[G.R. No. L-35098. March 16, 1987.

GIACOMINA MARINI-GONZALES, Petitioner, v. HON. GUARDSON R. LOOD, Presiding

Judge, Court of First Instance of Rizal, Sixth Branch Pasig, Rizal; CELIA ANGELES-
PASCUA; ELISEO ZARI, Assistant Clerk of Court of above-mentioned branch, as
appointed legal representative of deceased defendant RAFAEL J. GONZALES;
ESTEBAN S. ANGELES; SPOUSES ROGELIO ANGELES and SINFORESA
SALVADOR ANGELES; SPOUSES REMEDIOS ANGELES-FERRAER and
FLORENCIO FERRAER; JAIME ANGELES; SPOUSES BENJAMIN ANGELES and
MERLINA TORRES-ACABE and her husband surnamed ACABE (first name unknown to
petitioner), Respondents.

Norberto. J. Quisumbing for Petitioner.

Laso, Beltran & Domondon for Respondents.

DECISION

PADILLA, J.:

This is a petition for certiorari to annul and set aside the orders issued by the respondent
Judge in Civil Case No. 12296 of the then Court of First Instance of Rizal, Pasig Branch
VI, on (1) 12 February 1972, which denied petitioner’s Omnibus Motion; (2) 25 March
1972, appointing the respondent Eliseo Zari, assistant clerk of court of respondent court,
as the legal representative of the deceased defendant Rafael J. Gonzales; (3) 14 April
1972, which denied petitioner’s motion for reconsideration of the Order dated 12 February
1972; and (4) 17 May 1972, which denied petitioner’s motion for reconsideration of the
Order dated 25 March 1972.cralawnad

The records show that on 19 September 1969, the herein petitioner, Giacomina Marini-
Gonzales, now deceased and represented by the special administrator of her estate, Atty.
Norberto J. Quisumbing, 1 filed a complaint against her husband Rafael J. Gonzales and
Celia Angeles-Pascua, Esteban S. Angeles, Rogelio S. Angeles, Sinforesa Salvador-
Angeles, Remedios Angeles-Ferraer, Florencio Ferraer, Jaime Angeles, Benjamin
Angeles, Merlina Torres-Angeles, and Lourdes Angeles-Acabe and her husband whose
first name is unknown to the plaintiff, in the then Court of First Instance of Rizal, docketed
as Civil Case no. 12296, for the annulment of allegedly fraudulent disposition of various
properties, both real and personal, therein listed, made by the said Rafael J. Gonzales in
favor of his co-defendants, allegedly in fraud of plaintiff and in impairment of her interest
in the conjugal partnership properties, and without her knowledge and consent. The
complaint also asked for damages. 2

In answer, the defendant Rafael J. Gonzales claimed that all the conjugal assets which
are in his possession were not used in any way for or transferred to the other defendants;
and that the properties owned by his co-defendants were not derived from the conjugal
properties owned by him and the plaintiff. 3

His co-defendants, for their part, alleged that the properties listed in the complaint were
bought or acquired, not with funds from the conjugal partnership of plaintiff and defendant
Rafael J. Gonzales, but with funds of the owners thereof. 4

Pre-trial conferences were held, and thereafter, the deposition of the defendant Rafael J.
Gonzales was taken in view of his deteriorating health. The taking of his deposition,
however, was not completed because he died on 5 September 1970.chanrobles
lawlibrary : rednad

On 25 September 1970, the herein petitioner, in a pleading entitled "Notice of Death of

