Facts:
Respondent Consuelo David was legally married to Arturo Tolentino on February 8, 1931. During the Japanese occupation on September 15, 1943, their marriage was dissolved by a decree of absolute divorce on the ground of desertion and abandonment by the wife. The trial court granted the divorce on its finding that Arturo Tolentino was abandoned by Consuelo David for at least three (3) continuous years.
Thereafter, Arturo Tolentino married a certain Pilar Adorable, who however, died soon after their marriage. Tolentino subsequently married petitioner Constancia on April 21, 1945. Consuelo David, on the other hand, continued using the surname Tolentino after the divorce.
Constancia C. Tolentino filed with the then Court of First Instance of Quezon City against Consuelo David for the purpose of stopping and enjoining her by injunction from using the surname Tolentino. Consuelo David filed her answer admitting she has been using and continues to use the surname Tolentino. She also filed a motion for leave to file a third party complaint against her former husband. In his answer, Arturo admitted that the use of the surname Tolentino by the Consuelo was with his and his family's (brothers and sisters) consent.
CFI ruled that Consuelo should discontinue her usage of the surname of Tolentino. The CA reversed the decision.
Issues:
1. Whether the petitioner’s cause of action has already prescribed
2. Whether the petitioner can exclude by injunction Consuelo David from using the surname of her former husband from whom she was divorced.
3. Whether there was usurpation of the petitioner's name and surname in this case.
Held:
1. Art. 1150 of the Civil Code provides: "The time for prescription for all kinds of actions, when there is no special provision which ordains otherwise, shall be counted from the day they may be brought."
All actions, unless an exception is provided, have a prescriptive period. Unless the law makes an action imprescriptible, it is subject to bar by prescription and the period of prescription is five (5) years from the time the right of action accrues when no other period is prescribed by law (Civil Code, Art. 1149). The Civil Code provides for some rights which are not extinguished by prescription but an action as in the case before us is not among them. Neither is there a special law providing for imprescriptibility.
The petitioner should have brought legal action immediately against the private respondent after she gained knowledge of the use by the private respondent of the surname of her former husband. As it is, action was brought only on November 23, 1971 with only verbal demands in between and an action to reconstitute the divorce case. The petitioner should have filed her complaint at once when it became evident that the private respondent would not accede to her demands instead of waiting for twenty (20) years.
As aptly stated by the Court of Appeals, "where the plaintiff fails to go to the Court within the prescriptive period, he loses his cause, but not because the defendant had acquired ownership by adverse possession over his name but because the plaintiffs cause of action had lapsed thru the statute of limitations.
2. On the principal issue of whether or not a divorced woman may continue using the surname of her former husband, Philippine law is understandably silent. We have no provisions for divorce in our laws and consequently, the use of surnames by a divorced wife is not provided for. It is significant to note that Senator Tolentino himself in his commentary on Art. 370 of the Civil Code states that "the wife cannot claim an exclusive right to use the husband's surname. She cannot be prevented from using it; but neither can she restrain others from using it."
The petitioner has failed to show that she would suffer any legal injury or deprivation of legal rights inasmuch as she can use her husband's surname and be fully protected in case the respondent uses the surname Tolentino for illegal purposes.
3. There is no usurpation of the petitioner's name and surname in this case so that the mere use of the surname Tolentino by the Private respondent cannot be said to have injured the petitioner's rights.
Usurpation of name
The usurpation of name implies some injury to the interests of the owner of the name. It consists in the possibility of confusion of Identity ... between the owner and the usurper. It exists when a person designates himself by another name ...
Elements of usurpation of a name:
The following are the elements of usurpation of a name:
1) there is an actual use of another's name by the defendant;
2) the use is unauthorized; and
3) the use of another's name is to designate personality or identify a person.
None of these elements exists in the case at bar and neither is there a claim by the petitioner that the private respondent impersonated her. In fact, it is of public knowledge that Constancia Tolentino is the legal wife of Arturo Tolentino so that all invitations for Senator and Mrs. Tolentino are sent to Constancia. Consuelo never represented herself after the divorce as Mrs. Arturo Tolentino but simply as Mrs. Consuelo David-Tolentino. The private respondent has legitimate children who have every right to use the surname Tolentino. She could not possibly be compelled to use the prefix "Miss" or use the name Mrs. David, different from the surnames of her children. The records do not show that she has legally remarried.
In Silva, et al. v. Peralta (110 Phil. 57) cited by the petitioner, it was not the mere use of the surname that was enjoined but the defendant's representation that she was the wife of Saturnino Silva. There was, therefore, a usurpation of the wife's status which is absent in the case at bar.
We rule that the use of the surname Tolentino does not impinge on the rights of the petitioner.
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