
    Pou v. Valdejuly et al.
    Appeal from the District Court of San Juan.
    No. 82.
    Decided April 15, 1904.
    Obligations. — Unlawful acts or omissions involving any kind of fault or negligence are one of the sources of obligations.
    Id. — Jactitation—Damages—Indemnity.—Acts which, according to the Laws of Partidas, give rise to the action of jactitation, may likewise create an obligation growing out of fault or negligence, but the effect of such obligation cannot be other than to compel the guilty party to repair the injury which he may have caused, by making indemnity for the damages sustained by the person who is the victim, and it is not possible to compel the guilty party to institute any action whatever against the person complaining against 1dm, or, in ease of failure to do so, to impose upon him perpetual silence.
    Id. — The obligation to repair an injury, even in case it may be done by the act of the person liable, would be reduced to compensation for the damages sustained when the person liable is not able or willing to perform said act. Id. — Libel.—All civil actions maintained in' consequence of any defamation or act tending to throw discredit, dishonor or contempt upon a person, are actions for libel, and the effect thereof is none other than the pecuniary compensation of the party aggrieved.
    Id, — The act of a party in setting forth in a judicial act certain facts which he qualifies as defamatory, and those which he inserts ‘ ‘ for legal purposes, which he reserves,” does not imply jactitation of any kind, nor does it in any way of fend, or injure the reputation and credit of the person to whom the commission of such acts is imputed.
    STATEMENT OF THE CASE.
    This is a declaratory action for jactitation, instituted in the District Court of San Juan by Eafael Pou y López de Victoria, who is engaged in industrial pursuits and is a resident of this city, as plaintiff, represented by his attorney, Eafael López Landrón, against Tomás Valdejuly y Calatra-veño, Eafael Gutiérrez del Arroyo and José Oiler, residents of Bayamón, as defendants, who have not appeared in this court notwithstanding they were cited and summoned; which case is pending before us on an appeal prosecuted by the plaintiff from the judgment rendered by the said district court, which reads as follows:
    “Judgment. — In the city of-San Juan, Porto Rico, the 18th day of the month of July, 1903.
    “An ora] and public trial was held of this action of jactitation, instituted by Rafael R. Pou y López de Victoria, who is engaged in industrial pursuits and is a resident of San Juan, as plaintiff, against Tomás Valdejuly y Calatraveño, Rafael Gutiérrez del Arroyo, and José Oiler, residents of Bayamón, as defendants, the former of whom is represented by Attorney Rafael López Landrón, and the other defendants by Attorney Eduardo Acuña Aybar.
    “On the 18th day of November Attorney Rafael López Landrón, on behalf of Pou, instituted an' action against the said Valdejuly, Gutiérrez and Oiler, praying that they be ordered to prosecute against his client, within the peremptory period fixed for that purpose, all ihe actions which they believed to exist in their favor, or otherwise that they be enjoined to perpetual silence and- adjudged to make compensation in damages, together with the payment of costs. This action, as regards Valdejuly, was based on the fact that the following words were inserted in an act drawn up by the municipal judge of Bayamón at the instance of Valdejuly, and in the presence of Pou: ‘that considering the said memorandum grossly derogatory to his character, inasmuch as it drew into question his reputation as a notary, he called upon the judge to enter the facts of record . ’ which memorandum, which was left by Pou with the clerk of Valdejuly after examining the protocols for 1896 and. 1897 on file in the notarial office, read as follows: ‘Textual words of the will of Belén. All the property of Pedro del Arroyo has been paid for with the one-half of the estate of Pueblo Viejo. These words which I read in the former instrument I am unable to find in the instrument of this date. Rafael R. Pou;’ and the action as regards the remaining defendants was based upon' the fact that Oiler addressed letters to Gutiérrez del Arroyo, and the latter to his sister Dolores, the aunt of Felicia, by whose direction Pou examined the protocols of the Bayamón notary, in which he announced disagreeable consequences in which the name of Miss Fernández would be bandied about, it being a vexatious affair of an extremely sensitive gentleman, all of which allusions, veiled threats, etc., molest and injuriously affect Pon. Articles 1088, 1089, 1902 and 1903 of tbe Civil Code were cited as grounds of law.
