13th compiled digests (1)

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    TORTS AND DAMAGES

    13th BATCH DIGESTS

    1

    [NOTE: Nothing much in the case To sa!e time"#ou ma# o$t to %ea& on'# the un&e%sco%e& $o%tion(hich &e)ines (hat %egu'a% inte%est is*

    GR No 1++,,3 A$%i' -" ,../

    BOBIE ROSE 0 RIAS" %e$%esente& 2# he%Atto%ne#in)act" MARIE 45ITA" Petitioner, vs.6ORA SAN DIEGOSISON" Respondent.

    Petitioner is the owner of a house and lot. OnDecember 7, 1990, petitioner and respondent enteredinto a Memorandum of !reement over the propert"with the followin! terms#

    $1% &Respondent' has a period of si( $)% monthsfrom the date of the e(ecution of the contractwithin which to notif" the &petitioner' of herintention to purchase the parcel of land at theprice of *+ M+--+O /OR DR2D3O*D P2*O* $P),400,000.00%. ponnotice to the &petitioner' of the &respondent5s'intention to purchase the same, the latter hasa period of another si( months within which topa" the remainin! balance of P6.4 million.

    $% 3hat prior to the si( months period !iven tothe &respondent' within which to decidewhether or not to purchase the above8mentioned propert", the &petitioner' ma" stilloffer the said propert" to other persons whoma" be interested to bu" the same providedthat the amount of P6,000,000.00 !iven to the&petitioner b" respondent' shall be paid to thelatter includin! interest based on prevailin!compounded ban interest plus the amount of the sale in e(cess of P7,000,000.00 should thepropert" be sold at a price more than P7million.

    $6% 3hat in case the &petitioner' has no otherbu"er within the first si( months from thee(ecution of this contract, no interest shall be

    char!ed b" the &respondent' on the P6 millionhowever, in the event that on the si(th monththe &respondent' would decide not to purchasethe aforementioned propert", the &petitioner'has a period of another si( months withinwhich to pa" the sum of P6 million pesosprovided that the said amount shall earncompounded ban interest for the last si(months onl". nder this circumstance, theamount of P6 million !iven b" the &respondent'shall be treated as &a' loan and the propert"shall be considered as the securit" for the

    mort!a!e which can be enforced in accordancewith law.

    Respondent decided not to purchase the propert" andreminded petitioner of their a!reement that theamount of two million pesos which petitioner receivedfrom respondent should be considered as a loanpa"able within si( months. Petitioner subse:uentl"failed to pa".

    Respondent sued petitioner.

    R3;# % per cent per annumbe!innin! December 7, 1991 until full" paid.

    ;# +nterest rate reduced to ?> per annum.

    +**2# Petitioner contends that the interest, whetheat 6> per annum awarded b" the trial court or at?> per annum as modified b" the ; which shouldrun from @une 7, 1991 until full" paid, is contrar" tothe parties5 MOA that the a!reement provides that ifrespondent would decide not to purchase the propert"

    petitioner has the period of another si( months to pa"the loan with compounded ban interest for the last si(months onl".

    2-D#

    3he MO e(ecuted between the petitioner andrespondent is the law between the parties. 3he !enerarule is that if the terms of an a!reement are clear andleave no doubt as to the intention of the contractin!parties, the literal meanin! of its stipulations shalprevail. +n this case, the phrase Bfor the last si(months onl"B should be taen in the conte(t of theentire a!reement.

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    date stipulated. ;onsiderin! that petitioner failed topa" the amount !iven which under the MO shall beconsidered as a loan, the monetar" interest for the lastsi( months continued to accrue until actual pa"ment of the loaned amount.

    3he pa"ment of re!ular interest constitutes the priceor cost of the use of mone" and thus, until theprincipal sum due is returned to the creditor, re!ularinterest continues to accrue since the debtor continuesto use such principal amount. +t has been held that fora debtor to continue in possession of the principal of the loan and to continue to use the same aftermaturit" of the loan without pa"ment of the monetar"interest, would constitute un=ust enrichment on thepart of the debtor at the e(pense of the creditor.

    ; decision //+RM2D.

    .R. o. 1E)90 @anuar" 1, 1999

    F*8;F FROD;*3+ ;ORPOR3+O, petitioner,vs.OORF-2 ;OR3 O/ PP2-*, R2PF-+;FROD;*3+ ;ORP, G+G PROD;3+O, +;., andG+;232 D2- RO*R+O, respondents.

