Geluz vs. Court of Appeals, G.R. No. L-16439, July 20, 1961

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-16439 July 20, 1961

ANTONIO GELUZ, petitioner,
vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.

Mariano H. de Joya for petitioner.
A.P. Salvador for respondents.

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

This petition for certiorari brings up for review question whether the husband of a woman, who voluntarily procured her abortion, could recover damages from physician who caused the same.

The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo, the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the complaint upon the evidence adduced, the trial court rendered judgment favor of plaintiff Lazo and against defendant Geluz, ordering the latter to pay P3,000.00 as damages, P700.00 attorney's fees and the costs of the suit. On appeal, Court of Appeals, in a special division of five, sustained the award by a majority vote of three justices as against two, who rendered a separate dissenting opinion.

The facts are set forth in the majority opinion as follows:

Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 — through her aunt Paula Yambot. In 1950 she became pregnant by her present husband before they were legally married. Desiring to conceal her pregnancy from her parent, and acting on the advice of her aunt, she had herself aborted by the defendant. After her marriage with the plaintiff, she again became pregnant. As she was then employed in the Commission on Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the defendant in October 1953. Less than two years later, she again became pregnant. On February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila, where the three met the defendant and his wife. Nita was again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine currency. The plaintiff was at this time in the province of Cagayan, campaigning for his election to the provincial board; he did not know of, nor gave his consent, to the abortion.

It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of damages. Upon application of the defendant Geluz we granted certiorari.

The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This we believe to be error, for the said article, in fixing a minimum award of P3,000.00 for the death of a person, does not cover the case of an unborn foetus that is not endowed with personality. Under the system of our Civil Code, "la criatura abortiva no alcanza la categoria de persona natural y en consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being incapable of having rights and obligations.

Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one injured, it is easy to see that if no action for such damages could be instituted on behalf of the unborn child on account of the injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact, even if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since no transmission to anyone can take place from on that lacked juridical personality (or juridical capacity as distinguished from capacity to act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato habetur) under Article 40 of the Civil Code, because that same article expressly limits such provisional personality by imposing the condition that the child should be subsequently born alive: "provided it be born later with the condition specified in the following article". In the present case, there is no dispute that the child was dead when separated from its mother's womb.

The prevailing American jurisprudence is to the same effect; and it is generally held that recovery can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note, 10 ALR, (2d) 639).

This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those inflicted directly upon them, as distinguished from the injury or violation of the rights of the deceased, his right to life and physical integrity. Because the parents can not expect either help, support or services from an unborn child, they would normally be limited to moral damages for the illegal arrest of the normal development of the spes hominis that was the foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of their parental expectations (Civ. Code Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art. 2230). But in the case before us, both the trial court and the Court of Appeals have not found any basis for an award of moral damages, evidently because the appellee's indifference to the previous abortions of his wife, also caused by the appellant herein, clearly indicates that he was unconcerned with the frustration of his parental hopes and affections. The lower court expressly found, and the majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the second abortion; and the probabilities are that he was likewise aware of the first. Yet despite the suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the causes thereof, and secure the punishment of the responsible practitioner. Even after learning of the third abortion, the appellee does not seem to have taken interest in the administrative and criminal cases against the appellant. His only concern appears to have been directed at obtaining from the doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00 attorney's fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who righteously feels outraged by the abortion which his wife has deliberately sought at the hands of a physician would be highminded rather than mercenary; and that his primary concern would be to see to it that the medical profession was purged of an unworthy member rather than turn his wife's indiscretion to personal profit, and with that idea in mind to press either the administrative or the criminal cases he had filed, or both, instead of abandoning them in favor of a civil action for damages of which not only he, but also his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too severely condemned; and the consent of the woman or that of her husband does not excuse it. But the immorality or illegality of the act does not justify an award of damage that, under the circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.

Let a copy of this decision be furnished to the Department of Justice and the Board of Medical Examiners for their information and such investigation and action against the appellee Antonio Geluz as the facts may warrant.

Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.
Concepcion, J., took no part.
De Leon, J., took no part.

Quimiguing vs. Icao, G.R. No. 26795,July 31, 1970

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 26795 July 31, 1970

CARMEN QUIMIGUING, Suing through her parents, ANTONIO QUIMIGUING and JACOBA CABILIN, plaintiffs-appellants,
vs.
FELIX ICAO, defendant-appellee.

