 votes, with majority of 198 against the Nationalista who was credited with S 12 The Nacionalista protested, seeking the annulment of 417 ballots in which Beloy was voted for mayor and were credited H votes for the Liberal candidate. When the ballot boxes were opened, it was found that the names of Beloy, Biloy and Be!og appeared written in the following numbers of ballots: Beloy 517, Biloy 77 and Beloy 8. All these 602 ballots were counted among the 1,0 I 0 votes credited to the Liberal candida.te. The Nacionalista candidate contended in the lower court and in this a.ppeal that the 602 ballots with the three nicknames should not be counted as votes for the Liberal candidat.c, invoking the numerous decisions of the Supreme Court holding that nicknames alone are not sufficient identific:ition of a candidate. "(Molina v. Nuesa, G. R. No. }0548, June 5, 1929, not reported; Alegre v. Percy, G. R. No. }107, March 26, 1929, not reported; Valenzueh v. Carlos, etc., 42 Phil., 428; Bayona v. Siatong, 56 Phil., 831; Marquez v. Santiago, 57 Phil., 969; Fausto v. R:imos, 61 Phil., 1035; Sarenas v. Generoso, 61 Phil., 459; Cecilio v. Tomacruz, 62 Phil., 69}; Coscolluela v. Gaston, 63 Phil., 41; etc.)." Paragraph 9, Sec. 149, of the Election Code, taken jointly with the provision of Sec. 34 thereof, th:tt provides that "certificates of candidacy shall not contain nicknames of the candidates" and the fact th'lt THE LAWYERS JOURNAL Philippine Decisions the nicknames alone in question are not mentioned by the Liberal candidate among the many names he has mentioned in his certificate of candidacy with which he alleged he is known, aside from the long line of decisions of the Supreme Court, appear to support the contention of the Nacionalista candi.date. We arc of opinion,' however, that all these legal reasons must give way to the unmistakable expression of the popular will. - The record of the case offers conclusive evidence that those voters who cast their ballots for the three nicknames in question ~ntended in fact to vote for the Liberal candidate who is known by the electorate, friends and opponents, by the nicknames in question, derivatives of his Christian name and ar.c among the nicknames with which the people call for short those who carry the same Christian name. It iS inconceivable to nullify the votes of so many voters, more than one-h:i\£ of those who voted for the Liber:il candidat::-, when there is no possible mistake that they have voted for said candidate. While we would not give effect to isolated ballots simply in nicknames, that may refer to persons other than a candidate, in abidance with the legal authoritir.s above mentioned, in this specific case we feel no hesitancy in brushing them aside as ineffective legal technicalities for the sake of the fundamental purpose of popular suffrage: that of giving effect to the will of the people as freely and clear!}' expressed in the ballots. Election statutory provisions and judicial doctrines are enacted and laid down to insure the determination of t~ true will of the people and to give it full effect, in consona.nce with the basic principle of the Constitution that '1sovereignty resides ih the people and all government authority emanates from them." (Sec. 1, ' Art. II.) All provisions of law and legal doctrines should be interpreted, applied and enforced not to defeat that basic principle but to give it foll effect. The Constitution is the supreme law and all lega.I provisions arc and should give way to its paramount authority, . We cohcur in the affirmance of the appealed decision. II Froila11 Lopez, plaintiff-appellee, V{· Silvestre de Jews, defendant-appellant, G. R. No. L-JJ4, September 30, 1946, PARAS, J. LEASE; DURATION WHEN NOT STIPULATED; TERMINATION; COMMONWEALTH ACT NO. 689, APPLICABILITY OF; CASE AT BAR. - As the leose did not have a fixed term, it should be considered Philippine Decisions as one from month to month (the rental being payable monthly) and to have ceased, without the necessity of special notice, upon the expiration of every month. (Article IS81, Civil Code.) Even if, as contended by the :ippellant, a novation took place when the appellee increased the rent in June, 1945, the le:isc was srill monthly and terminated after said month. Appellee's election to end the lease was unmistakably made known to the appellant when, on July 2, 1945, tliz latter was asked to vacate. Consequently, after June, 1945, there was no longer any lease that could be affected by section I of Commonwealth Act No. 689, which was enacted only on October 15, 1945. APPEAL from a judgment of the Court of First Instance of Manila. De la Rosa,). The facts are stated in the opinion of the court. Atty. Arturo Ziulcila for defendant-appellant. Allys. Gu111/J(J11 f5 E111•rrg11 for pbintiff:i.ppellee. PARAS, /.: The plaintiff is the owner of :an apirtment known and identified as No. 2227 Rizal Avenue, Mmila. This apartment has been occupied by the defendant since September, 1940, under a verbal contract of lea!.e calling for. :i monthly rental of P 3 5 p:ayable in advance, which was raised by the plaintiff to 'fl'44 in June, 1945. On April 2, 1945, and again on July 2, 1945, the plaintiff gave notice to the defendant for him to vacate the premises. Defend:ant's failure to do so led to the filing, on July 1945, by the plaintiff of an .action 1>.+4-an act which resulted in :i novation of the original lease. Counsel for the appellant is mistaken. As the le:asc did not have a fixed term, it should be considered as one from month to month (the rental being payable monthly) :ind have ceased, without the necessity of special notice, upon the expiration of every month. (Article 1581, Civil Code.) Even if, as contended by the appellant, a novation took place when the appellee increased the rent in June, 1945, the lease was still monthly and terminated aftr.r said month. Appcllee's election to end the lease was unmistakenly made known ro the appellant when, on July 2, 1945, the lat· ter was asked to vacate. Consequently, after June, 1945, there was no longer any lease that could be affected by section 1 of Commonwealth Act No. 689, which was enacted only on October 15, 1945, even assuming that said law is applicable to a legal 'relation that came into being prior to its enactment. From the equitable viewpoint, app~l lant's case cannot also pl'osper.• He might hav:! been an old tenant now facing the difficulty of finding another house, but this circumstance cannot nullify the !cpl .rights of the :appellee and his family who have been admittedly "comp:-llcd to live upon the charity of some friend who generously offered them temporary shelter in his house which is overcrowded, to say the least." · The appealed judgm.~nt is affirmed, with costs against the appellant. So ordered. PJblo, Prr/rclo, Hilado, and Pad if/a, J /., Judgment affirmed. Ill Bien 11e11ido Yap, petitioner-appcllee, vs. The Solicil<Jr General, opposilor-appefla11t, G. R. No. L-1602, September 9, 1948, PERFECTO, j. for ejectment in the municipal court of Manila which, after trial, handed down a decision in favor of the plaintiff. The defendant appealed, but the Court of First Instance of M:anila, in which the parties submitted a stipulation of facts, rendered a judgment for restitutio.n and the payment I · of the monthly rental of PH beginning POLITICAL LAW; CITIZENSHIP; NATURALIZATION; DECLARATION OF INTENTION TO BECOME FILIPINO; ORAL EVIDENCE, SUFFICIENCY OF.-Where the records have been lost, oral testimony of the :i.pplicant that he had filed his dccl:tracion of intention to become a Filipino citiz.~n, is sufficient. ID.; ID.; ID.; CHINESE LAW, NATURALIZATION OF FILIPINOS UNDER.-Under the Chinese Law of citizenship, a copy of which was attached to th.e record, a Filirino can acquire Chinese citizenship by naturalization. June I, 1945. Appealing again, the defendant-through his counsel-argues that the action for ejectment was prematurely instituted and that, at least on equitable considerations, he should be allowed to stay. Section 1 of Commonwealth Act No. 689 provides that "A lease for the occu- 2 parion as dwelling of a building or part thereof which is not :a room or rooms of an hotel, which does not specify any term, sh:ill be considered of six months' duration counted from the date of occupation by virtue of uid lease at the option of the lease." It is now the theory of the appellant that since the period of his lease was not specified, he has the right to remain as lesree for at least six months from June I, 1945, when the rental was increased to Ally. R. D. St1lrcdo for the pecitioncr-appellcc. Tbl' Solid/or Gr11eral for the oppositor::ppdl:tnt. nm LA WYERS JOURNAL DECISION PERl' ECTO, /.: Bienvenido Yap w:is born of Chine~.: parentage on May 27, 19 18, in Capiz, where he has been continuously residing ever since. He speaks and writes English and Hiligaynon, the Visayan language in the locality. He started his stUdies in the Capiz Chinese Elementary School and continued in the Capiz High School where he was in the fourth ye:ir at the outbrc:ik of the la~t war. He is married to Gloria Lim, a n.1tiv.e, born of a Chinese fother :i.nd by this union he has two children born in Capiz, Wilfred Yap on May 26, 1944 and Rou · bin Yap on April 12, 1946. He is engaged in business with an invested capital of 'P"l 0,000.00. During the occupation he rendered services to the guerrillas. The lower court granted his application for P~ilippinc citizenship. The Solicitor General raises two questions in this appeal. He contends, in chc first place, that the lower court erred in not findi ng that the applicant has failed to establish satisfactorily that he had previously filed his declar:ition of intention to become a citizen of the Philippines :ind that he is nor' exempted from the prerequisite of fili ng s:iid declaration. Applicant alleged under oath in his petition that he had filed his declaration of intention to become a Filipino citizen with the office of the Solicitor General in 1941, :ilthough all the records have been lost by reason of the war. This :illegation is not disputed in any answer or objection and is supported by the unreburred testimony of applicant, who was duly cross-examined in the trial court. This is enough evidence. Appellant's contention that applicant's tes· timony should be supported by documentary proof is not well taken. There is nothing in the law in support of such requirement. The second and last question r:iiscd by the Solicitor General is that the lower coun erred in not finding that applicant !us failed to establish that the laws of China grant Filipinos the right to bccomi.> naturalized citizens thereof. We find on record Exhibit E, a document supposed 10 be a copy of the Chinese law of citizenship, where it appears that a Filipino can acquire Chinese citizenship by naturalization. Although we do not see an}' certification :attached to the exhibit, thi: lower court's decision states thu ~pplicant's pronouncement is in a w"ay supported by th.~ fact due Exhibit E carries the dry seal of rhc Court of First Instance of Cebu. The pronouncement of th.e lower court hJs not been disputed, and it can be assurn.~d that when the copy was submitted to the lower court, the latter must have seen :1 certification ; J.tt:ached to M:iy 31, 1949 it which might have been misplaced. At any rate, the controversy appears to be academic, considering the Lier that at the hearing of this ca!c, counsel for appellant stated that in another case there is such certified copy of the Chinese law where it appears that Filipinos arc given the right to acquire Chinese citizcnshl?. There being no error in the appealed decision, the same is affirmed. Pa11;1s, Pablo, Brio11rs, Feria, 8"11gi;o11, Pad;ffa and T11aso11, J!., concur. IV Conrnclo S. tic Gal'cia, A11aslacio U. Garcia, Virginia S. de Mnreses a11J Alfredo n1rri.esrs, pelifio11ers, vs. Amlr.wio Santos, judge, Court of flrst Instance of Rizal, Natividad Reyrs and Adriana Reyes, respondents, G. R. No. L-142Z, Oclober 17, 1947, PARAS, j. INJUNCTION; PRELIMINARY INJUNCTION TO PRESERVE "STATUS QUO."-The respondents had been in material and physical possession of certain lots until January 7, 1947. In December, 1946, they commenced to build four houses of strong materials on said lots and the construction work was suspended only on Jan• uary 7, 1947, due to the forcible entry of petitioners who thereafter built around the lots a wire fence and placed armed men pn the premises to makc the ouster of respondents and their laborers effective. Held: T hat petitioners' act may at most be considered as a mere interference with or disturbance of respondents' possession and that the issurnc.c of a preliminary injunction to restore respondents in rhcir status quo was proper. 2. IO.; POSSESSION AND CONTROL OF PROPERTY.- lnjunction generally will not be granted to take property out of the possession or control of one party and ,place it into that of another whose title has not dearly been established by law (Rodulfa vs. Alfonso, G. R. No. L-144, promulgated February 25, 1946, 42 Of. Gaz. 2439). l. ID.; PRELIMINARY INJUNCTION TO PRESERVE "STATUS QUO."The sole object of a preliminary injunction is to preserve the status quo until the merits can be heard. The slallls quo is the last actual peaceable uncontested 5faf11s which preceded rhc pcnding controversy. 4. ID.; COURT; HEARING; JUDGE ACTED AFTER DUE HEARING.Where injunction was granted by the respondent Judge almost two months after the filing of the complaint, and !\fay }I, 1949 only after the rarties had argued the point in open court and after considering the vcrificd pleadings with their supporting papers, and the petitioners were able to file a motion for reconsideration, which was also denied by the respondent Judge after raking into account all the considerations invoked by the petitioners, the respondent Judge did not act hastily in the matter and without hearing. Allys. Q. P11redcs f5 Reyes fj Casla1ieda for the petitioners. Ally. Mariano Albert foi- the respondents. DE· CISION PARAS, /.: Under date of January 22, 1947, the herein respOndents, Natividad Reycs and Adriana Reyes, filed a verified complaint (Civil Case No. 129) in the Court of First Instance of ..Rizal against the herein petitioners, praying that a writ of preliminary mandatory injunction be issued ordering the petitioners to restore to the respondents the possession of two contiguous lots located in the municipaliy of Pasay, province of Rizal, and to take away the wire fence built around said lots by the petitioners; that after trial said injunction be made permanent; that the petitioners be sentenced to pay P20,000 by way of damages, and that the respondents be granted such other remedy as may be proper un· der the law. The complaint alleges in sub· stance that the respondents acquired the two lots on June 6, 1945, from their former owner, Realty Inv.:stments, Inc.; that from such date the respondents have been in possession of the lots; that in December, 1946, the latter began constructing on the lots four hou~es of strong materials valued at about 'P-14.400; that on Januarv 7. 