Party and Omnibus Motion" notified the court of the death of the defendant Rafael J.
Gonzales and of her appointment by the then Court of First Instance of Rizal (Quezon
City branch) in Special Proceeding No. Q-14838 as special administratrix of his testate
estate, and prayed that she be substituted in place of the deceased; that the pleadings,
motions and papers, including the Answer with Counterclaim filed by the decedent, be
withdrawn and stricken out; and that she be granted leave to amend her own complaint
so as to allege therein her two capacities and rights — one, as wife and two, as special
administratrix of the testate estate of the late Rafael J. Gonzales. 5 Later, the probate
court appointed said plaintiff (herein petitioner) as executrix in the testate estate of the
late Rafael J. Gonzales. 6 She is also the sole heir under his will. 7
Considering the Omnibus Motion, respondent Judge ordered the parties "to submit their
amended pleading in accordance with the Rules of Court within a period or as soon as
possible." 8

Pursuant thereto, the petitioner filed a "Compliance and Motion" reiterating her prayer for
the immediate grant of her Omnibus Motion filed earlier. A copy of an Amended Complaint
was appended to her motion. 9

The respondent Judge, however, in an Order dated 12 February 1972, denied the
Omnibus Motion for lack of merit. 10 Counsel for the petitioner received a copy of the
Order on 26 February 1972, and on 25 March 1972, he filed a motion for reconsideration
of said Order. 11

On that same day, 25 March 1972, the respondent Judge, upon motion of the herein
private respondents, issued an Order appointing Atty. Eliseo Zari, the assistant clerk of
court, the legal representative of the defendant Rafael J. Gonzales in the case. 12 Upon
receipt of a copy of this Order, counsel for the petitioner also filed a motion for its
reconsideration, and when both motions for reconsideration were denied on 14 April 1972
13 and 17 May 1972, 14 respectively, he filed the instant petition for certiorari with this
Court.

The petition was given due course 15 and on 20 March 1973, this court, upon application
of the petitioner, issued a temporary restraining order restraining the respondent Judge
from proceeding with the initial reception of evidence in Civil Case No. 12297 of the Court
of First Instance of Rizal, Branch VI, Pasig. 16

The first issue raised by the petitioner is whether or not the respondent Judge acted with
grave abuse of discretion in denying the proposed amendment to the petitioner’s
complaint to the end that the, as special administratrix, later, executrix of the testate estate
of her late husband Rafael J. Gonzales, be allowed to withdraw the Answer with
Counterclaim filed by said deceased during his lifetime and then join cause with her, as
plaintiff.chanrobles.com.ph : virtual law library

The law applicable is Section 1, Rule 10 of the Rules of Court which provides as
follows:jgc:chanrobles.com.ph
"Sec. 3. Amendments by leave of Court.— After the case is set for hearing,
substantial amendments may be made only upon leave of court. But such leave may be
refused if it appears to the court that the motion was made with intent to delay the action
or that the cause of action or defense is substantially altered. Orders of the court upon
the matters provided in this section shall be made upon motion filed in court, and after
notice to the adverse party, and an opportunity to be heard."cralaw virtua1aw library

Likewise applicable is the law on estoppel to the effect that —

"A party who has, with knowledge of the facts, assumed a particular position in judicial
proceedings, and has succeeded in maintaining that position, is estopped to assume a
position inconsistent therewith to the prejudice of the adverse party. It is essential also
that the party, claiming the estoppel should have acted in reliance thereon, and that his
rights would be injuriously affected if his opponent were permitted to change his position.
When no wrong is done a change in position should and will be allowed. The rule has no
application where the knowledge or means of knowledge of both parties is equal, nor in
case of mistake. Also the rule has no application to change a position with respect to
matters of law." 17

There is no doubt that the proposed amendments to the petitioner’s complaint would alter
the position of Rafael J. Gonzales, from that of defendant to that of plaintiff. But, while the
aforequoted provisions of the Rules of Court authorize the courts to disallow amendment
of pleadings when it appears that the same is made to delay an action or that the cause
of action or defense is substantially altered thereby, the rule is not absolute. Courts are
not precluded from allowing amendments of pleadings even if the same will substantially
change the cause of action or defense provided that such amendments do not result in a
substantial injury to the adverse party. This is due to the permissive character of said rule.
In fact, this Court has ruled that amendments to pleadings are favored and should be
liberally allowed in the furtherance of justice. 18

