So how is judicial admission made?A judicial admission is made in the pleading filed by the parties, or in open court, or in any proceedings outside of court but related to a pending or anticipated suit. I’m particularly referring to admissions made in depositions, written interrogatories or request for admission.

While admissions made in these proceedings may not be actually made in court room, but these proceedings are parts of the court proceedings. So any admission made is still considered judicial admission.

However, while as a general rule a judicial admission may not be offered, because it takes the place of evidence, admissions made in depositions need to be formally offered. This is a kind of judicial admission where a formal offer is required pursuant to sections 4, 6, and 8 of rule 23. Under section 6 it says there that a deposition may be objected to by the adverse party as if the deposition constitutes a testimony of a witness in an open court. In other words, a deposition may be objected to on the same ground as when you object to a testimony of a witness given in open court.

Since the adverse party against whom the deposition is offered is given the right pursuant to due process, the right to object, it follows logically that depositions should be formally offered. Otherwise, the adverse party could not possibly object to something which is not offered. So by the very nature, a deposition needs to be formally offered so that the adverse party to whom it is offered is given the opportunity to object, as if it is a testimony given in an open court. Any other admission, no offer is required.

A Judicial admission is binding and conclusive upon the admitter, so that the admitter during the trial is not permitted to introduce evidence which is inconsistent with or contrary to the admission made earlier. This is illustrated in the case of Elayda vs CA.

Elayda involves an action for collection of sum of money filed by Elayda against the defendant. In her complaint, Elayda alleges that the defendant owe her 90,000.00 pesos. In the answer, the defendants admitted to have owed money from the plaintiff but interpose the defense that they already paid the obligation. Trial ensued and during the evidence in chief for the plaintiff, elayda was able to prove that indeed the defendants owed her 90K. During the turn of the defendant, the defendant also presented evidence in chief and in the process they were able to prove that they paid 90K and in fact, they overpaid. Meaning they were able to pay

more than the 90K alleged in the complaint. During the rebuttal, realizing the devastating impact of the evidence of the defendants showing that the defendants even over paid, Elayda contrary to the allegation in her complaint, tried to present a document prepared by her accountant showing that actually the money owed by the defendant is not just 90K but 186K. so that even if the defendant was able to prove that it paid 120K, the defendant still owe her this much. The question raised before the SC was WON the evidence presented by Elayda to show that the actual obligation is more than the 90K alleged in the complaint is admissible?

The SC ruled that objected or not, evidence which is contrary to or inconsistent with the admission made by Elayda in the complaint is inadmissible. In fact, the court is duty bound to ignore. In other words, the court is not supposed to consider evidence contrary to or inconsistent with an admission paid by a party. So this illustrates the conclusive nature of a judicial admission.

However, we may have problem on this principle if we take into account section 5 of rule 10, on the principle of amendment to conform to evidence. Section 5 rule 10 says that if an issue not otherwise raised in the pleading is tried by the parties, without the objection of the other party, the court may admit the evidence and the pleading is deemed amended to conform with the evidence. Section 5 further states that even it is objected, the court may in the interest of justice, allow the amendment.

So it is clear that under rule 10 section 5, that in case of conflict between the admission made in the pleading and the evidence presented in court, the court is suppose to consider evidence. So by virtue of this, evidence prevails over allegations in the pleadings.

Judging Elayda in light of section 5 rule 10, assuming if we are to decide the case under this rule, the evidence of elayda tending to prove that the amount of the obligation is 186K, would have been admissible. And the pleading of elayda alleging only 90K is deemed amended to conform with 186K. That’s the problem. So there seems to be a conflict between the elayda ruling where the Supreme Court categorically ruled that admission is conclusive and cannot be controverted, but on the other hand rule 10 section 5 states that amendment to conform with evidence may be allowed by the court, especially if this is not objected to by the other party.

But again in Elayda, the SC said that even if objected or not, the court is not supposed to consider it.

