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6830 OFFICIAL GAZETTE VOL. No. 42

(No. 28228-R. October 15,

JOSE LAPITAN, plaintiff and appellant, VB, PHILrpptNECHARITY SWEEPSTAKES OFFICE, defendant and appellee.

I. EvtDENCC; SELŸ.SERVJNG TESTIMONY, NOT ALWAYS ODJECTIONADLE

testimony uhould not bc rejected for being self-servingmerely becauzc it hag been given by nn interested party,cspceit,lly where it ig not contradicted by direct or circum.stantial evidence and, upon the whole, appearg to be plaugiblc.

2. ID. ; RULE ON SECONDARY EVIDENCE rule •ofsecondary evidcncc dcsigncd mainly for the protection ofthe partieg waivablc for the gimple reagon that it wasnot cstablíshcd or. grounda of public policy (Art. C, CivilCode).

Per BENGSON, Pycg. J., concurring:

3. ID.; CLAIMANTS NOT PRECLUDEb

FROM PROVING "Y Evrr»r.vcp. "ALIVNDE"

Claimants now arc not prccludcd from proving the numbcrgof the winning tickets by evidence Ctlíandc. The presentation ofa mutilated ticket, together with the evidence to establishthc nutnbcrs thercotl, Euffic'.•:; to entitle the claimant to thecorresponding prize,

Per RODRIGUEZ, J., concurring:

4. ID.; ID.; RIGHT or or WINNING TICKET TO

COLLECT Pretzc; CASE AT it is shown by un-contradicted, affirmative and competent cvidcnce that a claim-nnt thc pun•hascr of a winning swecpgta)ccs ticket andis ready to tlií' same to the proper authoritiesconcerned, and no court orclcž' barring its payment has beenrcccived by the managemctit of the Swcepstakeg Office, themere fact that said c:annant.'s ticket ib badly mutilated ianot a stitžiciw•nt under the present set of rules of thePhilippine Charity SweepstaLf•s to exclude him from theright to collect the ptizc that legitimately corresponds tothat ticket.

APPEAL from a judgment of the Court of First Instanceof Laguna. Alikpala, J.

The facts are stated in the opinion of the Court.

nan A. Baca for plaintiff and appellant.Government Corporate Counscl Simcon M. Gopengco and

Assiatant Government Corporate Counsel FernondotJmali for defendant and appellee.

Lucrno, J.:

In the June 2, 1958 draw of the Philippine CharitySweepstakes Office, ticket bearing number 073522, dividedinto four ghares, won the first prize ofClaiming to be the holder of one Bhare, the plaintiff Jose

Lapitan, on Augugt 7, 1958, presented to the defendant

Philippine Charity Sweepstakes Office a badly mutilated

ticket (Exhibit The defendant submitted Exhibit

0K" to the National Bureau of Investigation requesting

OCTOBER 19, 1964

that the same be

OFFICIAL GAZETTE

8831to a laboratory test to determinethe number and genuineness thereof. The NBI reported

that—-

view of thc extensivc mutilation of the spccimen submitted,it is physically impossible to reconstruct or picce together theparts so os to ascertain its number. It appears from tho piecesof the specimen which were spread out on the glass that thcrc areno other figures found except number '3' " (Exhibit "E-1.")

Based upon this report, the defendant refused to effectpayment of the prize claimed by the plaintiff, hence thisaction for the recovery of P25,000.00 commenced in theCourt of First Instance of Laguna. Answering the com-plaint, the defendant interposed, by way of affirmativedefenses, that : (a) "As the plaintiff is not the holderof sweepstake ticket No. 073522 of the lottery draw heldon June 2, 1958, the defendant is not obliged to pay himthe prize corresponding thereto, pursuant to the provisionof Republic Act No. 1169" and (b) "plaintiff has no validcause of action against the defendant

After trial, during which only the plaintiff adducedtestimonial and documentary evidence, the court belowrendered judgment, the dispositive portion of which isof this tenor .

"Wherefore, the Court is of the opinion and so holds that theplaintiff has not duly established that the mutilated ticket pre-sentcd to the defendant bears serial number 073522 and for thisreason his complaint is hereby dismissed withotlt any pronouncementas to costs."