Torcuato L. Galon for plaintiffs-appellants.

Godardo Jacinto for defendant-appellee.

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

Appeal on points of law from an order of the Court of First Instance of Zamboanga del Norte (Judge Onofre Sison Abalos, presiding), in its Civil Case No. 1590, dismissing a complaint for support and damages, and another order denying amendment of the same pleading.

The events in the court of origin can be summarized as follows:

Appellant, Carmen Quimiguing, assisted by her parents, sued Felix Icao in the court below. In her complaint it was averred that the parties were neighbors in Dapitan City, and had close and confidential relations; that defendant Icao, although married, succeeded in having carnal intercourse with plaintiff several times by force and intimidation, and without her consent; that as a result she became pregnant, despite efforts and drugs supplied by defendant, and plaintiff had to stop studying. Hence, she claimed support at P120.00 per month, damages and attorney's fees.

Duly summoned, defendant Icao moved to dismiss for lack of cause of action since the complaint did not allege that the child had been born; and after hearing arguments, the trial judge sustained defendant's motion and dismissed the complaint.

Thereafter, plaintiff moved to amend the complaint to allege that as a result of the intercourse, plaintiff had later given birth to a baby girl; but the court, sustaining defendant's objection, ruled that no amendment was allowable, since the original complaint averred no cause of action. Wherefore, the plaintiff appealed directly to this Court.

We find the appealed orders of the court below to be untenable. A conceived child, although as yet unborn, is given by law a provisional personality of its own for all purposes favorable to it, as explicitly provided in Article 40 of the Civil Code of the Philippines. The unborn child, therefore, has a right to support from its progenitors, particularly of the defendant-appellee (whose paternity is deemed admitted for the purpose of the motion to dismiss), even if the said child is only "en ventre de sa mere;" just as a conceived child, even if as yet unborn, may receive donations as prescribed by Article 742 of the same Code, and its being ignored by the parent in his testament may result in preterition of a forced heir that annuls the institution of the testamentary heir, even if such child should be born after the death of the testator Article 854, Civil Code).

ART. 742. Donations made to conceived and unborn children may be accepted by those persons who would legally represent them if they were already born.

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of 'representation.

It is thus clear that the lower court's theory that Article 291 of the Civil Code declaring that support is an obligation of parents and illegitimate children "does not contemplate support to children as yet unborn," violates Article 40 aforesaid, besides imposing a condition that nowhere appears in the text of Article 291. It is true that Article 40 prescribing that "the conceived child shall be considered born for all purposes that are favorable to it" adds further "provided it be born later with the conditions specified in the following article" (i.e., that the foetus be alive at the time it is completely delivered from the mother's womb). This proviso, however, is not a condition precedent to the right of the conceived child; for if it were, the first part of Article 40 would become entirely useless and ineffective. Manresa, in his Commentaries (5th Ed.) to the corresponding Article 29 of the Spanish Civil Code, clearly points this out:

Los derechos atribuidos al nasciturus no son simples expectativas, ni aun en el sentido tecnico que la moderna doctrina da a esta figura juridica sino que constituyen un caso de los propiamente Ilamados 'derechos en estado de pendenci'; el nacimiento del sujeto en las condiciones previstas por el art. 30, no determina el nacimiento de aquellos derechos (que ya existian de antemano), sino que se trata de un hecho que tiene efectos declarativos. (1 Manresa, Op. cit., page 271)

A second reason for reversing the orders appealed from is that for a married man to force a woman not his wife to yield to his lust (as averred in the original complaint in this case) constitutes a clear violation of the rights of his victim that entitles her to claim compensation for the damage caused. Says Article 21 of the Civil Code of the Philippines:

ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

The rule of Article 21 is supported by Article 2219 of the same Code:

ART 2219. Moral damages may be recovered in the following and analogous cases:

(3) Seduction, abduction, rape or other lascivious acts:

xxx xxx xxx

(10) Acts and actions referred to in Articles 21, 26, 27, 28 ....

Thus, independently of the right to Support of the child she was carrying, plaintiff herself had a cause of action for damages under the terms of the complaint; and the order dismissing it for failure to state a cause of action was doubly in error.