No exact answer as to which ruling is totally correct. You just need to be aware that there are two seemingly conflicting articles of the law.

A judicial admission as a GR dispenses with evidence. Exception is

1. Under rule 116 section 3 (criminal procedure) = when an accused pleads guilty to a capital offense, it is required that the court should conduct a searching inquiry to determine the voluntariness of the plea of guilty and full comprehension of his voluntary plea. And to require the prosecution to prove the guilt of the accused and the accused degree of culpability. Furthermore it says that the accused who already pleaded guilty may produce evidence in his behalf.

When an accused pleads guilty or not guilty to an offense, it is an admission, a judicial attack. But as an exception to the rule that judicial admission dispenses with the presentation of evidence, this is not the case if the offense is a capital offense.

Because of this requirement it is not unlikely that even if the accused pleads guilty to a capital offense, there is still likelihood that the accused is acquitted if prosecution fails to prove the guilt of the accused. This is a wholesome and noble purpose. This only over emphasizes our policy in our justice system which adopts the presumption of innocence and it is the state that has the burden to prove the guilt of the accused. By rule 116 section 3, the law simply does not want to take any chances. It is always required that the prosecution shall discharge the burden of proving the guilt of the accused notwithstanding the admission made by the accused that he is guilty to the offense charged. But note that it is only applicable to the capital offense.

So presumption of evidence is paramount and takes precedence over any other policy.

On the other hand extrajudicial admission, the rule is, for it to be considered by the court, it should be offered. Otherwise the court has no basis to consider it.

In the case of Torres vs. Ca. This involves a dispute over a piece of land. Parties claim to be co owners of the property. Plaintiff filed an action for the ejectment against the defendant. The defendant claims that she is one of the co-owners. So she has the right to take possession of the property and therefore the plaintiffs have no right to reject her from the premises.

The defendant filed for partition against the plaintiff. These cases were tried together. In the SC, the defendant in the ejectment case who was the plaintiff in the partition case argued that he is the co-owner of the properties because she is one of the heirs of the legitimated child. In support of her claim that she is a legitimated daughter and therefore a co owner of the property, she, Torres, pointed out to the court, the original complaint filed by the plaintiff and the ejectment suit; where the plaintiff admitted that plaintiffs and defendants are co owners of the property. So Miss Torres made use of the judicial admission that she is indeed one of the co owners, and therefore she cannot be ejected and therefore she has the right to remind for partition.

It turned out however that the complaint where the admission was made was subsequently amended. In the amended complaint, the plaintiffs now corrected themselves and alleged that the defendant has no rights whatsoever. In other words, the plaintiff denied that defendant is an heir or co-owner of the property. The question there was WON the admission made in the original complaint is admissible the SC said NO because when a pleading is superseded by an amended pleading, the superseded pleading is deemed abandoned and legally it is deemed to be non – existent. What governs now is the amended pleading. But under rule 10 section 8, any admission made in a superseded pleading, may be used as evidence against the admitter. But it must be formally offered because it now becomes extrajudicial admission. Because when it is deemed abandoned, it is technically stricken off the records of the case and therefore as if that admission was made outside the court proceeding in the same case.

While as a GR and ex judicial admission, if formally offered, may be admitted as evidence, there is an exception: Under rule 26 section 3: An admission made in answer to a request for admission may only be used in the same case where the request for admission is made. It may not be used for any other proceeding and for any other purpose. So an admission made in the course of a proceeding of a case, pursuant to a request for admission under rule 26, cannot be used as an extrajudicial admission in so far as other cases are concerned. Even if you formally offered that admission in the first case.

Because of the express prohibition under section 3, it is only limited for that case and for that case alone.

Under section 4 of rule 129, there are two exceptions to the conclusive character of a judicial admission. In these two instances, the admitter may controvert the judicial admission made.