From this judgment, the plaintiff appealed contendingthat the "trial court erred in holding that the plaintiffhas not duly established that the mutilated ticket presentedto the defendant bears serial number 073522 and in dis-missing the complaint." (Page 1, Appellant's Brief.)That this is the sole issue on this appeal is conceded bydefendant-appellee's brief which reiterates that "the mainquestion involved in this case is whether the mutilatedticket presented by the plaintiff is the one-fourth (1/4)unit of ticket No. 073522 which participated in the lotterydraw of June 2, 1958. This is a question of fact which thelower court has decided against the plaintiff based Ohits findings which are substantiated by evidence." ( Page19, Defendant-Appellee's brief.) The same view was

expressed by the trial court when it said. "The question,therefore, to be resolved is whether the evidence on recordtaken ag a whole, is sufficient to establish that the saidticket had serial number 073522." (15, Record on Appeal.)Under Section 19 of Rule 48, what may be raised in

appellant's assignment of errors is "any question of lawOr Of fact that hag been raised in the court below and which

within the igsueg made by the parties in their pleadings."

0832 OFFICIAL GAZETTEVOL. 60, No. 42

Pursuant to Section 5 of Rule 53, the general rule ig thatonly questions stated in the assignment of errors and prop.erly argued in the appellant's brief may be consideredby us on appeal. With these legal principles in mind,let us proceed to examine the evidence on record.

It is not disputed that Petronilo Ajon, a sweepstakeagent since January 23, 1956, purchased from the de-fendant's local distributor in San Pablo City four (4)booklets of sweepstake tickets for the June 2, 1958 lottery,one of which contained tickets bearing serial numbers073520 to 073529, inclusive; that among his customerswere Juana Alvarez, Montano Malana and the plaintiff-appellant; that the holders of three out of the four sharesrepresenting the winning ticket were Montano Malana,one share, and Juana Alvarez, two shares, both of whomare residents of Los Baños, Laguna, and townmates of theplaintiff, and, that the only claimant of the prize correspond-ing to the fourth share is the herein plaintiff.

The testimony of the plaintiff runs as follows: On May28, 1958, he bought on credit one share of sweepstaketicket No. 073522 from Petronilo Ajon. It being the firstticket he ever purchased and apprehensive that it mightbe mislaid, he wrote the number thereof, which is 073522,on top of page 12 of the printed calendar for the year1958 prepared by Honorio Lopez (Exhibit "M") and en-circled the figure "2" on the same page to indicate thatthe draw would take place on June 2, 1938. He thenplaced the ticket inside a wooden wardrobe. In the morn-ing of June 2nd, he took the ticket from its hiding placeand put it inside a pocket of his trousers for the purposeof having it handy for verification. Late in the afternoonof the same day, he hung his trousers to a nail on thewall of the house. The next day (June 3rd) he noticedhis trousers missing from the place where he hung them.After searching he finally found his trousers soaked in abasin of water. It turned out that his wife had laundered

the same. The ticket was still inside the pocket, but

ready wet and mutilated, so he gathered the torn pieces

and wrapped them with a sheet of paper. On June 4,

1958, while he was in Barrio Bayog, Los Baños, he saw

the list of winning tickets from a newspaper and found out

that his ticket won first prize. On the same day, Ajon

went to him and inquired about his ticket. Upon being

shown the mutilated ticket Ajon advised him to keep it

as he would report the matter to the defendant. On June

25, 1958, he sought the help of Atty. Juan Baes (his pre-

gent counsel) who, together with Agent Petronilo Ajon,

accompanied him to the defendant's office on August 7,

1958, to claim for the prize.

. MANILA

OFFICIAL GAZETTEOCTOBER 19, 1964

6833

petronilo Ajon, Agent No, 44460, confirmed the sale ofthe ticket to the plaintiff, further declaring that he onlyforced the latter to buy it, which is why he could recallits number.

The testimony of the plaintiff and that of Ajon werenot controverted as the defendant did not present anytestimonial evidence.

Branding the plaintiff's testimony as ' 'not only self-serving but also irrational and not in accord with theordinary course of human behavior," the court below

concluded "that the plaintiff has not duly established that

the mutilated ticket presented to the defendant bears

serial number 073322."

find it difficult to agree with the court a quo, for

we observe that the plaintiff's testimony is not inherently

incredible. For instance, the court below held that—

The alleged recording of the number of the ticket that the

plaintiff bought from A ion in a calendar that he kept in the

house, was unusual to say the least. was the first time LapitanIt claimed to havc bought a sweepstal:e ticket in his lifetime and

so he could not have any experiencc in the past of losing a ticket.

Making a record of the number of the ticket would not bc of any

help if the same was lost because in order that one could claim

and be paid a 101ize, the corresponding ticket mnst be surrendered."

