Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5691 December 27, 1910

S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ, plaintiffs-appellees,

vs.
WILLIAM VAN BUSKIRK, defendant-appellant.

Lionel D. Hargis for appellant.

Sanz and Oppisso for appellee.

MORELAND, J.:

The facts found by the trial court are undisputed by either party in this case. They are

That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was
riding in a carromata on Calle Real, district of Ermita, city of Manila, P.I., along the left-
hand side of the street as she was going, when a delivery wagon belonging to the
defendant used for the purpose of transportation of fodder by the defendant, and to
which was attached a pair of horses, came along the street in the opposite direction to
that the in which said plaintiff was proceeding, and that thereupon the driver of the said
plaintiff's carromata, observing that the delivery wagon of the defendant was coming at
great speed, crowded close to the sidewalk on the left-hand side of the street and
stopped, in order to give defendant's delivery wagon an opportunity to pass by, but that
instead of passing by the defendant's wagon and horses ran into the carromata occupied
by said plaintiff with her child and overturned it, severely wounding said plaintiff by
making a serious cut upon her head, and also injuring the carromata itself and the
harness upon the horse which was drawing it.

xxx xxx xxx

These facts are not dispute, but the defendant presented evidence to the effect that the
cochero, who was driving his delivery wagon at the time the accident occurred, was a
good servant and was considered a safe and reliable cochero; that the delivery wagon
had sent to deliver some forage at Paco Livery Stable on Calle Herran, and that for the
purpose of delivery thereof the cochero driving the team as defendant's employee tied
the driving lines of the horses to the front end of the delivery wagon and then went back
inside of the wagon for the purpose of unloading the forage to be delivered; that while
unloading the forage and in the act of carrying some of it out, another vehicle drove by,
the driver of which cracked a whip and made some other noises, which frightened the
horses attached to the delivery wagon and they ran away, and the driver was thrown
from the inside of the wagon out through the rear upon the ground and was unable to
stop the horses; that the horses then ran up and on which street they came into collision
with the carromata in which the plaintiff, Carmen Ong de Martinez, was riding.

The defendant himself was not with the vehicle on the day in question.

Upon these facts the court below found the defendant guilty of negligence and gave judgment
against him for P442.50, with interest thereon at the rate of 6 per cent per annum from the 17th
day of October, 1908, and for the costs of the action. The case is before us on an appeal from
that judgment.

There is no general law of negligence in the Philippine Islands except that embodied in the Civil
Code. The provisions of that code pertinent to this case are
 Art. 1902. A person who by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done.

Art. 1903. The obligation imposed by preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.

The father, and on his death or incapacity the mother, is liable for the damages caused
by the minors who live with them.

Guardians are liable for the damages caused by minors or incapacitated persons who
are under their authority and live with them.

Owners of directors of an establishment or enterprise are equally liable for the damages
caused by the employees in the service of the branches in which the latter may be
employed or on account of their duties.

The State is liable in this sense when it acts through a special agent, but not when the
damages should have been caused by the official to whom properly it pertained to do the
act performed, in which case the provisions of the preceding article shall be applicable.

Finally, masters or directors of arts and trades are liable for the damages caused by their
pupils or apprentices while they are under their custody.

The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damage.

Passing the question whether or not an employer who has furnished a gentle and tractable team
and a trusty and capable driver is, under the last paragraph of the above provisions, liable for
the negligence of such driver in handling the team, we are of the opinion that the judgment must
be reversed upon the ground that the evidence does not disclose that the cochero was
negligent.

While the law relating to negligence in this jurisdiction may possibly be some what different from
that in Anglo-Saxon countries, a question we do not now discuss, the rules under which the fact
of negligence is determined are, nevertheless, generally the same. That is to say, while the law
designating the person responsible for a negligent act may not be the same here as in many
jurisdictions, the law determining what is a negligent act is the same here, generally speaking,
as elsewhere. (Supreme court of Spain, 4 December, 1903; 16 May, 1893; 27 June, 1894; 9
April, 1896; 14 March, 1901; 2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905;
13 April, 1903; 7 March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.)

It appears from the undisputed evidence that the horses which caused the damage were gentle
and tractable; that the cochero was experienced and capable; that he had driven one of the
horses several years and the other five or six months; that he had been in the habit, during all
that time, of leaving them in the condition in which they were left on the day of the accident; that
they had never run away up to that time and there had been, therefore, no accident due to such
practice; that to leave the horses and assist in unloading the merchandise in the manner
described on the day of the accident was the custom of all cochero who delivered merchandise
of the character of that which was being delivered by the cochero of the defendant on the day in
question, which custom was sanctioned by their employers.

In our judgment, the cochero of the defendant was not negligent in leaving the horses in the
manner described by the evidence in this case, either under Spanish or American
jurisprudence. (Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson, 58 Vt., 590;
Drake vs. Mount, 33 N. J. L., 442; Hoboken Land and Improvement Co. vs. Lally, 48 N. J. L.,
604; Wasmer vs. D. L. & W. R. R. Co., 80 N. Y., 212.) lawphi1.net

In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said:
 He was performing his duty while removing the goods into the house, and, if every
person who suffered a cart to remain in the street while he took goods out of it was
obliged to employ another to look after the horses, it would be impossible for the
business of the metropolis to go on.

In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:

The degree of care required of the plaintiff, or those in charged of his horse, at the time
of the injury, is that which would be exercised by a person of ordinary care and prudence
under like circumstances. It can not be said that the fact of leaving the horse unhitched
is in itself negligence. Whether it is negligence to leave a horse unhitched must be
depend upon the disposition of the horse; whether he was under the observation and
control of some person all the time, and many other circumstances; and is a question to
be determined by the jury from the facts of each case.

In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part of the
trial court to refuse to charge that "it is not negligence for the driver of a quite, gentle horse to
leave him unhitched and otherwise unattended on the side of a public highways while the driver
is upon the sidewalk loading goods on the wagon." The said court closed its opinion with these
words:

There was evidence which could have fully justified the jury in finding that the horse was
quite and gentle, and that the driver was upon the sidewalk loading goods on the wagon,
at time of the alleged injury, and that the horse had been used for years in that way
without accident. The refusal of the trial court to charge as requested left the jury free to
find was verdict against the defendant, although the jury was convinced that these facts
were proven.lawphil.net

In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:

That evidence that a servant, whom traders employed to deliver goods, upon stopping
with his horse and wagon to deliver a parcel at a house from fifty to a hundred rods from
a railroad crossing, left the horse unfastened for four or five minutes while he was in the
house, knowing that it was not afraid of cars, and having used it for three or four months
without ever hitching it or knowing it to start, is not conclusive, as a matter of law, of a
want of due care on his part.