1. If the admission was Made THROUGH palpable mistake – for this to apply, the admitter should prove to the court that the mistake is not only an ordinary mistake but a palpable mistake

2. WHEN It can be proved that no admission was actually made

a. This includes a situation where There was actually an admission made but the admission was taken out of context. When the admission is taken out of context, It is as if there was no confession made

This is illustrated in the case of Atillo. Atillo is the majority SH of Amancor Corporation. To finance its business, Amancor through Atillo obtained a load from metro bank. But before the loan could be paid, atillo entered into a contract with Lhuiller, where Lhuiller purchased some shares of stock from Amancaor. Thereby making lhuiller along with atillo as a majority SH of Amancor.

TO further suppose and finances of the business of the corporation, Atillo and lhuiller further entered into an MOA where Lhuller put in more fresh capital into the corporation. And along with this MOA they also entered into a supplementary MOA where it is stipulated among others that atillo would assume the obligation of Amancor which it owed to the bank. But this amount that atillo would advance will be set off against atillo’s obligation to amancor as it turned out that atillo has a pending obligation to the corporation. It turned out that the obligation of atillo is smaller than the amount that atillo assumed. SO net effect is that atillo has a pending collectible against the corporation. After the application of compensation, when amancor failed to pay its obligation to atillo, he filed a case against amancor but also included lhuiller; Praying that lhuiller should be solidarily liable with amancor.

In support of his theory that lhuiller undertook to personally pay the obligation of amancor, atillo made reference to the admission made by lhuiller in his answer, particularly paragraph 3.11 where lhuiller essentially alleged that in all his subject dealings, it was between atillo and lhuiller. Taking cue from this admission or allegation in the answer, Atillo argued that this is a judicial admission and so lhuiller can not

anymore contradict. But the SC saw it the other way. SC said that while it is true that the answer of lhuiller made an admission that lhuiller undertook to personally assume the obligation, a holistic reading of the answer, that that particular admission of personally liability only refers to the transaction between lhuiller and atillo concerning the purchase of corporation’s shares of stocks. But a scrutiny of the other provisions or paragraphs of the answer would inevitably show that in so far as the obligation of the loan that amancor obtained to the bank, lhuiller did not assume personally liability. In fact in his answer he expressly denied personal liability. So the SC said that while there is an admission of sort, this admission as invoked by atillo was taken out of context. It is not meant in the sense that the admission was intended. It pertains to another transaction and not the transaction in question.

SO In this instance, the supposed admitter was allowed to controvert the judicial admission because in truth and in fact there was no admission at all.

3. Ruling in the case of Gardner – in this case, the parties entered into a joint venture agreement. Gardners’ were the owner of 2 pieces of land and in their agreement; the santos will advance certain funds to the garnders. But by way of security to protect the interest of santos who agreed to advance some funds, they agreed that gardner would execute a deed of sale over their properties in favor of santos. However, unknown to gardnger, santos behind garners’ back, negotiated with a third party and sold the properties to a third party. There were five successive transfers. When the gardner learned of it they filed in court for nullity of said transaction. In the answer of Santos, he alleged that the transactions were all valid. And it was there agreement that if the joint venture agreement failed to materialize, the santos would reconvey the properties to the gardners and the latter will the santos for the amount that the santos advanced. In other words, in the answer of santos, he sustained the validity and the propriety or legality of the transaction

However during the trial, Gardner presented Santos as their hostile witness. In the course of the testimony of the Santos, for reasons known only to him, he now deviated from his allegation in his answer. He expressly admitted to the court that all the transactions are fictitious.

One of the issues raised before the SC was, which of the two prevails? The admission or allegation of Santos in the answer which served as a judicial admission and therefore cannot be contradicted, or the testimony of Santos in the open court? The other side would say that the testimony given in open court cannot overcome or contradict the effect of judicial admission because judicial admission is conclusive

But the SC rejected this argument. This is one case where the SC considered the testimony or evidence adduced in court more credible than the admission made in the pleading.

