a.

Civil Action After Acquittal In a Criminal Case

WHAT IS THE SCOPE OF ARTICLE 31? 'his article refers to a civil action based not on the act or omission charged as a felony in a criminal case but to one based on an obligation arising from other sources such as la# or contract ,9%ample2 1reach of contract of carriage. *eason2 'he civil action based on contractual liability of a common carrier is distinct from the criminal action instituted against the carrier or its employee based on the latter:s negligence.. ;eaning of independent civil actions An independent civil action is one that is brought distinctly and separately from a criminal case allo#ed for considerations of public policy because the proof needed for civil cases is less than that required for criminal cases/ but #ith the in$unction in general that success in financially recovering in one case should prevent a recovery of damages in the other. 5ote that the bringing of the independent civil action is permissive not compulsory

Article 29 When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt a civil action for damages for the same act or omission may be instituted. !uch action requires only a preponderance of evidence. "pon motion of the defendant the court may require the plaintiff to file a bond to ans#er for damages in case the complaint should be found to be malicious. If in a criminal case the $udgment of acquittal is based upon reasonable doubt the court shall so declare. In the absence of any declaration to that effect it may be inferred from the te%t of the decision #hether or not the acquittal is due to that ground.& WHAT ARE THE REASONS OF THE PROVISION IN ALLOWING THE FILING OF A CIVIL ACTION FOR DAMAGES EVEN THOUGH THE ACCUSED HAS BEEN ACQUITTED ON REASONABLE DOUBT? a. 'he reason is found in Article 2()) #hich states that responsibility for fault or negligence is entirely separate and distinct form the civil liability arising form negligence under the penal code but the plaintiff cannot recover damages t#ice for the same act or omission of the defendant. Also under the *evised +enal Code a person criminally liable is also civilly liable ,Article (--.. 'he t#o liabilities are separate and distinct form each other/ the criminal aspect affects social order/ the civil private rights. 0ne is for the punishment or correction of the offender #hile the other is for reparation of damages suffered by the aggrieved party.

WHAT ARE THE INSTANCES OF INDEPENDENT CIVIL ACTIONS? ,a. ,b. ,c. ,d. ,e. Article 2( Acts contra bonus mores Article 82 breach of constitutional and other rights Article 88 7efamation fraud physical in$uries Article 8< *efusal or failure of city or municipal police to give protection Article 2()) =uasi>delict

b.

WHAT ARE THE INSTANCES WHERE NO CIVIL ACTION MAY BE INSTITUTED? ,a. ,b. ,c. When the accused is acquitted on the ground that he did not commit the act or 'hat no crime #as committed or 1ecause he is $ustified or e%empt from criminal liability

WHAT IS THE EFFECT OF ACQUITTAL IN THE CIVIL CASE? 'he dismissal of the civil action cannot constitute a bar to the criminal suit for the t#o actins are entirely distinct from each other and may therefore be litigated independently. PROSECUTION OF INDEPENDENT CIVIL ACTION [RULE 111, RULES OF CRIMINAL PROCEDURE] Wha a!" h" #"$"!a% !&%"' ($ ($' ( & ()$ )* +!(,($a% a$- +(.(% a+ ()$'? When a criminal action is instituted the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted #ith the criminal action unless 2 ,(. ,2. ,8. the offended party #aives the civil action reserves the right to institute it separately or institutes the civil action prior to the criminal action.

*eason2 1ecause the acquittal on these grounds constitutes res ad$udication. When such civil action is instituted only a preponderance of evidence is required. 3o#ever to protect persons form harassment the provision authori4es the defendant t file a motion in court requiring the plaintiff to file a bond to ans#er for damages in case the complaint should be found to be malicious. 5ote that Article 29 does no spea6 of an independent civil action. b. Institution of Civil Action for 7amages Arising out of a Criminal 0ffense before a Criminal Action is Instituted for the Criminal 0ffense Article 8- When a separate civil action is brought to demand civil liability arising from a criminal offense and no criminal proceedings are instituted during the pendency of the civil case a preponderance of evidence shall li6e#ise be sufficient to prove the act complained of.& If ho#ever a criminal action is instituted #hile the civil action is pending the civil action #ill be suspended until final $udgment in the criminal case has been rendered. As in Article 29 this article does not spea6 of an independent civil action. c. 'orts #ith Independent Civil Actions.

