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FIRST DIVISION

[G.R. No. 48226. December 14, 1942.]


ANA L. ANG, petitioner, vs. TORIBIO TEODORO, respondent.
Cirilo Lim for petitioner.
Marcial P. Lichauco and Manuel M. Mejia for respondent.
1. TRADE-MARKS AND TRADE-NAMES; ACT NO. 666. Respondent has continuously
used "Ang Tibay," both as a trade-mark and as a trade- name, in the manufacture and sale of
slippers, shoes, and indoor baseballs since 1910. He formally registered it as a trade-mark on
September 29, 1915, and as a trade-name on January 3, 1933. Petitioner registered the same
trade-mark "Ang Tibay" for pants and shirts on April 11, 1932, and established a factory for the
manufacture of said articles in the year 1937. Held: That petitioner's registration of the trade-
mark "Ang Tibay" should be cancelled, and that she should be perpetually enjoined from using
said trade-mark on goods manufactured and sold by her.
2. ID; ID.; TERM "ANG TIBAY," NOT BEING GEOGRAPHIC OR DESCRIPTIVE, IS
CAPABLE OF EXCLUSIVE APPROPRIATION AS A TRADE-MARK. An inquiry into the
etymology and meaning of the Tagalog words "Ang Tibay," made in the decision, shows that the
phrase is never used adjectively to define or describe an object. It is, therefore, not a descriptive
term within the meaning of the Trade-mark Law but rather a fanciful or coined phrase which may
properly and legally be appropriated as a trade-mark or trade-name. Hence, it was originally
capable of exclusive appropriation as a trade-mark by the respondent.
3. ID.; ID.; ID.; FUNCTION OF A TRADE-MARK; DOCTRINE OF "SECONDARY
MEANING." The function of a trade-mark is to point distinctively, either by its own meaning or
by association, to the origin or ownership of the wares to which it is applied. "Ang Tibay," as
used by the respondent to designate his wares, had exactly performed that function for twenty-
two years before the petitioner adopted it as a trade-mark in her own business. "Ang Tibay"
shoes and slippers are, by association, known throughout the Philippines as products of the
"Ang Tibay" factory owned and operated by the respondent. Even if "Ang Tibay," therefore,
were not capable of exclusive appropriation as a trade-mark, the application of the doctrine of
secondary meaning could nevertheless be fully sustained because, in any event, by
respondent's long and exclusive use of said phrase with reference to his products and his
business, it has acquired a proprietary connotation. This doctrine is to the effect that a word or
phrase originally incapable of exclusive appropriation with reference to an article on the market,
because geographically or otherwise descriptive, might nevertheless have been used so long
and so exclusively by one producer with reference to his article that, in that trade and to that
branch of the purchasing public, the word or phrase has come to mean that the article was his
product.
4. ID.; ID.; ID.; ID.; TEST OF WHETHER NONCOMPETING GOODS ARE OR ARE NOT
OF THE SAME CLASS. In the present stage of development of the law on trade-marks,
unfair competition, and unfair trading, the test employed by the courts to determine whether
noncompeting goods are or are not of the same class is confusion as to the origin of the goods
of the second user. Although two noncompeting articles may be classified under two different
classes by the Patent Office because they are deemed not to possess the same descriptive
properties, they would nevertheless be held by the courts to belong to the same class if the
simultaneous use on them of identical or closely similar trade- marks would be likely to cause
confusion as to the origin, or personal source, of the second user's goods. They would be
considered as not falling under the same class only if they are so dissimilar or so foreign to each
other as to make it unlikely that the purchaser would think the first user made the second user's
goods. Such construction of the law is induced by cogent reasons of equity and fair dealing
discussed in the decision.
5. ID.; ID.; ID.; ID.; ID. Tested by the foregoing rule, and in the light of other
considerations set out in greater detail in the decision, Held: That pants and shirts are goods
similar to shoes and slippers within the meaning of sections 3, 7, 11, 13, and 20 of the Trade-
mark Law (Act No. 666).
D E C I S I O N
OZAETA, J p:
Petitioner has appealed to this Court by certiorari to reverse the judgment of the Court of
Appeals reversing that of the Court of First Instance of Manila and directing the Director of
Commerce to cancel the registration of the trade-mark "Ang Tibay" in favor of said petitioner,
and perpetually enjoining the latter from using said trade-mark on goods manufactured and sold
by her.
Respondent Toribio Teodoro, at first in partnership with Juan Katindig and later as sole
proprietor, has continuously used "Ang Tibay," both as a trade-mark and as a trade-name, in the
manufacture and sale of slippers, shoes, and indoor baseballs since 1910. He formally
registered it as a trade-mark on September 29, 1915, and as a trade-name on January 3, 1933.