WHEREFORE, the orders under appeal are reversed and set aside. Let the case be remanded to the court of origin for further proceedings conformable to this decision. Costs against appellee Felix Icao. So ordered.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

Crisolo vs. Macadaeg, G.R. No. L-7071, April 29, 1954

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-7071 April 29, 1954

PEDRO CRISOLO, petitioner,
vs.
HON. HIGINO B. MACADAEG, ETC., ET AL., respondents.

Ramon J. Liceralde and Felicisimo U. Tiña for the respondents.

BENGZON, J.:

This is a petition for certiorari to annul the order of the respondent judge requiring Pedro Crisolo to pay a monthly pension pendente lite to a minor allegedly his daughter.

Petitioner asserts that, summoned to answer Marieta Villa' s complaint for support of Maria Erlinda Crisolo as his and her natural daughter, he denied such paternity in an answer properly filed; that upon request of complainant the respondent judge, acting in excess of jurisdiction, before the hearing of the case, and without affording petitioner a chance to object, issued an order directing him to pay Marieta Villa P50 monthly for support pendente lite and for medical expenses of said minor Maria Erlinda; and that his motion for reconsideration was denied.

Respondents reply that support pendente lite was ordered in the interest of justice, after the judge had been shown the birth certificate of the child and a medical certificate showing she had been suffering from Little's Disease and had been confined at the Children's Hospital (National Indigent) for about three years.

The petitioners invokes Francisco vs. Zandueta's holding¹ that were a minor through a guardian ad litem, brings an action for support on the ground that he is a son of the defendant, and the defendant denies his paternity, the court has no jurisdiction to award support pendente lite, because paternity having been denied and this civil status, from which the right to support is derived, being an issue, there is no authority to grant support pendente lite until a positive declaration has been made as to the existence of the relationship.

Without going into question whether the documents exhibited to the respondent judge established prima facie the disputed relationship in this case, and whether upon such proofs provisional maintenance could be decreed,² we deem it sufficient to observe that the complaint merely averred that Maria Erlinda Crisolo was the natural daughter of Pedro Crisolo. It did not aver that she was his recognized natural daughter. And yet under the Civil Code and the new Civil Code a natural daughter, as such, has no right to maintenance, unless she has been recognized.³

It is earnestly urged that un unrecognized natural child would thus be in worse condition than other illegitimate children, who are admittedly entitled to support. But such was the juridical situation under the Civil Code for sixty years. It was criticized on that score — it was defended too. The Congress in the new Civil Code (Art. 291) elected not to alter the situation. Ours is not the duty nor the power to amend the statute, which by the way, presents no interstitial space wherein to insert, in the words of Cardozo, "judge-made innovations."

It is alleged however that: (a) the complaint for support was precisely a petition to compel recognition of a natural child; (b) recognition was in order, the certificate of birth being prima facie evidence of paternity and (c) consequently support pendente lite was justified. These three propositions will separately be discussed and rebutted.

A. The complaint did not expressly ask for recognition. Neither did it impliedly ask for the recognition, because it related no facts either voluntary recognition by defendant under article 278, or of compulsory recognition under article 283 of the new Civil Code. It merely proceeded on the theory — erroneous indeed — that as Erlinda was defendant's natural daughter support should be furnished by him. Furthermore, acknowledgment could not have been properly asked, because the action had been initiated by Marietta Villa, the mother and not by the daughter⁴. Litigations for recognition are between parent and child (Arts. 283, 284, 285 new Civil Code) — not between one parent and the other, unless one litigates as guardian of the child.

And the circumstance that at the ex-parte hearing of the petition for support pendente lite some paper was exhibited — supposedly competent evidence of fatherhood — did not have the effect of altering the issues or competing theories as previously outlined by the respective pleadings. To hold the contrary view would sanction the employment of surreptitious maneuvers definitely out of place in judicial proceedings.

B. The certificate of birth, it is argued, which was exhibited to the judge, constituted prima facie evidence of filiation. We disagree.