?'he reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting evidence and under circumstances affording the offended party reasonable opportunity to ma6e such reservation. !ection ( *ule (((@ When the civil action has been filed separately and trial thereof has not yet commenced it may be consolidated #ith the criminal action upon application #ith the court trying the latter case. If the application is granted the trial of both actions shall proceed in accordance #ith section 2 of this *ule governing consolidation if the criminal and civil action. After the criminal action has been commenced the separate civil action arising therefrom cannot be instituted until final $udgment has been entered in the criminal action. If the criminal action is filed after the said civil action has already been instituted the latter shall be suspended in #hatever stage it may be found before $udgment on the merits. 'he suspension shall last until final $udgment is rendered in the criminal action. 5evertheless before $udgment on the merits is rendered in the civil action the same may upon motion of the offended party be consolidated #ith the criminal action in the court trying the criminal action. ?!ection 2 Ibid.@ WHAT ARE THE RULES ON INDEPENDENT CIVIL ACTIONS?

WHAT IS THE BASIS OF TORTS WITH INDEPENDENT CIVIL ACTIONS? Article 8( When the civil action is based on an obligation not arising from the act or omission complained of as a felony such civil action may proceed independently of the criminal proceedings and regardless of the result of the later.&

In the cases provided in Articles 82 88 8< and 2()A of the Civil Code the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case ho#ever may the offended party recover damages t#ice for the same act or omission charged in the criminal action. ?!ection 8 Ibid.@ 'he independent civil actions contemplated in the present *ule ((( include quasi>delicts provided for in Article 2()A in addition to Articles 82 88 and 8<. It is necessary ho#ever that the civil liability under the said articles arise Bfrom the same act or omission of the accused.& Curther a reservation of the right to institute these separate actions are impliedly instituted #ith the criminal action unless the former are #aived or filed ahead of the criminal action. Where an independent civil action is permitted the result of the criminal action #hether of acquittal or conviction is entirely irrelevant to the civil action. 'hus under Article 8( of the Civil Code the civil action may proceed independently of the criminal action regardless of the result of the latter. +rior to the case of *oa vs. 7e la Cru4 ,(-( +hil. D. it #as held that #here the la# authori4es a separate and independent civil action there #as no need for ma6ing a reservation ho#ever in subsequent cases the !upreme Court has decided that reservation is needed because of the specific provision of !ection 8 *ule ((( requiring such reservation to be made even #here the la# provides for independent civil actions.

municipality shall be subsidiarily responsible therefore. 'he civil action recogni4ed shall be independent of any criminal proceedings and a preponderance of evidence shall suffice to support such action. 'he liability of the city or municipality being subsidiary can only be enforced #hen the guilty officer is insolvent. 3o#ever it can not be avoided by proving that the city or municipality has e%ercised due diligence in the selection and supervision of its policemen. 'his defense allo#ed under Article 2(D- in favor of employers for the fault or negligence of their employees is available only to private employers/ it #ould be available to the city or municipality if the function involved is a corporate function but not #hen as contemplated by the present article it is a governmental function.

e.

Article 2()) *esponsibility for fault or negligence under Article 2()A is entirely separate and distinct from the civil liability arising form negligence under the penal code. 1ut the plaintiff cannot recover t#ice for the same act or omission of the defendant.:

DAMAGES

WHAT ARE THE DAMAGES THAT MAY BE AWARDED? "nder Article 2(9) damages may be2 (. 2. 8. <. E. A. Actual or compensatory/ ;oral/ 5ominal/ 'emperate or moderate/ Fiquidated/ or 9%emplary or corrective. WHAT DAMAGES MAY BE RECOVERED IN CASE OF DEATH OF A PASSENGER? When death occurs the follo#ing items of damages may be recovered2 (. 2. 8. <. E. An indemnity for the death of the victim/ An indemnity for loss of earning capacity of the deceased/ ;oral damages/ Attorney:s fee and e%penses of litigation/ Interest in proper cases ,Brinas vs. People, 125 SCRA 687..

Wha a!" h" /($-' )* ($-"0"$-"$ +(.(% a+ ()$'? a. b. Article 2( ?!upra@ Article 82 Any public officer or employee or any private individual #ho directly or indirectly obstructs defeats violates or in any manner impedes or impairs any of the follo#ing rights and liberties of another person shall be liable to the latter for damages2 %%%% In any of the cases referred to in this article #hether or not the defendant:s act or omission constitutes a criminal offense the aggrieved party has a right to commence an entirely separate and distinct civil action for damages and for other relief. !uch civil action shall proceed independently of any criminal prosecution and may be proved by a preponderance of evidence. 'he indemnity shall include moral and e%emplary damages. Where a public officer is charged #ith violation of any of the basic rights of an individual provided for in this article it is deemed that the action is against him in his private capacity and not a suit against the state #hich requires its consent.