The growth of his business is a thrilling epic of Filipino industry and business capacity. Starting
in an obscure shop in 1910 with a modest capital of P210 but with tireless industry and unlimited
perseverance, Toribio Teodoro, then an unknown young man making slippers with his own
hands but now a prominent business magnate and manufacturer with a large factory operated
with modern machinery by a great number of employees, has steadily grown with his business
to which he has dedicated the best years of his life and which he has expanded to such
proportions that his gross sales from 1918 to 1938 aggregated P8,787,025.65. His sales in 1937
amounted to P1,299,343.10 and in 1938, P1,133,165.77. His expenses for advertisement from
1919 to 1938 aggregated P210,641.56.
Petitioner (defendant below) registered the same trade-mark "Ang Tibay" for pants and shirts on
April 11, 1932, and established a factory for the manufacture of said articles in the year 1937. In
the following year (1938) her gross sales amounted to P422,682.09. Neither the decision of the
trial court nor that of the Court of Appeals shows how much petitioner has spent for
advertisement. But respondent in his brief says that petitioner "was unable to prove that she had
spent a single centavo advertising 'Ang Tibay' shirts and pants prior to 1938. In that year she
advertised the factory which she had just built and it was when this was brought to the attention
of the appellee that he consulted his attorneys and eventually brought the present suit."
The trial court (Judge Quirico Abeto presiding) absolved the defendant from the complaint, with
costs against the plaintiff, on the grounds that the two trade-marks are dissimilar and are used
on different and non-competing goods; that there had been no exclusive use of the trade-mark
by the plaintiff; and that there had been no fraud in the use of the said trade-mark by the
defendant because the goods on which it is used are essentially different from those of the
plaintiff. The second division of the Court of Appeals, composed of Justices Bengson, Padilla,
Lopez Vito, Tuason, and Alex Reyes, with Justice Padilla as ponente, reversed that judgment,
holding that by uninterrupted and exclusive use since 1910 in the manufacture of slippers and
shoes, respondent's trade-mark has acquired a secondary meaning; that the goods or articles
on which the two trade-marks are used are similar or belong to the same class; and that the use
by petitioner of said trade-mark constitutes a violation of sections 3 and 7 of Act No. 666. The
defendant Director of Commerce did not appeal from the decision of the Court of Appeals.
First. Counsel for the petitioner, in a well-written brief, makes a frontal sledge-hammer attack on
the validity of respondent's trade- mark "Ang Tibay." He contends that the phrase "Ang Tibay"
as employed by the respondent on the articles manufactured by him is a descriptive term
because, "freely translated in English," it means "strong, durable lasting." He invokes section 2
of Act No. 666, which provides that words or devices which relate only to the name, quality, or
description of the merchandise cannot be the subject of a trade-mark. He cites among others
the case of Baxter vs. Zuazua (5 Phil., 160), which involved the trade-mark "Agua de Kananga"
used on toilet water, and in which this Court held that the word "Kananga," which is the name of
a well-known Philippine tree or its flower, could not be appropriated as a trade-mark any more
than could the words "sugar," "tobacco," or "coffee." On the other hand, counsel for the
respondent, in an equally well-prepared and exhaustive brief, contend that the words "Ang
Tibay" are not descriptive but merely suggestive and may properly be regarded as fanciful or
arbitrary in the legal sense. They cite several cases in which similar words have been sustained
as valid trade-marks such as "Holeproof" for hosiery, 1 "Ideal" for tooth brushes, 2 and
"Fashionknit" for neckties and sweaters. 3
We find it necessary to go into the etymology and meaning of the Tagalog words "Ang Tibay" to
determine whether they are a descriptive term, i. e., whether they relate to the quality or
description of the merchandise to which respondent has applied them as a trade-mark. The
word "ang" is a definite article meaning "the" in English. It is also used as an adverb, a
contraction of the word "anong" (what or how). For instance, instead of saying, "Anong ganda!"
("How beautiful!"), we ordinarily say, "Ang ganda!" Tibay is a root word from which are derived
the verb magpatibay (to strengthen); the nouns pagkamatibay (strength, durability), katibayan
(proof, support, strength), katibay-tibayan (superior strength); and the adjectives matibay
(strong, durable, lasting), napakatibay (very strong), kasintibay or magkasintibay (as strong as,
or of equal strength). The phrase "Ang Tibay" is an exclamation denoting admiration of strength
or durability. For instance, one who tries hard but fails to break an object exclaims "Ang tibay!"
("How strong!") It may also be used in a sentence thus, "Ang tibay ng sapatos mo!" ("How
durable your shoes are!") The phrase "ang tibay" is never used adjectively to define or describe
an object. One does not say, "ang tibay sapatos" or "sapatos ang tibay" to mean "durable
shoes," but "matibay na sapatos" or "sapatos na matibay."