1947. when the houses were about to b.e fin ished. the petitioners forcibly entered the lots and ousted therefrom the respondents and the persons comtructing the houses; that said petitioners thereafter built around the lots a wire fence and posted armed men on the lots with a view to preventing the respondents and their laborers from entering tl1erein and proceeding with the construction of the houses above mentioned. Under date of February I, 1947, th~ pr.titioncrs filed ·a verified answer in said Civil Case No. 129, alleging in the main that the contract of June 6, 1945, between the Realty Investments, Inc. and the rcspondehts, upon which the latter base their claim of ownership over the lots in quest ion, was a mere contract to sell, which was converted on April 26, 1946, into a conditional contract to buy, which waS in turn rescinded on December 19, 1946, by the Realty Investments, Tnc.; that the pc· THE LA \'VYERS JOURNAL Philippine Oecisiohs titioncrs arc the registered owners of tlv! lots, having bought the same from the Realty Investments, Inc. on December 28, 1946; that the petitioners have be.en in peaceful posression thereof, by themselves and through their predecessor in interest. Pararam Aildos (who transferred to the petitioners his right to buy the lots from the Realty Investmerlts, Inc.), since November, 1941; that the respondents, on or about December 28, 1946, over the opposition ol the petitioners and their predecessor in intercst, entered the lots and began th.c construction of the four houses mentioned in the complaint; that it was the mayor of Pasay who ordered the suspension of said construction, and that the persons guarding the premises arc members of the Detective and Protective Bureau, Inc., who arc merely enforcing the order of said mayor. UnPer date of February 1, 1947, the petitioners filed a verified written opposition to the issuance of the writ of preliminary mandatory injunction, based on practically the same allegations contained in their answer. After a hearing in which the matter was argued at length, the herein respondent J udge of the Court of First Instance of Rizal, Honorable Ambrosio Santos, issued an order dared March 14, 1947, directing the issuance of the writ of preliminary mandatory injunction praved for by the respondents, upon their fi ling- of a bond in the sum of 'P5 ,000. Petitioners' motion for reconsideration dated March 2!1 . 1946. was denied bv the resoondent J udec in his order of April 1 5, 1947. On thi~ !arr.er date, the resoondent Judee i~sued ;rn order approvin~ the bond of 'P5,000 filed bv the resoondents and directin.ir the i~s11ance of th".' corresoon din~ writ of preliminary mandatory iniunction. Wht.>rcupon. on Aoril 19. 1947. the peritioners instituted the nresent petition f'lr certiorari with weliminarv iniunctinri. nraving th:it the orders of ch.- resoondrnt Tud~c of March 14 and Anril 15. 1947. ~nd that the resoondent Tud!'!e be orderrrl to set Civil case No. 129 for trial on tl1e merits \(lith a view to determining- the que~· tion of titk and possession over the two lots in question. 'The respondent Judge. without attemotin.e- to settle the issue relating to the ownership of the lots. found, in l1is order of March 14, 1947, that the respondent have been in material and physical possession of the lots until January 7, 1947, and that in December, 1946, said respondents com* menced to build four h~uses of strong materials on said lots and the construction work was suspended only on January 7, 1947, due to the forcible entry of th".' petitioners who thereafter built around the 2S I Philippine Decisions lots a wire fence and placed armed men on the premises to make the ouster of the respondents md their laborers dfective. After a careful examination of the record before us, we find said conclusions to be correct. le is significant that the petitioners admit the existence of a contract in fa vor of the respondents for the purchase of the lots in question, and that said con · tract preceded the alleged deeds of sale executed by the Realty lnvr.stmcnts, l nc. 011 December 28, 1946, in favor of the petitioners. More significant still is the stub· born fact that there arc actually on the lots four houses of strong materials about to be fi nished, the construction of which by the respondents in December, 1946, is not denied by the petitioners. These circumstances strongly militate against petitioners' pretense that they had ev.~r been in peaceful possession of the lots prior to that of the herein respondents. The legal question that arises is whether the issuance of a writ of preliminary mandatory injunction, such ;is that ordered by the respondent Judge, is prop~r. in view of the established rule that injunction generally will not be gr.meed to rake property out of the possession or control of one party and place it into that of :mother whose title has not deuly been .established by law. (Rodulfa v. Alfonso, G. R. No. L1-44, promulgated February 28, 1946, 42 0. G. 2439, citing earli.er cases.) We arc of the opinion that the respondent Judge did not gravely abuse his dis· cretion in granting the injunction. We hereby reiterate the general rule poinced out in Rodulfa v. Alfonso, wpra, but we con· sider the case at bar as not falli ng thereunder. Rather, it is a situation contem· plated in the following passages of said decision: " But the fact thn 1he petitioner migh1 hnc been in sporadic possession of all or wme of 1he hnd1 in question, in the Int month1 of l9H, having entered 1he same, by muns of threats and intimidation, will not prevent the i.suance of a writ of preliminary injunction in fnor of herein re1pondcnt, aJ defendant in said civil O«: No. 8939, in . •·h~ name uid lands h>'d bttn rogi1tcred under the Torrens Sysum, and who hn been in pos«:ssiOn thereof, during the Ian 20 yorl, as uid poucuion of the petitioner is completely and ab.alutcly illcgal. "The wli objut of a preliminary injunction i1 to preStrvc the •ldl11• quo until the merits cm l::c hurd. The 1/alus quo is the bn .c1ual pucuble uncontested s/a/l/S which pHceded the pending controversy. (Frederick n. Huber, 180 l'a., P2; )7 Atl., 90.) "In cnos involviug the issuance of a writ of · preliminary injunction, the exercise of sound judicial diKretion by the lower court will not generally be interfered with; and 1he rcfuul of the trid court to permit t he plaintiff in thii "'" to file a cou nterbond cannot be considered a• all abuse of sound judicial consideration, brari11gi11 ,,,;.,J partlcu/ar/y tlu aJminirm nuult by tbc plaintiff bimu lf tbnt somelimr in 1945, or tbcrrabou l1, bt ocropitd and took po11mio11 of .11 or iomt of tbr l••1Js ;,, q1mtio'1, witho11/ wailing for the /i .. al dt252 cision of tht coniptlrnt COJfrh in uiJ cii;if cue No. 89JO. It if a gr'1t"ral principle iH rq11ity j11ri1· pmdrufr tbut 'hr ubo rumrJ lo eq11ify •m•ll rome witb clr4n band1.' (North Nogro1 Sugir Co. v1. Hid.Igo, 6J Phil., 66-4.)" Rodulfa v. Alfonso, wflrd. The action of the ~titioners in encir· cling the lots in question with a wire knee :tnd in guarding the place, may at most be considcrd as a mere interference with or disturb;rncC of respondents' possession and, :u such, is even of less extent than t he possession admitted!}' held by the petitioners in the case of Rodulfa v. Alfonso, rn - pra. We h:tve therefore, a 111uch better instance in which a preliminary injunction m:iy be availed of "to preserve the status quo until the merits cm be heard." Said status quo is the "last actual peace;ible and uncontested" possession of the herein respondents which preceded Civil Case No. 129, and certainly not the guarded possession of thC petitioners. The n.~ccssity of restoring the parties in this case to th.'!ir former situ:ition is called for by the fact that the suspension of tl.1e construction of respondents' houses may result in a much greater damage than the granting of the injunction upon the filing of a bond which can amply indemnify the herein petitioners. The injunction was granted by the respondent Judge almost two months after the fi ling of the complaint, and only after the parries had argued the point in op~n court and after considering the verified pleadings with rhcir supporting papers. Again, the petitioners were able to file :i motion for reconsideration, which was also denied by the respondent Judge after taking into account all the considerations invoked by the petitioners. We are thus unable ro hold that the respondent Judge acted hastily in the matter and without a hearing. Of course, it was not yet necessary for the respondent J udge tO require and receive such evidence as may be sufficient to settle the question of tide, which should be decided after the trial on the merits. It is needless to state in this connection that the complaint in Civil Case No. 129 clearly makCs out an action co quiet title. Wherefore, the petition is hereby dismiss~ ed with costs against the petitioners. So ordered. Feria, Pablo, Per/rclo, Hilado Bengzon, Briones, Padilla and T11aso11, ff., concur. Moran, C.j., concurs in the result. v Proj1le of the Philippines, plai11li/J.appcllee, vs. Pilar Barrera de Reyes, rlefenda11t-appclla11t, G.R. No. L-J97, No1.1e111ber 23, 1948, PERFECTO, f. CRIMINAL LAW; TREASON; EVIDENCE; WITNESSES; INHERENTLY IMPROBABLE OR CONTRADICTORY TESTIMONY OF WITTHE LA WYERS JOURNAL NESSES.-Although there were two or more witnesses who testified to an overt act of treason, if their testimonies lte contradictory in themselves or inherently improbable, the Court cannot hold that the guilt of the accused has been established beyond reasonable doubt. Atty. Enrique Ramirez for the defendantappellant. The Solicitor Gf'//rral for the plaintiff-appellee. DECISION PERl' ECTO, /.: Pilar Barrera de Reyes appealed against the lower court's judgment finding her suilty of treason and sentencing her, in accordance with the provisions of Article 114 cf the- Revised Penal Code, lo rrcl11sio11 per. petua, with the accessories of the law and to pay a fi ne in the amount of P-10,000.00 and the costs. The prosecution accuses her of having caused, by pointing them to Japanese officers and soldiers, the arrest of three Filipino guerrilla suspects, Pclagio Cabutin, Ignacio Mejia and Alejandro Tan, who, after having been apprehended inside the air raid shelter where they V.•ere hiding inside the ruins of the Santa Rosa College, lntramuros, Manila, were tortured and then brought to Fort Santiago where they were killed, the treasonous denunciation having been committed on February 15, 1945. Two witnesses, Modesta B. Son and her daughter Lourdes B. Son, tesrified for the prosecution to show appellant's responsi. bility for the arrest, torture and killing of the three viccims of J apanese brutality. According to the two witnesses, on February 5, 1945, all the male residents in lntramuros, about 400 of them, were taken by the Japanese and herded in Fort Santiago, while all the females, about 300, and the children, were herded inside the ruins of Santa Rosa College. T he three victims, members of a guerrilla outfit in Laguna, who went to lntramuros to visit their relatives and observe the activities of the J apanese, were among rhe males who were rounded up, tied, tortured · and brought to Fort Santiago on February 5, 1945. On February 9, 1945 , they were able to secure permission from a Japanese lieutenant to go out for the purpose of visiting cwo girls, Rosing and Magdalena, Cabutin's nieces, who were among the women herded in the Santa Rosa College compound. (The statement in tQe government's brief that the three victims mamged to escape is not based on any testimony on record.) Once inside rhe ruins, Cabutin and companions hid from the J apanese, dug an air raid shelter, covered it with wood and earth, and on top built a shack for Rosing and Magdalena to 'Stay in. The accused, who was living in mother shack with Mar 31, 1949 her child and a maid and wherein her lms- where Rosing and Magdalena were staying, band, a Japanese officer, passed all night as it would be the logical spot, to anyfrom 6 p.m. to 6 a.m., used to make rounds one's mind, that the Japanese would have to spy on males hiding in the compound, search first, because the Japanese lieutenant pretending to barter foodstuffs. On the must have known that to visit the two girls, morning of i:ebruary 15, 1945, she disco- rhey must have had to go to their place. ;:;,~t;~e th:es;:ccte ~: ~~~ ~~:~a~~ct:hso,a~~ If it is true that the accused had been ~~;f~;~~:;~;1~~1~~~~::~~~:;:~·~::~t:;,~.~~: ~~;~~~:;~:~;,~~;::.:i,:,~:~::~:~~~,r,;~~~ apprehended the three victims a11d tortured ~~~\'!;o~eF~~:~~r~;e 90;0t[~eb~~:;~ill~\r~~ ~~;n:~ t~~= :~~u~~~e:ol~u~~1r~l{~:p::•~~e bor~~i~ and to denounce them to the Japanese offithem to Fort Santiago. The arrest of the ~~:· ai:~:~i~r:~:fte;od:~o~;s:hea~~o 1:a~r~~:~ three guerrillas rook place in the morning, uated at a few meters distance from the ~:~e~n t:~~ ~~~e~:t~s~ft~:; :~1~~hdr:~ ~:~ :~~ shack of the accused. Before the three ready been kilted. On the following day, ~t;~:l;sn~~~t ~~:: ~~~: te::~~e;ht: ~~~e,f~:: February 16, at 11 o'clock, Arcadia Son, view of the accused and they remained so ~~~~st~~~c:u:~~~~~r;h~' \-:::s h~ts;gtat~h~i;, while they were working in the excavation, the Japanese soldiers, tortured and brought :~ ~~~1~;r~o:~icl~~c:~~:~ ::;est~a;ecsnt:~:i: to Fort Santiago, because the accused hap- from the hole must have been piled on the pened to hear of his presence in the place on surface. When the three guerrillas undertook February 15 , and denounced him then to her the work of placing wooden planks and earth husband, the Japanese officer. Arcadia Son on top of the shelter and then t hey built neve~ returned since he was brought to Fort the shack for Rosing and Magdalena, rhq' Santiago. From February 5 to 20, there could have also been seen by the accused. were in Sant~ Rosa College compound ma~y • T here is no pretence that the accused sufwomen marned to Japanese, all of them spies fered blindness during the hours and da ys who used to go around the shacks to look needed the three guerrillas to complete the for men in hiding. !hose other women whole job. peeped into the shack of Arcadio Son three times looking for men. There is no way of determining with absolute certainty whether Modesta and Lourdes B. Son testified to the truth or not. While the record offers no clue that mother and daughter's testimonies should be imputed to bastard motives, there are flaws in their declarations that preclude us from accepting them at their face value. We notice several contradictions that have not been explained. But even if they can be explained, there arc improbabilities in the testimonies, from accepting which conscience recoils. That Cabutin, Mejia and Tan, after having been confined in Fort Santiago since February 5, were on February 9 given permission by a Japanese lieutenant to go out for the exclusive purpose of visiting Cabutin's nieces, Rosing and Magdalena, appears to be fantastic. That the three guerrillas were allowed to go out, that they went out without wy Japanese guard or escort, and that, upon their failure to return, the Japanese did not right away comb all places including the Santa Rosa College for their arrest, arc things incompatible with the ways of th<! Japanese. If the Japanese lieutenant could have believed that to visit his nieces was enough reason to allow Cabutin to go ou~ from Fort Santiago, such reason could not be applied in favor of his two companions who had nothing to do with the girls. If the three guerrillas wanted to hide, they could not have been so dumb to go to and stay :tt the very spot M:iy JI, 1949 Modesta's story of the Japanese officer who ever}' night slept with the accused, is surprising. The conduct of the Japanese appe:irs to be that of a civilian employee r:tther than that of a military officer or, at any rate, of a man enjoying the blessings of undisturbed peace. It is unbelievable that a Japanese officer should leave his garrison for whole nights, and much more at the rime when the American Army was :dready in Manila and was showering bombs and cannon shells in lntramuros. Modesta would make us believe that the accused made denunciations to the J apanese officer in a way that she could hear them, that the accused was almost ordering the J apanese officer to bring the viccims to Fort Santiago, and even bragged that they were already killed. A Filipina in her mind could not have done such things, considering the well-known fact of the