    +n 199, F*8;F Froadcastin! ;orporation, throu!hits vice president ;haro *antos8;oncio, re:uested GivaProduction, +nc. to allow F*8;F to air at least 14films produced b" Giva. Pursuant to this re:uest, ameetin! was held between Giva5s representative$Gicente Del Rosario% and F*8;F5s 2u!enio -opeH$eneral Mana!er% and *antos8;oncio was held onpril , 199. Durin! the meetin! Del Rosario

    proposed a film paca!e which will allow F*8;F toair 104 Giva films for P)0 million. -ater, *antos8;oncio,in a letter to Del Rosario, proposed a counterproposalof ?6 films $includin! the 14 films initiall" re:uested%for P6? million. Del Rosario presented the counter offerto Giva5s Foard of Directors but the Foard re=ected thecounter offer. *everal ne!otiations were subse:uentl"made but on pril 9, 199, Giva made an a!reementwith Republic Froadcastin! ;orporation $referred to asRF* I or M 7% which !ave e(clusive ri!hts to RF* toair 104 Giva films includin! the 14 films initiall"re:uested b" F*8;F.

    F*8;F now filed a complaint for specific

    performance a!ainst Giva as it alle!ed that there isalread" a perfected contract between Giva and F*8;F in the pril , 199 meetin!. -opeH testified thatDel Rosario a!reed to the counterproposal and he$-opeH% even put the a!reement in a napin which wassi!ned and !iven to Del Rosario. F*8;F also filed anin=unction a!ainst RF* to en=oin the latter from airin!the films. 3he in=unction was !ranted. RF* now filed acountersuit with a pra"er for moral dama!es as itclaimed that its reputation was debased when the"failed to air the shows that the" promised to theirviewers. RF* relied on the rulin! in People vs Maneroand Mambulao -umber vs PF which states that acorporation ma" recover moral dama!es if it Jhas a

    !ood reputation that is debased, resultin! in sociahumiliationK. 3he trial court ruled in favor of Giva andRF*. 3he ;ourt of ppeals affirmed the trial court.

    +**2#

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    eedless to state the award of actual dama!es cannotbe comprehended under the above law on actualdama!es. RF* could onl" probabl" tae refu!e underrticles 19, 0, and 1 of the ;ivil ;ode, which read asfollows#

    rt. 19. 2ver" person must, in thee(ercise of his ri!hts and in theperformance of his duties, act with

     =ustice, !ive ever"one his due, and

    observe honest" and !ood faith.

    rt. 0. 2ver" person who, contrar" tolaw, wilfull" or ne!li!entl" causesdama!e to another, shall indemnif" thelatter for tile same.

    rt. 1. n" person who wilfull" causesloss or in=ur" to another in a mannerthat is contrar" to morals, !oodcustoms or public polic" shallcompensate the latter for the dama!e.

    +t ma" further be observed that in cases where a writof preliminar" in=unction is issued, the dama!es whichthe defendant ma" suffer b" reason of the writ arerecoverable from the in=unctive bond. +n this case,F*8;F had not "et filed the re:uired bondA as amatter of fact, it ased for reduction of the bond andeven went to the ;ourt of ppeals to challen!e theorder on the matter. ;learl" then, it was not necessar"for RF* to file a counterbond. ence, F*8;F cannotbe held responsible for the premium RF* paid for thecounterbond.

    either could F*8;F be liable for the printadvertisements for BMa!in! *ino La ManB for lac of sufficient le!al basis. 3he R3; issued a temporar"restrainin! order and later, a writ of preliminar"in=unction on the basis of its determination that theree(isted sufficient !round for the issuance thereof.otabl", the R3; did not dissolve the in=unction on the!round of lac of le!al and factual basis, but becauseof the plea of RF* that it be allowed to put up acounterbond.

    33OR25* /22*#

    s re!ards attorne"Cs fees, the law is clear that in theabsence of stipulation, attorne"Cs fees ma" be

    recovered as actual or compensator" dama!es underan" of the circumstances provided for in rticle 0Eof the ;ivil ;ode.