From all of this we deduce that "Ang Tibay" is not a descriptive term within the meaning of the
Trade-Mark Law but rather a fanciful or coined phrase which may properly and legally be
appropriated as a trade-mark or trade-name. In this connection we do not fail to note that when
the petitioner herself took the trouble and expense of securing the registration of these same
words as a trademark of her products she or her attorney as well as the Director of Commerce
was undoubtedly convinced that said words (Ang Tibay) were not a descriptive term and hence
could be legally used and validly registered as a trade-mark. It seems stultifying and puerile for
her now to contend otherwise, suggestive of the story of sour grapes. Counsel for the petitioner
says that the function of a trade-mark is to point distinctively, either by its own meaning or by
association, to the origin or ownership of the wares to which it is applied. That is correct, and we
find that "Ang Tibay," as used by the respondent to designate his wares, had exactly performed
that function for twenty- two years before the petitioner adopted it as a trade-mark in her own
business. Ang Tibay shoes and slippers are, by association, known throughout the Philippines
as products of the Ang Tibay factory owned and operated by the respondent Toribio Teodoro.
Second. In her second assignment of error petitioner contends that the Court of Appeals erred
in holding that the words "Ang Tibay" had acquired a secondary meaning. In view of the
conclusion we have reached upon the first assignment of error, it is unnecessary to apply here
the doctrine of "secondary meaning" in trade-mark parlance. This doctrine is to the effect that a
word or phrase originally incapable of exclusive appropriation with reference to an article on the
market, because geographically or otherwise descriptive, might nevertheless have been used
so long and so exclusively by one producer with reference to his article that, in that trade and to
that branch of the purchasing public, the word or phrase has come to mean that the article was
his product. (G. & C. Merriam Co. vs. Saalfield, 198 F., 369, 373.) We have said that the phrase
"Ang Tibay," being neither geographic nor descriptive, was originally capable of exclusive
appropriation as a trade-mark. But were it not so, the application of the doctrine of secondary
meaning made by the Court of Appeals could nevertheless be fully sustained because, in any
event, by respondent's long and exclusive use of said phrase with reference to his products and
his business, it has acquired a proprietary connotation. (Landers, Frary, and Clark vs. Universal
Cooler Corporation, 85 F. [2d], 46.)
Third. Petitioner's third assignment of error is, that the Court of Appeals erred in holding that
pants and shirts are goods similar to shoes and slippers within the meaning of sections 3 and 7
of Act No. 666. She also contends under her fourth assignment of error (which we deem
convenient to pass upon together with the third) that there can neither be infringement of trade-
mark under section 3 nor unfair competition under section 7 through her use of the words "Ang
Tibay" in connection with pants and shirts, because those articles do not belong to the same
class of merchandise as shoes and slippers.
The question raised by petitioner involve the scope and application of sections 3, 7, 11, 13, and
20 of the Trade-Mark Law (Act No. 666). Section 3 provides that "any person entitled to the
exclusive use of a trade-mark to designate the origin or ownership of goods he has made or
deals in, may recover damages in a civil action from any person who has sold goods of a similar
kind, bearing such trade-mark . . . The complaining party . . . may have a preliminary injunction,
. . . and such injunction upon final hearing, if the complainant's property in the trade-mark and
the defendant's violation thereof shall be fully established, shall be made perpetual, and this
injunction shall be part of the judgment for damages to be rendered in the same cause." Section
7 provides that any person who, in selling his goods, shall give them the general appearance of
the goods of another either in the wrapping of the packages, or in the devices or. words thereon,
or in any other feature of their appearance, which would be likely to influence purchasers to
believe that the goods offered are those of the complainant, shall be guilty of unfair competition,
and shall be liable to an action for damages and to an injunction, as in the cases of trade-mark
infringement under section 3. Section 11 requires the applicant for registration of a trade-mark
to state, among others, "the general class of merchandise to which the trade-mark claimed has
been appropriated." Section 13 provides that no alleged trade-mark or trade-name shall be
registered which is identical with a registered or known trade-mark owned by another and
appropriate to the same class of merchandise, or which so nearly resembles another person's
lawful trade-mark or trade-name as to be likely to cause confusion or mistake in the mind of the
public, or to deceive purchasers. And section 20 authorizes the Director of Commerce to
establish classes of merchandise for the purpose of the registration of trade-marks and to
determine the particular description of articles included in each class; it also provides that "an
application for registration of a trade-mark shall be registered only for one class of articles and
only for the particular description of articles mentioned in said application."
We have underlined the key words used in the statute: "goods of a similar kind," "general class
of merchandise," "same class of merchandise," "classes of merchandise," and "class of
articles," because it is upon their implications that the result of the case hinges. These phrases,
which refer to the same thing, have the same meaning as the phrase "merchandise of the same
descriptive properties" used in the statutes and jurisprudence of other jurisdictions.