Why? The admission made by Santos in his answer is consistent with his interest. But the admission made in court is against his interest. So the SC said that this admission in court is more credible --- human experience. When someone says something against himself, he must be telling the truth. This is peculiar and thus added as an exception.

Mhealler’s question: would that mean sir that the interpretation of rule 10 section 5 on the amendment to the pleading, it should be adverse to be entered?

Sir: Santos is clear that the nature of the evidence presented in court consisting of the testimony of Santos is adverse to the interest of the client. But if you look at rule 10 it does not qualify any. Section 5 rule 10 simply says that there are instances where there is a variance between pleading and evidence (because allegations in the pleadings are not evidence, these are just ultimate facts or positions that need to be proved by evidence. Section 5 considers evidence superior than allegations. Because if there should be a variance, it is the allegation which should conform to the evidence and not the other way around. But elayda and the rule of judicial admission is the reverse. Any contradictory evidence should not be considered because it will defeat the very nature of judicial admission which is conclusive. That’s the problem there --- I cannot find any point of reconciliation. So again, depending on which side you are on. Just take note of these prevailing principles.

PRESUMPTION

The rule on presumption is another instance where evidence is dispensed with but not all together.

While in judicial admission and judicial notice, totally no evidence is required.

A presumption is an inference derived from an established and proven fact. Without the established fact, no presumption will arise.

While there is no need for evidence in so far as to prove the fact presumed, it is indispensible that evidence should be presented to prove the fact upon which the presumption may arise. Therefore a presumption cannot be based on another presumption.

How do you establish that basic fact? By evidence. This is illustrated in the case of Angeles vs. Maglaya. In this case, when someone died, he left an estate which is now the subject of a court litigation between the wife and the one who claimed to be the legitimate daughter of the deceased. When the case reached the SC, one of the critical issues was WON, the one who claimed to be the legitimate daughter was really the legitimate daughter of the deceased. This issue was denied by the wife.

How did the purported daughter pursue her case? She said that there is a presumption in law that one born during a marriage is legitimate. She said that it is not her burden to prove that she is legitimate thus it is the other party’s burden to prove that she is illegitimate because she enjoys the presumption of legitimacy. Unfortunately this lady misses the point by a mile.

SC said presumption should be based on an established fact. The presumption that one born during the existence of a valid marriage may arise only if the fact of the valid marriage is duly established. Without establishing this, there can be no presumption of legitimacy. Now in this case, she failed to prove that her mother was validly married to the decease. So failing in which, the presumption on legitimacy cannot possibly be applied

So, again the rules is, a presumption is based on an established fact and it cannot be based on another presumption. Because there is also another presumption that when a man and a woman, deporting themselves as husband and wives, there is a presumption that they are legally married. You cannot use that as basis to avail the presumption of legitimacy. For then, it would be a presumption based on another presumption.

There are two kinds of presumption

1. Conclusive – cannot be overturn by contrary evidence

a. Two kinds of conclusive presumption:i. Estoppels in pais – when a person

by his act, declaration or omission

intentionally led another to believe a fact as truth and because of that representation, that other person acted on that belief, that person making the act, declaration or representation cannot be permitted on any litigation that may arise out of the act, declaration or omission to falsify; (so if you represent something, you are not allowed to take it back); you cannot say one thing to support a claim and to say another thing to avoid liability

EXAMPLE: there is a piece of land, one of the inherit obligation of a land owner is to pay taxes. So the government assessed the property for taxation purposes. But when the collector knocks at your door, you refused to pay saying that you are not the owner. Five years after, it turns out that the government expropriated the property. The law on eminent domain says that the owner should be compensated. Now you come forward and ask for the money. That is not allowed.

II. THE presumption that a tenant cannot deny the better right of possession his or her landlord – so long as the landlord-tenant relationship exists.