    3he !eneral rule is that attorne"Cs fees cannot berecovered as part of dama!es because of the polic"that no premium should be placed on the ri!ht toliti!ate.  3he" are not to be awarded ever" time a part"wins a suit. 3he power of the court to award attorne"Csfees under rticle 0E demands factual, le!al, ande:uitable =ustification.  2ven when claimant iscompelled to liti!ate with third persons or to incure(penses to protect his ri!hts, still attorne"Cs fees ma"

    not be awarded where no sufficient showin! of badfaith could be reflected in a part"Cs persistence in acase other than erroneous conviction of theri!hteousness of his cause.

    MOR- DM2*#

    s to moral dama!es the law is *ection 1, ;hapter 6,3itle G+++, Foo +G of the ;ivil ;ode. rticle 17thereof defines what are included in moral dama!es,while rticle 19 enumerates the cases where the"ma" be recovered, rticle 0 provides that moradama!es ma" be recovered in breaches of contractwhere the defendant acted fraudulentl" or in bad faithRF*Cs claim for moral dama!es could possibl" fall onl"under item $10% of rticle 19, thereof which reads#

    $10% cts and actions referred to inrticles 1, ), 7, E, 9, 60, 6, 64,and 6?.

    Moral dama!es are in the cate!or" of an awarddesi!ned to compensate the claimant for actual in=ur"

    suffered and not to impose a penalt" on thewron!doer.  3he award is not meant to enrich thecomplainant at the e(pense of the defendant, but toenable the in=ured part" to obtain means, diversion, oramusements that will serve to obviate then morasufferin! he has under!one. +t is aimed at therestoration, within the limits of the possible, of thespiritual status quo ante, and should be proportionateto the sufferin! inflicted.  3rial courts must then !uarda!ainst the award of e(orbitant dama!esA the" shoulde(ercise balanced restrained and measured ob=ectivit"to avoid suspicion that it was due to passionpre=udice, or corruption on the part of the trial court.

    3he award of moral dama!es cannot be !ranted infavor of a corporation because, bein! an artificiaperson and havin! e(istence onl" in le!acontemplation, it has no feelin!s, no emotions, nosenses. +t cannot, therefore, e(perience ph"sicasufferin! and mental an!uish, which call bee(perienced onl" b" one havin! a nervous s"stem.3he statement in People v . Manero and MambulaoLumber Co. v . PNB that a corporation ma" recovemoral dama!es if it Bhas a !ood reputation that isdebased, resultin! in social humiliationB is an obiterdictum. On this score alone the award for dama!esmust be set aside, since RF* is a corporation.

    3he basic law on e(emplar" dama!es is *ection ?;hapter 6, 3itle G+++, Foo +G of the ;ivil ;ode. 3heseare imposed b" wa" of e(ample or correction for thepublic !ood, in addition to moral, temperate, li:uidatedor compensator" dama!es. 3he" are recoverable incriminal cases as part of the civil liabilit" when thecrime was committed with one or more a!!ravatin!circumstancesA in :uasi8contracts, if the defendanacted with !ross ne!li!enceA and in contracts and:uasi8contracts, if the defendant acted in a wantonfraudulent, recless, oppressive, or malevolenmanner. 

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    +t ma" be reiterated that the claim of RF* a!ainstF*8;F is not based on contract, :uasi8contract,delict, or :uasi8delict, ence, the claims for moral ande(emplar" dama!es can onl" be based on rticles 19,0, and 1 of the ;ivil ;ode.

    3he elements of abuse of ri!ht under rticle 19 are thefollowin!# $1% the e(istence of a le!al ri!ht or dut", $%which is e(ercised in bad faith, and $6% for the soleintent of pre=udicin! or in=urin! another. rticle 0

    speas of the !eneral sanction for all other provisionsof law which do not especiall" provide for their ownsanctionA while rticle 1 deals with acts contra bonusmores, and has the followin! elementsA $1% there is anact which is le!al, $% but which is contrar" to morals,!ood custom, public order, or public polic", and $6% andit is done with intent to in=ure.

    Geril" then, malice or bad faith is at the core of rticles19, 0, and 1. Malice or bad faith implies a consciousand intentional desi!n to do a wron!ful act for adishonest purpose or moral obli:uit". *uch must besubstantiated b" evidence.