The burden of petitioner's argument is that under sections 11 and 20 the registration by
respondent of the trade-mark "Ang Tibay" for shoes and slippers is no safe-guard against its
being used by petitioner for pants and shirts because the latter do not belong to the same class
of merchandise or articles as the former; that she cannot be held guilty of infringement of trade-
mark under section 3 because respondent's mark is not a valid trade-mark, nor has it acquired a
secondary meaning; that pants and shirts do not possess the same descriptive properties as
shoes and slippers; that neither can she be held guilty of unfair competition under section 7
because the use by her of the trade-mark "Ang Tibay" upon pants and shirts is not likely to
mislead the general public as to their origin or ownership; and that there is no showing that she
is unfairly or fraudulently using the mark "Ang Tibay" against the respondent. If we were
interpreting the statute for the first time and in the first decade of the twentieth century, when it
was enacted, and were to construe it strictly and literally, we might uphold petitioner's
contentions. But law and jurisprudence must keep abreast with the progress of mankind, and
the courts must breathe life into the statutes if they are to serve their purpose. Our Trade-mark
Law, enacted nearly forty years ago, has grown in its implications and practical application, like
a constitution, in virtue of the life continually breathed into it. It is not of merely local application;
it has its counterpart in other jurisdictions of the civilized world from whose jurisprudence it has
also received vitalizing nourishment. We have to apply this law as it has grown and not as it was
born. Its growth or development abreast with that of sister statutes and jurisprudence in other
jurisdictions is reflected in the following observation of a well-known author:
"This fundamental change in attitude first manifested itself in the year 1915-1917. Until about
then, the courts had proceeded on the theory that the same trade-mark, used on unlike goods,
could not cause confusion in trade and that, therefore, there could be no objection to the use
and registration of a well-known mark by a third party for a different class of goods. Since 1916
however, a growing sentiment began to arise that in the selection of a famous mark by a third
party, there was generally the hidden intention to 'have a free ride' on the trade-mark owner's
reputation and good will." (Derenberg, Trade-Mark Protection & Unfair Trading, 1936 edition, p.
409.)
In the present state of development of the law on Trade-Marks, Unfair Competition, and Unfair
Trading, the test employed by the courts to determine whether noncompeting goods are or are
not of the same class is confusion as to the origin of the goods of the second user. Although two
noncompeting articles may be classified under two different classes by the Patent Office
because they are deemed not to possess the same descriptive properties, they would,
nevertheless, be held by the courts to belong to the same class if the simultaneous use on them
of identical or closely similar trade-marks would be likely to cause confusion as to the origin, or
personal source, of the second user's goods. They would be considered as not falling under the
same class only if they are so dissimilar or so foreign to each other as to make it unlikely that
the purchaser would think the first user made the second user's goods.
Such construction of the law is induced by cogent reasons of equity and fair dealing. The courts
have come to realize that there can be unfair competition or unfair trading even if the goods are
noncompeting, and that such unfair trading can cause injury or damage to the first user of a
given trade-mark, first, by prevention of the natural expansion of his business and, second, by
having his business reputation confused with and put at the mercy of the second user. When
noncompetitive products are sold under the same mark, the gradual whittling away or dispersion
of the identity and hold upon the public mind of the mark created by its first user, inevitably
results. The original owner is entitled to the preservation of the valuable link between him and
the public that has been created by his ingenuity and the merit of his wares or services.
Experience has demonstrated that when a well-known trade-mark is adopted by another even
for a totally different class of goods, it is done to get the benefit of the reputation and
advertisements of the originator of said mark, to convey to the public a false impression of some
supposed connection between the manufacturer of the article sold under the original mark and
the new articles being tendered to the public under the same or similar mark. As trade has
developed and commercial changes have come about, the law of unfair competition has
expanded to keep pace with the times and the element of strict competition in itself has ceased
to be the determining factor. The owner of a trade-mark or trade-name has a property right in
which he is entitled to protection, since there is damage to him from confusion of reputation or
goodwill in the mind of the public as well as from confusion of goods. The modern trend is to
give emphasis to the unfairness of the acts and to classify and treat the issue as a fraud.
A few of the numerous cases in which the foregoing doctrines have been laid down in one form
or another will now be cited: (1) In Teodoro Kalaw Ng Khe vs. Lever Brothers Company (G. R.
No. 46817), decided by this Court on April 18, 1941, the respondent company (plaintiff below)
was granted injunctive relief against the use by the petitioner of the trade-mark "Lux" and
"Lifebuoy" for hair pomade, they having been originally used by the respondent for soap; the
Court held in effect that although said articles are noncompetitive, they are similar or belong to
the same class. (2) In Lincoln Motor Co. vs. Lincoln Automobile Co. (44 F. [2d], 812), the
manufacturer of the well-known Lincoln automobile was granted injunctive relief against the use
of the word "Lincoln" by another company as part of its firm name. (3) The case of Aunt Jemima
Mills Co. vs. Rigney & Co. (247 F., 407), involved the trade-mark "Aunt Jemima," originally used
on flour, which the defendant attempted to use on syrup, and there the court held that the
goods, though different, are so related as to fall within the mischief which equity should prevent.