overwhelming feeling in our population against the Japanese, and much more on February 15, 1945, when the victorious Americans had already surrounded lntramuros. It would have been suicidal for the accused to have done what Modesta attributes to her because it would have exposed her to reprisal or revenge. Modesta would make us believe also that the presence of her husband, Arcadia Son, in the compound was discovered by the accused since February 15 and denounced on the same day to the Japanese officer, but the arrest took place only at 11 o'clock the THE LA WYERS JOURNAL Philippine Dc~is'.ons next morning. No Japanese officer could have been so slow as that. On the other hand, Modesta's assertion that she was outside of her shack when she witnessed the arrest of the guerrilla trio on February 15, is belied by Asuncion Dueiias, a witness for the prosecution, who said that when the three victims were caught by 'the Japanese, Modesta was· during the whole time inside her shelter. When after liberation, Modesta and her dau,shter denounced to the authorities the J apanese arrests in the Santa Rosa College ruins, but mentioned the apprehension of the guerrilla trio, but not rhe arrest of Arcadio Son. They failed to do so twice, first when they made the denunciation to Froilan Bungue, United States Army soldier, and the second time when they were investigaccd on March 15, at about 10 a.m., by the American CIC at General Solano Street. Modesta's explanation was that at that time her mind was perturbed, and that of Lourdes was that she simply forgot about it. That a husband, a father, had in that way been forgotten by his wife and daughter who, nevertheless, were prompt in remembering the names of three acquaintances or friends, is a thing that cannot fail to cast doubt on the mother and daughter's credibility. As regards Lourdes, there is her positive testimony that on November 16, 1945, she was beaten by her husband because she said on one occasion that the accused was not the same woman who pointed the three men caught by the Japanese at the Santa Rosa College and killed in Fort Santiago, that her husband told her to point the accused as the one, and that if .she should tell again that it was not the accused, he would beat her again. This revelation cannot fail to affect her testimony against the accused. !he defense has shown that since February 11, 1945, the child of the accused had been ill and that she remained all the time attending to said child until it was killed by a shrapnel on February 18, and that it is not true that the accused had any Japanese sleeping with her or committed the acts attributed to her by the witness for rhe prosecution. A witness for the defense had shoWn that the witnesses for the prosecution could have confused the accused with other women, with similar features. When Modesta approached Froilan Bunguc to denounce the arrests, the accused was not present, and among those arrested by Btinguc as a result of the denunciation was one Asuncion Mendoza, while other- witnesses testified that among the women spies were two, called by rhe name of Fcly and Perla. The prosecution has the onus proba11di in showing the guilt of an accused. "In all criminal prosecutions, the accused shall be presumed to be innocent Until rhe contrary 253 Philippine Decision~ is proved." (Sec. I [17], Arr. Iii of the Consritution.) The eVidence of the prosecution in this case docs not show beyond all teasonable doubt that the accused has committed the overt act imputed to her. The presumption of innocence in favor of :ippcllant has not be overthrown. With chc reversal of the appealed judgment, appellant Pilar Barrera de Reyes is acquitted and, upon promulgation of this decision, she will be immediately released. Moran, C.]., Paras, Feria, Brngzo11 and Brfo11es, ])., concur. Reyes, J., takes no pan. TUASON, )., dissenting: Three-eye-witnesses, not two, testified for the prosecution in this case. Modesta B. Son testified that on February 5, 1945, the Japanese gathered all the menfolk in Tntramuros, bound their hands, and took them to Fort Santiago. She saw about 200 men thus arrested. Pelagio Cabutin, Ignacio Mejia and one Alejandro, whose surname she did not know, were among them. On February 9, they appeared at Sta. Rosa College; they said that they were able to get out because they talked to a Japanese lieutenant. From that time the three men stayed at Sta. Rosa College. They made a hole "deep enough," put planks of wood and galvanized iron sheets on top, and covered these with earth. On top of the covering they built a small shack for Rosing and Magdalena who were Pelagio Cabutin's nieces. The witness does not know whether Magdalena· and Rosing were still alive because she had never seen them after liberation. On February I 5, Cabutin, Mejia and Alejandro, by the indication of Pilar Barrera Reyes, were found and told to come out of the hole, and after they did, a Japanese pfficer and three J apanese soldiers slapped, kicked and bayonctted them, after which they were taken to Fort Santiago. Before tl1:lt date, the witnesses had known Pilar Barrera Reyes, when she was living at No. 73 Bearcrio street. Pilar used to call on witness, landlord. That began as early as February I 5, 1944. Pilar Barrera Reyes was then li,•ing at NO. 50 Legaspi street. She lived with a Japanese officer who used to come to her house day and night. Witness supposed he was an officer because he carried a sword and a pistol. At Sta. Rosa College, Pilar Barrera Reyes frequently went from shack to shack to barter food. But this was a mere pretext, her purpose being to find out if there were maks in the shacks. When she pointed to the Japanese the hideout of Cabutin, Mejia and Alejandro she, the accused, was standing at the door of her shack. Then the Japanese officer fetched three Japanese soldiers. That was the time when the four Japanese arrested Cabutin, Mejia and Alejandro. Modesta B. Son also testified that Pilar Barrera Reyes had witness' husband, Arcadio San, arrested by the J:ipancse. That was on 254 the 16th. Pilar informed the Japanese that Arcadio Son was inside the shack. Three Japanese soldiers came, pulled him out, tied and slapped him, and carried him away. This time Pilar Barrera Reyes was in front of the witness' sha.ck when the arrest was made. Arcadio Son, when he was spied by the accused, was inside an air-raid shelter covered with pillows and mats and wearing a woman's dress. The accused happened to sec Arcadio Son on February l 6 when she was bartering foodstuffs and peeped into the shack. Lourdes B. Son, Modesta's daughter, 17 years old, testified substantially as follows: On February 5, 1945, the Japanese seized and arrested about 400 men in Intramuros, maltreated theni :ind took them to Fort Santiago. All the women were sent to Sta. Rosa College which had already been destroyed by fire. Among the males taken to Fort Santiago were Pclagio Cabutin, Ignacio Mejia and one Alej:mdro. About February 9, 1945, these three men appeared at Sta. Rosa. She asked them how they were able to get out and they :insw.cred they begged a Japanese officer to let them sec and talk to their nieces Rosing and Magdalena. Then they hid themselves in an air-raid shelter. Thcr dug a hole, put wood shafts inside and covered the top with galvanized iron sheers and earth. On top of these, they built a shack for Rosing and Magdalena. On February 15, Pilar Barrera Reyes was bartering rice at every shack. She heard voices in Rosing's shack :md appeared surprised. She peeped in through a hole and saw the three men inside. After rhat she returned to her shack and onc-h:i.lf hour afterward her Japanese husband showed up. To the Japanese Pilar Barrera Reyes pointed the shack where she had heard men's voices. Thereupon the Japanese officer went out and brought back three soldiers. The Japanese removed the iron sheets from the shack and told Magdalena and Rosing to step out. Then they told the three men to come out. Once outside the hole, the three men were tied, slapped, beaten with rhe hurts of guns and fists, stabbed with bayonets and, when they fell, were put back on their feet. While this punishment was being inflicted, Pilar Barrera Reyes was near the Japanese officer. The three men were taken to Fort Santiago and never heard from again. On 1:cbruary 16, at 9 o'clock, t he witness left her family's shack and when she re· turned she saw her father being tortured by three Japanese soldiers and the Japanese husband of Pilar Barrera Reyes. Her father was bleeding; at that time Pibr Barrera Reyes was beside the Japanese officer. Pilar Barrera Reyes was laughing and saying, "You arc hiding yet, probably you are also a guerrilla." (Nagtatago ka pa, marahil ay guerrilla ka rin".) Asuncion Duellas testified chat on Fcbbruary 5, 1945, she was at the Cathedral with her husband, a cousin, and her three THE LA WYERS JOURNAL children. From the Cathedral, the women were sent to Sta. Rosa College while the males were taken to Fort Santiago by the Japanese. Among the women at Sta. Rosa College was Pilar Barrera Reyes whose shelter was about three brazas away from hers. fn moving to Sta. Rosa College witness first took her three children and told her husband to wait :it ,the Cathedral. Later she came back, put on him her own cloches, covered his head with a kerchief, and accompanied him to Sta. Rosa. On February 15 , she saw Pilar Barrera Reyes talking with two Japanese officers who came to her shack. Pilar pointed her shelter to the Jap· anese and said that a man was hiding there. Then the Japanese officer led her husband out, stripped him of his woman's apparel and the towel with which his head was wrapped, afre: which they struck him with fists and bayoneted him on the left shoulder. Witness heard Pilar say that it would be better. to take him to Fort Santiago because he was hard-headed; he did not want to join the males. This happened about 3 o'clock in the afternoon. At 11 o'clock a.m. of that day, she also saw Cabutin, Mejia and Alejandro being' maltreated by three Japrncsc. They were tied, slapped, boxed and bayoneted. She heard Pilar tell the J apanese that they had better take the men to Fort Santiago. Asuncion Dueiias also testified that once, on the 15th, Pilar Barrera Reyes saw her (witness') child crying; that when, in answer to the defendant's question why the baby was crying she said it was its habit to cry most of the time, Pilar remarked that witness should throw th:! child away. She also testified that on the 25th when they were liberated she and Pilar saw each other again at the Sm Lazaro Race Track. She ~aid that she knew Modesta for the first time when they met at Sta. Rosa Colle~e. The defense is a complete denial of any complicity, on the part of the accused, in the atrocities stated by government witncsscss. Other women cohabiting with Japanese, it was alleged or insinuated, were che spies responsible for those atrocities. The decision would tear down the testimony of the witnesses for the prosecution on assum.cd, not established or alleged, facts. On some points it theorizes from premises that are contrary to actual facts; on still others, the conjectures are not, in my judgment, sound even in the realms of speculatiou and psychology; for the rest, the discussion in the decision is immaterial in the light of defendant's defense or a<l~11i ssion. The Coul't disbelieves the evidence thJt Pclagio Cabutin, Ignacio. Mejia and Alejandro came out of Fort Santiago with the permission of a Japanese offi'ccr. Trulr, there is room for doubt as to the permission. \'Ve can not say for certain how these three men succeeded in getting out of thlt camp of Mar 31, 1949 horrors. If we indulge in speculation, the besc guess is that they escaped. It is a matter of general knowledge that scores of prisoners were able to do that in those hectic d:iys of Jap:inese sadism and brutalicy, perhaps due to the fact that there were too many prisoners there to attend to closely. There was more than a probability that when the men said they had obtained permission of a Japanese officer, they lied. Two of them were mere friends of the Sons, and one was the son of a distant cousin of Modesta. They were in an extremely perilous situation at the cime when the carnage was at its worst. Lying men even to immediate members of one's family w,1s demanded by ordinary prudence. iheir security from rearrest and almost certain death was undoubtedly enhanced by concealment of the truth that they had fled from Fort Santiago. There is nothing queer in the testimony that the three men came to Sta. Rosa after escaping from Fort Santiago. ihat, on the contrary, seemed to be the natural thing for them to do. Where else could they go? When they were marched off to Fore Santiago from the Cathedral, the women including Rosing and Magdalena, their relatives and apparently housemaces, were told to go to Sta. Rosa. T he)' did not know, when they decided to come to the latter place, that Pilar Barrera de Reyes, the spy, was there nor that she and her Japanese paramour still sustained sexual relation in those critical days. Pilar Barrera Reyes, according to her testimony, moved to Sta. Rosa after February 5. We do not share the doubt chat Cabutin, Mejia and Alejandro made the hideout when they were caught. The way, as related b)' the witnesses, the three men dug a hole and concealed themselves in that hole sounds plausible. The whole affair, with materials at hand, could have been finished iri a matter of hours; and if the men worked at night, as probably they did, that explains why they were not seen while working by Pilar Barrera Reyes or her Japanese friend. The decision assumed or presumed that Pilar and the Japanese officer were at Sta. Rosa all the rime. The evidence shows that the Japanese officer was posted with his company or men at the Sto. Domingo church ruins where he stayed and had to stay most of the time, while it appears that the dCfendant ac times went out of the Sta. Rosa premises. Moreover, the place was crowded with women and children. From the tone and tenor of the Court's findings and of its ratiocination, it would appear that it brands the accusation as a fabrication out of whole cloth: that the alleged presence and arrest of Cabutin, Mejia and Alejandro at Sta. Rosa were a pure concoction. This supposition is more than the defense dared suggest, and I believe that it is far-fetched. The time when the three May 31, 1949 witnesses implicated the defendant was early March, t 94 L Still stunned by a holocaust; jusc widowed or orphaned under tragic circumstances; homeless and living on charity, their primary concern was where and how to find food and shelter. They were not in a mood and did not have the motive and the incentive to place upon themselves a new burden and worry by inventing a fantastic story against a woman who, according to that wom:in, had not done them any wrong. She even dl'nied she knew the witnesses. These witnesses did not have to use imaginary victims if they merely wanted to send the defendant to prison or to the gallows. It has been seen that Modesta B. Son and Asuncion Dueilas lost their own husbands under cir"cumstances, the)' said, identical with the arrcsr, torture and liquidation of Cabutin, Mejia and Alejandro. The torture and arrest of those two men certainly furnished their folk the wherewithal to prosecute the ·defendant if the witnesses were just after defendant's sc:ilp regardless of defendant's innocence of any connection with the discovery of. their , husbands' hiding. Yer Arcadio Son's arrest and torture were not made the subject of this information. This, we think, goes to refute the theory that the three women's statements to the authorities concerning the arrests of Cahutin, Mejia and Alejandro were a deliberate f:ilsehood conceived in their