The same is true with the principle of estoppel, just mentioned. It is essential that the
rights of the adverse party would be seriously affected in order to disallow a change in
position, but, when no wrong is done, a change in position may be allowed.chanrobles
virtual lawlibrary

We have examined the records of this case and we find no reason, nor have the private
respondents shown any, which would serve as a basis for a finding that they (private
respondents) would suffer substantial injury if the proposed amendments were allowed.
The mere change in the position of the deceased Rafael J. Gonzales, from defendant to
plaintiff, will not, by itself, lend credence to the allegation of the petitioner in her complaint
that the properties listed in the complaint belonged to the conjugal partnership of the
petitioner and Rafael J. Gonzales and that they were fraudulently transferred to the
private respondents, nor will it diminish the private respondents’ claim that the said
properties were bought or acquired by them with their own funds. The parties, in fact,
have yet to prove their respective allegations.

On the other hand, to disallow the amendments proposed by the petitioner would result
in some absurdity. As wife and then as executrix and sole heir of the late Rafael J.
Gonzales, the petitioner would be `giving with one hand and also receiving with the other,’
in the event that judgment were to be rendered for or against the deceased defendant.

The other issue raised is whether or not the respondent Judge abused his discretion in
ordering the respondent Eliseo Zari to represent the deceased Rafael J. Gonzales as
party defendant in this case. The petitioner contends that the appointment of another legal
representative for the late Rafael J. Gonzales is null and void in view of her appointment
as the special administratrix, later, executrix of the testate estate of Rafael J. Gonzales,
not to mention that she is the sole heir under his will. 19

We agree with petitioner’s contention. Under the provisions of Section 2, Rule 87 of the
Rules of Court, it is the executor or administrator of the estate of the decedent who may
bring or defend actions in the name of the deceased, and this Court has ruled that the
choice of an executor is the sole prerogative of the testator and is not addressed to the
discretion of the court. In the case of Ozaeta v. Pecson, 20 this Court
said:jgc:chanrobles.com.ph

"The choice of his executor is a precious prerogative of a testator, a necessary

concomitant of his right to dispose of his property in the manner he wishes. It is natural
that the testator should desire to appoint one of his confidence, one who can be trusted
to carry out his wishes in the disposal of his estate. The curtailment of this right may be
considered as a curtailment of the rights to dispose. And as the rights granted by him will
take effect from the time of his death (Article 777, Civil Code of the Philippines), the
management of his estate by the administrator of his choice should be made as soon as
practicable, when no reasonable objection to his assumption of the trust can be
interposed any longer. It has been held that when a will has been admitted to probate, it
is the duty of this court to issue letters testamentary to the person named as executor
upon his application (23 C.J. 1023). It is the testator that appoints his executor, as the
question as to his peculiar fitness for such position or his want of ability to manage the
estate cannot be addressed to the discretion of the county judge. (Holbrook v. Head, 6
S.W. 592, 593, 9 Ky 755)."cralaw virtua1aw library

Furthermore, the joinder of the deceased Rafael J. Gonzales as party defendant is no

longer necessary and may be dispensed with, since no cross-claim has been filed against
him by his co-defendants (private respondents herein); and the petitioner’s right under
Article 173 of the Civil Code may be enforced against third persons even without joining
her husband as party defendant.chanrobles.com : virtual law library

We find from all the foregoing, and so rule, that the respondent Judge gravely abused his
discretion in denying the petitioner’s Omnibus Motion. Courts should be liberal in allowing
amendments to pleadings, especially where such amendments will serve the ends of
justice and avoid multiplity of suits.

WHEREFORE, the petition is GRANTED and a writ issued, annulling and setting aside
the Orders issued by the respondent Judge in Civil Case no. 12296 of the then Court of
First Instance of Rizal, Branch VI, Pasig, on 12 February 1972, 25 March 1972, 14 April
1972, and 17 May 1972. The temporary restraining order, earlier issued by this Court, is
hereby made permanent. Costs against private respondents.