(4) In Tiffany & Co. vs. Tiffany Productions, Inc. (264 N. Y. S., 459; 23 Trade-mark Reporter,
183), the plaintiff, a jewelry concern, was granted injunctive relief against the defendant, a
manufacturer of motion pictures, from using the name "Tiffany." Other famous cases cited on
the margin, wherein the courts granted injunctive relief, involved the following trade-marks or
trade-names. "Kodak," for cameras and photographic supplies, against its use for bicycles; 1
"Penslar," for medicines and toilet articles, against its use for cigars; 2 "Rolls- Royce," for
automobiles, against its use for radio tubes; 3 "Vogue," as the name of a magazine, against its
use for hats; 4 "Kotex," for sanitary napkins, against the use of "Rotex" for vaginal syringes; 5
"Sun-Maid," for raisins, against its use for flour; 6 "Yale," for locks and keys, against its use for
electric flashlights; 1 and "Waterman," for fountain pens, against its use for razor blades. 2
Against this array of famous cases, the industry of counsel for the petitioner has enabled him to
cite on this point only the following cases: (1) Mohawk Milk Products vs. General Distilleries
Corporation (95 F. [2d], 334), wherein the court held that gin and canned milk and cream do not
belong to the same class; (2) Fawcett Publications, Inc. vs. Popular Mechanics Co. (80 F. [2d],
194), wherein the court held that the words "Popular Mechanics" used as the title of a magazine
and duly registered as a trade-mark were not infringed by defendant's use of the words "Modern
Mechanics and Inventions" on a competitive magazine, because the word "mechanics" is
merely a descriptive name; and (3) Oxford Book Co. vs. College Entrance Book Co. (98 F. [2d],
688), wherein the plaintiff unsuccessfully attempted to enjoin the defendant from using the word
"Visualized" in connection with history books, the court holding that said word is merely
descriptive. These cases cited and relied upon by petitioner are obviously of no decisive
application to the case at bar.
We think reasonable men may not disagree that shoes and shirts are not as unrelated as
fountain pens and razor blades, for instance. The mere relation or association of the articles is
not controlling. As may readily be noted from what we have heretofore said, the proprietary
connotation that a trade-mark or trade-name has acquired is of more paramount consideration.
The Court of Appeals found in this case that by uninterrupted and exclusive use since 1910 of
respondent's registered trade-mark on slippers and shoes manufactured by him, it has come to
indicate the origin and ownership of said goods. It is certainly not farfetched to surmise that the
selection by petitioner of the same trade-mark for pants and shirts was motivated by a desire to
get a free ride on the reputation and selling power it has acquired at the hands of the
respondent. As observed in another case, 3 the field from which a person may select a trade-
mark is practically unlimited, and hence there is no excuse for impinging upon or even closely
approaching the mark of a business rival. In the unlimited field of choice, what could have been
petitioner's purpose in selecting "Ang Tibay" if not for its fame?
Lastly, in her fifth assignment of error petitioner seems to make a frantic effort to retain the use
of the mark "Ang Tibay." Her counsel suggests that instead of enjoining her from using it, she
may be required to state in her labels affixed to her products the inscription: "Not manufactured
by Toribio Teodoro." We think such practice would be unethical and unworthy of a reputable
businessman. To the suggestion of petitioner, respondent may say, not without justice though
with a tinge of bitterness: "Why offer a perpetual apology or explanation as to the origin of your
products in order to use my trade-mark instead of creating one of your own?" On our part may
we add, without meaning to be harsh, that a self-respecting person does not remain in the
shelter of another but builds one of his own.
The judgment of the Court of Appeals is affirmed, with costs against the petitioner in the three
instances. So ordered.
Yulo, C.J., Moran, Paras, and Bocobo, JJ., concur.
Footnotes
1. Holeproof Hosiery Co. vs. Wallach Bros. (167 F., 373).
2. Hughes vs. Smith Co. (205 F., 302).
3. Franklin Knitting Mills vs. Fashionit Sweater Mills (297 F., 247).
1. Eastman Co. vs. Kodak Cycle Co. (15 R. P. C., 105).
2. Peninsular Chemical Co. vs. Levinson (247 F., 658).
3. Wall vs. Rolls-Royce of America (4 F. [2d], 333).
4. Vogue Co. vs. Thompson-Hudson Co. (300 F., 509).
5. Kotex Co. vs. McArthur (45 F. [2d], 256).
6. Sun-Maid Raisin Growers of California vs. American Grocer Co. (40 F. [2d], 116).
1. Yale Electric Corporation vs. Robertson and The Yale & Towne Co. (21 F. [2d], 467);
affirmed in 26 F. [2d], 972.
2. L. E. Waterman Co. vs. Benjamin Gordon (8 F. Supp., 351: 24 Trade-mark Reporter,
347); affirmed in 72 F. [2d], 272.
3. Kassman & Kessner, Inc., vs. Rosenberg Bros. Co. (10 F. [2d], 904).

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 48859 November 28, 1942
EMILIANO J. VALDEZ vs. FERNANDO JUGO, ET AL.
074 Phil 49
EN BANC
[G.R. No. 48859. November 28, 1942.]
EMILIANO J. VALDEZ, petitioner, vs. FERNANDO JUGO, Judge of First Instance of Manila, ET
AL., respondents.
Felix B. Bautista for petitioner.