ima~ination for no other reason than to send an innocent woman to her doom. The truth of the matter is, as has been said, the accused herself has not advancedat least not openly-the suggestion that the arrest of Cabutin, Mejia and Alejandro at Sta. Rosa College, was a fantasy. On the contrary, her evidence admits that these men were arrested in thac college through the betrayal of a woman. Her line of defense is, not that the arrests and tortures were a fake, but that she was noc the woman who revealed the three unfortunate men's hideout. It ought to be recorded that Lourdes Son was deceived into signing, or pcrsu:ided to sign, a statement prepared and put in evidence by defendant's counsel, in which she was made to say, or made her appear as saying, that she had been taken to the Correctional Institution for Women in Mandalu)'Ong on the 16th of November, 1945, together with a sister of the accused, for the purpose of identifying the latter; that having seen t he accused, she (Lourdes) realized that Pilar Barrera Reyes "was not the same woman whom she had seen in Tntramuros J1oh11ing out lo Japanese soltliers, Pefagio Cabutin, Ignacio Mejia aml Alejandro, wbo were laken by !he Japanese officers to some place"; that she (Lourdes) actually saw tbe woman who pointrJ the abo11e-11a111cd Fifipinos and heard her say !hat those lhree Filipinos are inside a cerlaitt air-raid shelter ;,, ln/ramuros." To make that statement Lourdes was taken to Welfareville by one of THE LA WYERS JOURNAL Philippine Decisions the defendant's law}'ers, her two sisters and a Corporal De Vera; husband of the defendant's elder sister Rosa. And the accused and her witnesses, at the trial, amplified this thesis. The gist of their testimony is that at Sta. Rosa, two women (neither of them the accused) who cohabited with Japanese officers, disclosed the presence of the three men to the Japanese; that those two women accompanied Japanese officers in their search for men in the Sta. Rosa compound; that the said women resembled the accused, their names sounded like that of the accused, and they couhl easily be mistaken for the accused; that the accused bore the pct-name of Pil while one of the two women above mentioned was known by the name of Fely and the other's pct-name was Perla. That is the simple issue. This is a simple case of mistaken identity! The government witnesses, according to the accused and her witnesses, got ~ixed up; Fcly and/ or Perla, not Pilar, were the traitors. The question rims boils down to who cohabited with a Japanese officer, accompanied him in his rounds looking for males, and, discovering the hideout of Cabutin, Mejia :ind. Alejandro, led her Japanese paramour Now, can we believe the yarn that the defendant was a mere victim of an unfortunate co~fusion? The evidence that there were three women at Sta. Rosa College who resembled one another in n'ames, in physiognomy and in general appearance, except the hair, which the defense stressed, has all the traces of a fiction. And granting the truth of such a rare coincidence, there was little or no possibility of the three witnesses for the prosecution committing the same mistake under conditions far from being conducive to errors of identity. The incident occurred in broad daylight in the immediate presence of the witnesses. The arrest of the helpless men and the stabbing and other forms of torture perpetrated on chem must have consumed no lictle time; :md such atrocities were committed not once but. three times. Only one woman spy w:is an active participant in the atrocious acts. The witnesses had known the defendant by sight and by name for a long time before they took refuge at Sta: Rosa, and they were with her in that compound for two weeks after the arrest. Being the concubine of a Japanese officer and npt by :my means shy or of retiring disposition, as can be gathered from the record, she must have been-conspicuous and the objecc of suspicion • if not fear. At the Manila Jockey Club the three witnesses and the defendant were togecher ag:iin after liberation until the accused was arrested in corincction with the "' Philippine Decisions present charge. In the light of these facts, illusions, associations, suggestions, judgment, trick of the memory could not have penetrated into and influenced the witnesses' observations and caused them to mist:1ke another woman for the defendant. The record will have to be searched in vain for any ill will that could have induced the three women witnesses to tl'Ump up a charge for a capital offense against the defendant. At the most, they were moved by a righteous indignation aroused by the treachery of a Filipino who shamelessly aided and comforted with the enemy both in flesh and the wanton bmchery of her people during chat reign of terror and t ribulations that tried men's souls. Asuncion Duefias' statement that if the accused had not been arrested she herself might have killed her because of so many people she had betrayed, was a genuine and natural reaction of an aggrieved widow against one who had brought her desolation, misery and suffering. Relating as it does to the very atrocities under investigation, her wrath gives vivid substance and reality to her testimony rather than weighs on her veracity. The decisi·on cites Exhibit J-Lourdes Son's stoitement prepared by one of the defendant's attorneys and signed by Lourdes at the Correctional Institution for Women -to impeach Lourdes' testimony. 1 may mention that from a leading question asked Modesta Son by defense counsel it also seems that the defendant's auorneys were able to exact from her, in their office, a promise that she would stand by them. Needless to say, this procedure was highly reprehensible and unethical. In one aspect Exhibit 3 and Modesta's promise positively favor the prosecution. The defense's effort to win Modesta and Lourdes Son to its side after they had given evidence against rhe defendant is i11dication of its realization that there was truth and gravity in what they knew. And the ease with which the effort succeeded is evidence that the witnesses were not unfriendly, and gives the lie to the contention that they were bent on having the accused punish;d to the point . of being capable of committing intentional injury against her. Referring, on cross-examination, to Exhibit 3, Lourdes declared that she did not know what it said and insinuated that she was intimidated. While we may discount her testimony t hat she was threatened by Corporal Vera, we should not overlook the great probabilit}' that undue infl\\ence was brought to bear upon her and her mother to retrace their statements made to the CIC and the prosecutors. They said that when they were summoned by De Vera and defendant's two sisters from their temporary quarters at the Gregorio de\ Pilar Elementary School to come to the lawyer's office, they thought the government lawyer's office was meant. De Vera's interventio11 could conceivably have disarmed them of 2'6 any suspicion of anomaly. De Vera was one of the two non-commission officers who had questioned them at the Manila Jockey Club in March and who, it would seem, arrested the accused. They might not have known that this corporal had married the defendant's cider sister in June and had become defendant's protector. Modesta San and Lourdes San arc unlettered. On iu intrinsic merit, Exhibit 3 is of little or no value. I have to admit that Modesta's and Lourdes's testimony is unsatisfactory on what the defendant's attorneys judges who saw and heard the witnesses testify. Monlcmayor and Pablo, JJ., concur in the foregoing dissenting opinion. VI Jo11q11in Zamom, fwlilir111cr, 11I . Rr1f11cf Di11glasa11, /iufge, Co11rl of First fllsfa11cr. of Ma11ifa, a11d lsabefo Hilario, respoll(ffllfs, G. R. No. L-750, August 16, 1946, PABLO, /. and De Vera told them and on other things I DESAHUCIO; EJ ECUCION; MORA EN EL PAGO 0 DEPOSITO DE LOS ALQUILERES; CASO DE AUTOS.El demandado dejr. de depositar los alquilercs correspondientes a los meses de abril y mayo. El demandante tenia derecho a pedir la ejccuci6n de la sentencia, y erd debcr drl Juzgado ordenar la ej.ccuci6n de la scntencia apclada. that transpired between them. For reasons that can only be left to conjectures counsel did not press the .point, which under normal circumstances would be an important bit of proof for the defense. But whatever the case mar be, Exhibit J and Modesta's promise not to forsake the accused disproves the insinuation of unreasoned hostility. In the face of the proven facts, they do not impair the witnesses' credibility on the main l issue. Their statements to the military authorities in Marcil were made spontaneousID.: ID.: ID.; SUSPENSION DE EJECUCION BAJO LA LEY No. 689, CON SUJECION AL PAGO 0 DEPOSITO DE LOS ALQUILERES VENCIDOS.-No conricne la Ley No. 689 disposici6n alguna que justificase la falta de pago o deposito de los alquilcres vencidos. Dicha Icy cuando cxistc y:t "orden o sentencia ya firmc y ejecutoria," autoriza al J uzgado a "suspender la ejccuci6n de semejante orden o scntcncia, por cl periodo que estime convenientc, que no sed mayor de tres meses" (articulo 4) con sujeci6n a las condicioncs prcscritas en los articulos 5 y 6. Una de las condiciones de la suspenci6n cs "que la persona contra la cual se dicto la scntencia depositc todo el importe de los alquileres por todo el tiempo que dura la suspension o las porciones de dicho importe que cl J uzgado ordcnc de ticmpo en ticmpo a razon de! cual sc dict6 la sentencia deposite todo alquiler quc p:igo por cl mes inmediatamentc anterior a la terminaci6n de! arrendamiento." Esta Icy no protegc al que incurre en mora en cl pago o deposito de los alqui!cres. ly and. as has been heretofore said, the witnesses had received no inducement and had no reason to prevaricate. If they agreed with the defendant's lawyers to testify according ro the tenor of Exhibit 3, their commitment could not be the truth, nor put in doubt the truth of their previous statements to the representatives of the prosccution. The very character of the supposed mistake supposedly committed by the witness is, I think, its best refutation. As I trust I have shown, mistaken identity was highly remote. The implication of the accused by Modesta, Lourdes and Asuncion to the authorit;cs was either an outright, deliberate falsehood or an absolute truth. There is no room for a middle ground. That it is the truth is inescapable. If Cabutin, Mejia and Alejandro were pointed out to the Japs by a woman, as the defense at least impliedly admits, and if, as the witnesses soiid the accused was that woman and so declared to the CIC, no amount of subsequent contrary statements can create any doubt as to the accuracy of their first information, unless it could be shown that they had any base motive to wish the defenda nt harm and to shield the real culprit. There is not the least indication or insinuation of either. To think that t he witnesses left unmolested the real informer who was instrumental in the killing of members of their families and friends and trained their bitterness and resentment against a guiltless woman for no reason whatever is highly irrational. Stripped of all cluttering details, the issue is reduced to the credibility of the opposing witnesses. There are no sufficient grounds for this Court to set aside the unanimous findings of fact of the three experienced THE LA WYERS JOURNAL JUJCIO ORIGINAL en cl Tribunal Su'rcmo. Mandamus. Los hc~hos aparccctt relacionados en la de. cisi6n dcl tribunal. Sres. Par/ilia, Carlos & Fnl//111rlo en repretentaci6n de\ rccurrentc. Sr. D. Eusebio Morales en rcprcsentaci6n :lei recurrido Hilario. Nadic compareci6 en repre~cntaciOn de\ Jucz recurrido. PA BLO, M.: . En la causa civil No. 1307, titulada "Joaquin Zamora, como admin.istrador, etc. contr.i Isabelo Hilario, dcmanPado," cl Juzgado 1 \ilunicip:il de M:inila dicco en Enero 14, May Ji, 1949 1946, scntcnci:1 condcnnando al dcmandado a dcsalojar his fincas Nos. 2032, 2032-A y 2034, de la C:1lle Azcarraga, Manib., ya pagar la renra de 'P-170 al mes. El demandado apcl6, y cl expediente h:i sido registrado en el Juzgado de Primera Instancia de Manila como c:iusa civi! No. 72 I 80. En M:iyo 29, 1946, cl rccurrenre (dem:indante en la caus:i de desahucio) present6 una moci6n en dicho Juzgado de Primera Tnscancia pidiendo la ejecuci6n .de la sentcncia dictad_a por el Juzgado Municipal de Manila, alegando como razon la folra de pago o dep6sito por cl demand:ido de los alquileres correspondicntes a los meses de Abril y Mayo de 1946. El demand:ido ha sido notificado de esta moci6n, )'en Mayo JI, csto cs, al segundo dia despucs de prescntada la mociOn, deposit6 los cirados alquileres en la Escribania dcl J uzgado. En Junio 11, despues de considcrar losescriros presencados por ambas partes, el H onor.1blc Juez rccurrido dicro una orden denegando h moci6n de ejecuci6n. En Jun.io 24 recurrentc present6 moci6n de reconsider:ici6n razonada, y al siguiente dia el demandado pre~enr6 su escrito oponicndose a la moc6n de rcconsideraci6n, que fue denegada por cl Juzgado de Judio 12. El rccurrente, por medio de una solicitud original de mandamus, y alegando que las ordcnes dcl j uzgado de Junio 11 y Julio 12 de csta ailo han sido dictadas en contravenci6n de la le}' quc no ticne otro remcdio facil y cxpcdito para obtcner la cjccuci6n a que tiene derecho, pide ciue este Tribunal ordene :ii recurrido, el Honorable Rafael Dinglasan, como Juez dcl Juzgado de Primera lnsuncia de M:inila, que expida una ordcn de ejecuci6n en la causa civil No. 72 180. El articulo de la regla 72 dispone: "si se dictare senrencia contra el demandado, se expedid. inmcdiatamente la ejecuci6n, a menos que sc perfeccionare una apelaci6n y el demandado prestare fianza bast:1.nte para suspender la ejecuci6n de dicha scntencia, aprobada por el juez de paz o municipal y otorgada en favor de\ dcmandante para el registro de la causa en cl Juzgado de Primera lnstancia y para cl pago de los alquileres, dailos y costas hasta que se dicte sentencia definiciva, y a mcnos quc, durante la pendencia de la apelaci6n, cl demandado pague periodicamente :ii demandante o al Juzgado de Primera lnstancia la cantidad de los alquileres vcncidos, segun el contrato, si lo hubiere, tal y como hubiere estimado en su sentcncia el juzgado de paz o municipal, * * *. Si cl dcmandado no hicicre pcriodicamente los p:igos antes mcncionados durante la pendencia de la apclaci6n, el Juzgado de Primera fnst:incia, prcvia moci6n del demandante, que se notificara :ii demandado y previa prueba de falta de pago, ordenad. la ejecuci6n de la sentcncia apclada;" * * *. El dcmandado dejo de dcpositar los :iiMay 31, 1949 < 1uileres correspondicnres a los meses de Abril y Mayo. El dem:ind:imc tcnia dcrecho a pedir la ejecuci6n de la scntencia, y era debcr dcl Juzgado ordenar la ejecuci6n de la sentencia apcbda. El Reglamcnto en inglcs dice: "shall order the execution of the judgment appealed from." No conticne la Ley No. 689, disposici6n :ilguna que justific:isc la falra de pago o deposito de los alquilercs vencidos. Dicha Icy, cuando existe ya "ordcn o sentencia ya firme r ejecutoria," autoriz:i :ti Juzgado a "suspender b ejecuci6n de semejante orden o sentcncia, por cl periodo que estime convenience, que no sed. mayor de tres meses," (articulo 4) con sujeci6n a las condiciones prescritas en las arciculos 5 y 6. Una de las condicioncs de l:i suspensi6n es "quc la persona contra la cual sc dicc6 la scntcncb deposite todo cl importc de los alquileres por todo cl tiempo quc dure la suspcnsi6n o las porciones de dicho importe quc cl Juzgado ordene de tiempo en tiempo a razon de\ alquilcr que pag6 por el mes inmediatamente anterior a la terminaci6n de\ arrendamiento." Esta Icy no protege al que incurre en mora en cl pago o deposito de los alquileres. Se dicta sentencia ordenando al Honorable Juez rccurrido que expida la orden de cjecucion pcdida. Sin pronunciamiento sobre Mor1m, Prrs., Paras, Frria, Prr/ecto, Hilado, Be11g=o11, Briones, y T111uo11, MM., estan conformcs. Sc concede la rolicilud. Vil Patricio J-1. Gubagaras, plai11liff-appelfrr, 11s. West Coast Life lm11ra11cr Compa11)•, Jefrnda11t..uppella11t, CA-G.R. No. 16n, January, 6, 1949, DE LA ROSA, /. Philippine Decisions requested for necessary forms to sup· port a claim for the amount of the insurance. Appellant refused to entertain the claim on the ground that appcllee having failed to pay the premium due after February 1, 1942, payment of the amount of the insurance was forfeited. Held: The dcfcndantappellant was ordered to pay the amount of the insurance, less the value of the premiums due and unpaid until the death of the wife, with legal interest from the filing of the complaint and costs. 