This is illustrated in the case of Data lift Movers vs. Belgravia Realty Corporation and Sampaguita brokerage. The subject matter of the case is a piece of land was owned by the Philippine National Railways. PNR entered into a lease agreement with sampaguita brokerage, and in turn sampaguita entered into a special arrangement with her sister company, the Belgravia. This was for Belgravia to construct a warehouse. But instead of using the warehouse for itself, Belgravia entered into a sublease agreement with data lift movers. After years of transaction, the rental kept on increasing to the point that data lift mover complained that it cannot anymore pay the rental. Belgravia and Sampaguita now filed an action for ejectment against data lift for non payment of the rentals.

One of the defences interposed by data lift was that sampaguita and Belgravia has no legal personality and therefore have no cause of action to demand ejectment, they not being the owner of the property. But the SC applied the conclusive presumption that so long as the tenant-landlord relationship exists; you are not allowed to deny the title of the landlord or to deny that the landlord has a better right of possession.

2. Disputable presumptions --- a presumption which is sufficient to prove a fact unless overcome by a contradictory evidence

a. Presumption of innocenceb. Presumption that an unlawful act is done

with unlawful intent --- for example, X fondles the breast of a friend. Because of this presumption, it is presumed that he did it with unlawful intent. So that if the real purpose of the defendant is that he is merely joking, it is the burden of the defendant to prove it. If he cannot overcome this presumption he may be convicted of the offense

c. Presumption that everyone intends the ordinary consequence of his voluntary act – if you did something voluntarily, there is a presumption that you intended the natural and logical consequence to happen. So if you shot somebody at the chest, there is a presumption that the logical consequence of death is intended. If the intention were different then it is the burden of that person to prove otherwise.

d. Presumption that everyone takes ordinary care of his concerns --- related or consistent with the instinct of self preservation; this is illustrated in the case of BPI vs. Spouses Reyes. In this case, Reyes is the existing depositor of a bank. Enticed by the advertisement given by the bank of giving incentives to new opened accounts, Jesusa Reyes with her daughter went to the bank to open a new atm account. Her intention was to deposit an initial amount of 200,000. The 100K to be taken from her already existing account and the other 100K was through cash which she had in her possession. The transaction was facilitated. After the transaction, she was so surprised and devastated when she learned that the balance in her atm account is only 100K. So she complained and demanded for the return of the 100K which she alleged to be taken. The issue there was WON the amount deposited was really 200K or 100K.

It was established during the trial that the withdrawal slip prepared by the bank officer and signed by Jesusa, contained the amount of 200K. But this was subsequently changed

to 100K. The SC said that it is critical to determine what really the intention of Jesusa was when she transacted with the bank during the time that she opened a new atm account. Jesusa claims that her intention was to deposit 200K, half taken from her old account and the other half in cash. The SC said that it is established that the deposit slip contained 200K, so if it really was the intention of Jesusa to withdraw only 100K from her existing account, then its spurious why the deposit slip bears the figure of 200K (although this was changed). But the SC said, she signed it in the first place. Before the error was discovered, she signed it without protest. Although Jesusa tried to explain that she did not notice the figure, she merely signed it without examining the interest in the deposit; the SC said there lies the problem. It is not believable to claim that she merely signed it without reading especially so that the portion of the signature is just beside the portion where the amount is written. Every person is presumed to take care of ordinary goods. Any person will not sign a withdrawal slip, without looking at the interest especially if the interests are filled in by another person. That may be true that Jesusa did not notice it, but the law on presumption works against her.

e. Presumption that Evidence wilfully suppressed will be adverse if produced – for this presumption to apply, the suppression must be wilful. And when the law say it must be lawful, the suppression must not be in accordance with ones exercise of a right.

This is illustrated in the case of BlueCross vs. Olivares. Olivares obtained a health care insurance from BlueCross. When she was eventually hospitalized and paid for hospitalization bills, blue cross refused to pay and reimburse her with the bills she incurred on the ground that the cause of the illness could have an excepted event or risk. The trouble in this is that BlueCross merely stipulated. They failed to prove that indeed the cause of the illness is an excepted peril. But blue cross inferred this

fact from the failure or refusal of Olivares to allow the disclosure of her medical records. BlueCross, taking cue from this presumption argues that the medical records would have shown that the cause of illness is an excepted risk. For why should she refuse to disclose it?