Now, while it mav seem unusual to record the number

of a ticket, we do not think it improbable that the plaintiff,

who had just bought a ticket for the first time, could have

done so. In fact, his actuation could be expected of a

poor fisherman like him, who could ill afford to pay for

a ticket, for he even bought it on credit. The extra-

ordinary interest he showed with respect thereto should

not be doubted simply because others could acted

differently. It is easy enough to imagine what others

would have or would not have done when made to step

into the plaintiff's shoes. nut individuals are not born

from the same mould, their temperaments differ their

responses dissimilar. Should we not he institied to com-

pare plaintiff's conduct, in the light of his new experience,

to that of a teenager when seized by the thrill of his

first romance? Whatever we might say regarding the

queerness of plaintiff's conduct on the eve and on the day

Of the draw, his reaction was still natural and normal

and, besides, was certainly beyond suspect as having been

Purposely staged and conceived for the occasion. Remem-

ber he is but a humble barrio fisherman of scant education,

who appears to trust ancient beliefs and prognostications

as amply demonstrated by his owning an •'110norio Lopez

calendar" which this Court can take notice is sought by

barrio throughout the breadth of Cho land for guid-

ance to future events. if we havc to be guided by tho

oaggbl

OFFICIAL VOL. 60, No. 42

lessons of tho vast in the ascertainment of truth, it igwell-nigh safe to recall that a person destined for somegood or bad fortune usually evinced a certain degree ofoddness in his behavior jogt before the coming of the event.In this regard, it is so common to hear the proverb that"whom the Gods love, they first make him suffer." Thisis an imponderable that has not been, or cannot, be ex-plained, for life and the endlesg incidents of life aresometimes a bundle of strange contradictions, Besides,the fact that the recording of the number of the ticketcould not have been of any help, for, as stated by thecourt below, one could claim and be paid the prize onlyupon surrender of the same, would not make the plaintiff'sact improbable. For, it is not even pretended nor isthere any indication that he knew of such a regulation.It being the first time he ever bought a sweepstake ticket,it is reasonable to presume that he was completely unawareof the conditions and stipulations printed thereon, oneof which is to the effect that "prizes will be paid onlyto holders of tickets entitled thereto upon surrender ofsame."

To further show that the plaintiff's testimony does notdeserve credence, the court below said:

. . The plaintiff claimed that he took the ticket from its hidingplace before noon of Junc 2, 195S and put it inside the rightpocket of big pants to have it handy for verification as to whctherit won a prize. The draw would not be finished until late in theafternoon of June 2, i 938 and so the results thereof would not beknown in LOU Baños until the morning Of June 3, 1958. Hence,it was premature to take the ticket from its hiding place evenbefore the draw was finished. Besides, hc did not go to the poblacionor that place in barrio Bayog where he could possibly see theresult of the draw in the afternoon Of June 2, 1958 or even at anytimo of the following day, thereby showing that there was noneed to take the ticket from its hiding place. Besides, the plaintiffwas afraid of the loss of his ticket so much so that ho immediatelyhid the game in a drawer in a wardrobe after buying it. And yethe would like the Court to believe that after taking tho ticketfrom its hiding placc, bc merely put it a pocket of Jus pantswhich ho later hung on a nail in a part of the house, thus ex,-posing samc to loss or being taken by someonc else. Under thatsituation, a careful man would not have taken the ticket from itshiding place but merely make a copy of the number thereof on a

picce of paper, which he could use for verification vurposes."

All that need be said in this respect is that the plaintiff-

appellant was in a state of thrill and excitement and,

under the spell of his emotions, he could have acted with

a certain amount of queerness not dissimilar to an anxious

father awaiting his first born at the hospital. Is this

not the kind of queerness that supports the principle of

rcg gegtac which, despite its hearsay character, is attri-

butcd great weight by tribunalg of justice? Moreover, the

19, 1964 OFFICIAL GAZETTE

other considerations which we have already spoken o?operate with sufficient thrust to justify a reversal of theconclusion drawn by the lower court from the detailsaforeeited.

The trial court also spoke of the "unexplained delayin presenting a claim for We do not thinkthere was such a delay. Much depends on the approach andthe color of the eye-glass one uses to see things through.According to its findings, Atty. Juan A. Baes, plaintiff'scounsel, whose office is at Sta. Cruz, Laguna, was contactedby the plaintiff only on June 23, 193S (15, RA) and "thaton August 7, 193S, plaintiff Lapitan, accompanied by?etronilo Ajon and Atty. Juan Daes, presented to the mainoffice of the Philippine Charity Sweepstakes Office inManila, a mutilated sweepstake ticket consisting of manycrumpled torn parts which were very brittle and claimedthe payment of the prize corresponding to share No. 2

of the sweepstake ticket No. 073502." (Il, RX) We

should not lose sight of the fact, in this regard, that Atty.

