[WITH RESOLUTION OF AUGUST 29, 1961]

Direct appeal on both questions of fact and law from the decision of the
Court of First Instance of Davao, the amount involved being more than
P200,000.00.

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

After trial the lower court rendered judgment, the dispositive portion of
which reads, to wit:

“En su virtud, el Juzgado dicta decision en esta causa contra de los
demandantes, y a favor de la demandada;

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

b) Condena a los demandantes, mancomunada y solidariamente a pagar a la
demandada la suma de P30,000.00 por los eonceptos indicados;

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

d) Las costas del juicio. Asi sb Ordena.”

The findings of fact of the lower court may be briefly summarized as
follows:

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

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

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

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

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

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

In the course of the pre-trial conference, Esther Peralta testified as
follows:

“Court, (To the defendant) ..

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

Defendant:

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

On cross-examination, however, she declared.:

“Q.-Who was the justice of the peace who performed the marriage?

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

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

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

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

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

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

“Q.-And it was also on that day (January 14, 1945) when you Said you were
married to Mr. Silva?

A.-Yes, sir.

* * * * * * *

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

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

Again, Juan Quijano, presented as witness for the defendant, only testified
to the following:

* * * * * * *

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

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

* * * * * * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Art. 1902. Any person who by an act or omission causes damage to another by
his fault or negligence shall be liable for the damage so done.”

“Art. 1107. In case of fraud (dolo) the debtor shall be liable for all losses
and damages which clearly arise from the failure to fulfill the obligation.”

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

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

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

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

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

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

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

Judgment modified.

---

 

August 29, 1961

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

Appellants spouses Saturnino Silva and Elenita Ledes-ma Silva pray for tlie
reconsideration of this Court’s1 decision of November 25, 1960, claiming
that:

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

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

I

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

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

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

II

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

“Pero si ello es asi, resulta claro que la aproximacion entre esta clase He
culpa y la contractual, es cada dia mayor, hasta el extremo de que, segun hemos
antes indicado, solamente se pueden senalar diferencias accessorial, y muchas
veces aparentes entre una y otra. En primer fcermino, porque el concepto de
culpa contractual se extienda no solo a las obligaciones nacidas ex contractu,
sino, en general, a todas aquellas preexistentes entre las partes a la realidad
del acto danoso (obligaciones legales). De otra parte, porque si bien consid
ramos las cosas, la responsabilidad llamada extracon-tractual, deriva siempre
del quebrantamiento de un deber general, implicitamente reconocido por la ley
cual es el de que todos deben actuar soeiabnente con la debida diligencia,
evitando catrear dano a los demas, y on derecho que todo ciudadano tiene,
correlativamen,te, a no ser danado en su patrimonio y bienes por la conducta
dolosa o negligente de los demas. En tal sentido, habria siempre entre el autor
del dano y la victima, una relacion juridica, constituida por este derecho y
aquel deber.

Esta idea de unidad entre amba instituciones se traduce en que Has
pretendidas diferencias en oraen a la extension de la indemnizacion, en ambos
casos, no puedan defenderse a la vista de los pseceptos de nuestro Derecho
positive. En efecto, no contiene el Capltulo II del Titulo XVI del Libro de
nuestro Codigo civil norma alguna referente a la extension de la indemnizacion
que en cada caso haya de prestarse, lo que nos obliga forzosamente a acudir a
las normas generates contenidas en el capitulo II, del Titulo I de dicho libro
IV, relativo a los “efectos de las obligaciohes”, que ninguna razon permite
limitar a las de naturaleza contractual, ya que el articulo 1.101 habla
genericamente de obligaciones; el 1.102, de “todas las obligaciones”; el 1.103,
de “toda clase de obligaciones”, y en ninguno de los articulos subsiguientes se
hace referencia a una clase especial de obligaciones, sino a todas en
general.

Que las disposiciones de este Capitulo son aplicables en los casos de culpa
extracontractual, es doctrina constantemente reconocida por la jurisprudencia
del Tribunal Supremo. Asi, en la sentencia de 14 de diciembre de 1894,
concretandose a los articulos 1.101, 1.101 (y 1.104, afirma que son de caracter
general y aplicables a toda clase de obligaciones, no ofreciendo contradiccion
con las especiales de los articulos 1.902 y 1.903; la sentencia de 15 de enero
de 1902, permite interpretar los articulos 1.902 y 1.903 por los 1.103 y 1.106,
a los efectos de determinar los elementos que han de entrar en la indemnizacion.
La misma doctrina se mantiene en la sentencia de 2 de diciembre de 1946, y en
otras muchas que pudieramos aducir.”

Whether or not the damages awarded to appellee are a natural and direct
consequence of Silva’s deceitful maneuvers in making love to appellee, and
inducing her to yield to his advances and live with him as bis wife (when Silva
knew all the time that he could not marry Esther Peralta because of his
undissolved marriage to an Australian woman, a prior wedlock that he concealed
from appellee), is a question of appreciation. It is clear that Esther Peralta
would not have consented to the liaiffon had there been no concealment of
Silva’s previous marriage, or that the birth of the child was a direct result of
this connection. That Esther had to support the child because Silva abandoned
her before it was born is likewise patent upon the record, and we can not see
how said appellant can be excused from liability therefor.