The duty, a violation of which is claimed to be negligence in the respect in question, is to

exercise reasonable care and prudence. Where reasonable care is employed in doing an act
not itself illegal or inherently likely to produce damage to others, there will be no liability,
although damage in fact ensues. (Milwaukee Ry. Co. vs. Arms, 91 U. S., 489; Parrott vs. Wells,
15 Wall., 524; Brown vs. Kendall, 6 Cushing, 292; Jackson Architectural Iron Works vs.Hurlbut,
158 N. Y., 34 Westerfield vs. Levis, 43 La. An., 63; Niosi vs. Empire Steam Laundry, 117 Cal.,
257.)

The act of defendant's driver in leaving the horses in the manner proved was not unreasonable
or imprudent. Acts the performance of which has not proved destructive or injurious and which
have, therefore, been acquiesced in by society for so long a time that they have ripened into
custom, can not be held to be themselves unreasonable or imprudent. Indeed the very reason
why they have been permitted by society is that they beneficial rather than prejudicial.itc-
alf Accidents sometimes happen and injuries result from the most ordinary acts of life. But such
are not their natural or customary results. To hold that, because such an act once resulted in
accident or injury, the actor is necessarily negligent, is to go far. The fact that the doctrine of res
ipsa loquitur is sometimes successfully invoked in such a case, does not in any sense militate
against the reasoning presented. That maxim at most only creates a prima facie case, and that
only in the absence of proof of the circumstances under which the act complained of was
performed. It is something invoked in favor of the plaintiff before defendant's case showing the
conditions and circumstances under which the injury occurred, the creative reason for the
doctrine of res ipsa loquitur disappears. This is demonstrated by the case of Inland and
Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the court said (p. 554):
 . . . The whole effect of the instruction in question, as applied to the case before the jury,
was that if the steamboat, on a calm day and in smooth water, was thrown with such
force against a wharf properly built, as to tear up some of the planks of the flooring, this
would be prima facie evidence of negligence on the part of the defendant's agent in
making the landing, unless upon the whole evidence in the case this prima
facie evidence was rebutted. As such damage to a wharf is not ordinarily done by a
steamboat under control of her officers and carefully managed by them, evidence that
such damage was done in this case was prima facie, and, if unexplained, sufficient
evidence of negligence on their part, and the jury might properly be so instructed.

There was presented in this case, and by the plaintiffs themselves, not only the fact of the
runway and the accident resulting therefrom, but also the conditions under which the runaway
occurred. Those conditions showing of themselves that the defendant's cochero was not
negligent in the management of the horse, the prima facie case in plaintiffs' favor, if any, was
destroyed as soon as made.

It is a matter of common knowledge as well as proof that it is the universal practice of merchants
to deliver merchandise of the kind of that being delivered at the time of the injury, in the manner
in which that was then being delivered; and that it is the universal practice to leave the horses in
the manner in which they were left at the time of the accident. This is the custom in all cities. It
has not been productive of accidents or injuries. The public, finding itself unprejudiced by such
practice, has acquiesced for years without objection. Ought the public now, through the courts,
without prior objection or notice, to be permitted to reverse the practice of decades and thereby
make culpable and guilty one who had every reason and assurance to believe that he was
acting under the sanction of the strongest of all civil forces, the custom of a people? We think
not.

The judgement is reversed, without special finding as to costs. So ordered.

Arellano, C. J., Mapa, Johnson, Carson and Trent, JJ., concur.

Separate Opinions

TORRES, J., dissenting:

I am of the opinion that the judgment should be affirmed.

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-55960 November 24, 1988

YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN YEN, petitioners,
vs.
AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE, RODOLFO SY, and
HONORABLE COURT OF APPEALS, respondents.

Montesa, Albon, & Associates for petitioners.

De Lapa, Salonga, Fulgencio & De Lunas for respondents.

CORTES, J.:

Sy Kiat, a Chinese national. died on January 17, 1977 in Caloocan City where he was then
residing, leaving behind real and personal properties here in the Philippines worth P300,000.00
more or less.

Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed a petition
for the grant of letters of administration docketed as Special Proceedings Case No. C-699 of the
then Court of First Instance of Rizal Branch XXXIII, Caloocan City. In said petition they alleged
among others that (a) they are the children of the deceased with Asuncion Gillego; (b) to their
knowledge Sy Mat died intestate; (c) they do not recognize Sy Kiat's marriage to Yao Kee nor
the filiation of her children to him; and, (d) they nominate Aida Sy-Gonzales for appointment as
administratrix of the intestate estate of the deceased [Record on Appeal, pp. 4-9; Rollo, p. 107.]

The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun Chen who
alleged that: (a) Yao Kee is the lawful wife of Sy Kiat whom he married on January 19, 1931 in
China; (b) the other oppositors are the legitimate children of the deceased with Yao Kee; and,
(c) Sze Sook Wah is the eldest among them and is competent, willing and desirous to become
the administratrix of the estate of Sy Kiat [Record on Appeal, pp. 12-13; Rollo, p. 107.] After
hearing, the probate court, finding among others that:

(1) Sy Kiat was legally married to Yao Kee [CFI decision, pp. 12-27; Rollo, pp.
49-64;]

(2) Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are the legitimate children of
Yao Kee with Sy Mat [CFI decision, pp. 28-31; Rollo. pp. 65-68;] and,

(3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy are the
acknowledged illegitimate offsprings of Sy Kiat with Asuncion Gillego [CFI
decision, pp. 27-28; Rollo, pp. 64- 65.]

held if favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as the
administratrix of the intestate estate of the deceased [CFI decision, pp. 68-69; Rollo, pp. 105-
106.]

On appeal the Court of Appeals rendered a decision modifying that of the probate court, the
dispositive portion of which reads:

IN VIEW OF THE FOREGOING, the decision of the lower Court is hereby

MODIFIED and SET ASIDE and a new judgment rendered as follows:
 (1) Declaring petitioners Aida Sy-Gonzales, Manuel Sy, Teresita Sy- Bernabe
and Rodolfo Sy acknowledged natural children of the deceased Sy Kiat with
Asuncion Gillego, an unmarried woman with whom he lived as husband and wife
without benefit of marriage for many years:

(2) Declaring oppositors Sze Sook Wah, Sze Lai Chu and Sze Chun Yen, the
acknowledged natural children of the deceased Sy Kiat with his Chinese wife
Yao Kee, also known as Yui Yip, since the legality of the alleged marriage of Sy
Mat to Yao Kee in China had not been proven to be valid to the laws of the
Chinese People's Republic of China (sic);

(3) Declaring the deed of sale executed by Sy Kiat on December 7, 1976 in favor
of Tomas Sy (Exhibit "G-1", English translation of Exhibit "G") of the Avenue
Tractor and Diesel Parts Supply to be valid and accordingly, said property should
be excluded from the estate of the deceased Sy Kiat; and

(4) Affirming the appointment by the lower court of Sze Sook Wah as judicial
administratrix of the estate of the deceased. [CA decision, pp. 11-12; Rollo, pp.
36- 37.]