It is a document, filed with the Local Civil Register of Iloilo, and signed by "Clarita Gustillo, informant" on March 4, 1948, stating that Maria Erlinda Crisolo had been born in Iloilo on February 5, 1945, the legitimate daughter of Marieta Villa and Pedro Crisolo. Under article 410 of the new Civil Code this would be prima facie proof that Erlinda was the legitimate daughter of the persons mentioned. But having alleged and admitted that Maria Erlinda was not a legitimate daughter, plaintiff completely destroyed the certificate's worth as evidence.

If it be contended that such certificate could, at least be proof that Maria Erlinda was the daughter of Pedro Crisolo, the maxim falsus in uno, falsus in omnibus would at once come to mind poisoning the question whether it applies to documents as well as witnesses. At any rate there is another line of thought compelling outright rejection of such certificate as proof of bastard father-and-child relationship: Had it expressly so state — that. Maria Erlinda was the illegitimate daughter of the persons mentioned — the certificate would not have been recorded (and would not be prima facie evidence) because it was signed only by Clarita Gustillo, and not by the parents of the infant.

SEC. 5. Registration and certification of birth. — The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. . . . In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only by the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein, any information by which such father could be identified. (Act No. 3753) (Emphasis ours.)

However, because the certificate described the child as legitimate it was accepted for registration upon the information of a third person, Clarita Gustillo. It is plain to see that to give the document probative value in court would be to approve evasion or circumvention of the above-indicated requirement, not to mention the violation of the specific prohibition against the revelation in the certificate of the name of the father without his consent.

Again pursuant to section 5, of the article 3753, the local civil register had no authority to make of record the paternity (illegitimate) of Pedro Crisolo upon the information of a third party. Wherefore his record could not be competent evidence of such paternity. Records of public officers which are admissible "are limited to those matters which the public officer has authority to record."⁵ And it is essential, to authorize admission of copy of the record of a private instrument "be made in accordance with the statutory requirements."⁶

Give this certificate evidential relevancy, and we thereby pave the way for any scheming unmarried mother to extort money for her child (and for herself) from any eligible bachelor or affluent pater familias. How? She simply causes the midwife to state in the birth certificate that the newborn babe is her legitimate offspring with that individual and the certificate will be accepted for registration, and it will be evidence for support pendente lite. And any lawyer with sufficient imagination will realize the exciting possibilities for mischief of such prima facie evidence — when and if the "father" dies in ignorance of the fraudulent design. The spirit of liberality towards illegitimate children need not be carried to that extent.

Divested of its official character, the document signed by Clarita Gustillo, the "certificate of birth", is undoubtedly incompetent evidence of fathership against Pedro Crisolo. As to him it is hearsay, it is res inter alios acta.

C. Supposing that the complaint amounted to a petition for recognition as natural child, and that the certificate of birth was prima facie evidence, the question remains whether support pendente lite may decreed. The argument might be advanced that as defendant is obliged to support only an acknowledged natural child, his obligation to support begins only from the moment he acknowledged i.e., only after he is compelled to acknowledge by decree of court at the petition of plaintiff. Nevertheless the angle need not be explored, because the two major premises on which it is constructed happen to be without foundation as above demonstrated.

Wherefore, in the absence of legal basis for Maria Erlinda's support, this petition will be granted,⁷ and the questioned order is hereby declared null and void. No costs.

Pablo, Montemayor, and Reyes, JJ., concur.
Jugo and Bautista Angelo, JJ., concur in the result.

Footnotes

¹ 61 Phil., 752.

² cf Sanchez vs. Zulueta, 68 Phil., 112; Mangoma vs. Macadaeg, 90 Phil., 508; Moran, Rules of Court (1952) Vol. II p. 118.

³ Concepcion vs. Untaran, 38 Phil., 736; Buenaventura vs. Urbano, 5 Phil., 1 Potot vs. Ycong, 40 Off. Gaz., July 26, 1941; Art. 291 (3) new Civil Code.

⁴ The complaint is entitled "Marieta Villa as the natural mother of Maria Erlinda Crisolo," plaintiff vs. Pedro Crisolo, defendant. And the prayer asks that defendant be ordered to give plaintiff support for Maria Erlinda.

⁵ See 20 Am. Jur., Sec. 1024.

⁶ See 20 Am. Jur., p. 880.

⁷ cf. Saavedra vs. Ibañez, 56 Phil., 33.