Gregorio Perfecto for respondent Central Luzon Milling Co.
P. J. Dayrit and Bengson & Magsanoc for other respondents.
SYLLABUS
1. APPEAL AND ERROR; "PRO-FORMA" MOTION FOR NEW TRIAL IS OFFENSIVE TO
NEW RULES OF COURT AND DOES NOT INTERRUPT PERIOD FOR APPEAL; NECESSITY
OF SPECIFICALLY SETTING OUT REASONS IN SUPPORT OF MOTION FOR NEW TRIAL.
Petitioner's motion for new trial did not and could not interrupt the period for appeal, it having
failed to state in detail as required by the rules, the reasons in support of the grounds alleged
therein. Under Rule 37, section 2, third paragraph, it is now required to "point out specifically the
findings or conclusions of the judgment which are not supported by the evidence or which are
contrary to law, making express reference to the testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such findings or conclusions." And when, as in the
instant case, the motion fails to make the specification thus required, it will be treated as a
motion pro-forma intended merely to delay the proceedings, and as such, it shall be stricken out
as offensive to the new rules.
2. ID.; ID.; ID.; DELIBERATE ATTEMPT TO DELAY PROCEEDINGS. Petitioner's case
justifies indeed the full rigor of the new rules, there being circumstances showing a deliberate
attempt on his part to delay the proceedings for his own convenience. He filed his motion for
new trial on November 22, 1941, and set it for hearing almost one month thereafter, i. e., on
December 20, 1941. The reason he gave in his oral argument to justify such delayed hearing
was that he wanted to have time to study the transcript of the testimony of witnesses and find
out reasons in support of the grounds alleged in his motion. Unquestionably, therefore, he filed
his motion without knowing whether the grounds therefor were or were not good, and wanted to
delay the proceedings to gain time for study. Again, asked as to why, when he was already in
Manila and the Manila courts were already open, he failed to inquire as to the result of his
motion for new trial, he candidly answered that he was not interested in speeding up the
proceedings because he was the defeated party. With such an attitude this Court cannot be
moved to grant an equitable relief.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 48696 November 28, 1942
FELIZA ZUBIRI vs. LUCIO QUIJANO
074 Phil 47
FIRST DIVISION
[G.R. No. 48696. November 28, 1942.]
FELIZA ZUBIRI, petitioner, vs. LUCIO QUIJANO, respondent.
E. P. Virata and Ferrier, Gomez & Sotelo for petitioner.
Virola & Leuterio for respondent.
SYLLABUS
1. "PACTO DE RETRO" SALE CONSTRUED AS AN EQUITABLE MORTGAGE;
FORECLOSURE OF MORTGAGE THOUGH CONTRACT IS UNRECORDED. There is no
merit in petitioner's contention that the Court of Appeals erred in ordering the sale of the land in
case of nonpayment of the judgment, on the ground that the contract relied upon by the
respondent, not having been registered in accordance with the Land Registration Act, cannot
operate as a mortgage so as to justify its foreclosure. The contract, evidencing a pacto de retro
sale which is unquestionably more disadvantageous to the petitioner, has been held to be an
equitable mortgage and, from its very nature, the lien thereby created ought not to be defeated
by requiring compliance with the formalities necessary to the validity of a voluntary real estate
mortgage, as long as the land remains in the hands of the petitioner and the rights of innocent
third parties are not affected. In the case of Correa vs. Mateo and Icasiano (55 Phil., 79),
wherein an unrecorded pacto de retro sale was construed as an equitable mortgage, it was held
that the plaintiff had the right "within sixty days after final judgment, for a failure to pay the
amount due and owing him, to foreclose his mortgage in a proper proceeding and sell all or any
part of the ten parcels of land to satisfy his debt."
2. ID.; ID.; CONCLUSIONS OF FACT MADE BY COURT OF APPEALS ARE BINDING ON
SUPREME COURT. Conclusions of fact made by the Court of Appeals must be accepted for
purposes of the present appeal, since this court cannot make contrary findings without
reexamining the evidence, and it is not authorized to do this.
3. ID.; ID.; EXERCISE OF EQUITY JURISDICTION OF SUPREME COURT; PAYMENT
OF INTEREST. Considering that the present complaint did not originally seek the recovery of
a debt, that the petitioner obtained a favorable judgment in the Court of First Instance and that
the vote in the Court of Appeals was three to two, this court, in the exercise of its equity
jurisdiction, is inclined to hold that the petitioner should be sentenced to pay interest only from
the date its decision becomes final.
D E C I S I O N
PARAS, J p:
This is an appeal from a decision of the Court of Appeals holding that the contract dated May
15, 1934, purporting to be a two-year pacto de retro sale of three parcels of land from the
petitioner, Feliza Zubiri, to the respondent, Lucio Quijano, is an equitable mortgage, sentencing
the former to pay to the latter, within three months, the alleged purchase price of P700, with
legal interest from the date of the filing of the complaint (November 15, 1937), and ordering that,
in default of payment, the land be sold at public auction and the proceeds of the sale applied to
the satisfaction of the judgment, without special pronouncement as to costs.