From said decision both parties moved for partial reconsideration, which was however denied
by respondent court. They thus interposed their respective appeals to this Court.

Private respondents filed a petition with this Court docketed as G.R. No. 56045 entitled "Aida
Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy v. Court of Appeals, Yao Kee,
Sze Sook Wah, Sze Lai Cho and Sy Chun Yen" questioning paragraphs (3) and (4) of the
dispositive portion of the Court of Appeals' decision. The Supreme Court however resolved to
deny the petition and the motion for reconsideration. Thus on March 8, 1982 entry of judgment
was made in G.R. No. 56045. **

The instant petition, on the other hand, questions paragraphs (1) and (2) of the dispositive
portion of the decision of the Court of Appeals. This petition was initially denied by the Supreme
Court on June 22, 1981. Upon motion of the petitioners the Court in a resolution dated
September 16, 1981 reconsidered the denial and decided to give due course to this petition.
Herein petitioners assign the following as errors:

I. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING

THE MARRIAGE OF SY KIAT TO YAO YEE AS NOT HAVE (sic) BEEN
PROVEN VALID IN ACCORDANCE WITH LAWS OF THE PEOPLE'S
REPUBLIC OF CHINA.

II. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING

AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE AND RODOLFO
SY AS NATURAL CHILDREN OF SY KIAT WITH ASUNCION GILLEGO.
[Petition, p. 2; Rollo, p. 6.]

I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with Chinese law and
custom was conclusively proven. To buttress this argument they rely on the following testimonial
and documentary evidence.

First, the testimony of Yao Kee summarized by the trial court as follows:

Yao Kee testified that she was married to Sy Kiat on January 19, 1931 in
Fookien, China; that she does not have a marriage certificate because the
practice during that time was for elders to agree upon the betrothal of their
children, and in her case, her elder brother was the one who contracted or
entered into [an] agreement with the parents of her husband; that the agreement
was that she and Sy Mat would be married, the wedding date was set, and
invitations were sent out; that the said agreement was complied with; that she
has five children with Sy Kiat, but two of them died; that those who are alive are
Sze Sook Wah, Sze Lai Cho, and Sze Chun Yen, the eldest being Sze Sook
 Wah who is already 38 years old; that Sze Sook Wah was born on November 7,
1939; that she and her husband, Sy Mat, have been living in FooKien, China
before he went to the Philippines on several occasions; that the practice during
the time of her marriage was a written document [is exchanged] just between the
parents of the bride and the parents of the groom, or any elder for that matter;
that in China, the custom is that there is a go- between, a sort of marriage broker
who is known to both parties who would talk to the parents of the bride-to-be; that
if the parents of the bride-to-be agree to have the groom-to-be their son in-law,
then they agree on a date as an engagement day; that on engagement day, the
parents of the groom would bring some pieces of jewelry to the parents of the
bride-to-be, and then one month after that, a date would be set for the wedding,
which in her case, the wedding date to Sy Kiat was set on January 19, 1931; that
during the wedding the bridegroom brings with him a couch (sic) where the bride
would ride and on that same day, the parents of the bride would give the dowry
for her daughter and then the document would be signed by the parties but there
is no solemnizing officer as is known in the Philippines; that during the wedding
day, the document is signed only by the parents of the bridegroom as well as by
the parents of the bride; that the parties themselves do not sign the document;
that the bride would then be placed in a carriage where she would be brought to
the town of the bridegroom and before departure the bride would be covered with
a sort of a veil; that upon reaching the town of the bridegroom, the bridegroom
takes away the veil; that during her wedding to Sy Kiat (according to said
Chinese custom), there were many persons present; that after Sy Kiat opened
the door of the carriage, two old ladies helped her go down the carriage and
brought her inside the house of Sy Mat; that during her wedding, Sy Chick, the
eldest brother of Sy Kiat, signed the document with her mother; that as to the
whereabouts of that document, she and Sy Mat were married for 46 years
already and the document was left in China and she doubt if that document can
still be found now; that it was left in the possession of Sy Kiat's family; that right
now, she does not know the whereabouts of that document because of the lapse
of many years and because they left it in a certain place and it was already eaten
by the termites; that after her wedding with Sy Kiat, they lived immediately
together as husband and wife, and from then on, they lived together; that Sy Kiat
went to the Philippines sometime in March or April in the same year they were
married; that she went to the Philippines in 1970, and then came back to China;
that again she went back to the Philippines and lived with Sy Mat as husband
and wife; that she begot her children with Sy Kiat during the several trips by Sy
Kiat made back to China. [CFI decision, pp. 13-15; Rollo, pp. 50-52.]

Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he was
among the many people who attended the wedding of his sister with Sy Kiat and that no
marriage certificate is issued by the Chinese government, a document signed by the parents or
elders of the parties being sufficient [CFI decision, pp. 15-16; Rollo, pp.
52-53.]

Third, the statements made by Asuncion Gillego when she testified before the trial court to the
effect that (a) Sy Mat was married to Yao Kee according to Chinese custom; and, (b) Sy Kiat's
admission to her that he has a Chinese wife whom he married according to Chinese custom
[CFI decision, p. 17; Rollo, p. 54.]

Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3, 1972
where the following entries are found: "Marital statusMarried"; "If married give name of
spousesYao Kee"; "Address-China; "Date of marriage1931"; and "Place of marriage
China" [Exhibit "SS-1".]

Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila on January 12, 1968 where the
following entries are likewise found: "Civil statusMarried"; and, 'If married, state name and
address of spouseYao Kee Chingkang, China" [Exhibit "4".]

And lastly, the certification issued in Manila on October 28, 1977 by the Embassy of the
People's Republic of China to the effect that "according to the information available at the
Embassy Mr. Sy Kiat a Chinese national and Mrs. Yao Kee alias Yui Yip also Chinese were
married on January 19, 1931 in Fukien, the People's Republic of China" [Exhibit "5".]

These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat.
However, the same do not suffice to establish the validity of said marriage in accordance with
Chinese law or custom.

Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed
(practiced) as a social rule, legally binding and obligatory" [In the Matter of the Petition for
Authority to Continue Use of the Firm Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes",
July 30, 1979, SCRA 3, 12 citing JBL Reyes & RC Puno, Outline of Phil. Civil Law, Fourth Ed.,
Vol. 1, p. 7.] The law requires that "a custom must be proved as a fact, according to the rules of
evidence" [Article 12, Civil Code.] On this score the Court had occasion to state that "a local
custom as a source of right can not be considered by a court of justice unless such custom is
properly established by competent evidence like any other fact" [Patriarca v. Orate, 7 Phil. 390,
395 (1907).] The same evidence, if not one of a higher degree, should be required of a foreign
custom.

The law on foreign marriages is provided by Article 71 of the Civil Code which states that:

Art. 71. All marriages performed outside the Philippines in accordance with the
laws in force in the country where they were performed and valid there as such,
shall also be valid in this country, except bigamous, Polygamous, or incestuous
marriages, as determined by Philippine law. (Emphasis supplied.) ***

Construing this provision of law the Court has held that to establish a valid foreign marriage two
things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2)
the alleged foreign marriage by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43,
49 (1922).]

In proving a foreign law the procedure is provided in the Rules of Court. With respect to
an unwritten foreign law, Rule 130 section 45 states that:

SEC. 45. Unwritten law.The oral testimony of witnesses, skilled therein, is

admissible as evidence of the unwritten law of a foreign country, as are also
printed and published books of reports of decisions of the courts of the foreign
country, if proved to be commonly admitted in such courts.

Proof of a written foreign law, on the other hand, is provided for under Rule 132 section 25,
thus:

SEC. 25. Proof of public or official record.An official record or an entry therein,
when admissible for any purpose, may be evidenced by an official publication
thereof or by a copy attested by the officer having the legal custody of the record,
or by his deputy, and accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has the custody. If the office in which the record
is kept is in a foreign country, the certificate may be made by a secretary of
embassy or legation, consul general, consul, vice consul, or consular agent or by
any officer in the foreign service of the Philippines stationed in the foreign country
in which the record is kept and authenticated by the seal of his office.

The Court has interpreted section 25 to include competent evidence like the testimony of a
witness to prove the existence of a written foreign law [Collector of Internal Revenue v. Fisher
110 Phil. 686, 700-701 (1961) citing Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471
(1935).]

In the case at bar petitioners did not present any competent evidence relative to the law and
custom of China on marriage. The testimonies of Yao and Gan Ching cannot be considered as
proof of China's law or custom on marriage not only because they are
self-serving evidence, but more importantly, there is no showing that they are competent to
testify on the subject matter. For failure to prove the foreign law or custom, and consequently,
the validity of the marriage in accordance with said law or custom, the marriage between Yao
Kee and Sy Kiat cannot be recognized in this jurisdiction.

Petitioners contend that contrary to the Court of Appeals' ruling they are not duty bound to prove
the Chinese law on marriage as judicial notice thereof had been taken by this Court in the case
of Sy Joc Lieng v. Sy Quia [16 Phil. 137 (1910).]

This contention is erroneous. Well-established in this jurisdiction is the principle that Philippine
courts cannot take judicial notice of foreign laws. They must be alleged and proved as any other
fact [Yam Ka Lim v. Collector of Customs, 30 Phil. 46, 48 (1915); Fluemer v. Hix, 54 Phil. 610
(1930).]

Moreover a reading of said case would show that the party alleging the foreign marriage
presented a witness, one Li Ung Bieng, to prove that matrimonial letters mutually exchanged by
the contracting parties constitute the essential requisite for a marriage to be considered duly
solemnized in China. Based on his testimony, which as found by the Court is uniformly
corroborated by authors on the subject of Chinese marriage, what was left to be decided was
the issue of whether or not the fact of marriage in accordance with Chinese law was duly proven
[Sy Joc Lieng v. Sy Quia, supra., at p. 160.]

Further, even assuming for the sake of argument that the Court has indeed taken judicial notice
of the law of China on marriage in the aforecited case, petitioners however have not shown any
proof that the Chinese law or custom obtaining at the time the Sy Joc Lieng marriage was
celebrated in 1847 was still the law when the alleged marriage of Sy Kiat to Yao Kee took place
in 1931 or eighty-four (84) years later.

Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being
applicable to the instant case. They aver that the judicial pronouncement in the Memoracion
case, that the testimony of one of the contracting parties is competent evidence to show the fact
of marriage, holds true in this case.

The Memoracion case however is not applicable to the case at bar as said case did not concern
a foreign marriage and the issue posed was whether or not the oral testimony of a spouse is
competent evidence to prove the fact of marriage in a complaint for adultery.

Accordingly, in the absence of proof of the Chinese law on marriage, it should be presumed that
it is the same as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31, 1965, 13 SCRA
552, 555.] Since Yao Kee admitted in her testimony that there was no solemnizing officer as is
known here in the Philippines [See Article 56, Civil Code] when her alleged marriage to Sy Mat
was celebrated [CFI decision, p. 14; Rollo, p. 51], it therefore follows that her marriage to Sy
Kiat, even if true, cannot be recognized in this jurisdiction [Wong Woo Yiu v. Vivo, supra., pp.
555-556.]

II. The second issue raised by petitioners concerns the status of private respondents.

Respondent court found the following evidence of petitioners' filiation:

(1) Sy Kiat's Master Card of Registered Alien where the following are entered:
"Children if any: give number of childrenFour"; and, "NameAll living in China"
[Exhibit "SS-1";]

(2) the testimony of their mother Yao Kee who stated that she had five children
with Sy Kiat, only three of whom are alive namely, Sze Sook Wah, Sze Lai Chu
and Sze Chin Yan [TSN, December 12, 1977, pp. 9-11;] and,

(3) an affidavit executed on March 22,1961 by Sy Kiat for presentation to the

Local Civil Registrar of Manila to support Sze Sook Wah's application for a
marriage license, wherein Sy Kiat expressly stated that she is his daughter
[Exhibit "3".]
Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has three
daughters with his Chinese wife, two of whomSook Wah and Sze Kai Choshe knows, and
one adopted son [TSN, December 6,1977, pp. 87-88.]

However, as petitioners failed to establish the marriage of Yao Kee with Sy Mat according to the
laws of China, they cannot be accorded the status of legitimate children but only that of
acknowledged natural children. Petitioners are natural children, it appearing that at the time of
their conception Yao Kee and Sy Kiat were not disqualified by any impediment to marry one
another [See Art. 269, Civil Code.] And they are acknowledged children of the deceased
because of Sy Kiat's recognition of Sze Sook Wah [Exhibit "3"] and its extension to Sze Lai Cho
and Sy Chun Yen who are her sisters of the full blood [See Art. 271, Civil Code.]