Juan A. Baes needed time to study the various aspects

of the case before taking it up with the defendant's office

in Manila for decision especially where. as in this instant

case, the ticket is badly mutilated. Contracting lawyer's

services and getting him to handle the case is not always

an easy matter for reasons that are too obvious to require

elucidation. On top of all, there is nothing in the record

nor in the evidence to suggest, no matter how slightly,

that a fraudulent scheme existed to enable plaintif to

claim for a prize he did not win.Moreover, a testimony should not be rejected for being

self-serving merely because it has been given by an in-

terested party, especially where, as in the case at bar, it

is not contradicted by direct or circumstantial evidenceand, upon the whole, appears to be plausible- As a matter

of fact, the circumstances obtaining in this case support

the claim of the plaintiff—namely, first, the plaintiff

bought one share of a sweepstake ticket for the June 2,

1958 draw from Petroni)o Ajon, seller of the first prize

Finning ticket bearing serial number 073522; second, the

Purchasers of the winning ticket are Juana Alvarez,

two shares, and Montano Malana, one share; third, Juana

Alvzrez is a neighbor of the plaintiff by about 100 meters

(tan. 52, 62, 64, session whereas Montano

lana lives about 2 kilometers from where plaintiff resides

52, 63, idem.) ; fourth, the plaintiff is the only claim-

ut of the prize corresponding to one which re-

uncollected; fifth, it is not claimed by the defendant

that the remaining share has been unsold; sixth, the ticket

by the plaintiff, which was examined by the NBI,

shown to be genuine and to contain clearly and

6886 OFFICIAL GAZETTE VOL. 60, No.

legibly tho figure ' one of the numbers in the winningticlcot, and i 'June 2, 1958," the date of the draw; andsovonth, all the winning tickets were sold by Petronilolocal agent who owned but four booklets to sell

10 remember. In our opinion, these circumstances,togot,her With the testimonial evidence, sufficiently establishthat; motilated ticket held by the plaintiff representstho 'Share of the winning ticket.

A for precedentH wag not altogether fruitless.tho oc Santiago e.g. Millar, 68 Phil. 39 and Rubis

Charity Sweepstakes, 68 Phil. 515, both oftho 1930 vititngo, involving lost tickets, which is not of

cage hcrc, the Ilonorablc Supreme Court in de-the claimantg therein premised its judgment

Otl the tumotated condition of the ticket that "prizes oftiel(et sold locally will be paid to the holder upon surrenderof tho same" and this condition, according to the SupremeTribunal, "means that to collect the prize the ticket must

presented. The presentation or surrender of the tic-

ket is a condition precedent for payment." But with re-spect to the case at bar, the mutilated ticket was not only

presented for payment to the herein defendant but it was

also submitted in evidence in order to enable the Court

to verify and examine it and was even sent to the NBI for

expert opinion. In the subsequent case of Mella I'S. Phil-

lippine Charity Sweepstakcs, 71 Phil. 557 (Feb. 11, 1944),

it was held that secondary evidence is not admissible to

establish the missmg number of an alleged winning ticketwhich appears on its face to be mutilated. Quoting fromthe decision therein, the Honorable Supreme Court statedthat "the question to decide is that raised by the appellee's(Philippine Charity Sweepstakes') countcrassignmcnt oferror, namely, whether secondary evidence of the numberof the sweepstakes ticket relied upon by a prize claimantis admissible." (7-1 Phil. 558.) In the case under con-sideration, neither of thc contending parties on appealhad seen fit to dignify this point as an issue. The truthof the matter is that three witnesses, including the plaintiffhimself, had testified on his behalf without the defendanthaving in the least objected during the entire length andbreadth of the trial against the competency and admissi-bility of their joint testimonies all converging to establishthat plaintiff herein had won in the draw. Hence, thereis no justifiable cause for us to pose more popish than

the Pope, as the common adage goes. Under existing

doctrines, the rule of secondary evidence designed mainly

for the protection of the parties is held to be waivable for

the simple reason that it was not established on grounds

of public policy (Art. 6, NCC), In this connection, Article

10, NCC, providcg that cage of doubt, in the interpreta-