    3here is no ade:uate proof that F*8;F was inspiredb" malice or bad faith. +t was honestl" convinced of the merits of its cause after it had under!one seriousne!otiations culminatin! in its formal submission of adraft contract. *ettled is the rule that the adverseresult of an action does not per se mae the actionwron!ful and sub=ect the actor to dama!es, for the lawcould not have meant to impose a penalt" on the ri!htto liti!ate. +f dama!es result from a personCs e(erciseof a ri!ht, it is damnum absque injuria. 

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    $%

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    the dama!es of the +suHu pic8up and Porfirio-e!aspi

    ;# ffirmed with modification b"

    addin! P?,000 attorne"Cs fees and to pa" costs+**2#

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    defendantCs acts. 3his is so because moraldama!es, thou!h incapable of pecuniar"estimation, are in the cate!or" of an awarddesi!ned to compensate the claimant foractual in=ur" suffered and not to impose apenalt" on the wron!doer.

    • Moral dama!es are awarded to enable the

    in=ured part" to obtain means, diversions oramusements that will serve to alleviate the

    moral sufferin! heshe has under!one, b"reason of the defendantCs culpable action.

    • +ts award is aimed at restoration, as much as

    possible, of the spiritual status :uo anteA thus,it must be proportionate to the sufferin!inflicted. *ince each case must be !overnedb" its own peculiar circumstances, there is nohard and fast rule in determinin! the properamount. 3he "ardstic should be that theamount awarded should not be so palpabl" andscandalousl" e(cessive as to indicate that itwas the result of passion, pre=udice orcorruption on the part of the trial =ud!e.

     either should it be so little or so paltr" that itrubs salt to the in=ur" alread" inflicted onplaintiffs.

    GR No 1,,/-> 5anua%# ,

    delfa spent P6,000.00 for her husbandCs coffin andP?,000.00 durin! the wae. Other e(penses related toher husbandCs funeral were paid for b" her mother8in8law.

    delfa further testified that her husband earned aboutP,?00.00 a wee from sellin! fish, and that becauseof his death, she suffered !rief and wounded feelin!s,which could not Bbe paid in terms ofmone".B / Moreover, she also lost someone who couldhelp her. ?

    3he prosecution wanted to present olanda acional,the victimCs mother, to prove the amount spent forfuneral, but the defense stipulated that the victimCsheirs spent P?6,E00.00 for the purpose. <

    Fienvenida acional, the victimCs sister, corroborateddelfaCs testimon" as to the circumstances attendin!the commission of the crime, but as viewed from adifferent an!le since Fienvenida was positioned aboutone armCs len!th in front of the victim. *he tried tohelp lift her brother after he was shot, but in hernervousness and fear from seein! blood flow from her

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    brotherCs head, she was unaware that she had alread"run to the police station to !et help. t the station, shehad the incident recorded in the police blotter and!ave a ph"sical description of MR+O and hiscompanion. *he was informed on *eptember 1996that MR+O had been apprehended. 1.

    Fienvenida surmised that the illin! of her brother@oa:uin was due to an altercation between him andMR+O over a bet in a cocfi!ht. Durin! that

    altercation, which occurred at the plaHa some ten da"sbefore the incident, Fienvenida pacified the two andtold her brother to !o home, and the latter obe"ed.*he described her brother as the calmer one betweenthe two, and that durin! the altercation, he answeredMR+OCs !rave and serious curses with less !ravecurses. 11 3his altercation was different from thatreported b" delfa which occurred a "ear before thecrime.

    PO6 Rosales M. /ernandeH arrested MR+O on theni!ht of *eptember 1996, after followin! a leadprovided b" another officer. -ater that ni!ht,/ernandeH arran!ed a police line8up where delfaacional pointed out MR+O as her husbandCs iller./ernandeH divul!ed that MR+O was not assisted b"counsel at the line8up, and admitted that 2d!arRioferio was also arrested but the in:uest fiscalordered his release. 1,

    PO6 +reneo Manalili received Fienvenida acionalCsreport on the ni!ht of the incident and entered it in thepolice blotter. 13 

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    drinin! up to 1 . . . midni!htA that he did not leave*itio itna, La"bi!a, Lalooan ;it"A and that he wenthome to his house in rea ;, Parola ;ompound, 3ondo,Manila, on *eptember 0, 1996, at 11#00 . . . in themornin!. 1<

    dditionall", MR+O e(plained that the victim was oncea friend of his, but delfa acional accused him ofillin! the victim because sometime in 199, Bin ahi!hwa" near &MR+OCs' place,B the victim lost P0.00

    to MR+O in a !ame of  cara # cru$ . ,. 3he victimCsfamil" also harbored ill feelin!s towards MR+Obecause he refused to testif" for @oa:uin acional intwo criminal case, includin! one for the illin! of a sonof MR+OCs compadre, where @oa:uin acional was oneof the accused. ,1

