
    Francisco P. Irizarry, Plaintiff and Appellee, v. Ramón Díaz-Ojea, Defendant and Appellant.
    No. 3516.
    Argued March 20, 1925.
    Decided March 5, 1926.
    
      Angel A. Vázquez for the appellant. Benet & Souffront for tbe appellee.
   Mb. Chiep Justice Del Tobo

delivered the opinion of the court.

The complaint set np two causes of action. In the first plaintiff Francisco P. Irizarry, married to Providencia Morales, ..claimed from defendant Ramón Díaz Ojea an indemnity of three thousand dollars for mental anguish and damag’es suffered in Ms reputation and esteem among his neighbors by reason of certain words uttered by the defendant in the piesence and hearing of more than three hundred persons, thereby defaming him and exposing him to public ridicule. In the second canse of action the plaintiff claimed four thousand dollars, based on the same facts, for mental anguish, lack of attention and affection of his wife, physical pain, nervous disturbance, and loss of friendship and public confidence by his wife. The complaint covers the ground fully and at first sight it may he observed that it was framed after a careful study of the facts and the jurisprudence applicable.

The defendant demurred on the grounds of misjoinder of causes of action and lack of sufficient allegations, and answered with a general denial, alleging tliat because of a certain assault committed by the plaintiff’s wife upon the defendant’s daughter the defendant, under nervous excitement, reprimanded the plaintiff by telling him that it was .improper for him to allow his wife to act as'she did. He also pleaded res judicata.

The defendant died and a motion by the plaintiff that he be substituted by his heirs was sustained.

After trial the court dismissed, the first cause of action and sustained the second, adjudging that the heirs of Ramón Díaz Ojea pay to the plaintiff the sum of three hundred dollars and the costs.

The heirs appealed to this court and alleged that the trial court erred (1) in overruling a certain motion to strike; 12 and 3) in overruling demurrers; (4) in overruling the plea of res judicata; (5) in admitting certain evidence, and (6) in weighing the evidence.

We shall not consider the first three assignments for the reason that in our judgment they are wholly without merit.-

The plea of res judicata was set up in the answer as follows:

“Likewise, and as a matter of opposition to the counts of the first eau’se of action, the defendant alleges:
“ ‘By a final judgment rendered by this court on December 13, 1922, in civil case No. 9254 brought by Providencia Morales, joined by Francisco P. Irizarry, against this defendant Ramón Díaz Ojea for damages by virtue of the same phrases and facts to which the complaint of the present plaintiff refers, this court dismissed the complaint in all of its part’s on the merits of the evidence, wherefore the defendant now alleges that in the present ease the presumption of res juclioa-ta exists because between this case and the one decided by tlie judgment mentioned there is' the most perfect identity between the things, the causes, the persons of the litigants and their capacity as such.’ ”

At the trial the prosecution to judgment of the other set-ion was shown, but the plaintiff contends, and we believe be is right, that as that action was brought by Providencia Morales who had no right ttf bring it because the action pertained to the conjugal partnership, the judgment therein rendered can not be pleaded in bar of this action. That the action pertains to the conjugal partnership was held in the case of Vázquez v. Valdés et al., 28 P.R.R. 431, and that decision has been ratified in that particular in the recent case of Vázquez v. Porto Rico Ry., Light & Power Co., ante, page 59.

Section 1219 of the Revised Civil Code provides that “In order that the presumption of the res adjudicaba may be valid in another suit, it is necessary that, between the case decided by the sentence (sic) and that in which the same is invoked, there be the most perfect identity between the things, causes, and persons of the litigants, and their capacity as such.” Case No. 9254 decided by the judgment of December 13, 1922, \ras in fact based on the same facts as this case, but it was brought by Providencia Morales personally, while in this case Providencia Morales appears as a member of the conjugal partnership composed of herself and her husband. The fact that she was joined by her husband in the first case does not change the situation. Hence the perfect identity ivhich the law requires between the litigcmts in the two ca's'es does not exist and therefore the plea of res judicata is of no avail.

The fifth assignment is stated as follows: “The court erred in admitting in evidence, over the defendant’s objection, the testimony of witnesses given at another trial.”

It occurred that when the witnesses called by the plaintiff were about to testify with respect to the words that they heard from Ramón Díaz, which constitute the basis of the action, the defendant objected on the ground that they were statements of a deceased person. It will be remembered that Diaz died and was substituted by his heirs. The plaintiff insisted that his evidence was pertinent. The defendant continued to object and after a long debate tbe court refused to admit tbe evidence and tbe plaintiff excepted. Then tbe plaintiff said: “Now we can present bere tbe stenographer of tbe court and tbe record of tbe former action in wbicb tbis witness testified in tbe presence of Ramón Díaz Ojea, who had an opportunity to cross-examine him.” Tbe court said: “You may bring that evidence.” The defendant said: “We take an exception.” This was repeated several times and in all of them tbe ruling was substantially tbe same.

In his brief tbe defendant says: “With tbe admission cf that evidence tbe trial court inf ringed, in our judgment, paragraph 6 of section 35 of tbe Law of Evidence, inasmuch as none of tbe witnesses whose testimony was admitted had died and they were present in tbe court with capacity to testify.”

In our opinion tbe error committed is so clear that wé can not reach any other conclusion than to reverse tbe judgment appealed from. Subsection 6 of section 35 of the Law of Evidence is positive. The testimony of a witness given in a former action between the same parties and relating to the same matter can be admitted only when tbe witness has died, or is out of tbe jurisdiction of tbe court or incapacitated to testify. Here tbe witnesses were present in tbe court. And tbe error is prejudicial because tbe judgment sustaining tbe complaint is based on the evidence so admitted.

Tbe fact that a court commits an error, as tbe trial court did in tbis case, in not permitting tbe plaintiff’s witnesses to testify as to the words uttered, according to tbe complaint, by Ramón Díaz Ojea, notwithstanding bis having died before the trial, does not authorize tbe injured party to introduce evidence contrary to tbe law and over the objection of tbe other party.

Tbe judgment appealed from must be reversed and tbe case remanded for further proceedings not inconsistent with tbis opinion.  