Silva’s seduction and subsequent abandonment of appellee and his illegitimate
child were likewise the direct cause for the filing of the support case in
Manila, and in order to prosecute the same, appellee had to quit her employment
in Davao. While the case could have been filed in Davao, we do not believe that
this errorin selecting a more favorable venue (due to her unfamiliarity with the
technicalities of the law) should be allowed to neutralize the appellant Silva’s
responsibility as the primary causative factor of the prejudice and damage
suffered by appellee.

It is argued that the maintenance of the child can not be considered as an
element of damage because the child’s case for support was dismissed. This
contention failp to take into account the action there was for support as an
acknowledged natural child, and that under the Civil Code of 1889 (the law in
force when the child was born), the right of natural children to be supported by
their father depended exclusively on the recognition by the father of his
paternity; the rule being thus-

“The mere fact of birth gave no legal right to the child, and imposed no
legal duty upon the father, except, perhaps, in cases arising under the criminal
law. * * * The father was not, prior to the Civil Code, and is not now, bound to
recognize his natural son by reason of the mere fact that he is its father. * *
* But as to the father the question is,” and always has been, has he performed
any acts which indicates his intention to recognize the child as his?”
(Buenaventura vs. Urbano, 5 Phil., pp. 2-3)

It follows that in said suit, the real issue was whether the child had been
duly recognized, the support being a mere consequence of the recognition.
Therefore, the failure of the child’s action for support did not adjudge that he
was not the defendant’s child, but that the defendant never recognized him as
such. That the decision of the Court of Appeals (CA-G. R. No. 24532-E) rejecting
the child’s action did not declare him without right to support under all
circumstances can be seen from the following statement in the decision:

“The proofs so far found in the record may possibly warrant the filing of an
action for compulsory recognition, under paragraphs 3 and 4 of Art. 283, but
there was no action presented to that effect.”

Plainly, the issues and parties being different, the result of the child’s
action can not constitute res judicata with regard to the mother’s
claim for damages against the father on account of the amounts she was compelled
to spend for the maintenance of their child. On the contrary, the very fact that
the child was not allowed to collect support from the father (appellant therein)
merely emphasizes the account of his birth and rearing, which, in turn, was a
direct consequence of appellants tortuous conduct. Since Esther Peralta had
expressly pleaded that she had had to support the child (Record of Appeal, p.
27, in fine), and had prayed for such relief “as may be deemed just and
equitable in the premises”, there is no reason why her expenses for the child’s
maintenance should not be taken into account.

Appellants submit that the damages allowed for maintenance of the son should
be limited to P600.00 a year, because the income tax law allows only that much
deduction for each child. We do not believe that income tax deductions
constitute a reasonable basis for an award of damages, since they are fixed for,
an entirely different purpose (to arrive at the net taxable income) and merely
represent the amount that the state is willing to exempt from taxation. At that,
it should be noted that the deductible amount has been lately increased to
P1,000.00 per annum. But even at P600.00 per annum, the damages suffered by
appellee on this count, from 1945 to 1960, already amounts to around P9,000.00,
to which must be added the loss of appellee’s salary as executive of the Girl
Scouts in Davao; so that the P15,000.00 damages awarded by the the court below
is by no means excessive, as already held in our decision in chief.

Appellants also contend that the claim for pecuniary damages has prescribed,
because they date back to 1945. Suffice it to note that the defense of
prescription was not invoked by appellants against the claim for pecuniary
damages, and this defense must be regarded as waived in relation to the same.
Appellant’s reply to the appellee’s first counterclaim in her second
amended answer (which was for actual or pecuniary damages) reads as follows
(Answer to Counterclaim, Rec. App. p. 33);

“1.-That plaintiff is without knowledge or information sufficient to form a
belief as to the truth of the allegations contained under paragraphs 6, 7, 8, 9,
10, 11 and 12 of the first counterclaim and, therefore, specifically denies the
same.”

The defense of prescription was actually interposed on against the second
counterclaim, in this wise:

“1.-That the cause of action alleged in the second counterclaim has already
prescribed, more than ten years having already elapsed.” (Answer, to
Counterclaim, Rec. App. 34)

The second counterclaim referred to was for damages due to “mental torture,
anguish and hurt feelings, all to her damage in the amount of P250,000.00” (Rec.
App. p. 28). Upon the other hand, our own award for moral damages was based, not
on the deceit practiced by Silva in securing Esther’s assent to live maritally
with him, but on his subsequent harassment of her in 1954, by filing suits
against her in different provinces .and otherwise applying pressure to cause her
to abandon her child’s case. As this cause of action arose less than three years
before the present action was filed, the defense of prescription is rendered
untenable against it, for the limitation period had not yet expired when the
suit was brought.

Wherefore, the motion for reconsideration is denied.

Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera, Paredes, and
Dizon, JJ., concur.

Motion denied.