    +n its decision ,, of 14 @une 199?, the trial court !avefull faith and credence to the testimonies of thewitness for the prosecution, describin! them as candid,strai!htforward and fran. 3he trial court too =udicialnotice of the volume of traffic from ;aloocan ;it" to3ondo, and concluded that it was not impossible forMR+O to have been at the scene of the crime at thetime of its commission. 3he trial court liewisedismissed MR+OCs contention that the acionalswanted to !et even with him for his refusal to testif"for @oa:uin acional in the criminal cases filed a!ainstthe latter. 3he court noted that these cases were filedseveral "ears before the victim was even married,hence MR+OCs refusal to testif" was inconse:uential.

    3he trial court determined that there was treacher" inthe illin! of @oa:uin acional since the attac camefrom behind the victim with a concealed weapon whichwas suddenl" fired at the victim. 3he victim wascompletel" unaware of the attac and was thus totall"

    defenseless. 3he court then decreed as follows#

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    prosecution failed to establish this possibilit" as fact b"proof be"ond reasonable doubt.

    nent the second assi!ned error, MR+O e(pressesdoubts that prosecution witnesses were able topositivel" identif" him as the iller of the victim. +n thefirst place, no ocular inspection of the crime scene wasever conducted, hence li!htin! conditions, which thetrial court concluded were sufficient for a positiveidentification, were not definitel" determined. e adds

    that even if a place were lit, Bli!ht casts shadows andcan pla" trics with a personCs si!ht.B lso, MR+O wasshorter than the victim, hence it was possible for thevictim to have bloced the view of Fienvenida andprevented her from clearl" seein! the assailant.Moreover, delfa acionalCs identification was flawedsince it was merel" instilled in her mind b" Fienvenidaacional, as shown b" delfaCs testimon"#

    Do "ou still remember Madam witness, what did "ouand "our sister8in8law do if an", after "our husbandwas shotN

    es, sir.

    nd what did she do if an"N

    *he also cried.

    nd did she tell "ou an"thin!, while "ou wereembracin! "our husbandN

    es, sir. ccordin! to her, it was Mario who shot m"husband. ,/

    MR+O further claims that delfaCs testimon" was less

    than candid and strai!htforward as illustrated b" thefollowin! se!ment#

    nd then Mrs. witness, while he &@oa:uin acional'was then bu"in! ci!arettes, he was standin! about onearmCs len!th, what happened ne(tN

    *omebod" arrived and shot m" husband at the bacof the lower portion of his ri!ht ear sir. ,?

    and ar!ues that if delfa positivel" identified him asthe !unman, she should have forthwith stated hisname instead of simpl" referred to him as

    B*omebod".B

    MR+O also :uestions his arrest three da"s after thecommission of the crime. +f he was indeed positivel"identified, he should have been immediatel" arrested.dditionall", at the police line8up on 4 *eptember1996. delfa identified 2d!ar Rioferio " Medano asMR+OCs companion on the ni!ht of the crime, "etRioferio was released b" the police.

    On the third assi!ned error, MR+O claims theprosecution presented no hard evidence, such as aparaffin test, fin!erprints, blood samples or clothin!, to

    indubitabl" lin him to the crime. 3he prosecutionmerel" had and relied on the prosecution witnessesCtestimon"A which MR+O claims was insufficient todispel reasonable doubt. +n sum, he assesses theprosecutionCs evidence as circumstantial andcon=ectural.

    +n the ppelleeCs Frief, the *olicitor eneral belittlesMR+OCs defense of alibi, and asserts that for alibi toprosper, an accused must prove not onl" that he was

    not at the crime scene at the time of the commissionof the crime, but that it was absolutel" impossible forhim to have been there at that time. /urthermore,assumin! that the defense witnesses were tellin! thetruth that the" were drinin! with MR+O, none ofthem cate!oricall" admitted that the" ept an e"e onhim at all times from 4#00 p.m. to 1#00 midni!ht of19 *eptember 1996. ence, MR+O was unable todemonstrate the feasibilit" of his alibi.