Private respondents on the other hand are also the deceased's acknowledged natural children
with Asuncion Gillego, a Filipina with whom he lived for twenty-five (25) years without the benefit
of marriage. They have in their favor their father's acknowledgment, evidenced by a
compromise agreement entered into by and between their parents and approved by the Court of
First Instance on February 12, 1974 wherein Sy Kiat not only acknowleged them as his children
by Asuncion Gillego but likewise made provisions for their support and future inheritance, thus:

xxx xxx xxx

2. The parties also acknowledge that they are common-law husband and wife
and that out of such relationship, which they have likewise decided to definitely
and finally terminate effective immediately, they begot five children, namely: Aida
Sy, born on May 30, 1950; Manuel Sy, born on July 1, 1953; Teresita Sy, born on
January 28, 1955; Ricardo Sy now deceased, born on December 14, 1956; and
Rodolfo Sy, born on May 7, 1958.

3. With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY ... ,
the parties mutually agree and covenant that

(a) The stocks and merchandize and the furniture and equipments
..., shall be divided into two equal shares between, and distributed
to, Sy Kiat who shall own
one-half of the total and the other half to Asuncion Gillego who
shall transfer the same to their children, namely, Aida Sy, Manuel
Sy, Teresita Sy, and Rodolfo Sy.

(b) the business name and premises ... shall be retained by Sy

Kiat. However, it shall be his obligation to give to the aforenamed
children an amount of One Thousand Pesos ( Pl,000.00 ) monthly
out of the rental of the two doors of the same building now
occupied by Everett Construction.

xxx xxx xxx

(5) With respect to the acquisition, during the existence of the

common-law husband-and-wife relationship between the parties, of the real
estates and properties registered and/or appearing in the name of Asuncion
Gillego ... , the parties mutually agree and covenant that the said real estates and
properties shall be transferred in equal shares to their children, namely, Aida Sy,
Manuel Sy, Teresita Sy, and Rodolfo Sy, but to be administered by Asuncion
Gillego during her lifetime ... [Exhibit "D".] (Emphasis supplied.)

xxx xxx xxx

This compromise agreement constitutes a statement before a court of record by which a child
may be voluntarily acknowledged [See Art. 278, Civil Code.]
Petitioners further argue that the questions on the validity of Sy Mat's marriage to Yao Kee and
the paternity and filiation of the parties should have been ventilated in the Juvenile and
Domestic Relations Court.

Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled "An Act
Revising Rep. Act No. 3278, otherwise known as the Charter of the City of Caloocan', with
regard to the Juvenile and Domestic Relations Court:

SEC. 91-A. Creation and Jurisdiction of the Court.

xxx xxx xxx

The provisions of the Judiciary Act to the contrary notwithstanding, the court shall
have exclusive original jurisdiction to hear and decide the following cases:

xxx xxx xxx

(2) Cases involving custody, guardianship, adoption, revocation of adoption,

paternity and acknowledgment;

(3) Annulment of marriages, relief from marital obligations, legal separation of

spouses, and actions for support;

(4) Proceedings brought under the provisions of title six and title seven, chapters
one to three of the civil code;

xxx xxx xxx

and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA 1324]
reiterated in Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA 307.]

With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary
Reorganization Act of 1980, the Juvenile and Domestic Relations Courts were abolished. Their
functions and jurisdiction are now vested with the Regional Trial Courts [See Section 19 (7),
B.P. Blg. 129 and Divinagracia v. Belosillo, G.R. No. L-47407, August 12, 1986, 143 SCRA 356,
360] hence it is no longer necessary to pass upon the issue of jurisdiction raised by petitioners.

Moreover, even without the exactment of Batas Pambansa Blg. 129 we find in Rep. Act No.
5502 sec. 91-A last paragraph that:

xxx xxx xxx

If any question involving any of the above matters should arise as an incident in
any case pending in the ordinary court, said incident shall be determined in the
main case.

xxx xxx xxx

As held in the case of Divinagracia v. Rovira [G.R. No. L42615. August 10, 1976, 72 SCRA
307]:

xxx xxx xxx

It is true that under the aforequoted section 1 of Republic Act No.

4834 **** a case involving paternity and acknowledgment may be ventilated as
an incident in the intestate or testate proceeding (See Baluyot vs. Ines Luciano,
L-42215, July 13, 1976). But that legal provision presupposes that such an
administration proceeding is pending or existing and has not been terminated. [at
pp. 313-314.] (Emphasis supplied.)
 xxx xxx xxx

The reason for ths rule is not only "to obviate the rendition of conflicting rulings on the same
issue by the Court of First Instance and the Juvenile and Domestic Relations Court" [Vda. de
Baluyut v. Luciano, G.R. No. L-42215, July 13, 1976, 72 SCRA 52, 63] but more importantly to
prevent multiplicity of suits. Accordingly, this Court finds no reversible error committed by
respondent court.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

July 30, 1979

PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME "SYCIP, SALAZAR,
FELICIANO, HERNANDEZ & CASTILLO." LUCIANO E. SALAZAR, FLORENTINO P.
FELICIANO, BENILDO G. HERNANDEZ. GREGORIO R. CASTILLO. ALBERTO P. SAN
JUAN, JUAN C. REYES. JR., ANDRES G. GATMAITAN, JUSTINO H. CACANINDIN, NOEL
A. LAMAN, ETHELWOLDO E. FERNANDEZ, ANGELITO C. IMPERIO, EDUARDO R.
CENIZA, TRISTAN A. CATINDIG, ANCHETA K. TAN, and ALICE V. PESIGAN,petitioners.

IN THE MATTER OF THE PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM
NAME "OZAETA, ROMULO, DE LEON, MABANTA & REYES." RICARDO J. ROMULO,
BENJAMIN M. DE LEON, ROMAN MABANTA, JR., JOSE MA, REYES, JESUS S. J. SAYOC,
EDUARDO DE LOS ANGELES, and JOSE F. BUENAVENTURA, petitioners.

RESOLUTION

MELENCIO-HERRERA, J.:+.wph!1

Two separate Petitions were filed before this Court 1) by the surviving partners of Atty.
Alexander Sycip, who died on May 5, 1975, and 2) by the surviving partners of Atty. Herminio
Ozaeta, who died on February 14, 1976, praying that they be allowed to continue using, in the
names of their firms, the names of partners who had passed away. In the Court's Resolution of
September 2, 1976, both Petitions were ordered consolidated.