SO ORDERED.

G.R. No. L-1780 August 31, 1948

Petition for the presumption of death of Nicolai Szatraw. CONSUELO
SORS, petitioner-appellant.
J. Rodriguez Serra for appellant.
PADILLA, J.:
Pleading under oath that she is the lawful wife of Nicolas Szatraw, a Polish citizen, to
whom she was married in Manila on November, 1936, whom she bore a child named
Alexis Szatraw born on 8 September 1937, with whom she had lived from the time they
were married until February, 1940, when her husband, on the pretext that he would call
on some friends, departed from the conjugal abode carrying the child along with him and
never returned, about whose whereabouts she made inquiries from among her husband's
friends and countrymen and learned that her husband and child had left for Shanghai,
where, according, however, to information obtained from Polish citizens who had arrived
from that place, he and the child had not been seen and could not be found; that all her
efforts to know the whereabouts of her husband and child were in vain; and that, because
of her husband's absence for more than seven years during which she has not heard any
news from him and about her child, she believes that he is dead, Consuelo Sors prays
that her husband be declared dead and that her parental authority over her child, should
the latter be alive and later on appear, be preserved.
The foregoing facts pleaded in the petition were proved. The evidence further shows that
she and her husband did not acquire any property during their marriage and that his life
was not insured.
Upon the foregoing evidence the trial court dismissed the petition on the ground that it is
not for the settlement of the estate of the absentee, and because the rule of evidence
establishing the presumption that a person unheard from in seven years is dead, does
not create a right upon which a judicial pronouncement of a decree may be predicated.
The petitioner has appealed.
The petition is not for the settlement of the estate of Nicolai Szatraw, because it does not
appear that he possessed property brought to the marriage and because he had acquired
no property during his married life with the petitioner. The rule invoked by the latter is
merely one of evidence which permits the court to presume that a person is dead after
the fact that such person had been unheard from in seven years had been established.
This presumption may arise and be invoked and made in a case, either in an action or in
a special proceeding, which is tried or heard by, and submitted for decision to, a
competent court. Independently of such an action or special proceeding, the presumption
of death cannot be invoked, nor can it be made the subject of an action or special
proceeding. In this case, there is no right to be enforced nor is there a remedy prayed for
by the petitioner against her absent husband. Neither is there a prayer for the final
determination of his right or status or for the ascertainment of a particular fact
(Hagans vs. Wislizenus, 42 Phil. 880), for the petition does not pray for a declaration that
the petitioner's husband is dead, but merely asks for a declaration that he be presumed
dead because he had been unheard from in seven years. If there is any pretense at
securing a declaration that the petitioner's husband is dead, such a pretension cannot be
granted because it is unauthorized. The petition is for a declaration that the petitioner's
husband is presumptively dead. But this declaration, even if judicially made, would not
improve the petitioner's situation, because such a presumption is already established by
law. A judicial pronouncement to that effect, even if final and executory, would still be
a prima facie presumption only. It is still disputable. It is for that reason that it cannot be
the subject of a judicial pronouncement or declaration, if it is the only question or matter
involved in a case, or upon which a competent court has to pass. The latter must decide
finally the controversy between the parties, or determine finally the right or status of a
party or establish finally a particular fact, out of which certain rights and obligations arise
or may arise; and once such controversy is decided by a final judgement, or such right or
status determined, or such particular fact established, by a final decree, then the
judgement on the subject of the controversy, or the decree upon the right or status of a
party or upon the existence of a particular fact, becomes res judicata, subject to no
collateral attack, except in a few rare instances especially provided by law. It is. therefore,
clear that a judicial declaration that a person is presumptively dead, because he had been
unheard from in seven years, being a presumption juris tantum only, subject to contrary
proof, cannot reach the stage of finality or become final. Proof of actual death of the
person presumed dead because he had been unheard from in seven years, would have
to be made in another proceeding to have such particular fact finally determined. If a
judicial decree declaring a person presumptively dead, because he had not been heard
from in seven years, cannot become final and executory even after the lapse of the
reglementary period within which an appeal may be taken, for such presumption is still
disputable and remains subject to contrary proof, then a petition for such a declaration is
useless, unnecessary, superfluous and of no benefit to the petitioner. The Court should
not waste its valuable time and be made to perform a superfluous and meaningless act.
Little effort is necessary to perceive that a declaration such as the one prayed for by the
petitioner, if granted, may make or lead her to believe that the marital bonds which bind
her to her husband are torn asunder, and that for that reason she is or may feel free to
enter into a new marriage contract. The framers of the rules of court, by the presumption
provided for in the rule of evidence in question, did not intend and mean that a judicial
declaration based solely upon that presumption may be made. A petition for a declaration
such as the one filed in this case may be made in collusion with the other spouse. If that
were the case, then a decree of divorce that cannot be obtained or granted under the
provisions of the Divorce Law (Act No. 2710) could easily be secured by means of a
judicial decree declaring a person unheard from in seven years to be presumptively dead.
This is another strong reason why a petition such as the one presented in this case should
not be countenanced and allowed. What cannot be obtained directly under the provisions
of Divorce Law could indirectly be secured under the provisions of Rule 123, section 69
(x). Obviously, the latter must not be made to prevail over the former.
The order appealed from is affirmed. No pronouncement as to costs is made, because
no adverse party appeared in this Court and in the court below.