2. ID.; ID.; IMPOSSIBILITY TO PAY PREMIUMS IN THE HOME OFFICE OF INSURER.-Wherc rhc policy provides "all premiums are due :ind payable in advance to the home office of the company in the City of San Francisco, California, U.S.A. . ," but by reason of the war the insured could not pay the premium in the home office, the insured was excused for nonpayment thereof. J. ID.; FAILURE OF INSURER T O ASSIGN AGENT AT THE RESIDENCE OF THE INSURED.Where the policy provides that the premiums ··may be paid to an authoriz. ed agent of the company producing the company's official premium receipt signed by the President, a Vice President or Secretary of the Company, :ind countersigned by the person receiving the premium," the company is obliged to assign an agent to present receipts of premiums due or to be due, signed by its president, vice president or secretary, and countersigned by the agent, to the insured, in their residents, to collect them. INSURANCE; WAR; EFFECT OF NON-PAYMENT OF INSURANCE ; · PREMIUM BY REASON OF WAR. -On August I, 1940, plaintiff-appcllce and his wife were insured by defendant-appellant under a joint endowment policy for twenty years, under which the 5Urviving spouse became the beneficiary. The last premium paid by the insured covered the semester period of August I, 1941 to ID.; WAR; JAPANESE MILITARY NOTES: CONSIGNATION; DEPOSIT OF JAPANESE MILITARY NOTES TO PAY PREMIUMS DUE. - If the insured deposited with t he Clerk of Court the premiums due, in the Japanese Military Notes, the insurer will not accept the money because it has no value. February I, 1942. The Pacific War 5. which started on December 8, 1941, and the occupation of the City of Manila on January 2, 1942, caused the disruption of all means of communication between the capital and other points outside the City of Manila. As a result of this, appellec could not remit to the appellant the premiums due. The wife died on May JO, 1945, in the municipality of Dueiias, province of Iloilo, before the armistice but after the liberation of Iloilo. On June 18 of the same year appellee notified the appellant of her demise and THE LA WYERS JOURNAL ID.; CONSTRUCTION AND INTERPRETATION; FAILURE TO DEMAND PAYMENT OR TO PAY PREMIUMS DUE; INSURANCE CONTRACT INTERPRETED IN FAVOR OF INSURED. - Where there arc no jusrifi3bJe reasons to lay the blame on either of the contracting parties for failure either to demand payment or to pay premium due on the policy in question, Article 1105 of the Ci\'il Code should be applied, as it tends to supply the deficiencies in the contract, especially when it is al257 Philippine Decisions ready the admitted rule that confiscations should be avoided through :m interpretation favorable to the insured. 6. ID.; ID.; RIGHTS OF PARTIES IN CASE OF WAR NOT STIPULATED IN INSURANCE CONTRACT.-In life insurance contr:icts the silence with respect to the rights of the parties thereof in case of war is an omission which should not benefit insur:mce companies which arc the ones who drafted the contract, and they should not be permitted co invoke in their favor their own omissions. T ORRES, /., concurring: 7. ID.; WAR; IMPOSSIBILITY TO PAY PREMIUMS DUE IS AN EXCUSE.-The failure of i~ured to make payment of premiums due on policy was caused by the stoppage of :all means of communication between his place of residence in the province of Iloilo and the City of Manila, where the Philippine offices or agency of the defendant company were established before the war, and it being a matte1· of common knowledge that the offices of all firms and companies of American nationality have been d osed :ind liquidated by the Japanese Military Administration soon after the beginning of the occupation of these lsl:mds, it would be utterly unreasonable to contend that bec:ausc of the failure of the insured to pay the premiums due from February I, 1942, "the policy hapsed without value." lmpouibili11111 n11lfa obligafio est (there is no obligation to do impossible things). (Impossibility is an excuse in the law). These are maxims which arc in all fours with the case at bar. 8. ID.; STATUTES; LAW GOVERNING INSURANCE SUPERIOR TO TERMS OF POLICY .-An insurance company organized outside the territory of the Philippines and permitted to transact business in this territory must abide by t he provisions of the laws in force in his jurisdiction governing life insurance business. T he court, therefore, cannot adhere to the contention of defendant who, in his first assignment of error, contends that "the policy is the law between the parries." The law governing the subject matter of insurance is superior to the terms of the policy. 9. ID.; OBLIGATIONS AND CONTRACTS; VALIDITY AND FULFILLMENT OF CONTRACT OF INSURANCE CANNOT BE LEFT TO THE WILL OF ONE OF THE CONTRACTING PARTIES.- Jn the absence of specific provisions in the Insurance Law, No. 2427 as amended, a contract of life insurance is governed by the rules of civil law regarding contracts. Thus, if according '" to Article 1256 of our Civil Code, "the validity and fulfillment of contracts cannot be left to the will of one of the contracting parties," the attitude of defendant in declaring that the policy had lapsed and become worthless on the ground of alleged non-payment of premiums, is utterly unjustified, in that it is contrary to the provisions just quoted which is based on principles of justice, because it not only proclaims the binding nature of the contract as stared in Article 12 5 8 of said Code, but it likewise establishes the principle of equality which is so essential for the contracting parties; it forbids that one of the part!es be bound by t he terms of t he agreement while the other is 10 . ID.; WAR; UFE INSURANCE POLICY NOT LAPSE FOR NONPAYMENT OF PR.EMIUMS DUE TO WAR.-The life insurance policy did not lapse for non-payment of premiums due to impossibility of payment as a result of war. ' 11. ID.; PROMPT PAYMENT OF PREMIUM ESSENCE OF CONTRACT OF INSURANCE, EXCEPTION.Prompt payment of premiums is material and of the essence of the contract of insurance. This musr, however, be qualified by taking into consideration the time and circumst:inces surrounding the act of ·payment, Not in v:iin the maxim says: disli11g11e Jrmpore el co11cordabis j11ra (Distinguish times, and you will make laws agree), 12. ID.;JUDGMENT;DOCTRINELAID DOWN IN NEW YORK LIFE INSURANCE COMPANY v. STATHAM, 93 U.S. 24, 23 L. ED. 789 NOT CONTROLLING.-Considcring that the ruling laid down in the Statham case (New York Life Insurance Company v. Statham, 93 U.S. 24, 23 L. Ed. 789) has been m:idc by the United States Supreme Court about 7 5 years ago, during the horse and buggy period of the life of the American nation, it cannot be regarded as an overall principle that shall govern the relations between the insurer and the insured in the present age. Granting that, at t he time of the promulgation of said decision on October 23, 1876, such ruling was good law, it cannot be accepted as such in the present circumstances of human advancement and progress. Law and jurisprudence, its companies and exponent, are not static like the still waters of a pond; they go hand in hand with the progress and advancement of time; they look after and provide for the needs and welfare of the community. Allys. Padilla, Carlos f!J frrnando, for defendant-appellant. Atty. R. A. Espino, for plaintiff-appellee. THE LAWYERS JOURNAL DEC ISIO N DE LA ROSA, M.: Patricio H. Gubagaras reclama cl pago de la suma de 'f>2,000.00, importe de un:i p6liza expedida por la West Coast Life Jusurance Company, de la quc Cl cs asegurado y beneficiario, mas la cantidad adicional de 1.>600.00, en concepto de dailos. ~~ efecrividad cl l.o de agosto de 1940, Patnc10 H . Gubagaras y su csposa Maria Labaco, hoy finada, obtuvieron de la West Coast Life Insurance Company la p61iza docal conjunta Exh. A, de veinte ailos o hasta la muerte de cualquiera de cllos dos, q.ue eran mutuos beneficiarios, por la canudad de P-2,000.00, con participaci6n en las ganancias. La Ultima prima pagada por los ascgurados comprendia el periodo semestral de! l.o de agosto de 1941 :ii I.o de febrero de 1942. La guerra de\ Pacifico. estall6 el 8 de diciembre de 1941, y Mamla, en donde la compailia tenia su agencia, foe ocupada por las fuerzas invasoras japonesas el '2 de enero de 1942. Con motivo de la paralizaci6n de todas las comunicaciones, terrestres, maritimas y aereas, la prima que vencia el l .o de febrero de 1942 y las siguicntes, durantc la guerra, no se pagaron. Labaco falleci6 el 3 0 de mayo de 1945, en el municipio de D uenas, de la provincia de Iloilo, :intes de! armisticio, pero dcspues de la liberaci6n de Jloilo por las fuerzas amcricanas, oficialmcnte declarada en 22 de marzo de 1945. El 18 de junio de 1945, Gubagaras dirigi6 a la compailia la carta, copia fotosd.tica de la cual cs el Exh. 1, avisfodola de la muene de su esposa y pidiendo al mismo riempo formularios para probar su mucrte y presentar la reclamaci6n correspondienre. La compailia le contest6 que, por no habersc pagado la pr":na debida el l.o de febrero de 1942, .la p6hza Exh. A caduc6, sin ningun valor (Exh, 2). Despues que se cruzar:in otras correspondcncias entre las partcs, Gubag:a.ras prcsent6 su demanda de autos el 24 de junio de 1946. La compaiiia admite sustancialmente los hechos que sc acaban de relatar, y contestando a la demanda, alega que la p61iza en cuesti6n provee que "All pr~mi\lms arc due md payable in aduncc at the Home Office of the Compmy in the City of San Francisco, California, U. S. A., but may be paid 10 an authorized agcm of the Company pro· d\lcing the Company's Officio! premium receipt signed by the Prcsidenc, a Vke President or Sfcrctny of 1hc Company and countcr1igncd by the persou receiving the premium. No person hu any authority to collect a prtrni\lm unlcu he then holds uid oft'iciol rcceip1. • • • • " Y' entre orras defcnsas especiales, interpone: th::~· States thoc 1hc policy· in question provides "PAYMENT OF PREMIUM' • • • • • This policy shall hpsc if any premium is .not paid u herein provided and no right here· May 31, 1949 under shall uist except u hcrdn exprcn[y provided. 2. Statoi that by rnson of the non-payment of the premium due on l Februuy 1942, and/or thcrufter, the policy in question has hpsed, and that accordingly phintiff•s complaint uatts no C•usc of action. By way of SECOND SPECIAL DEFENSE 1. StatH 1hu insured are guilty of hchcs. in that they f•iled co apply for reinst•tement of the policy under the clause thereof which read!:REINSTATEMENT' 'At any time within five yun after default, updn written applkuion by the insu red and upon preKntation of evidence of insurabillty u tishc1ory 10 1he Company, 1his policy, if not surrendered to the Company, may be reinstated together with any indebtedness in accordrnce with the loan pro· visions of the policy, upon payment of the loan interest, and of arrurs of premium wiih interest at the rate of six per cent per annum thereon from their due dates. • • • • " (Expedience de Apelad6n, pp. 10 y 11) Aportadas por ambas parres sus pruebas, el Juzgado o quo, aplic:mdo al caso el Arr. 1106 del COdigo Civil, que reza: " Fueri de Jos easos uprenmfnte mencionados en la.lcy,yde losenqueasilodeclare la obligaciOn, nadie rnpondcd de aquellos sucesos que no hubieran po<lido pre,·eue, o quc, prninos, fueran incvinblu ." dict6 esu sentencia: "POR TANTO, d Ju1gado dicta dccisi6n en cue u unto, condenando a la demandada a pagar d denundante li canlid>d de DOS MlL PESOS ('P2 ,000.00), meno• el valor de la1 primas, no p•g>dU, drvcng1du huu la muene de la esposa del demandantc, queocurriO el JO de mayo de 194l', ton intcreses legales desde b presentaciOn de la demand.i, y al p1go, ade.;,as, de la1 cosos del juicio.'" Atribuyendole cuatro errores :i. este fallo, la Compania recurre en alzada :i. este Tri· bunal de Apelaciones. PRIMER ERROR " THE LOWER COURT ERRED IN NOT HOLDING THAT THE POLICY HAD LAPSED FOR NON-PAYMENT OF PREMIUMS DUE." Como precedente, se aduce en apoyo de este primer seilalamiento de error h decisi6n d.ictada el 23 de octubre de 1876 por el Tribunal Supremo de los Estados Unidos en New York Life Insurance Company vs. William C. Statham et al (23 Law Ed. 798), en la que se enunci6_ csta doctrina: "We 1rc of opinion therefore, first, that as the compmy elected to insist upon the condition in these easel, the policies in question must be reg.rded as extinguished by non-payment of the premium, though caused by the existence of the wu, and that an action will not lie for the 1mount insured tl1crcon. Secondly,thacsuchfailure beingnuscdbyapublic w.r without def.ult of 1he assured, they are entitled r x afquo rt bono to recover the equitable v1lue of the policies with interest from the dose of the war:• El Tribunal Supremo, en su primer pronunciamiento, se atuvo a la letra del contrato de seguro, siguiendo esta proposici6n: May 31, 1949 "(!) The right of the parties depend upon the contract, which they themselvCJ made. The court will not interpolate new conditions but will hold 1he pntie1 to their own agrc<ment.'