    On MR+OCs contention that the e"ewitnessesC relationto the victim clouded their reliabilit", the Office of the*olicitor eneral replies that relationship is not e:ualto biasA on the contrar", a witnessC relationship withthe victim would deter him or her from indiscriminatel"implicatin! an"bod" in the crime. s to MR+OCscomment on the li!htin! conditions at the crime scene,responds that a witnessC familiarit" with anotherperson maes it eas" for the former to identif" thelatter. delfa and Fienvenida acional were not onl"familiar with MR+O, but the" new him :uite well,thus main! it eas" for them to identif" him. 3he pointas re!ards MR+OCs hei!ht was liewiseinconse:uential since two e"ewitnesses clearl"reco!niHed and positivel" identified him as theassailant. +f at all, that MR+O was shorter than thevictim conformed with the evidence that the fatalbullet too an upward tra=ector".

    s to FienvenidaCs reference to MR+O in hertestimon" as B*omebod",B the Office of the *olicitoreneral asserts that it is not necessar" for the name ofthe accused to be specified b" a witness in an affidavitor testimon" since victims of crimes can not alwa"sidentif" their assailants b" name.

    -astl", the Office of the *olicitor eneral ar!ues thatalthou!h the police waited for three da"s beforearrestin! MR+O, said action or inaction was the faultof the authorities and not a factor that could affect thee"ewitnessesC credibilit".

    3here bein! sufficient evidence to convict MR+O, theOffice of the *olicitor eneral dismisses asunnecessar" the other evidence that MR+O sees. +fpresented, these pieces of evidence would onl" becorroborative of the e"ewitnessesC positiveidentification of MR+O as the assailant. t an" rate,choosin! which evidence to present to the trial court isthe prosecutorCs prero!ative.

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    libi, upon which MR+OCs defense hin!es upon, is theweaest of defenses. /or alibi to prosper, an accusedmust prove that not onl" was he absent at the sceneof the crime at the time of its commission, but alsothat it was ph"sicall" impossible for him to be sosituated at said instance. ,

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    rule that when the issue is one of credibilit" ofwitnesses, appellate courts will !enerall" not disturbthe findin!s of the trial court, considerin! that thelatter is in a better position to decide the :uestion,havin! heard the witnesses themselves and observedtheir deportment and manner of testif"in! durin! thetrial, unless it has plainl" overlooed certain facts ofsubstance and value that, if consideredA mi!ht affectthe result of the case. 3? /or this case boils down to anappraisal of the credibilit" of the witnesses, and we

    cannot undertae the assessment with accurac" whenall we have before us are the cold, unspeain! recordsof the caseA otherwise we would mae the samemistaes that Mario committed. +nstead, we rel" onthe evaluation b" the trial =ud!e, who had theadvanta!e of directl" observin! witnessC deportmentand manner of testif"in!, as well as havin! certainpotent aids in understandin! and wei!hin! thetestimon" of witnesses, such as the emphasis, !estureand inflection of the voice of the witnesses while onthe stand. 3<

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    nd what was his ph"sical condition at that timeN

    e was health", sir.

    nd do "ou thin with that present conditionph"sical condition up to what a!e can he still wor toprovide finance for "our famil"N

    33. -2F-2#

    + thin the witness incompetent, our onor.

    /+*;- G+O-#

    *he competent our onor, she is the wife, our onor.

    ;OR3#

    t an" rate there is a rule for that provided b" the*upreme ;ourt. -,

    3he rule alluded to b" the trial =ud!e dates bacto &lcantara v. (urro, -3 where the ;ourt, usin! themerican 2(perience2(pectanc" 3able of Mortalit" orthe ctuarial or ;ombined 2(perience 3able ofMortalit", estimated the life span of an avera!e humanbein! to be up to E0 "ears old, and with that in mind,computed the estimated income to be earned b" thedeceased had he or she not been illed. Fut thecompensation for lost income is in the nature ofdama!es, -- and as such re:uires due proof of thedama!e suffered. -+ /or lost income due to death,there must be unbiased proof of the deceasedCsavera!e income. delfa !ave onl" a self8servin!, henceunreliable, statement of her husbandCs income. lso,the award for lost income refers to the net income ofthe deceased, that is, his total income less his avera!ee(penses. -> +n the instant case, no proof of thevictimCs e(penses was presented, thus there can be noreliable estimate of his lost income.