But the SC saw it the other way. SC said that when Olivares instructed her physician not to disclose her medical record, she was merely exercising her right which is guaranteed by law --- confidential communication between a patient and a doctor.

In the same manner that if accused refuses to testify in his behalf, his silence should not be taken against him. Because by taking silence, he only exercises his constitutional right.

This presumption does not also apply if the evidence supposedly suppressed is at the disposal of both parties. So if the other party has equal opportunity to present that supposedly suppressed evidence that party cannot avail of such presumption. Because all he had to do was to present the evidence by himself.

f. Presumption that one in possession of a stolen item is assumed to be the taker and at the same time the doer of the whole thing.

If one is caught, in possession of a stolen item in the course a robbery and due to that the officer died, the One in found in possession of the stolen item is presumed to be the robber and at the same time killer (doer of the whole thing).

Note: understand this presumption in light of the next equally disputable presumption

g. One in possession of a movable property in good faith is presumed to be the owner and therefore his possession should be

respected. And a party who claims ownership is not justified in divesting the possessor of the property. The remedy of the claimant should be to go to court.

Which one prevails: the presumption that one is possession is the thief or the presumption that the one in the possession of a movable property is the owner? A logical question from this issue is, is it legal for someone to divest the possessor of the property on the ground that this property is a stolen item?

Like when you are driving a vehicle that you purchased from second hand car dealers. The police man pulled you over and tells you that this is a hot car. Is it legal for a policeman to cease the vehicle from you? The possessor bought the vehicle in good faith and for value or consideration from the dealer, complete with all the documents and paper.

The practice is the police will seize it, otherwise if you refuse, you will find yourself charged with car napping.

But I have reservation in this practice. In the case of Gomez vs. Edu, a buyer of a second hand vehicle was flagged down by government agent. The vehicle was seized from her on the ground that it was a hot car, stolen from a military officer. The buyer, possessor of the allegedly stolen vehicle, went to court and filed an action for replevin (recovery of personal property).

SC said, the buyer form whom the vehicle was seized by the police was presumed to be the owner. And therefore her possession should have been respected. In fact the SC went on to say that the filing of a criminal case in court arising from the illegal taking of the property does not warrant the seizure of the vehicle from the present possessor. In fact, she is not required to go to court to file an action for replevin because the presumption is her favor. It is the burden of the party claiming for the property to go to court and not the other way around.

SO any party who claims interest contrary to the present possessor should go to court. That party cannot forcibly take that property from the present

possessor because the presumption is the possessor is the owner.

But this is not what the police are doing. You may have the law in your favour but most of the time victims will just give it up. Otherwise, you will be encountering another problem. Victims rather let go of the property than face a criminal case for car napping or anti fencing.

How does the right to remain silent impact on the presumption that one in possession of a stolen item is presumed to be thief?Obviously there is a conflict now. The presumption that you are the thief runs counter to the presumption of innocence and your right to remain silent.

If you do not offer any plausible explanation, will the presumption that you are the thief or doer of the whole thing apply? What if you say nothing at all because you want to exercise your right to remain silent, what is the effect?

The answer is, the presumption that you are the thief prevails. Why? If you are the possessor of a stolen item or a product of a wrong doing, and you are informed that the property is stolen from the true owner, you cannot just simply take your silence. If indeed you obtained the property in good faith and by legal means, all you have to do is offer your explanation. If you can prove that you bought it legally, in good faith and for valuable consideration, your ownership may be protected.

There are rules in the civil code that protect the rights of innocent buyers. Like if you buy something in a MERCHANT STORE. Even if the property is proven to be stolen, if you bought it from a merchant store, your right is protected. The true owner cannot recover the property; neither can the buyer be compelled to pay the purchase price. The remedy of the true owner is to go after the person who is responsible for the illegal taking.