Under the first assignment, the petitioner contends that the Court of Appeals erred in ordering
the sale of the land in case of non-payment of the judgment, on the ground that the contract
relied upon by the respondent, not having been registered in accordance with the Land
Registration Act, cannot operate as a mortgage so as to justify its foreclosure. There is no merit
in the contention. The contract, evidencing a pacto de retro sale which is unquestionably more
disadvantageous to the petitioner, has been held to be an equitable mortgage and, from its very
nature, the lien thereby created ought not to be defeated by requiring compliance with the
formalities necessary to the validity of a voluntary real estate mortgage, as long as the land
remains in the hands of the petitioner and the rights of innocent third parties are not affected. In
the case of Correa vs. Mateo and Icasiano (55 Phil., 79), wherein an unrecorded pacto de retro
sale was construed as an equitable mortgage, it was held that the plaintiff had the right "within
sixty days after final judgment, for a failure to pay the amount due and owing him, to foreclose
his mortgage in a proper proceeding and sell all or any part of the ten parcels of land to satisfy
his debt."
Under the second assignment, the petitioner alleges that the Court of Appeals erred in not
finding that she had paid to the respondent usurious interest amounting (as found by the Court
of First Instance of Mindoro) to P950. The pronouncements of the Court of Appeals, to wit, "pero
rechazamos la pretension de la demandada, aceptada por el Tribunal a quo, de que el
demandante percibio intereses usurarios" and "Con respecto a la alegacion sobre usura, la
misma nos parece insostenible," being conclusions of fact, must be accepted for the purposes
of the present appeal, since we cannot make contrary findings without re-examining the
evidence, and we are not authorized to do this.
It results that the Court of Appeals did not commit any error. In the exercise, however, of our
equity jurisdiction, and especially considering that the present complaint did not originally seek
the recovery of a debt, that the petitioner obtained a favorable judgment in the Court of First
Instance and that the vote in the Court of Appeals was three to two, we are inclined to hold that
the petitioner should be sentenced to pay interest only from the date our decision becomes final.
As thus modified, the appealed decision is affirmed, with costs against the petitioner.
Yulo, C.J., Moran, Ozaeta, and Bocobo, JJ., concur.

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G.R. No. 48648 November 28, 1942
PEOPLE OF THE PHIL. vs. LEON VILLANUEVA
074 Phil 46
FIRST DIVISION
[G.R. No. 48648. November 28, 1942.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEON VILLANUEVA, defendant-
appellant.
Silvestre C. Pascual for appellant.
Assistant Solicitor-General Amparo and Solicitor Guerrero for appellee.
SYLLABUS
CRIMINAL LAW; ILLEGAL PRACTICE OF DENTISTRY; SECTION 794 OF THE REVISED
ADMINISTRATIVE CODE. There is no merit in appellant's contention that section 794
contemplates actual medical or dental treatment or operation upon the teeth for the purpose of
curing any defect or any other ailment originating from the teeth extracted or operated upon,
and that there being no dispute that the teeth upon which he placed gold crowns were "healthy
and not otherwise defective," he cannot be considered to have practiced dentistry. The law
speaks of any operation upon the human teeth and, as thus used, the term "operation" must be
given an ordinary meaning so as to cover any "action," "specific act or activity," or the "course of
action or series of acts by which some result is accomplished." What the appellant did, is
certainly an action or specific act or activity. It is not necessary that the action or work done on
the teeth should always be for curative purposes, since the treatment of the teeth for the
purpose of curing or correcting any defect falls under the clause "or who shall treat diseases or
lesions or correct malpositions of the teeth." This conclusion finds support in the fact that section
794 excludes "artisans engaged in the mechanical construction of artificial dentures or other
oral devices," and although the mechanical construction by the appellant of the gold crowns
placed by him did not constitute dental practice, his further act of placing them on the teeth of
his patients does not come within the saving clause of the law.
D E C I S I O N
PARAS, J p:
The question involved in this appeal is whether or not the appellant, Leon Villanueva, in placing
gold crowns on the teeth of Fausta Arroyo, Teodora Arroyo and Lucrecia Arroyo, after trimming
the teeth of the first two, practiced dentistry within the meaning of section 794 of the Revised
Administrative Code, which provides that any person shall be regarded as practicing dentistry
who shall for a fee, salary or other reward, perform "any operation or part of an operation upon
the human teeth or jaws, or who shall treat diseases or lesions, or correct malpositions of the
teeth." The appellant contends that section 794 contemplates actual medical or dental treatment
or operation upon the teeth for the purpose of curing any defect or any other ailment originating
from the teeth extracted or operated upon, and that there being no dispute that the teeth upon
which he placed gold crowns were "healthy and not otherwise defective," he cannot be
considered to have practiced dentistry. We do not agree. The law speaks of any operation upon
the human teeth and, as thus used, the term "operation" must be given an ordinary meaning so
as to cover any "action," "specific act or activity," or the "course of action or series of acts by
which some result is accomplished." What the appellant did, is certainly an action or specific act
or activity. It is not necessary that the action or work done on the teeth should always be for
curative purposes, since the treatment of the teeth for the purpose of curing or correcting any
defect falls under the clause "or who shall treat diseases or lesions or correct malpositions of
the teeth." Our conclusion finds support in the fact that section 794 excludes "artisans engaged
in the mechanical construction of artificial dentures or other oral devices," and although the
mechanical construction by the appellant of the gold crowns placed by him did not constitute
dental practice, his further act of placing them on the teeth of his patients does not come within
the saving clause of the law.
