MIGUEL TOLENTINO, PLAINTIFF AND APPELLANT, VS. CEFERINO INCIONG, DEFENDANT AND APPELLEE.

On December 20, 1952, Miguel Tolentino filed an action in the Court of First
Instance of Batangas to recover damages for libel committed by defendant
Ceferino Inciong for which said defendant was found guilty in a criminal case
filed against him.

Alleging that the complaint states no cause of action; that if there is any
cause of action, the same is barred by prior judgment; and that the venue is
improperly laid, the defendant moved that the action be dismissed. The motion to
dismiss was opposed by plaintiff, and after hearing, the court below on February
13, 1953 issued an order denying the same. Reconsideration of this order having
been also denied, defendant filed his answer. Thereafter, for failure of
plaintiff and that of his counsel to appear at the scheduled hearing and upon
defendant’s motion, the case was dismissed without prejudice. On plaintiff’s
motion, however, the court reconsidered its order and set it aside. Defendant
subsequently filed a motion for leave of court to amend his answer, which, as so
amended, alleged among other things, as affirmative defenses, that plaintiff’s
cause of action had already prescribed. Defendant also averred under his
counterclaim that he had suffered not only actual and moral but also exemplary
damages in the total amount of not less than P100,000.00. Upon plaintiff’s
opposition that the reasons set forth in the motion do not justify the amendment
and that the alleged new matters incorporated in the amended answer are entirely
immaterial and of no bearing to the issues in the case, the lower court denied
the motion to amend the answer. Defendant verbally asked for reconsideration and
as plaintiff withdrew his opposition to the admission of the amended answer
after the defendant manifested that he is reducing his counterclaim to
P1,000.00, the lower court reconsidered its previous order and admitted the
amended answer.

On December 13, 1955, after the plaintiff had rested his case, defendant
filed another motion to dismiss, the complaint on the ground that the cause of
action is barred by prior judgment and also on the grounds of prescription and
non-suit. The motion was opposed by plaintiff who alleged that the grounds
stated therein had already been raised by defendant in his previous motion to
dismiss which had already been denied, and that the filing of said second motion
to dismiss was irregular as defendant had already filed an amended answer and
has entered into trial on the merits. In his reply to the opposition, defendant
asserted that his motion was a demurrer to evidence and was distinct from the
previous motion to dismiss. The lower court, however, on February 16, 1956
denied the motion to dismiss the complaint. Motion for reconsideration was,
likewise, denied.

After the reception of evidence for the defendant, the lower court on October
17, 1956 rendered the decision complained of dismissing plaintiff’s complaint on
the ground of prescription. As the motion for reconsideration and new trial was
denied, plaintiff appealed to the Court of Appeals. Opining that the decisive
question of whether or not plaintiff’s cause of action has already prescribed is
one of law and that plaintiff’s claim for damages, including attorney’s fees and
expenses of litigation, amounts to P99,500 which is beyond its competent
jurisdiction (under the law then in force), the appellate court has certified
the case to this Court.

We agree with the trial court that plaintiff’s complaint is already barred by
prescription. Under the law prevailing prior to the effectivity of the new Civil
Code in August, 1950, an action for libel must be brought within two years after
the right of action accrues. (Sec. 43 [2], Act No. 190.) Under the new Civil
Code, a civil action arising from libel prescribes in one year. (Tejuco
vs. E. R. Squibb & Son Phil. Corp., et al., 103 Phil., 594; 55 Off.
Gaz. [26] 4813; Inciong, et al. vs. Tolentino, 106 Phil., 207; 56 Off.
Gaz. [50] 7618.) There being no special provision which ordains otherwise, the
period must be counted from the day the action could have been brought. (Article
1969, old Civil Code; Art. 1150 of the new.) Consequently, a written defamation
becomes actionable upon its publication, or when communicated to third person or
persons. In case of a libel committed by a newspaper, the period for bunging the
action should be computed from the date the publication goes into circulation.
(53 C. J. S. 133.) It appearing that from July 24, 1949, when the libelous
matter was published and circulated in a newspaper owned by defendant, to
December 24, 1952, when the present action for damages arising from said
libelous publication was filed, a period of three years and five months had
elapsed, it results that the said action has already prescribed whether the
prescriptive period be computed under the new Civil Code or the laws previous
thereto.

Contrary to plaintiff’s contention, the cause of action for damages arising
out of libelous publication does not accrue only after the decision in the
corresponding criminal action has become final. Article 33 of the new Civil Code
provides that the civil action for defamation may be brought by the injured
party separately from the criminal action, and such civil action shall proceed
independently of the criminal prosecution. It may be argued that the rule
contained in the new Civil Code does not apply in this case because the libel
was committed on July 24, 1949, or before the effectivity of the said Code. The
fact remains, however, that after the new Civil Code took effect on August 30,
1950 plaintiff could have availed himself of Article 33 thereof for the purpose
of bringing the civil action for damages. Computing the period of prescription
from that date, the complaint is still barred by the statute of limitations.

Neither may plaintiff now claim that defendant, under section 8 of Rule 26 of
the Rules of Court, has waived the defense of prescription, the same not having
been included in his first motion to dismiss. For, actually, the defense of
prescription was included as one of the affirmative defenses in defendant’s
amended answer, which was admitted by the trial court, after plaintiff had
withdrawn his opposition thereto. Under section 2 of Rule 17, a wide discretion
is given to trial courts in allowing amendments to pleadings, and under the
facts of the present case, and in furtherance of justice, we think the trial
court was clearly within its powers in allowing the amendment in question.
Anyway, the waiver applies to defenses “that would raise issues of fact not
appearing upon the preceding pleading.” (Secs. 9 and 10, Rule 9.) In the case at
bar, no issue of fact was involved by defendant’s claim of prescription. The two
dates necessary for computing the period of prescription are alleged in the
complaint itself. In other words, the defense of prescription may be gleaned and
is apparent from the face of the complaint. Defendant’s failure to plead it in
his first motion to dismiss did not, therefore, constitute a waiver.
(See Chua Lamko vs Dioso, 97 Phil., 821.)

Having arrived at the above conclusion, it becomes unnecessary to pass upon
the other questions raised by the parties,

Wherefore, the decision appealed from dismissing plaintiff’s complaint is
affirmed, with costs.

Paras, C.J., Bengzon, Padilla, Bautista Angela, Labrador, Reyes J.B.L.,
Barrera, and Paredes, JJ., concur.

Judgment affirmed.