• Basandosc en las condiciones dcl contrato, )itcralmente interprctadas, el Tribunal lo declar6 extinguido, por falta de pago de las primas convcnidas, sostcniendo, no obstante, que el asegurado tenia dcrccho a rccobrar el valor cquitativo de sU p6liza, con intereses desde la terminaci6n de la guerra. Si la p61iza caduc6, por no haberse pagado sus primas, el derccho equitativo reconocido en el ascgurado se dcriv6 de un contrato cxtinguido. Esta doctrina, que intcrpreta a la lctra las clausulas de! contrato y de algun modo h informa el aforismo Jura lex u rl lex, es una barrer:i. que dificulta e impide una dara y explicita redacci6n de los contratos de scguro de vida. Guerra ha habido siempre desde los albores de la humanidad, y ha ido desenvolviendose de la lucha entre tribus a la guerra mundial. Su frecuencia es una realidad, y h s perturbaciones "que pr'oduce sc dejan sentir profundamenre. A raiz de la gucrra civil americana, en los Tribunales de los Estados Unidos se ha debarido un nUmero considerable de asuntos de p6lizas de scguro de vida, cuy:i.s primas no pudieron pagarsc con motivo de l:i. guerra. Con todo, ningun:i. modificaci6n, que difin:i. los den'chos y obligaciones de las partes interesadas, en casos de gucrra, .se ha conseguido incor· porar en los contratos de seguro de vida, porque la dccisi6n en el asunto de Statham, al interpretar litcralmente sus clausulas, h:i. hecho de la guerra un succso confiscatorio de las primas pagadas por los asegurados, con la anulaciOn de sus derechos, a favor de las companias aseguradoras. La p61iza de seguro Exh. A, origen de este asunto, contiene esta clausula: ...... This policy sh•ll hpse if any premium is not paid as herein provided, and no right hereunder shall exist except as herein expressly providtd." Esta clausula es tan lata y vaga que por ella la compailia trat:i. de acaparar para si todos los derechos, y no conceder nada Philippine Decisions cxactamente las mismas clausulas de la p6liza Exh. A de autos, librada 89 anos mas rarde, o el l.o de agosto de J 940. Estc estancamiento, de casi un siglo ahora, en un ambicnre de contrataci6n que dia a dia ticnde a la mayor mutualid:i.d de los bcneficios, es el resultado de la doctrina en el asunto de Stath:i.m, que prueba la sabiduria y prccisi6n que extrana la maxima legal de inrerpretaci6n: la letra mata, el espiritu vivifica. SEGUNDO ERROR "THE LOWER COURT ERRED IN HOLDING THAT THE BENEFICIARY CAN RECOVER ON A VALUELESS AND LAPSED POLICY." En el parrafo 13 de h contestaci6n se acota la clausula de pago de las primas convcnida en la pOliza Exh. A, que establece dos maneras: "'(a) All premiums arc due and payable in advance 10 the home office of the company in 1he City of San Francisco, California, U.S.A. . " Como en el caso presente es absurdo suponer que los asegurados, Gubagaras y Labaco, se compromctieran a pagar las primas en la oficina de la compafiia en San Francisco, California, aparte de que no era posible cruz:i.r el Pacifico durante la guerra por la paralizaci6n completa de las comunicaciones, habia que descartar esta primera manera por imposible. Y, "'(b) but m•y be paid 10 •n authorized agent of the company producing the company's official P"mium receipt sii;ned by the Pre•ident, a Vice President or Secretary of the Company, and couotersigned by the person receiving the premium." Por esra segunda manera, la compania se oblig6 :i. nombrar un agente que prcscnte los recibos de las primas vencidas o por veneer, firmados por su presidentc, vice prcsidente o secretario, y coritrascn.ado por cl :i.gente, a los ascgurados, en la residencia de estos, para su cobro . Que pasos se han dado por las partes, de · acuerdo con esra segunda manera, para cfectuar el cobro y pago de la prima que vencia en l.o de febrero de 1942? Patricio H. Gubagaras declar6: a sus asegurados. Fundandose en ella, se Q. sosticne en el alegato de la apclante: Before February I, 1942, did rou make •ny effort to make payment to the ddtndant Comp1ny? • '"THE STATHEM RULE R. Si, sei'ior. The leading and cont rolling case on the legal point under consideration is New York Life ln111ranct Co. vs. Statham {!JJ U.S., 24 ; 2l L. ed. Q. What did you do1 R. Me vine al post office con d proposito de pa789). The question involved in the Stath•m case Q. i1 idenlical with the question invol ved in the present case. In both cues the policy containe<l the R. following stipulations: (a) that the premiums must Q. be paid in advance; and (b) that non-payment of any of such premiums will cause the policy to R. lapK. In both cues the insured did not pay the Q. stipulated premium• and cbimcd as excuse for such R. non-payment the impos•ibility ol p1ymcnc as a reg.r, pero b oficina de correo ya estaba ecru'" Where w .. the post office here in the Cily of lloilo then situated at the time? En cl ed ificio de la Aduana. When did you go to the Custom House Building? Alla a mediados de! mn de eneto. In what year? 1942. sult of 1he war.'• (pp. 14 y II) Q. Where did you go when you had to return? Segun esro, la p6liza cxpedida en 1851, que motiv6 la causa de Statham, conrenia THE LA WYERS JOURNAL R. Volvi a Duei\u. Q. Did you m•ke any furthu effort turning 1oyour hou1e? 259 Philippine Decisions R. Si, 1ciior. Q. What did you do1 R. Me fui ab oficin.1 de corrcos dd municipio d .. Ood1as pH• cerciou r si po<lia rcmitir correspondenci•s pHa Manila. Q. Were you •blc ro send anr correspondence 10 Manilo? ll. No, Seii.or, porque scgUn el ttsorero no sc podio ya redbir, porque h ciud.1d de ~f,nih cstabo ocupoda por los i•pontws. (c.n.t. pp. &-10) Federico A. Pigason, estafctcro de la ofi - cina de corrcos de la ciudad de lloilo, :antes y despues de la gucrra, ascver6: "Q. Whrn was the Post Office in the Province of lloilobcgantooixotothepublic? R. On July 4, 1~141. Q. Will you pk•se tell us wheu were the m•Ll facilities for 1hc Municipilities oixned after 1he hbcrotioooftheprovinceof lloilo? R. After 1he libcution in die province of lloilo, the PCAU or the Philippioc Civil Affairs Unit tried to facilitate mails in t he provinces by means of moil carrier; then when the offic~ wis officiolly opened by the post office on J<il}· 4, 19H, we hired the Philippine Railroid and .n t he buses to bring moils to the Municipalities; ond now we have also Hcomcr• and airphnes. Q. What hapixned to the post office afier the bombing of lloilo on December 18, 19411 A. You mnn 1hi1 post office of lloilo in 1he City of 11oilo1 Aftcr that, we transfcrrrd in Lo Pn. "'Q. Don"t you kn(lw if by requcn through the Army post office mail could be sent frnm ll(lilo to the Uni1ed States? A. T(I the UniHJ States we did not have an}' arrangement, but all mail in lloilo were d~ ­ livered 10 /I.PO 711. (t.n.t. pp. 2 y 1) Leon:irdo Cocjin; Tcsorero Municip:tl y Postmaster de! municipio de Dueiias, testific6: '"Q. In the yur 1942 or 10 be exact before the Japanese invuion of the hhnd of Panay, were you holding the ume office in 1he government? A. YeJ, sir. Q. And the same placer A. T he ume phce. Q. Do y(lu know a person by 1hc name of Mori• Labaco in her lifctimd A. Y~. sir. Q. Do y(lu kn(IW also 1hc plaintiff in thiJ ca•e • Parricio H. Gubagaras? A. YeJ, he iJ the husbrn~ (If the lare Maria La· baco. Q. Will you plusc tell the Court if y(IU hHc l«n this person sometime in the month of Januuy, 1942 in Dueiias? A. So for a! I on remember, this couple Patricio Guhguas md the late Maria Labaco had come tome in my (lffice in Dueiiai;onor abou1 the Ian doyJ of January, 1942 ,.,.;th the purpo..., of inquiring as to whether it wu po••ible during that time to send money by mail. Q. Do you know to whom did they intend t(I send money by mail at that time? A. They tried 10 Jend m(lney 10 1he Wen Co>st Life lnsuuncc Company. Q. Upon inquiring (If the couple Patricio Guha· gnas, the herein plaintiff and hiJ late wife whether it was pouible to send money by nuil to Wen Coau li fe Tn1urrncc Co., what was your answer? A. 1 t(lld them that during that time there wu no more facility of tronsponnion between Mmila an d lloilo, and besides, the Japanese 260 Force• were occupying the City of Manila; I told t hem. " It JCCms to me, !(I send money to Manila is futile." (t.n.t. pp. 18-20) El inrcrcs de Gubag:iras de hallar un mcdio de cnviar a la agcncia de la cornpailia, en Manila, el importc de la prima quc vcnci:i cl l.o de Febrcro de 1942, revcla su deseo de cumplir con las condicioncs de la pO\iza Exh. A. De su p:irtc, quc mcdidas ha tomado la cornpailia p:irn prescntar a Gubag:iras el re· cibo, dcbidarnentc cxpc<lido y contrascii:ido, hacia esa fcch:i, J.o de fcbrcro de 1942? Gregorio San Jose, supcrintcndentc del dep:irtamcnto de reclamacioncs de la Compaiiia, declar6: "Q. Yuur l·fonor pleJsc. W ill ycu please tell u• what hJppened to your com1uny un 2 Ju11e 1942 (sh(luld be JJnuory) wh~n Manila w.u officially occupied by 1hc Ja1>rnest lmpcri•I Forces? A. We were fornd upon order (If the enemy force 10 close our business, being an American C.:.1n· pany. Q. Can y(IU 1ell u~ if there is any inrnred from the province of lloilo who was able to continue paying the premium due from 2 June (sh(lulJ be Janu.ry) 1942 up 10 the time of liberAtion in 19-4!1 A. There wat n(lt a single policy holder who was able 10 Jtnd their premium. Q. Will you please tell us when was your ?.hnila bunch (lfficc (lixned to 1he public? A. December l, 19-41. (1.n.t.pp.29-)0) En contrastc con_ las gcstioncs que, hacia fines de cncro de 1942, Gubagaras hicicra para encontrar un medio de cnviar el imporce de la prirna quc vcncia cl 1.o de! mes siguicntc, la compaiiia nada hizo para cumplir con la obligaci6n que tenia de presen· tar a los :isegur:idos el recibo de dicha prima, debidamente firmado por su presidentc, vice prcsidcnte, o secrct:irio, y contraseiiado por la persona antoriz:ida p;ira recibir su importc. Se did quc, cst:indo la cornpaiiia en S:in Francisco California, allendc cl Pacifico, :i miles de mill:is de distancia de las costas de Filipinas, con la :igencia en Manila ccrr:id"l por orden dcl cncmigo, nada humanamentc podia hacer. Est:i scria, indudablcmente una cxplicaci6n plausible. Mas, si la paralizaci6n de las comunic:icioncs, la ordcn de cicrre de su agcnci:i en Filipin:is, dada por cl encmigo, b gucrr:i, en una p:ilabra, constituye para la compailia una excusa buena y valida, porque no ha de scr legal y cficu para el ascgurado? Porque las consecuencias de l:i gucrr:i, que impidicron a ambos contr:itantcs cumplir sus respectivas obligacioncs, ha de favorcccr a la compaiiia, que sc limit6 :i cruzarse de brazos, amp:ir:indosc en b doctrin:i de la causa de Statham, y ha de imponer el ascgurado, sin culpa de su pane, cl castigo de la pCrdida de todos sus dcrc· chos despucs de la diligcncia que cmpleara para hallar un mcdio de cumplir con su obligaci6n de pagar la prim:i quc esraba por veneer? T l-I E LAWYERS JOURNAL Dcspues de l:i gucrra civil americana, con mcnos rnotivos, porquc los Estados Amcricanos forema n un territorio comp:icto y unido, sin mares quc los apartcn como cl gran occano que separ:i California y Filipin:is, en H amilton vs. Mutual Life Insurance Co. (11 Fedcr:il cases, 35 1, 358, 359 , 360), decidicndo la contenci6n en favor dcl bencficiario, el T ribunal sostuvo: "'The defonw is also set u11, 1hu the policy. hy its term<, cc . .sed 10 txiu by reason of the noup3yment of the annual premium that was due >nd poyahlc 011 the 2nd of March, 1862, and tl•>I thereby, also, all previous paymenu made by Goodman became forfeited 10 the defend.nu. replied, on the pan of the pliintiff, to 1his dcfe11se, that the agencies from the stotc of Alab•m• in March, 1861, prevented the payment vf Goodmon of his annual premiums, ond thereby waived such payments, all of which becante due after the 16th d"f August, 1861, the act of the dofondants having prevented the p>ymcnu in Ahbama, .and the effect of the war being to make Juch parment< >t New York, by Goodman, unlawful. ""If it was a pan of the contract entered in10 by the defendants, or of their obligations 10 Goodman undrr it, that Goodman should have 1he right to pay his ann ual premiums to an agent of the defendants in Alobama, and If the defrndants were bound to provide In Alabama, during tf.~ con1inuance of the risk on the policy, an ogenr to receive Juch premiums then Goodman was not bound to Jeck any otl•er recipient of such paymcnu dun •uch agent, and wu not bound, for w•nt of any such agent, to Jl>Y the premium•, directly t(I the defendanu at New York. In the application made in February, 18-49, for the policy issued to Mr<. Goodman in March, 1849 Goodmon is described as residing in Mobile, Alabam>, and u being a wharfinger there. In his application of March, 18f8, for the policy (If 1818, and in that policy, hei• de<eribcd os of Mobile, in the state (If Ahham~. All 1he premiums that he paid, were with 1he kn(lwlcdgc of rhe defcndwu, paid at Mobile, t(I McC(ly, their agent there, and were received by t he defendants through and from McCoy. Good· mon resided in Mobile from 18}1 up to his death, onddiedat Mobile. In the absence of any notice to the C(lntrory, 1he defendonts mun be held t(I h>ve C(lntinued t(I undustand that he continued to reside in Mobile. llis application for 1hc policy of 1818 W•S m•dc through McCoy, at Mobile, the policy was delivered to him through the hands of McCoy, at Mobile, and burs McC(ly's sign>ture, as agent at Mobile, the three payments (If premiums in 1819,1860 rnd 1861, were made thru ~lcCoy, ot ?.fobilc, and the receipts therefor beH 1hc signature (If McCoy u ihc dcfendanu' agent. The policy conuins on its face the words: 'Agenu (If the C(lmpany arc authorized to receive premium• "'hen due, hut n(lt to make, alter, or di1chari;e contracts, or wiive forfeitures.' It is conttndcd by the defendants that there wu no obliguion on them to k«p an agent at Mobile or in A!abann. Considering the charoctcr of the contract, the circumsunccs under which it was entered into, the fact thn Goodman wis, with the kn(lwlcdgc of die defendants, 1 ro1ident citizen of Al.bama at oil times, the hct thH tho c(lntr.ct must be reg.rded u having been entered into, and C(lntlnued in (lpCr>tion by the defcndanu, ot lust as long as they themselves ncognii.ed it~ C(lntinu~nce, thn is, until March 2nd, 1862, with reference to, and in subordlnati(ln, on their part, to such 1otute bw (If the state of Alabama as sh(luld be en1cted on the subj(C! of their keeping 'agents ln thH state, May 31, 1949 ond dw f•ct that the •sency of McCoy, h.v ing born continued during the life of t he policy up to M.rch, !861, w.s then withdown, if must I lhink, bl' lu/J, lhat thl' JrfmJ11nt1 werr brmnd lo kup ;,, A/11b1111111 an agr"f to wh"'" Goo,/1111111 ro"IJ pay his 11m11111/ pu111i11111s, or cou/J, at l1'11st, offrr or tcmfrr /w}'111r11f, iucb agt11t to br appoiutrd i11 co11fQrmil}' ll'ith iurh 1f<ll11lt law, 11111/ /hat, if tht abuurr of 111ch agr,,f was 11/1 that prn,·r11trd the pay111c11t of 1uch prcmimm by Goodman, lhr Jtfr11rl1111ts urr nlopprJ from ufling up /hr 11011fl<1y111rt1/ of 1uch prrn1;11ms at lhr finm 1/ipulalrd tb..rrfor 111 /1 Jrfrnsr lo this nit. 1'hr 1·1'id1·11cr shows prcu11i11ry ability a11<l willit•s,11ru 011 thr part of Goodmau to pay tbr premill•llS al lllobifr, a11d that thr reason why hr 1/iJ t1ot p11y th1·n1 thrrr 11•111 /hr11bsr,.cr of auy agent therrof the drfr11J11,.1s. I sec no leg.I objection to 1he c\•idcnce on this 1ubject, ei1hcr u competent, or •S rnfficicnt to prove the facts. If the dcfend•nts l\'crc entitled to 1he punc1ual p•ymenc of the prcn>iunu, u • condition precedent to their continuing liability from yur 10 yen, thrir pre1·mlir:m of surl1 po)'ll1t11t, by tlu wilhdrar<:al of McCoy'r ngr11ry, amf of all othrr 11gwciu iu Afab~'""' ucusrJ Goodn1a11 fro"' ... alti11g tbt pay111rt1/s P""c/11ally, 1md Jebari tbr defr11,f11nts from stlti"g UP SUCH \VANT OF PUNCTUA LITY as " dtfe111r ;,. Jhi1 U<it. W illiams v, Bank of U. S. 2 Pet. {27 U. S.) 94, 102; Vm Buren v, Oigge•, II How. 02 U.S.) 461, 479. There is no force in tl1e objection, th•t the defcnd2nu could not, during the wn, h..