Petitioners base their petitions on the following arguments:

1. Under the law, a partnership is not prohibited from continuing its business under a firm name
which includes the name of a deceased partner; in fact, Article 1840 of the Civil Code explicitly
sanctions the practice when it provides in the last paragraph that: t.hqw

The use by the person or partnership continuing the business of the partnership
name, or the name of a deceased partner as part thereof, shall not of itself make
the individual property of the deceased partner liable for any debts contracted by
such person or partnership. 1

2. In regulating other professions, such as accountancy and engineering, the legislature has
authorized the adoption of firm names without any restriction as to the use, in such firm name,
of the name of a deceased partner; 2 the legislative authorization given to those engaged in the
practice of accountancy a profession requiring the same degree of trust and confidence in
respect of clients as that implicit in the relationship of attorney and client to acquire and use a
trade name, strongly indicates that there is no fundamental policy that is offended by the
continued use by a firm of professionals of a firm name which includes the name of a deceased
partner, at least where such firm name has acquired the characteristics of a "trade name." 3

3. The Canons of Professional Ethics are not transgressed by the continued use of the name of
a deceased partner in the firm name of a law partnership because Canon 33 of the Canons of
Professional Ethics adopted by the American Bar Association declares that: t.hqw

... The continued use of the name of a deceased or former partner when
permissible by local custom, is not unethical but care should be taken that no
imposition or deception is practiced through this use. ... 4

4. There is no possibility of imposition or deception because the deaths of their respective

deceased partners were well-publicized in all newspapers of general circulation for several
days; the stationeries now being used by them carry new letterheads indicating the years when
their respective deceased partners were connected with the firm; petitioners will notify all
leading national and international law directories of the fact of their respective deceased
partners' deaths. 5

5. No local custom prohibits the continued use of a deceased partner's name in a professional
firm's name; 6 there is no custom or usage in the Philippines, or at least in the Greater Manila
Area, which recognizes that the name of a law firm necessarily Identifies the individual members
of the firm. 7

6. The continued use of a deceased partner's name in the firm name of law partnerships has
been consistently allowed by U.S. Courts and is an accepted practice in the legal profession of
most countries in the world. 8

The question involved in these Petitions first came under consideration by this Court in 1953
when a law firm in Cebu (the Deen case) continued its practice of including in its firm name that
of a deceased partner, C.D. Johnston. The matter was resolved with this Court advising the firm
to desist from including in their firm designation the name of C. D. Johnston, who has long been
dead."

The same issue was raised before this Court in 1958 as an incident in G. R. No. L-11964,
entitled Register of Deeds of Manila vs. China Banking Corporation. The law firm of Perkins &
Ponce Enrile moved to intervene asamicus curiae. Before acting thereon, the Court, in a
Resolution of April 15, 1957, stated that it "would like to be informed why the name of Perkins is
still being used although Atty. E. A. Perkins is already dead." In a Manifestation dated May 21,
1957, the law firm of Perkins and Ponce Enrile, raising substantially the same arguments as
those now being raised by petitioners, prayed that the continued use of the firm name "Perkins
& Ponce Enrile" be held proper.

On June 16, 1958, this Court resolved: t.hqw

After carefully considering the reasons given by Attorneys Alfonso Ponce Enrile
and Associates for their continued use of the name of the deceased E. G.
Perkins, the Court found no reason to depart from the policy it adopted in June
1953 when it required Attorneys Alfred P. Deen and Eddy A. Deen of Cebu City
to desist from including in their firm designation, the name of C. D. Johnston,
deceased. The Court believes that, in view of the personal and confidential
nature of the relations between attorney and client, and the high standards
demanded in the canons of professional ethics, no practice should be allowed
which even in a remote degree could give rise to the possibility of deception.
Said attorneys are accordingly advised to drop the name "PERKINS" from their
firm name.

Petitioners herein now seek a re-examination of the policy thus far enunciated by the Court.

The Court finds no sufficient reason to depart from the rulings thus laid down.

A. Inasmuch as "Sycip, Salazar, Feliciano, Hernandez and Castillo" and "Ozaeta, Romulo, De
Leon, Mabanta and Reyes" are partnerships, the use in their partnership names of the names of
deceased partners will run counter to Article 1815 of the Civil Code which provides: t.hqw

Art. 1815. Every partnership shall operate under a firm name, which may or may
not include the name of one or more of the partners.

Those who, not being members of the partnership, include their names in the firm
name, shall be subject to the liability, of a partner.

It is clearly tacit in the above provision that names in a firm name of a partnership must either be
those of living partners and. in the case of non-partners, should be living persons who can be
subjected to liability. In fact, Article 1825 of the Civil Code prohibits a third person from including
his name in the firm name under pain of assuming the liability of a partner. The heirs of a
deceased partner in a law firm cannot be held liable as the old members to the creditors of a
firm particularly where they are non-lawyers. Thus, Canon 34 of the Canons of Professional
Ethics "prohibits an agreement for the payment to the widow and heirs of a deceased lawyer of
a percentage, either gross or net, of the fees received from the future business of the deceased
lawyer's clients, both because the recipients of such division are not lawyers and because such
payments will not represent service or responsibility on the part of the recipient. " Accordingly,
neither the widow nor the heirs can be held liable for transactions entered into after the death of
their lawyer-predecessor. There being no benefits accruing, there ran be no corresponding
liability.

Prescinding the law, there could be practical objections to allowing the use by law firms of the
names of deceased partners. The public relations value of the use of an old firm name can tend
to create undue advantages and disadvantages in the practice of the profession. An able lawyer
without connections will have to make a name for himself starting from scratch. Another able
lawyer, who can join an old firm, can initially ride on that old firm's reputation established by
deceased partners.

B. In regards to the last paragraph of Article 1840 of the Civil Code cited by
petitioners, supra, the first factor to consider is that it is within Chapter 3 of Title IX of the Code
entitled "Dissolution and Winding Up." The Article primarily deals with the exemption from
liability in cases of a dissolved partnership, of the individual property of the deceased partner for
debts contracted by the person or partnership which continues the business using the
partnership name or the name of the deceased partner as part thereof. What the law
contemplates therein is a hold-over situation preparatory to formal reorganization.