209 Phil. 344

ESCOLIN, J.:
Petition for review filed by the Eastern Shipping Lines, Inc. to set aside the decision of the
National Labor Relations Commission, which affirmed the judgment rendered by the
National Seamen Board, the dispositive portion of which reads as follows:
"WHEREFORE, respondent is hereby ordered to pay complainant her monthly allotments
from March, 1980 up to the amount of P54,562.00 within ten (10) days from receipt of this
decision. Respondent is likewise further ordered to pay complainant her future monthly
allotment up to the arrival of the M/V EASTERN MINICON in the port of Manila or after
four (4) years when the presumptive death established by law takes effect."
The material facts that gave rise to this petition are as follows: On October 31, 1979, Capt.
Julio J. Lucero, Jr. was appointed by petitioner Eastern Shipping Lines, Inc., Company
for short, as master/captain to its vessel M/V Eastern Minicon, plying
the Hongkong/Manila route, with the salary of P5,560.00 exclusive of ship board
allowances and other benefits. Under the contract, his employment was good for one (1)
round trip only, i.e., the contract would automatically terminate upon arrival of the vessel
at the Port of Manila, unless renewed. It was further agreed that part of the captain's
salary, while abroad, should be paid to Mrs. Josephine Lucero, his wife, in Manila.
On February 16, 1980, while the vessel was enroute from Hongkong to Manila where it
was expected to arrive on February 18, 1980, Capt. Lucero sent three (3) messages to
the Company's Manila office:
First Message:[1]
"February 16, 1980 0700 GMT Via Intercom
EMINICON
Urgent
Eastship Manila
REGRET TO INFORM YOU ENCOUNTERED BOISTEROUS WEATHER WITH
STRONG NORTHEASTERLY WINDS WITH GAIL FORCE CAUSING THE
VESSEL ROLLING AND PITCHING VIOLENTLY VESSEL NOW INCLINING 15 TO
20 DEGREES PORTFEARING MIGHT JETTISON CARGO ON DECK IF EVERYTHING
COME TO WORSE SITUATION HOWEVER TRYING UTMOST BEST TO FACILITATE
EVERYTHING IN ORDER STOP NO FIX POSITIONS FROM NOON 15th UP TO
0600 HRS TO DATE NEED ASSISTANCE APPROXIMATE DR POSITIONS AT 0600
HRS 10TH WITHIN THE VICINITY LATITUDE 20-02, ON LONGTITUDE 110-02, OE
COURSE 120 DEGREES REGARDS ...
LUCERO"
Second Message:[2]
"February 16/80 1530 GMT VIA INTERCOM
EMICON
EASTSHIP MANILA
RYC NOTED ACCORDINGLY SINCE WASTE PAPER CARGO ON PORT SIDE AND
HAD BEEN WASH OUT VESSEL AGAIN LISTING ON STARBOARD SIDE REGRET
WE HAVE TO JETTISON STARBOARD SIDE WASTE PAPER CARGO IN ORDER TO
BALANCE THE VESSEL NOW ALMOST BACK TO NORMAL POSITION HOWEVER
VESSEL STILL LABORING VIOLENTLY REGARDS
LUCERO"
Third Message:[3]
"FEBRUARY 16/80 2150 HRS
PHILIPPINE COAST GUARD
NEED IMMEDIATE ASSISTANCE POSITION 19-35 N 116-40 E SEAWATER
ENTERING INSIDE HATCH VESSEL INCLINING 15 TO 20 DEGREES PORT IF
POSSIBLE SEND IMMEDIATE ASSISTANCE VESSEL IN DANGER PREPARING TO
ABANDON ANYTIME
MASTER"
Acting on these radio messages, the Company, respondent below, took the following
steps:
"RESPONDENT informed of the grave situation, immediately reported the matter to the
Philippine Coast Guard for search and rescue operation and the same was coordinated
with the U.S. Air Force based at Clark Air Base. Respondent also released radio
messages to all vessels passing the Hongkong/Manila route requesting them to be very
cautious and vigilant for possible survivors and to scan the area whether there are signs
of debris from the ill-fated vessel "EASTERN MINICON" which has foundered. In the
meantime, two (2) vessels of the respondent were also dispatched to the area last
reported by the Master for search and rescue operation, but the collective efforts of
all parties concerned yielded negative results." (p. 79, Rollo)
Subsequently, the Lloyds of London, insurer of the M/V Eastern Minicon, through its