    “The complaint having been referred to the defendants for examination, Attorney Antonio Alvarez Nava made answer thereto within the legal period, alleging as facts, substantially, that Pou, upon examining the protocol, stated verbally t,o Otero, a clerk of the notarial office of Valdejuly, that the will which he had examined was not the same as the one of other days, and left with said clerk the memorandum referred to, to be delivered to Valdejuly; that Valdejuly, being of the opinion that the statements of Pou were calumnious, drew up the said act for the purpose of proceeding, should he consider it advisable, against Pou for the crime of calumny; and that the other defendants wrote letters to Dolores Fer-nández del Arroyo, officiously and without the intervention of Valde-july, informing her that they were afraid that the latter would make a complaint against Pou, and that it would be advisable to talk to him to cause him to desist from his purpose. The answer set up, as matter of law, the inapplicability of law 46, title 2, partida 3, which establishes the 'so-called action of jactitation for other eases, and the inapplicability to the ease of article 1089 of the Civil Code.
    “The plaintiff proposed as evidence the confession of the defendants, public documents, private documents and the testimony of witnesses, while the defendants proposed as evidence confession, public documents and the testimony of witnesses.
    “It appears from the plaintiff’s evidence that the judicial act referred to in the foregoing findings of fact was attached to the record of the case, and that, in effect, Valdejuly inserted in said document the following words: ‘The paper of Mr. Pou contains an insult against the declarant, no matter how much he has tried to mitigate it. The declarant ¡does not wish to defer this act any longer, and in order to corroborate 'everything above stated for legal purposes, which he reserves to himself, he requests the court to proceed to make a comparison of the copy which he presents in this proceeding of said will (the one executed by Mrs. Belén Umpierre on September 27, 1877, by authority of her husband, Ramón Gutiérrez del Arroyo) with the original instrument.’
    ‘ ‘ The first of the witnesses for the defendant, namely, Juan Otero, José María Serra and Felicia Fernández, testified that he was present at the execution of the said judicial act without having heard Valdejuly or anyone else boast that he was going to do something to Pou; tbe second as to tbe statement made to him by Pou as to tbe discrepancies wbicb gave rise to tbe memorandum in question; and tbe third testified to tbe effect that she bad commissioned Pou to make a search for tbe will of her grandparents, and that Valde-july and Gutiérrez del Arroyo boasted that something was going to happen to Pou, and that she was engaged in a law suit with Gutiérrez and has proceeded criminally against Valdejuly, she being a niece of tbe former.
    “Tbe other evidence proposed, namely, that of confession of tbe plaintiff and defendants, acknowledgment of private documents and tbe will executed by Belén Umpierre, and tbe testimony of tbe witnesses Andino, Vizcarrondo and Dolores Gutiérrez, was not taken owing to tbe waiver.of tbe parties.
    “Tbe oral trial of this civil cause having been held, each of tbe parties alleged such matters as were conducive to bis rights, and judgment was rendered at a public session of tbe court after citing said parties.
    “Tbe legal formalities have been complied with in tbe conduct of this case.
    “Tbe opinion of tbe court was prepared by Judge José Tous Soto, as follows:
    “Inasmuch as unlawful acts or omissions involving any kind of fault or negligence are one of tbe sources of obligations, all acts wbicb, according to law 46, title 2, partida 5, give rise to tbe action of jactitation, may create an obligation of this character, provided tbe acts ot tbe guilty party, by claiming rights against tbe defendant, cause an injury to tbe latter wbicb may be repaired in conformity with article 1803 of tbe Civil Code; but tbe effect of such obligation cannot be other than to compel tbe guilty party to repair tbe injury caused, by making indemnity for tbe damages sustained by tbe person who is the victim of the jactitation, which is the effect of all obligations growing out of fault or negligence, and it cannot be successfully contended that such effect extends to compel tbe pen son who is guilty of tbe unlawful act of jactitation to institute an action against tbe person complaining against bim, within a peremptory period, and, in case of bis failure to do so, to impose .upon bim perpetual silence as prescribed by tbe Laws of Partidas, wbicb in this respect have been repealed by tbe Civil Code of 1899.