-c received from 1heir agent in Ahban12 •ny moneys p1id to him there u premiums, or thar such moneys would have been confocaud in t he h•nds of such agent, if paid to him. If chc •gent h•d been provided, Goodman could ha•·e tendered the premium, 2nd the agent could have rofu1Cd1orccciveit,bec•u1C he could not remit it, and because it would be confocated. The rights of Goodman would thus have been pre!ft\'cd,•ccordingtothctcnorofthe contract. The ln1, if any, which would have ensured to the defendant!, was a 1011 incident to che WH, and "''ith which Goodm1n had no concern, and the apprehension or c~rtainty of which could affrct his rights. The unlawfulness of any receipt by the ddendanu at New York, from Goodman, or any other pcnon in Alabama, during the war, of •ny money's paid al premiums, C•nnot affecc an)· right! of Goodman in rtspcc1 of having the opportunity of P•ring such premiums in Ahbanu, or bcsetupbythedefendantJas•groundofforfriture ·of the policy in respect of such righu. U11dtr lhtst 1ir1H, !lit co11/;act was 011/y JllJpr,,,/cJ d11ri11g the war. After the end of the wH, the ri,i;ht of Goodmm to poy 1he premium• which he had been prc\'cnted from paying by the •ction of the ddcndmts, continued in •ll re•pcct1." The withdrawal of th~ agency of McCoy, •nd of chc othor agcncie1 in Alabama, m•dc it unncns· nry for Goodmm to seek ou1 McCoy or some other pnson who had been an agenl of the dcfcndann in Alabama, •nd tender 1he premium•, u due, to him, even though, u would •ppur from the evidence, i\lcCor rc•mined in Alab•m•, accenible, during a part, at least, of the w.r. Especially i• this so, in view of the fact that Goodm•n had notice of the revocation of i\kCoy's Or. •II these considera1ions, I am of opinion dut lhc 1lrfcn,/111Jls m111t be rrgarJtJ ill h11d11g prr1n1/rJ Goodma11 fro•" payi11g his prrmi101u, as dur, ;,. Alaba,,,a, wbut ht had 11 right by /Ix co11lr11c/ to pay lhtm, 11nJ, lbtrrforr, 11s hal'i"g waivrJ 111ch p1wcfllal paymr,,t; that lbt policy w111 110/ a11J ii '101 f<>rftiltd b)' rr111011 of lhr 1J011-pay111r11t of prrmi1Jm1; th11t it i1 a 1·0/iJ aJid 1ub1isling policy ag11i111t the drfcmlan/1: and th•t the plaintiff wa<, when he brought this suit, in 2 pol'ition to 3'k the relief puyed for by the bill. These views recognize fully .ll the term! of the i>0licy, and do not interpol.re in the contra-ct of 1\-foy }l, 1949 the parties my provision, by way of u.cu1c for the non-payment, on the stipulated day, of m y premium, which is not within the terms of the contrac1. lt isof1heessenceofeverycontract, th11, if one pHty to it prcvenu its perform•ncc by the other puty, the formrr cannot be allowed to rup any benefit from the fact of such non-performance. In this case, the prevencion by the defendanu of performance by Goodm•n wu equivalent to actual performance by Goodman, or lo a waiver by the defrndants of such l"'rformance." (Ju lies suppl ied). H ay, adcmas, cstos otros prccedentcs: "And, although 1he cue cannot be so urongly put, I t hink it is equally den tin t, when the •Ssurcd wa! involved in no default, but was at t he pbcc "'·hen •nd where p•ymcnt was to be m•de, ready and willing to p•y, but wu prevented by the disability of che company to receive paymen1, from whucvcr cause, he having had no agency in producing it , the c.ompmy is not entitled to cbim the for feiture, or to be re!ic•·ed from its obligat ion to pay the sum usured." {The M•nhattan Life Insurance Co. '" W Hwick, 20 Gratt (Vs.) 614 , l Am. Rep. 218, 22 0, the Supreme Court of Appeals of Virginia). "It is urged that the Ian premium wu not p•id, and hence the p0licy became void. If it were not paid, I do not think 1he conll'quences claimed would follow. The war susl"'ndcd this contuct, and no forfeiture for non;payment would arise while the war laned, provided t he premiums, wit h proper interest, were promptly paid on the return of puce." {Sands v, T he New York Life Insurance Co. rn N . Y. 626, 10 Am. Rep. llf, !4l) {lt•lics supplied) "Then, 3S 3ccording to principle and consistent authority, the contract w•i not dissolved by t h~ "''It, how can this court, consistently with the spiritofthcli1crJlcondition)ndthcfacuofthe cue, adj udge the ·policy )voided by the inevinbk non-pl)'mcnt of premiu,mf Such 1 decision would seem to be as unreisonblc as unjust." (New York Life Insurance · Co. '" Clipton, Etc., 7 Bush {Ky.) 179; 3 Am. Rep. 290, 29!) "• " " " And , .ccurdins to ) Canadian decision, if a foreign companr cc~scs to do bu•iness at the pl•cc where the premium i1 stipul21ed to be paid, 3nd mainuin• no known •gency there, non-p•yment ii excused."• • " ) Couch, Cyclopcdi• of lmurmc~ bw 2!!9. TERCER ERROR T HE LOWER COURT ERRED IN NOT HOLDING THAT iHE PLAINTIFF WAS GUILTY OF LACHES DESPITE PLAINTIFF'S DEFAULT IN THE PAYMENT OF PREMIU~·tS AND FAILURE TO APPLY FOR REINST ATEMENT UNDER THE ' REINSTATEMENT' CLAUSE OF THE POLICY. Conticndcse que durante la gucrra Gubagaras y Labaco no han ofrecido ni consignado ante los Tribunalcs cl importe de las primas de su p6liza. De haber la compaiiia opcrado en Filipinas durantc la gucrra, hubicra cxpedido p6lizas, complctamentc saldadas, porquc la abundancia de dinero militar japoncs buscaba inversi6n. Teniendo csto en cucnta, lo mas probable es que Gubagaras no hubicra dcjado de pagar un.1 prinn scmestral exigua de 'P-68.96. Pero, suponiendo que G ubagaras hubicra consignado, oportunamcnte, en dincro japones, el importc de hs primas quc hubieran vencido de h p6\iza Exh. A, lo aceptaria THE LA WYERS JOURNAL Philippine Decisions la Compaiiia? Ciertamentc quc no, porque no le daria ningun valor, y aunque VJlicse algo, seria inaceptable scgun la doctrina en cl caso de Statham. Sosticncse que, despucs de la libcraci6n de la provincia de Iloilo eor las fuerzas amcricanas y antes de la muertc de Labaco, 1 05 asegurados no ban solicitado la rehabilitaci6n de su p6\i1.a Exh. A, ni han hecho nad.1 para pagar a la 'compaiiia las primas vencidas de tres aiios. I.a provincia de lloilo fu C libcrada en 22 de marzo de 1945. Labaco fallcciC el 30 de mayo del mismo aiio. En cse ticmpo, la compaiiia no habia habicrto aun su agencia en Filipinas. Las oficinas de corrcOs, de la provincia de lloilo, sc rcabrieron cl 4 de julio de 194 5. Todo esto significa que antes de la mucrtc de Labaco no habia facilidadcs de rcmitir dincro, porquc su cnvio por giro postal no sc habia aun rcstablecido. Por otra partc, como dice en su alcgato h rcprcsntaci6n dcl apclado, solicitar la rchabilitaci6n de la p6liza Exh. A, valdria tanto como admitir que la mi5ma habia caducado. CUAR TO ERROR THE LOWER CO URT ERRED IN APPLYING THE PROVISIONS OF ARTICLE 1105 OF THE CJVIL CO DE TO THE PRESENT CASE AND CONSTRUING IT TO THE SOLE BENEFIT OF PLAINTIFF. La rcprcscntaciO n de la o tpelantc sosticnc q ue, en cuanto a los contratos de scguro, b1 disposicions gcncralcs dcl COdigo Civil careccn de aplicaci6n. En Musgiii vs. West Coast Lifo Insurance Co. (61 Phil. 864), cl T ribunal Supremo sostuvo lo contrario: "2. Id.; NU LLITY; APPLICAB ILITY OF CIVI L LAW.-Whcn not otherwise specially provided for by the l n111rancc L•w, the contract of life in111rance is g°''crned by the general rules of the civil law reg.rdins concr.cu. " (Syllabus) En cstc asunto, en quc no hay morivos justificados par.1 culpar a ninguno de los contratantes por la falta de cobro o pago de las primas de la p6liza en cucsti6n, vienc al caso cl prcccpto dcl Art. J 105 dcl COdigo Civil, tendcntc a suplir deficicncias dcl contrato, tanto mas cuanto quc cs ya rcgla admitida la de cvirar confiscacioncs, mediante Una intcrpretaci6n fa vornblc a lo~ asegurados. "The rule applioble to contrans gcncully, thn a written •grccmcnt shou ld in enc of doubl as to the meaning thereof, be interpreted •gainst the party who hu drawn it, is very frequently •Pplied ro policies of insurance 3nd con1titutes an important rule of construction in such rtl!"'CI, in view of 1hc fact th•t ordinarily, and in puctically all cases, it i~ t he insurer who furnhhed or prcplrcs the policies used to embody the in1urancc contr•cU. The gener•l rule is chat tcrm1 in an in111rancc 1>0licy, which art ambig11ous, rquivocal, or 1111crrlaill to the rxtml tha~ the i1Jlt11tio11 of tht partiu is not clear and cannot be nccrt•ined clearly by 1he application of theordinHy rules of construction are to br com/rued strict/)/. i11 and most slro11g· ly •gai111I /be i"J1irn, anti liberally ;,. favo r of 26 1 Philippine Decisions tht imurd, so 15 to effect the dominant purIJO'C of indeminity or pAyment to the insured, tspecia/Jy where a forfrilurt is i111:ol1'ttl siurt tht forfeiture of inrnr1111ce policies is not hvorcd by the court1." [29 Am. Jur. 180, 181] (U11JrrJcoring supplied) "The severe hardship• to which the insured wn formuly subjected under the older concepts of contract law and because of the 2dv2nt2geous econo· (!'lie position of the imurcrs 10 impose unfair sti· puhtio1u and conditions is well known. Comprehensive legishtion regulning the activities of insurers, hA•·ingasitsobjcctive1hcprottctionofthcpublic and those insured, h>S bt,come very common in the United Sutcs. In keeping with the judicial policy of cormruing insurann policic• in favor of the insured, kgidHion enacted for the purpose !."f his protection han usully b~n liberally construed in fJv<>r of the public and the insured. Tbt larv /ooh r~·itb Jisf111·or 11po,, the forf,il1m:of the rigb/1 of thr im11reJ, and so slalitlts proltcling 1111d txle.,Jing thou rights art lrcateJ with librralit}'." ; Sutherland Statutory Construction, 3rd ed. sec. 710!, p. 393, lH. Xe alro 4I C. J. S. 387. (Italic• supplied.) · " It is a matter of common knowledge that large ~mounts of money are collected from ignorant persons by companies and associations which adopt high sounding titles and print the amount of bt,ncfiu they agree to pay in large bbckhccd type, following such undertakings by fine print which destroy the substJncc of the promiJe. All prol'i1/ous, co11ditions or t\·ccptim11 r vhirb ;,. any way tmJ to u:ork. a forfti//irt of th~ po/fry VIOulJ bt muslrurd mo1f itrong/y againil tho1r /or who1<· brt1tfit tbry llrt imtrlrd, a11d inosl f•vordb/y fow•rd tho1t ag11it11/ whom thry 11rr 111ea11/ lo oper.lr." {Standard L and A. Ins. P,. "· Martin, 02 Ind. J76, J) N. E. IOI; l\kElfrcsh , .. Odd Fellows Acc. Co., 21 Ind. App l"l7, l2 N . E. 819; I Cyc. 243, wd caJes therein cited.) (Uniud Suus Bene". Society v. W atson, 1908, 84 N. E. 29, 31)" (Trinidad vs. Orient Protect ive Anurancc Auociation, 37 Off. Gn. 2674) (ltJlics supplied.) Se puede aiiadir, que la aplicaci6n dcl Art. 1105 dcl C6digo Civil al nso presentc cs de estricta justicia, porque en los contr:i· tos de seguro sobre la vida el silencio con respecto a los derechos de las. partcs, en casos de guerra, cs una omision-quc no debe beneficiar a las compaiiias aseguradoras, que son bs que red:ictan dichos contratos, y no pueden invocar a su favor sus propias faltas. La doctrina en el asunto de Statham, que en su segunda parte :idjudica al beneficiario el valor equitativo de la p6liza, fundandose en el principio ex aeq110 et bo110, es en esencia una modalidad del alcance del Art. 1105 dcl C6digo Civil, cuyas disposiciones supletorias tienen su 'aplicaci6n cuando cl incumplimiento de los terminos de! contrato no pueda en equidad y conciencia atribuirse a culpa o negligencia de cualquiera de los contratantes. En sus comentarios al Art. 1105 dcl Codigo Civil, el Sr. Manresa, dice: "En concreto, sc ha decbrado por el Tribunal Supremo quc connituycn casos de fucru mayor:. , , . , . . . . . ; el hccho de la conflagraci6n curopea y de la guerra, que trutorn6 las cconomias mundialcs y priv6 a las compaiiiu ferrovi2ri2s de los medios neccn arios (como locomotoras, ngone• y carbon ingles) , p.ra cumpli r enctamentc los conuatos de tra1porte cstipulados con lm pnticularei (Scntcncia de 2 de febrero de 1926; ,") (I Manrcia 90) Se confirma en todas sus partes l.1. sentencia de que se apela, con las costas :i 262 la apelante. Asi se orden:i. Torres, f., concurs in a separate opinion. Labrador and David, ff., concur. Juco, J., dissenting: Believing that the doctrine laid down by the decision of the Supreme Court of the United States in the case of New York Life Ins. Co. vs. Statham (93 U.S. 24, 23 L. ed. 789) is based on strong and sound reasons and on high authority, I dissent. (On Oct. 4, 1946 Justice Jugo, then Judge of the Court of First Instance decided the case of Paz Lopez de Constantino vs. Asia Life Ins. Co. (No. 71875) in favor of the Insurance Co. The case is now pendin~ decision by our Supreme Court.) TORRES, Pres. J. concurring ; The essential facts in this controversy, as clearly . related in the decision penned by Mr. Justice De la Rosa, are as follows: On August I, 1940, Patricio H. Gubagaras and his wife, Maria Labaco, were insured by the West Coast Life Insurance Company for the sum of 'P2,000.00. The joint rwenty·year endowment policy is sued by the company being a mutual benefit made the surviving spouse the beneficiary of the other and both of them parri· cip:ites in its profits. The premium was payable every six months and the last premium paid covered the semester period ending February I , 1942. In the meantime, on December· 8, 1941, w:ir was declared in the Pacific, and on January 2, 1942, the J ap:inese invading forces occu· pied the City of Manila. This caused the disruption and paralyzation of all means of communication between the capital of the Philippines and other points outside of the City of M:inila. Maria Labaco, one of the insured, died in the municipality of Dueiias, province of lloilo, on May JO, 1945, and on June 18 of the same year, Patricio H . Gubagaras, the surviving spouse and co-insured, notified the company of the death of his wife (Exhibit " !"), and requested that he be furnished with the necessary forms to support a cl:iim for the payment of 'P-2,000.00, the amount of the insurance. The company replied that in view of t he failure of the insured to pay the premiums due after February l, 1942, the policy, Exhibit "A,'' had lapsed and, therefore, payment was forfeited. After an exchange of correspondence, on June 24, 1946, Gubagaras finally brought in the Court of First Instance of Iloilo the corresponding motion against the West Coast Life Insurance Company. After proper proceedings, the lower court, in a judgment rendered on J anuary 30, 1947, found for the plaintiff and against the defendant and ordered the latter to pay the former the sum of 'P2,000.00, from which shall be deducted the total THE LA WYERS JOURNAL amount of premiums due and remaining unpaid until May JO, 1945, the date of the death of Maria Labaco, with legal interest from the date of the filing of the ~omplaint, and the costs of these proceedmgs. In this appeal, the defendant-appellant West Coast Life Insurance Company, assigned several errors allegedly commincJ by the trial Judge. The main point raised by counsel is based on the proposition that, contrary to the holding of the lower courr, the policy issued by the company to the plaintiff and his deceased wife "had lapsed for non-payment of premiums due." As previously stated, all means of communication between Manila and the province had been interrupted by the war and the occupation of the t ity of Manila and other places in the Archipelago by the Japane!i_e forces. The policy, Exhibit "A", was issued by the home office of the West Coast Life Insurance Company located in San Francisco, State of California, U. S. A., through its agency located in the City of Manila, Following the practice of com~ panics authorized to do business in this country, the defendant "sold" the insurance policy, Exhibit "A", to the plaintiff and his deceased wife through its agency established in the City of Manila prior to the advent of the last global war. We may thus take judicial notice of the fact that a foreign insurance company, which has been authorized under the Philippine laws to do business in these Isl:inds, establishes its local office or agency through which it reaches the public in the Philip· pine Islands to "sell" its policies. It can not be conceived that these persons who, like the plaintiff and his deceased wife, have been locally insured by the defendant, an American company with home office in the City of San Francisco, State of California, U. S. A., would have contacted directly the main office of said company in order to be insured by the latter. In the ordinary course of business in the field of insurance, the applicant is investigated by a local representative of the company and, what is most important, is examined by the company medical officer before his application is submitted to the main or home of.fice for its approval. In view of what is stated in the preced· ing paragraph, it is quite s:ife for me to conclude that the payment of the premiums on the policy in question was not made directly "at the home office of the comp:iny in the City of San Fr:incisco, State of California, U. S. A.," as is printed in the policy, but ''to an authorized agent of the company," as is likewise stated therein. - And I do not say this in vain, because the record. supports my point of view in this respect. When the communications between rhe province of Iloilo and the City of Manila Were disrupted and May JI, 1949 stopped by the war, the evidence shows that the plaintiff-who joinrly with his wife had been paying rhe premiums up to the 1st of February, 1942 when the J1panese Imperial