surveyors, confirmed the loss of the vessel. Thereafter, the Company paid the
corresponding death benefits to the heirs of the crew members, except respondent
Josephine Lucero, who refused to accept the same.
On July 16, 1980, Mrs. Lucero filed a complaint with the National Seamen Board, Board
for short, for payment of her accrued monthly allotment of P3,183.00, which the Company
had stopped since March 1980 and for continued payment of said allotments until the
M/VMinicon shall have returned to the port of Manila. She contended that the contract of
employment entered into by her husband with the Company was on a voyage-to-voyage
basis, and that the same was to terminate only upon the vessel's arrival in Manila.
Upon the other hand, the Company maintained that Mrs. Lucero was no longer entitled
to such allotments because: [a] the Lloyds of London had already confirmed the total loss
of the vessel and had in fact settled the Company's insurance claim and [b] the Company,
with the approval of the Board, had likewise paid the corresponding death benefits to the
heirs of the other seamen. The Company further invoked the provision of Article 643 of
the Code of Commerce, to wit:
"Art. 643. If the vessel and her cargo should be totally lost, by reason of capture or wreck,
all rights shall be extinguished, both asregards the crew to demand any
wages whatsoever, and as regards the ship agent to recover the advances made.
x x x ."
On May 19, 1981, the Board rendered the aforecited judgment in favor of Mrs. Josephine
Lucero and against petitioner Company. The Board held that the presumption of death
could not be applied because the four-year period provided for by Article 391(1) of the
Civil Code had not yet expired; and that the payment of death benefits to the heirs of the
other crew members was based upon a voluntary agreement entered into by and
between the heirs and the Company, and did not bind respondent Mrs. Lucero who was
not a party thereto.
On appeal, the respondent National Labor Relations Commission affirmed the said
decision. It held that:
"Within the context of the foregoing circumstances, the only recourse is to presume the
vessel totally lost and its crew members dead. But in this connection, the question that
comes to the fore is: When will the presumption arise? Article 391 of the Civil Code
provides the answer, to wit:
Art. 391. The following shall be presumed dead for all purposes, including the division of
the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is
missing, who has not been heard of for four years since the loss of the vessel
or aeroplane; x x x
"By the aforequoted law, it is quite clear that the person to be presumed dead should first
"not been heard of for four years since the loss of the vessel" before he can be presumed
dead for all purposes. Applied to Capt. LUCERO, it is evidently premature to presume
him dead as four years has not yet expired. Thus, even in Judge Advocate General vs.
Gonzales, et al., (CA) 48 O.G. 5329, the very case cited by the respondent herein, the
court said in the case of the missing soldier that although nothing was heard of him since
7 May 1942, the fact of his death is not presumed until seven years after 1942.
"Since Capt. LUCERO cannot yet be presumed dead as demonstrated hereinabove, it
logically follows that as of now, he is presumed alive. It is of no moment to Us that the
vessel was conceded by the Lloyds of London to have been totally lost which, in the first
place, was admittedly merely based on presumption as even the whereabouts of the
vessel remains unknown. Similarly, even the agreement, which formed the basis of the
Decision of the NSB ordering payment of death benefits to the heirs of some of
the crewmust have been predicated upon a presumption of death of the crewmembers