It appearing that the appellant had no license for the practice of dentistry, that he collected fees
for the acts complained of, and that he already has a previous conviction for illegal practice of
dentistry, the judgment of the Court of First Instance of Laguna finding him guilty of illegal
practice of dentistry with the aggravating circumstance of recidivism, and sentencing him to pay
a fine of P100, with subsidiary imprisonment in case of insolvency, and with costs, is in
accordance with law, and is accordingly hereby affirmed with costs against the appellant.
Yulo, C.J., Moran, Bocobo, and Imperial, JJ., concur.

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G.R. No. 48398 November 28, 1942
MELCHOR V. KATANIAG vs. PEOPLE OF THE PHIL.
074 Phil 45
EN BANC
[G.R. No. 48398. November 28, 1942.] *
MELCHOR V. KATANIAG, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.
Vicente del Rosario, Segundo M. Martinez and Baldomero Luque for petitioner.
Assistant Solicitor-General Reyes and Solicitor Zulueta for respondent.
SYLLABUS
1. CRIMINAL LAW; INFIDELITY IN THE CUSTODY OF PUBLIC DOCUMENTS;
ESSENTIAL ELEMENTS. Whether during or after office hours, if the removal by a public
officer of any official document from its usual place of safe-keeping is for an illicit purpose, such
as to tamper with or to otherwise profit by it, or to do in connection therewith an act which would
constitute a breach of trust in his official care thereof, the crime of infidelity in the custody of
public documents is committed. On the other hand; where the act of removal is actuated with
lawful or commendable motives, as when the public officer removes the public documents
committed to his trust for examination in connection with official duty, or with a view to securing
them from imminent danger of loss, there would be no crime committed under the law. This is
so, because the act of removal, destruction or concealment of public documents is punished by
law only when any of such acts would constitute infidelity in the custody thereof. Several
circumstances are set out in the body of the decision to show conclusively that in the instant
case there has been a removal effected for illicit purposes.
2. ID.; ID.; ID.; REMOVAL NEED NOT BE COUPLED WITH PROOF OF INTENTION TO
CONCEAL; STATUTORY CONSTRUCTION. To warrant a finding of guilt of infidelity in the
custody of public documents, it is not necessary that the act of removal must be coupled with
proof of intention to conceal. The law punishes "any public officer who shall remove, destroy or
conceal documents or papers officially entrusted to him". (Art. 226, Revised Penal Code.) The
word "or" is a disjunctive conjunction which, in the ordinary usage, signifies dissociation and
independence of one thing from each of the other things mentioned. While in the interpretation
of statutes, "or" may read "and" and vice versa, it is so only when the context so requires. And,
in the instant case, there is nothing in the context of the law which would require the giving to
the conjunction "or" a meaning different from its ordinary usage. Accordingly removal,
destruction and concealment must be viewed as distinct modes of committing the offense.
3. ID.; ID.; ID; DAMAGE TO PUBLIC INTEREST OR TO THIRD PARTY. Upon the
matter of damage to public interest or to third party, it is true that such damage must be actual
and not hypothetical. But an actual damage need not necessarily be pecuniary or material. It
may consist in mere alarm to the public or in the alienation of its confidence in any branch of the
government service. In the instant case, aside from the necessity of maintaining the integrity of
public records, the removal for illicit purposes by petitioner of the documents in question from
their usual place of safekeeping against the strictest surveillance ordered by the higher
authorities and in the midst of the immigration scandal when the probe was in full swing,
constitutes such a perversity of official character and a brazen defiance of law as to impair
almost irretrievably public confidence in the integrity of public officials. Such effect constitutes
damage to public interest, and such damage is, under the circumstances stated, unquestionably
a serious one.
4. ID; ID.; ID.; CRIME COMMITTED IS CONSUMMATED AND NOT MERELY
ATTEMPTED. Petitioner has committed not merely the attempted but the consummated
crime of infidelity in the custody of public documents. True, at the moment of his arrest the
records he was caught carrying with him were intact, but as he had already succeeded in
removing or secreting away the documents in question from his office, for he was caught
carrying them after he had locked the door of his office and was already out walking through the
lobby towards the main door of the building, the crime of removal of public documents in breach
of official trust had been consummated, it being immaterial whether he has or has not actually
accomplished the illicit purpose for which he had removed said documents.