Forces were already occupying the City of Manila and other parts of the Archipelago--made every possible effort to contact the local agency of the defendant company because he w:mted to remit to the Manila office of the defendant the semester premiums due from February I , 1942. The post-office in the municipality of Dueilas was closed, and he was informed by the municipal treasurer that there was no business tCansaction with Manila which was then already occupied by the Japanese forces. He went to the City of Iloilo and his inquiries brought the same result; in fact, the postal ·service in the proVince of lloilo was re-established only in July, 1945, after the death of the wife of plaintiff. In view of all those facts and circumstances, it having been clearly proven thar the failure of this plaintiff to make fu rther payment of premiums due on policy Exhibit "A" was caused by the stoppage of all the means of communication between his place of residence in the province of Iloilo and the City of Manila, where the Philippine offices or agency of the defendant company were established before the war, and it being a matter of common knowledge that the offices of all firms and companies of American nationality have been closed and liquidated by t he Japanese Military Administration soon after the beginning of the occupation of these Islands, it would be utterly unreasonable to contend that because of the plaintiff's failure to pay the premiums due from February I , 1942, "the policy lapsed without value" (Exhibit "C" of plaintiff). i111possibiliu111. mdla ob/igatio rst (there is no obligation to do impossible things-Wharton L. Lex). l111pot c11fia rxrnsat la8rm (impossibility is :m excuse in the law-Bouvier's Law Dictionary). These arc maxims which arc in all fours with the case at bar. It c:mnot be successfully alleged, and much less proven, that the plaintiff did not do his best to contact the Manila office of the defendant company for the payment of the premiums due beginning from February 1, 1942. The efforts m~ade by him are the best evidence of his -earnest and honest intention to comply with his part of the obligation contracted and commitments made by him when he accept~d the policy Exhibit "A" issued by th_e c.ompany upon acceptance of his appl1cat1on by the home office. It is not my purpose to state here that the defendant company was at fault when its local office was closed by the Japanese Military Administration. Even if the Japanese Military Administration had permitted the local agency of defendant to transact business during the period of miliury occupaion, the lack of communication between Manila May 31, 1949 and the provinces particularly the province of lloi\o, would have just the same resulted in the failure on the part of the plaintiff to remit and the agency of the Company to reco.'ive the premium due from February 1, 1942. In this connection, the evidence of the defendant has strongly endorsed our vie·.v in t he premises, when by its Exhibit "G", a circular letter dated June 15, 194):, addressed to its "policyholders in the Philippine Islands," the President of the comp~ ny, among other things, says: You will appreciate how impossible it lus been for us to communicate with or scn·e in any way either policyholders or reprcscnutivcs in the hland•. Our Resident Manaser and Resident Secretary have but rec.-ndy urived in the United Sutes following 1hdr libcrnion from Los B .. ios and Santo Tom,.. and given us a report regarding our former Branch Office in Manila. We desire.to rc-opfn a se rvice office there ju11 as won as this is pfrmitted and becomes poisiblc. Now and up-to-dace policy record1 are being prepared for this pu rpose from the original records here in the Home Office, under the SUpfrvision of our Resident Maitagcr and Resident Sec retary for che Philippines. Mean..,·hilc, may we hlvc your correct present mailins addrcu, in order 1ha~ we mJy furni'h you wi1h information as to the prc~nt 11mdini; of your policy. Plea~ complete 1hc e"clo~d form• giving 5uch additional information u you desire and return to us in the sclf.,ddre .. ed em·dopc enclosed for this purpose. Thi1 letter is lxing mJilcd to all policyholder• in the Philippine l1bnd.s IO their la11 known m~i!­ ing address according w our records. No doubt many of our policyholders have bttn compdlcd 10 move during d>is puc d1ree yun and there ma)' have been many changes of address. Consequcnt!r, 1-0mc may not receive their copy of 1hi• letter and we would appreciate )'OUr help by pauins in concencs on to any such policyholders with whom you may Ix acquainted." But, notwithstanding the cordial terms of the above-quoted letter, clearly intended for the resumplion of business relations between the company and its prewar patrons, the attitude of the defendant in this contro\'ersy is such that · it clearly denies the insured all the rights and benefits to which they arc entitled under the policy. An insurance company organized outside the territory of the Philippines and permitted to transact business in this territory must abide by the pro\'isions of the laws in force in this jurisdiction gov~rning life insurance business. We, therefore, can· not adhere to t he contention of defendant who, in his first assignment of error, con· tends that " the policy is the law between the parties." The law governing the subject matter of insurance is superior to the terms of the policy. In Musngi v. West Coast (61 Phil. 864), the Supreme Court held that in the absence of specific provisions in t he Insurance Law, No. 2427 as amended, a contract of life insurance is governed by the rules of civil ~aw regarding contracts. Thus, if accordmg to Article 1256 of our Civil Code, "the THE LAWYERS JOURNAL Philippine Oeeisio'1s validity and fulfillment of contracts cannot be left to the will of one of the conlracting parties," the attitude of defendant in declaring that the policy Exhibit "A" had lapsed and become worthless on the ground of alleged non-payment of premiums, is utterl y unjustified, in that it is contrary to the provisions just quoted which is based on principles of junice, because it not only proclaims the binding nature of the contract as stated in Article 12 5 8 of said Code, but it likewise established the principle of equality which is so essential for the contracting parties; it forbids that one of the parties be bound by the terms of the agreement while the other is not (Manresa, Commentaries on the Spanish Civil Code, 4th ed., Vol. 8, page 556) Greatly relied by the defendant to support its contention in this case in the socalled Statham doctrine. fn the Statham case {New York Life Insurance Company vs. Statham, 93 U.S. 24 23 L. Ed. 789), the Supreme Court of the United States held that "an action cannot be maintained for the amount assured on a policy of life insurance forfeited by nonpayment of the premium, even though the payment was prevented by the existence of the war." The defendant also cites other decisions rendered in New York Life Insurance Company v. Davies (95 U.S. 425, 24 L. Ed. 453; Worthington v. The Charter Oak Life Insurance Company, 41 Conn. 372, 19 Am. Rep. 495; and Dillard v. The Manhattan Life fnsurance Company, 44 Ga. 119, 9 Am. Rep. 167) ; which cases also followed the doctrine in the Statham case. Defendantappellant contends that since the promulgation of the decision of the United States Supreme Court in the Statham case, there has been no departure from the rule laid down therein, because it has been followed in other cases. However, ·in the broad field of American Jurisprudence, contrary authority is found which shows that not all the courts of the United States agn:e with such ruling. In Manhattan Life htsurance Company vs. Warwick (3 Am. Rep., 218, 220), the Supreme Court of Appeals of Virginia, in holding that the lifr insurance policy did not lapse for non-payment of premiums due to impossibility of payment as a result of war, said the followmg: •• 0 • "' If 1he a•rnu·J WAI ot l hc pl .cc 011 the .t.y, " 'here ~nd "'·hen p•1•mcn1 wn IO be nude, md "'here he had a rit;hi IO nuke r•ymcnt, rndy ~n d prcpHcd to nuke payment, bur W • S .. Prc•·cntcJ by cichef of ihe c•us•• mentioned, it would be unrc••oruble to uy tint he had incurre<I for forfeitu re. And I think it is equ•lly clear, upon rnson and authori1y, 1hu the company was noc thereby rcleued . from iu obliguion to pay the sum assured. h would be ~ momirou• pcn·crsion of hw, and rcpugnrnt to our •·cry scnseofju1tice, to5ay 1hat this comp•n)'. ofcor havini; received more than hJlf the sum assured, could by chis act de1crminc the policy, hold on co 1hc money chey had received, and to say to their confiding victim, 'you may whistlt to the winds for your muitcd rcwHd, notwithstanding you rdied upon our covcn~nc and good faith 10 pay it.' 263 Philippine Decisions "And, ahhough t11e enc cannot lx: ~o strongly pUl, I think it ii equally cleH tint, when th~ n· •ured wa~ \11,·oh'cd in no dehult, but w1s at the phcc when ~11<\ where payment wu to Ix nude, rudy andwillingtopay,bu1"·aspre\'entcd by1hc disability of 1hc company to receive pay111cnt, from wlutC\'er cause, he having had no agency in pro· ducing it, the company is not entitled to claim the forfriturc, or rn be relieved from its obliption to pay the sum assured." [n this case, the premiums covering the period from the date of · the policy up to January.) !, 1942, have been paid, and according to the law and the terms of the policy, when the first premium was paid, a full contract of insurance was completed, so that had Maria Labaco died soon after the p1yment of that first premium and before the next premium became due, the rights of the p\1intiff to the sum insured would have become vested, and a full contract of insurance completed. But the events were shaped in a different way. Maria Labaco died after the liberation and during the intervening period, the premiums from February 1, 1942 until her death, were not paid, due, because they could not be paid by reason of the extraordinary circumStances obtaining at that time. But the defendant, clinging stubbornly to the situation thus created thereby, refuses payment of the value of the policy. The Supreme Court of Appeals of Virginia thus said: " • • • The payment of the first premium covers the whole life-time, and makes a complete ,·em:d right to the sum insured, if doth ukes place lxfore another premium is payable, but if not, it is subject to the paym;nt ~f' funh;r premiums• • • ". •• • • ' When the first premium is P•id a full contract of insurmce is completed, subjecc to conditions peculiar to that class of contracu. The use of the words condition pr(Ccdent, Baron Martin, in a certain case (Bradford v. Williams, LR. 7 E:i;h. 261), said he thought unfortunate; that 'the real question, apart from all technical e:i;pression, is, whu in each case in the subsuncc of the contract.' So far as the precedent payment of the premium in arrur is concerned it would, of courie, have to Ix made before Hcovcry. Time, al!-0, is of thec .. cnccofthccontract,andnofaultorneglcct of the party could e:i;co1c a non-payment; but why shouldnotthis,likcanyothercontr.ct,besubject to such qualificnions and conditions as the law 264 may imposer (T11c Mutual Bendit Life Tnsu.,nce Co. v. Willyard, 18 A. R. 741, 749-710). It cannot be denied that, as contended by appellant, prompt payment of premiums is material and of the essence of the contract of insurance. This must, however, be qua~ lified by taking into consideration the time and circumstances surrounding the act of payment. Not in vain the mnim says: dislh1g11e irmpore ('/ co11con~11bis j11ra (Distinguish times, and you will make laws "agree, Wharton L. Lex.) In the light of what has been said in the preceding paragraphs and considering that the ruling laid down in the Statham case has been made by the United States Supreme Court about 7 5 years ago, during the horse and buggy period of the life of the American nation, it cannot be regarded as an over-all principle that sh:ill govern the relations between the insurer and the insured in the present age. Granting that, at the time of the promulgation of said decision on October 23, 1876, such ruling was good law, it cannot be accepted as such in the present circumstances of human advancement and Progres's. Law and jurisprudence, its companion and exponent, arc not static like the still waters of a pond; they go hand in hand with the progress and advancement of time; look after and provide for the needs and welfare of the community. "'Since bw i1 defined as the rule of rcuon applied to t:i;istiRg condit ioR!, as JUted supra note 10, and can rtmain static only as long as the conditions to which it applies remain sucic, it i1 a proper province of the law to interpret humm relationship, and to modify, enlarge, and develop with changing conditions of human affairs." (H C.J.S., 1024) In the present case, the Statham doctrine, while it gives full protection to the rights of the insurer, it disregards and repudiates the rights of the insured. Such law, and the jurisprudence which interprets and applies it to a given case, cannot be good law, because it does not give the interested pany, the plaintiff in his c:ise, the equal protection guarariteed him by the Constitution. THE LA WYERS JOURNAL Summing Up, therefore, all that has just been said, we do not hesitate to hold th;tt after a thorough consideration of all the angles of this controversy, the events that took place in these Islands as a result of the last war, undeniably constitute force 111ajr11rc, which resulted in mutual disability on the part of the insured to pay the premiums due after February I, 1942, and on the part of the insurance company to receive such premiums. In defining fortuitous event, Article 1105 of the Civil Code says-"Outside of the cases mentioned in the law and of those in which obligation so declares, no one shall be0 responsible for events which could q.ot be foreseen, or which having been foreseen were unavoidable." This situation has brought forth the theory of suspension of the contract of insurance :is against that of cancellation of the policy, advocated by the insurance company .on the strength of the rules laid down in the Statham case. The theory of suspension was for the first time discussed when the peace terms were being debated in Versailles, to end the First World War. The idea has since gained many supporters; even some life insurance companies adhered to the idea and showed their readiness to abandon the theory of cancellation of the policy. In this connection, Mr. Sidney A. Diamond, special assistant to the AttorneyGeneral of the United States, in an article entitled "The Effect of war on pre-existing contracts involving enemy nationals," published in 53 Yale Law Journal 700, made this significant comment: •·c011/rac/J UIS/Jemhd. Contracts held Juspended, rather than terminned, by the outbreak of war also fall imo group!. The most familiar type is the contract of life insurance. Although there are indications co the contrary, lheoverwbr/mi11g wrigbl of authority rcfu"'s totrUtalifeinsurmcecontract as dissolved by war. The rationale i$ that the contract! arc not commercial in nnurc and require communication between the partic$ only for payment of premiums, an obligation which cm be suspended 1111til #ftu Jhe wa ~ without serious con - sequences to either side." (Rejoinder to Appcllee'3 Reply Memorandum, by Ramires & Ortigas, Amici Curiae, p. j9) Premised on the foregoing, which renders it unnecessary to discuss herein the other points of sccond:iry importance raised by appdlanl', I hereby fully concur in the m:iin dcci~ion rendered in this case. " It is not Ire who never fails in his life that is a success; but it is Ire· who rises every time he fails." May 31, 194?

Date

1941

Rights