concerned. Such circumstances do not suffice to establish the actual death of Capt.
LUCERO.
xxx xxx xxx
"Indeed, by the terms of the appointment of Capt. LUCERO, his engagement terminates
upon the return of the vessel at the Port of Manila. He is considered to be still working
entitling his spouse to allotment until the vessel returns or until it is officially declared
totally lost, or until the presumption of his death becomes effective in which case the
burden of proving that he is alive is shifted tohis wife for purposes of continuing her
allotment."
We are unable to agree with the reasoning and conclusion of the respondent NLRC.
It is undisputed that on February 16, 1980, the Company received three (3) radio
messages from Capt. Lucero on board the M/V Eastern Minicon, the last of which,
received at 9:50 p.m. of that day, was a call for immediate assistance in view of the
existing "danger": "sea water was entering the hatch"; the vessel "was listing 50 to 60
degrees port," and they were "preparing to abandon the ship any time." After this
message, nothing more has been heard from the vessel or its crew until the present time.
There is thus enough evidence to show the circumstances attending the loss and
disappearance of the M/V Eastern Minicon and its crew. The foregoing facts, quite
logically, are sufficient to lead Us to a moral certainty that the vessel had sunk and that
the persons aboard had perished with it. Upon this premise, the rule on presumption of
death under Article 391(1) of the Civil Code must yield to the rule of preponderance of
evidence. As this Court said in Joaquin vs. Navarro[4] "Where there are facts, known or
knowable, from which a rational conclusion can be made, the presumption does not step
in, and the rule of preponderance of evidence controls."
Of similar import is the following pronouncement from American Jurisprudence:[5]
"Loss of Vessel. -- Where a vessel sets out on a voyage and neither the vessel nor those
who went in her are afterward heard of, the presumption arises, after the utmost limit of
time for her to have completed the voyage and for news of her arrival at any commercial
port of the world to have been received, that the vessel has been lost and that all on board
have perished. The presumption of death in such cases does not rest on the fact alone
that the person in question has been absent and unheard from for a specific length of
time, but also on the fact that the vessel has not been heard from. The question,
moreover, is not whether it is impossible that the person may be alive, but whether the
circumstances do not present so strong a probability of his death that a court should act
thereon. The presumption of death from absence of tidings of the vessel on which the
absentee sailed is strengthened by proof of a storm to which the vessel probably was
exposed. The presumption is even stronger where it appears affirmatively that the vessel
was lost at sea, that nothing has been heard of a particular person who sailed thereon,
and that a sufficient time has elapsed to permit the receipt of news of any possible
survivors of the disaster."
In People vs. Ansang[6] where, in open sea, the appellant aboard a vinta ignited three
home-made bombs and threw them at the boat occupied by the victims, and the said boat
was later washed ashore and the passengers thereof were never heard or seen again by
anybody, this Court convicted the appellant of multiple murder, holding that the victims
were dead.
Similarly, in People vs. Sasota,[7] the claim of the appellants therein that there was no
conclusive evidence of death of the victim because his body was never found was
overruled by this Court in this wise:
"In a case of murder or homicide, it is not necessary to recover the body or to show where