Otherwise, if buyers from merchant stores are not protected, this would be disastrous to commerce. No one would be comfortable and safe enough to buy and deal and enter into commercial transactions if buyers are not protected.

Take note also that under the theory of irevindicability, the true owner may recover the property. If you are a buyer of a property illegally taken from the owner and you bought it in an auction sale, it if is unlawfully taken, you may be compelled to surrender the property but you will be paid the acquisition cost.

PRESUMPTION INVOLVING DEATH

There are three presumptions involving death

1. Presumption of death

Rule 131 section 3, paragraph w --- there is a presumption that one who is missing for a period of 7 years and whose existence, whether he is alive or not, cannot be determined or is unknown, there is a presumption that the person is already dead FOR ANY PURPOSES OTHER THAN SUCCESSION.

So 7 years missing, he can be considered death, but settlement of the estate cannot be done. For purposes of succession you have to wait for 10 years.

However, if the missing person disappeared when he was already MORE THAN 75, the only requirement is 5 years for all purposes, whether succession or any other purpose.

The requirement of 7 years or 10 years and 5 years apply only under ordinary circumstances, where simply, a person went missing.

But if circumstances surrounding the disappearance of a person involves danger of death (like when a (1) person on board a vessel disappeared and the vessel is lost or (2) when a person on board aircraft disappeared because the aircraft cannot be found, or a (3) member of the armed forces was involved in military operations and hostilities disappeared, or a (4) person disappears under any circumstance involving danger), the rule is disappearance for 4 years is enough for purposes including succession. Except, for purposes of remarriage.

For purposes of remarriage, if there is danger of death, the only requirement is 2 YEARS.

Take note however, that the presumption of death applies only when there is no preponderance of evidence that the person actually died. Take note that to prove death, it is not always required that the dead body of the person should be discovered. Death may be established even beyond

reasonable doubt, even in the absence of the dead body. It is a case to case basis.

If there is preponderance of evidence that the person under the circumstances really died, you don’t apply the presumption thus you don’t have to wait for the period prescribed for by law. That person should be considered as dead on that very occasion that the incident took place.

Take note of the cases Eastern shipping lines vs. Lucero and Victoria Shipping lines vs. workmen’s compensation commission.

The SC said in this cases, you don’t wait for the period, you consider the person missing dead as of the time the incident, giving rise to the death, took place.

The preponderance of evidence in Lucero consisted the three radio messages sent by Lucero to the employer describing the nature and the extent of the disaster. The SC was convinced that there is preponderance of evidence that Lucero sank with the vessel.

Similarly in the case of Victoria, the crew of the vessel jumped off the vessel when the vessel caught fire of unknown origin. Since then the crew had not been heard of. The father now went to the employer to collect the death benefits. But the employer refused arguing that the father has to wait for the period required before the missing crew can be declared dead.

The SC disagreed, saying that under the circumstances and evidence on record, there is preponderance of evidence that the crew died when he jumped off the vessel and never showed up again.

2. Presumption of survivorship (paragraph jj)

There are instances where it is important to determine who as between two or more persons died first. There may be some questions where the exact point of death is relevant.

The rule provides when two person perish in the same calamity such as wreck, battle, and it cannot be shown as to whom between them perished first, the survivorship should be determined by the probability, arising from the strength and age of the sexes, subject to the following rules:

a. If both are below 15, the older is presumed to have survived. This rule presupposes that the two died.

The older is presumed to have died later, the younger died earlier

b. If both are above 60, the younger is presumed to have survived, the older died ahead

c. If one is more than 15 and the other is above 60, the younger is presumed to have survived, the older died ahead

d. If both are of the ages between 15 and 60, (16 up to 59) and of different sex, the male is presumed to have survived, the female died ahead. But if the same sex, the older is presumed to have survived.

e. If one is below 15 or above 60 and the other is between the ages of 15 and 60, the one between is presumed to have survived.