Secondly, Article 1840 treats more of a commercial partnership with a good will to protect rather
than of aprofessional partnership, with no saleable good will but whose reputation depends on
the personal qualifications of its individual members. Thus, it has been held that a saleable
goodwill can exist only in a commercial partnership and cannot arise in a professional
partnership consisting of lawyers. 9t.hqw

As a general rule, upon the dissolution of a commercial partnership the

succeeding partners or parties have the right to carry on the business under the
old name, in the absence of a stipulation forbidding it, (s)ince the name of a
commercial partnership is a partnership asset inseparable from the good will of
the firm. ... (60 Am Jur 2d, s 204, p. 115) (Emphasis supplied)

On the other hand, t.hqw

... a professional partnership the reputation of which depends or; the individual
skill of the members, such as partnerships of attorneys or physicians, has no
good win to be distributed as a firm asset on its dissolution, however intrinsically
valuable such skill and reputation may be, especially where there is no provision
in the partnership agreement relating to good will as an asset. ... (ibid, s 203, p.
115) (Emphasis supplied)

C. A partnership for the practice of law cannot be likened to partnerships formed by other
professionals or for business. For one thing, the law on accountancy specifically allows the use
of a trade name in connection with the practice of accountancy. 10 t.hqw

A partnership for the practice of law is not a legal entity. It is a mere relationship
or association for a particular purpose. ... It is not a partnership formed for the
purpose of carrying on trade or business or of holding property." 11 Thus, it has
been stated that "the use of a nom de plume, assumed or trade name in law
practice is improper. 12

The usual reason given for different standards of conduct being applicable to the
practice of law from those pertaining to business is that the law is a profession.

Dean Pound, in his recently published contribution to the Survey of the Legal
Profession, (The Lawyer from Antiquity to Modern Times, p. 5) defines a
profession as "a group of men pursuing a learned art as a common calling in the
 spirit of public service, no less a public service because it may incidentally be
a means of livelihood."

xxx xxx xxx

Primary characteristics which distinguish the legal profession from business are:

1. A duty of public service, of which the emolument is a byproduct, and in which

one may attain the highest eminence without making much money.

2. A relation as an "officer of court" to the administration of justice involving

thorough sincerity, integrity, and reliability.

3. A relation to clients in the highest degree fiduciary.

4. A relation to colleagues at the bar characterized by candor, fairness, and

unwillingness to resort to current business methods of advertising and
encroachment on their practice, or dealing directly with their clients. 13

"The right to practice law is not a natural or constitutional right but is in the nature of a privilege
or franchise. 14 It is limited to persons of good moral character with special qualifications duly
ascertained and certified. 15 The right does not only presuppose in its possessor integrity, legal
standing and attainment, but also the exercise of a special privilege, highly personal and
partaking of the nature of a public trust." 16

D. Petitioners cited Canon 33 of the Canons of Professional Ethics of the American Bar
Association" in support of their petitions.

It is true that Canon 33 does not consider as unethical the continued use of the name of a
deceased or former partner in the firm name of a law partnership when such a practice
is permissible by local custom but the Canon warns that care should be taken that no imposition
or deception is practiced through this use.

It must be conceded that in the Philippines, no local custom permits or allows the continued use
of a deceased or former partner's name in the firm names of law partnerships. Firm names,
under our custom, Identify the more active and/or more senior members or partners of the law
firm. A glimpse at the history of the firms of petitioners and of other law firms in this country
would show how their firm names have evolved and changed from time to time as the
composition of the partnership changed. t.hqw

The continued use of a firm name after the death of one or more of the partners
designated by it is proper only where sustained by local custom and not where by
custom this purports to Identify the active members. ...

There would seem to be a question, under the working of the Canon, as to the
propriety of adding the name of a new partner and at the same time retaining that
of a deceased partner who was never a partner with the new one. (H.S. Drinker,
op. cit., supra, at pp. 207208) (Emphasis supplied).

The possibility of deception upon the public, real or consequential, where the name of a
deceased partner continues to be used cannot be ruled out. A person in search of legal counsel
might be guided by the familiar ring of a distinguished name appearing in a firm title.

E. Petitioners argue that U.S. Courts have consistently allowed the continued use of a deceased
partner's name in the firm name of law partnerships. But that is so because it is sanctioned by
custom.

In the case of Mendelsohn v. Equitable Life Assurance Society (33 N.Y.S. 2d 733) which
petitioners Salazar, et al. quoted in their memorandum, the New York Supreme Court sustained
the use of the firm name Alexander & Green even if none of the present ten partners of the firm
bears either name because the practice was sanctioned by custom and did not offend any
statutory provision or legislative policy and was adopted by agreement of the parties. The Court
stated therein: t.hqw

The practice sought to be proscribed has the sanction of custom and offends no
statutory provision or legislative policy. Canon 33 of the Canons of Professional
Ethics of both the American Bar Association and the New York State Bar
Association provides in part as follows: "The continued use of the name of a
deceased or former partner, when permissible by local custom is not unethical,
but care should be taken that no imposition or deception is practiced through this
use." There is no question as to local custom. Many firms in the city use the
names of deceased members with the approval of other attorneys, bar
associations and the courts. The Appellate Division of the First Department has
considered the matter and reached The conclusion that such practice should not
be prohibited. (Emphasis supplied)

xxx xxx xxx

Neither the Partnership Law nor the Penal Law prohibits the practice in question.
The use of the firm name herein is also sustainable by reason of agreement
between the partners. 18

Not so in this jurisdiction where there is no local custom that sanctions the practice. Custom has
been defined as a rule of conduct formed by repetition of acts, uniformly observed (practiced) as
a social rule, legally binding and obligatory. 19 Courts take no judicial notice of custom. A custom
must be proved as a fact, according to the rules of evidence. 20 A local custom as a source of
right cannot be considered by a court of justice unless such custom is properly established by
competent evidence like any other fact. 21 We find such proof of the existence of a local custom,
and of the elements requisite to constitute the same, wanting herein. Merely because something
is done as a matter of practice does not mean that Courts can rely on the same for purposes of
adjudication as a juridical custom. Juridical custom must be differentiated from social custom.
The former can supplement statutory law or be applied in the absence of such statute. Not so
with the latter.

Moreover, judicial decisions applying or interpreting the laws form part of the legal
system. 22 When the Supreme Court in the Deen and Perkins cases issued its Resolutions
directing lawyers to desist from including the names of deceased partners in their firm
designation, it laid down a legal rule against which no custom or practice to the contrary, even if
proven, can prevail. This is not to speak of our civil law which clearly ordains that a partnership
is dissolved by the death of any partner. 23 Custom which are contrary to law, public order or
public policy shall not be countenanced. 24

The practice of law is intimately and peculiarly related to the administration of justice and should
not be considered like an ordinary "money-making trade." t.hqw

... It is of the essence of a profession that it is practiced in a spirit of public

service. A trade ... aims primarily at personal gain; a profession at the exercise of
powers beneficial to mankind. If, as in the era of wide free opportunity, we think
of free competitive self assertion as the highest good, lawyer and grocer and
farmer may seem to be freely competing with their fellows in their calling in order
each to acquire as much of the world's good as he may within the allowed him by
law. But the member of a profession does not regard himself as in competition
with his professional brethren. He is not bartering his services as is the artisan
nor exchanging the products of his skill and learning as the farmer sells wheat or
corn. There should be no such thing as a lawyers' or physicians' strike. The best
service of the professional man is often rendered for no equivalent or for a trifling
equivalent and it is his pride to do what he does in a way worthy of his profession
even if done with no expectation of reward, This spirit of public service in which
the profession of law is and ought to be exercised is a prerequisite of sound
administration of justice according to law. The other two elements of a
profession, namely, organization and pursuit of a learned art have their
justification in that they secure and maintain that spirit. 25
In fine, petitioners' desire to preserve the Identity of their firms in the eyes of the public must
bow to legal and ethical impediment.