    “It cannot be contended that reparation of the injury caused by the guilty party would be proper and that be should be compelled to institute suit against the person of whom tbe defamatory words were employed, for apart from tbe fact that none of these means is adequate to compensate for the injury caused to the reputation, honor or credit of a person by the jactitation of another, the obligation to repair an injury, even in case it may be done by the act of the person liable would reduce itself to compensation for the damages sustained when the person liable is not able or willing to perform said act, in accordance with the rules governing the performance of unfulfilled obligations.
    “On the other hand, all civil actions maintained in consequence of any defamation or act tending to throw discredit, dishonor or contempt upon the plaintiff should be prosecuted in conformity with the act of the Legislative Assembly authorizing civil actions to recover damages for libel and slander, which has been in force since February 19,1902, a date prior to the occurrence of the facts which serve as the basis of the complaint, and according to said act, the action for libel produces no other effect than the pecuniary compensation of the injured party.
    “Apart from the legal question considered in the foregoing conclusions of law as to the effect of an action brought for jactitation prejudicial to the honor or credit of the plaintiff, there is no evidence or indication whatever in the instant case tending to show that the defendants boasted of having any right over the person or property of the plaintiff, or of any other thing which could redound to the dishonor, contempt or discredit of said plaintiff, since the act of Valdejuly, in setting forth in a judicial act certain facts which he qualifies as defamatory ‘for legal purposes, which he reserves,’ does not imply jactitation of any kind, nor can it in any way offend or injure the reputation and credit of the plaintiff, even upon the hypothesis that the intention of Valdejuly to make a complaint against Pou had been clearly manifested, since the reservation of a right by a person believing himself entitled thereto can never injure the rights of another; and as to the other defendants, it cannot be argued that the fact that one wrote to the other, and that the other wrote to the aunt of Miss Gutiérrez del Arroyo informing her of the intention of Valdejuly to make a complaint against Pou, constitutes jactitation of any description whatever.
    ‘ ‘ The parties whose claims are totally rejected should be adjudged to the payment of costs.
    “Having examined the legal provisions cited, articles 1055, 1056, 1065, and 1803 of the Civil Code, the applicable articles of the Law of Civil Procedure, and General Order No. 118, series of 1899, we adjudge that we ought to declare and do declare that the complaint for jactitation and for the recovery of damages does not lie, with costs against the plaintiff.
    “Thus by this our judgment, finally adjudging, do we pronounce, order and sign.”
    From this judgment counsel for the plaintiff, Eafael E. Pon y López de Victoria, took an appeal, which was freely allowed both for a review and a stay of proceedings, and the record having been forwarded to this court, the parties having been cited, and the appellant having appeared, the appeal was properly conducted and a day set for the hearing, which was duly held, counsel for the appellant being present.
    
      Mr. López Landrón, for appellant.
    The respondents did not appear.
   Me. Chief Justice QuiñONes,

after stating the foregoing facts, delivered the opinion of the court.

The findings of fact and conclusions of law of the judgment appealed from are accepted.

Having examined the legal provisions therein cited, we adjudge that we ought to affirm and do affirm said judgment, with costs against the appellant. A certified copy of this judgment is ordered to be sent to the court below, together with the return of the record.

Justices Hernández, Figueras, Sulzbacher and MacLeary concurred.  