Take note that this rule on survivorship applies only for purposes other than SUCCESSION. If the issue is succession, forget about the rule on probability of survivorship arising from strength, age or sex.

The rule that governs for purposes of succession is the rule on presumption of simultaneity of death (paragraph kk)

3. Presumption of simultaneity of death

For purposes of succession, when two or more person who are called to succeed each other died, the one who alleges the death of one prior to the other, has the burden of proof. So the party who alleges that one died ahead of the other has the burden. Otherwise, they should be presumed to have died simultaneously (together), and therefore, as between them, there can be no succession of rights.

Illustration: Suppose Tibon and Corollo are married. Tibon for his undying love obtained a multimillion life insurance policy naming corolla as his sole beneficiary. They have no child. But Tibon has a child by Yen. Corollo has a mother who is still alive.

Suppose during their honeymoon, the aircraft which they boarded exploded in midair. No circumstances for which it can be inferred of whom, between them, died first.

Question now: what happens to the life insurance policy obtained by Mr. Tibon over his life naming Corollo as the beneficiary?

The rule in insurance is: for the beneficiary to be entitled to the proceeds of the life insurance policy taken by the insured, the beneficiary should survive the insured. Because if the beneficiary dies ahead of the insured, the insurance is voided. That’s the General rule in insurance.

So first question: do you apply the presumption on survivorship, or do you apply the presumption on simultaneity of death?

Because if you apply simultaneous death, it would appear that corolla cannot get anything because it is presumed that they have died together. In this case, there is no transmission of rights.

But is this case a question of succession as to apply “kk”. This is not! This is a question on insurance. And the rule in insurance says that if the beneficiary dies ahead of the insured, the insurance is voided and the beneficiary gets nothing. So you apply the rule on survivorship.

So what does the rule in “jj” say? Let’s say that Tibon is 61 and Corollo is 40. The rule says that if one is between the ages of 15 and 60 and one is above 60, the younger is presumed to have survived and the older is presumed to have died ahead. In this case corolla can get the insurance because tibon died ahead.

But since corolla also died, who gets the proceeds of the insurance? The mother of corolla.

This time the rights of the mother of corolla to the insurance proceeds arise from succession. But from the insurance contract to corolla, it’s not succession; rather it is a contract of insurance.

Suppose Tibon and Corollo have a joint bank account of 1M and the aircraft exploded in mid air. The presumption is they died simultaneously. So what happens to the bank deposit by 1M?This is now governed by the rule on succession. The rule on succession says that the property, if joint and conjugal, 50-50 belongs to the spouses. And because they are already dead, there corresponding shares should be inherited by their respective heirs. So the 500K goes to the illegitimate son of tibon, and the other 500K goes to the mother of corolla.

OTHER QUESTIONS:

Joy: is pawnshop considered a merchant store also?

Sir: you’re referring to buying a property which is already consolidated to the pawnshop. In this case since the pawnshop is the owner, this is now a merchant store. Unless there are other special laws that govern them.

Rj: regarding the presumption that if you do an unlawful act, you are presumed to have done it with unlawful intent, is this not contrary to the presumption of innocence?

Sir: that’s why! It’s a given that there are really presumptions that contradict each other. When this two presumption collide, always go for innocence. You always favor the accused.

Do you remember this rule on malversation? There is a rule on presumption, when there is failure to account, it is malversation. This has been challenged to run counter to the presumption of innocence. The prevailing doctrine is that it is a valid presumption because it is just easy for you to account. It is the failure to account that raises the presumption of malversation or misappropriation. So if you did not malverse anything, you just account.

It’s just like the presumption of the thief, you just have to offer, just offer an explanation of how you got the property.

Presumption on regularity of official functions likewise runs counter to the presumption of innocence. In a search, the police will invoke regularity in the performance of official function, and the accused will invoke the presumption of innocence. IN case of doubt it should be resolved in favour of the accused.