ACCORDINGLY, the petitions filed herein are denied and petitioners advised to drop the names
"SYCIP" and "OZAETA" from their respective firm names. Those names may, however, be
included in the listing of individuals who have been partners in their firms indicating the years
during which they served as such.

SO ORDERED.

Teehankee, Concepcion, Jr., Santos, Fernandez, Guerrero and De Castro, JJ., concur

Fernando, C.J. and Abad Santos, J., took no part.

Separate Opinions

FERNANDO, C.J., concurring:

The petitions are denied, as there are only four votes for granting them, seven of the Justices
being of the contrary view, as explained in the plurality opinion of Justice Ameurfina Melencio-
Herrera. It is out of delicadeza that the undersigned did not participate in the disposition of these
petitions, as the law office of Sycip, Salazar, Feliciano, Hernandez and Castillo started with the
partnership of Quisumbing, Sycip, and Quisumbing, the senior partner, the late Ramon
Quisumbing, being the father-in-law of the undersigned, and the most junior partner then,
Norberto J. Quisumbing, being his brother- in-law. For the record, the undersigned wishes to
invite the attention of all concerned, and not only of petitioners, to the last sentence of the
opinion of Justice Ameurfina Melencio-Herrera: 'Those names [Sycip and Ozaeta] may,
however, be included in the listing of individuals wtes

AQUINO, J., dissenting:

I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez &
Castillo, in their petition of June 10, 1975, prayed for authority to continue the use of that firm
name, notwithstanding the death of Attorney Alexander Sycip on May 5, 1975 (May he rest in
peace). He was the founder of the firm which was originally known as the Sycip Law Office.

On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De Leon,
Mabanta & Reyes, in their petition of August 13, 1976, prayed that they be allowed to continue
using the said firm name notwithstanding the death of two partners, former Justice Roman
Ozaeta and his son, Herminio, on May 1, 1972 and February 14, 1976, respectively.

They alleged that the said law firm was a continuation of the Ozaeta Law Office which was
established in 1957 by Justice Ozaeta and his son and that, as to the said law firm, the name
Ozaeta has acquired an institutional and secondary connotation.

Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of a
deceased partner as part of the partnership name, is cited to justify the petitions. Also invoked is
the canon that the continued use by a law firm of the name of a deceased partner, "when
permissible by local custom, is not unethical" as long as "no imposition or deception is practised
through this use" (Canon 33 of the Canons of Legal Ethics).

I am of the opinion that the petition may be granted with the condition that it be indicated in the
letterheads of the two firms (as the case may be) that Alexander Sycip, former Justice Ozaeta
and Herminio Ozaeta are dead or the period when they served as partners should be stated
therein.
Obviously, the purpose of the two firms in continuing the use of the names of their deceased
founders is to retain the clients who had customarily sought the legal services of Attorneys
Sycip and Ozaeta and to benefit from the goodwill attached to the names of those respected
and esteemed law practitioners. That is a legitimate motivation.

The retention of their names is not illegal per se. That practice was followed before the war by
the law firm of James Ross. Notwithstanding the death of Judge Ross the founder of the law
firm of Ross, Lawrence, Selph and Carrascoso, his name was retained in the firm name with an
indication of the year when he died. No one complained that the retention of the name of Judge
Ross in the firm name was illegal or unethical.

# Separate Opinions

FERNANDO, C.J., concurring:

The petitions are denied, as there are only four votes for granting them, seven of the Justices
being of the contrary view, as explained in the plurality opinion of Justice Ameurfina Melencio-
Herrera. It is out of delicadeza that the undersigned did not participate in the disposition of these
petitions, as the law office of Sycip, Salazar, Feliciano, Hernandez and Castillo started with the
partnership of Quisumbing, Sycip, and Quisumbing, the senior partner, the late Ramon
Quisumbing, being the father-in-law of the undersigned, and the most junior partner then,
Norberto J. Quisumbing, being his brother- in-law. For the record, the undersigned wishes to
invite the attention of all concerned, and not only of petitioners, to the last sentence of the
opinion of Justice Ameurfina Melencio-Herrera: 'Those names [Sycip and Ozaeta] may,
however, be included in the listing of individuals wtes

AQUINO, J., dissenting:

I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez &
Castillo, in their petition of June 10, 1975, prayed for authority to continue the use of that firm
name, notwithstanding the death of Attorney Alexander Sycip on May 5, 1975 (May he rest in
peace). He was the founder of the firm which was originally known as the Sycip Law Office.

On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De Leon,
Mabanta & Reyes, in their petition of August 13, 1976, prayed that they be allowed to continue
using the said firm name notwithstanding the death of two partners, former Justice Roman
Ozaeta and his son, Herminio, on May 1, 1972 and February 14, 1976, respectively.

They alleged that the said law firm was a continuation of the Ozaeta Law Office which was
established in 1957 by Justice Ozaeta and his son and that, as to the said law firm, the name
Ozaeta has acquired an institutional and secondary connotation.

Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of a
deceased partner as part of the partnership name, is cited to justify the petitions. Also invoked is
the canon that the continued use by a law firm of the name of a deceased partner, "when
permissible by local custom, is not unethical" as long as "no imposition or deception is practised
through this use" (Canon 33 of the Canons of Legal Ethics).

I am of the opinion that the petition may be granted with the condition that it be indicated in the
letterheads of the two firms (as the case may be) that Alexander Sycip, former Justice Ozaeta
and Herminio Ozaeta are dead or the period when they served as partners should be stated
therein.

Obviously, the purpose of the two firms in continuing the use of the names of their deceased
founders is to retain the clients who had customarily sought the legal services of Attorneys
Sycip and Ozaeta and to benefit from the goodwill attached to the names of those respected
and esteemed law practitioners. That is a legitimate motivation.

The retention of their names is not illegal per se. That practice was followed before the war by
the law firm of James Ross. Notwithstanding the death of Judge Ross the founder of the law
firm of Ross, Lawrence, Selph and Carrascoso, his name was retained in the firm name with an
indication of the year when he died. No one complained that the retention of the name of Judge
Ross in the firm name was illegal or unethical.