it can be found. There are cases like death at sea, where the finding or recovery of the
body is impossible. It is enough that the death and the criminal agency be proven. There
are even cases where said death and the intervention of the criminal agency that caused
it may be presumed or established by circumstantial evidence.
"Moreover, it may be remembered that in several treason cases decided by this Court,
where besides the act of treason the accused is held responsible for the death of persons
he had arrested or tortured and later taken away, where the victims were never later seen
or heard from, it has been presumed that they were killed or otherwise criminally disposed
of or liquidated by the accused, this, for the purpose of fixing the penalty."
If in the foregoing criminal cases, where the proof required for conviction must be beyond
reasonable doubt, the rule of presumption was not applied and the fact of death was
deemed established, with more reason is this Court justified in entering a finding of death.
Indeed,We cannot permit Article 391 to override, or be substituted for, the facts
established in this case which logically indicate to a moral certainty that Capt. Lucero died
shortly after he had sent his last radio message at 9:50 p.m. on February 16, 1980.
In view of the conclusion arrived at above, We deem it unnecessary to discuss the
other issues raised in this case, they being mere adjuncts to the principal issue already
disposed of.
WHEREFORE, the decision of the NLRC subject of this petition is hereby set aside, and
the complaint of respondent Josephine Lucero dismissed. However, Mrs. Lucero is
entitled to death benefits. No costs.
SO ORDERED.
VICENTE BRIONES, plaintiff-appellant,
vs.
PETRA PLATON, defendant-appellee.
G.R. No. L-4625
Tracey, J.
18 December 1908
Republic of the Philippines
Supreme Court
Manila
En Banc
Pablo Borbon, for appellant.
J.C. Knudson, for appellee.
TRACEY, J.:
This is an appeal from a judgment of the Court of First Instance of Batangas, dismissing
a complaint in an action to recover an orange grove in Tinuric in the municipality of
Tanauan. More than fifty years prior to this action, Domingo Castillo and his wife died
owing a tract of 25 cavanes de cabida including the land in question, and leaving it in
undivided shares among his four children. The last of them, Domingo Castillo, died more
than thirty years ago and this litigation has arisen between descendants of the second
and third degrees, the plaintiff alleging that in 1903 all the members of the family agreed
upon a partition which was carried into effect in 1907 by certain deeds which are in
evidence. It seems that none of the defendants took part in this partition nor had they any
knowledge of it, one witness, Epifanio Atienza, saying that, while none of the other heirs
of that part of the family were present, he, as the eldest male, assumed to represent the
rest of that branch and to divide the land for them. Apparently he held no power to that
effect, either written or oral.
The court of First Instance put its judgment upon the ground of prescription in favor of the
defendants, but this, we think, was error. It is plain, however, that the defendants are not
bound by an operation in which they took no part, and for that reason the plaintiff can not
succeed in recovering the exclusive possession of the land occupied by them, which is
the object of his action. Upon this ground the judgment of the court below dismissing the
action is hereby affirmed, leaving both plaintiff and defendants to assert in a proper way
whatever rights may have originally been theirs in the property in suit, whether as tenants
in common or otherwise.
As hereby modified, the judgment is affirmed, with the costs of this instance. So ordered.