IN FI1ING A GREATER AMOUNT OF DAMAGES FOR DEATH OF A PASSENGER THAN THAT PROVIDED BY LAW WHAT MAY THE COURTS CONSIDER? Article 22-A applies in case of death caused by breach of contract by the common carrier ,Article ()A<.. It fi%es the minimum indemnity for death at +GGGG #hich the courts may increase according to circumstances. It is in fi%ing a greater amount of indemnity that courts may consider the financial capacity of the common carrier along #ith such other factors as2 (. 2. 8. <. E. A. ). Fife e%pectancy of the deceased or of the beneficiary #hichever is shorter/ +ecuniary loss to the plaintiff or beneficiary/ Foss of support/ Foss of service/ Foss of society/ ;ental suffering of beneficiaries/ and ;edical and funeral e%penses ,Pangasinan Transportation Co., Inc. vs. Legaspi, 12 SCRA 5 2..

c.

Article 88 In cases of defamation fraud and physical in$uries a civil action for damages entirely separate and distinct from the civil action may be brought by the in$ured party. !uch civil action shall proceed independently of the criminal prosecution and shall require only a preponderance of evidence. 'his article spea6s of independent civil action in cases of2 defamation libel or slander or intriguing against honor fraud including estafa and s#indling and physical in$uries including attempted and frustrated homicide so long as there #as in$ury.

d.

Article 8< When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property such peace officer shall be primarily liable for damages and the city or

In a#arding compensatory damages the age of the plaintiff his e%pected life span and his earning capacity #ithin that life span must be ta6en into consideration. 'hus the fact that the plaintiff #as only in his t#enties #hen through the negligence of the defendant he lost the use of his limbs being condemned for the remainder of his life to be a paralytic in effect leading a maimed #ell>nigh useless e%istence #ere ta6en into account in fi%ing compensatory damages , !arc"an vs. !en#o$a, 2% SCRA 88 ..

HOW MAY LIFE E1PECTANCY OF A PERSON BE DETERMINED FOR PUPROSES OF FI1ING THE AMOUNT OF DAMAGES THAT MAY BE RECOVERED? In determining the number of years on the basis of #hich the damages shall be computed and the rate #hich the losses sustained by said heirs should be fi%ed the follo#ing formula #as adopted in the American 9%pectancy 'able of ;ortality or the actual Combined 9%perience 'able of ;ortality2 2H8 % ,D- age of the decedent. I life e%pectancy. 'hus the life e%pectancy of the passenger #ho died #hen he #as over 29 years of age ,or around 8- for purposes of computation. #as placed at 88 (H8 years follo#ing the foregoing formula ,&illa Re' Transit, Inc. vs. Co(rt o) Appeals, *1 SCRA 51%.. And #here the passenger #as 8) years old #hen he died he had a life e%pectancy of 2D 2H8 more years , +ort(ne ,-press, Inc. vs. Co(rt o) Appeals, ..R. /o. 11 756, !arc" 18, 1 .. In the computation of the damages to be a#arded it should be life e%pectancy of the passenger #ho died and not the life e%pectancy of the beneficiary #hich should be considered ,P"ilippine Airlines vs. Co(rt o) Appeals, 185 SCRA 110.. ACTUAL OR COMPENSATORY DAMAGES Actual damages are adequate compensation for pecuniary loss suffered and proved. It includes attorney:s fees. A*'ICF9 2(99. 9%cept as provided by la# or by stipulation one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. !uch compensation is referred to as actual or compensatory damages. A*'ICF9 22--. Indemnification for damages shall comprehend not only the value of the loss suffered but also that of the profits #hich the obligee failed to obtain. ,((-A. A*'ICF9 22-(. In contracts and quasi>contracts the damages for #hich the obligor #ho acted in good faith is liable shall be those that are the natural and probable consequences of the breach of the obligation and #hich the parties have foreseen or could have reasonably foreseen at the time the obligation #as constituted. In case of fraud bad faith malice or #anton attitude the obligor shall be responsible for all damages #hich may be reasonably attributed to the non>performance of the obligation. ,((-)a. A*'ICF9 22-2. In crimes and quasi>delicts the defendant shall be liable for all damages #hich are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably been foreseen by the defendant. cdasia A*'ICF9 22-8. 'he party suffering loss or in$ury must e%ercise the diligence of a good father of a family to minimi4e the damages resulting from the act or omission in question. A*'ICF9 22-<. In crimes the damages to be ad$udicated may be respectively increased or lessened according to the aggravating or mitigating circumstances. A*'ICF9 22-E. ,(. ,2. 7amages may be recovered2

,2. If the deceased #as obliged to give support according to the provisions of article 29( the recipient #ho is not an heir called to the decedentJs inheritance by the la# of testate or intestate succession may demand support from the person causing the death for a period not e%ceeding five years the e%act duration to be fi%ed by the court/ ,8. 'he spouse legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. cdtai A*'ICF9 22-). If the plaintiffJs property has been insured and he has received indemnity from the insurance company for the in$ury or loss arising out of the #rong or breach of contract complained of the insurance company shall be subrogated to the rights of the insured against the #rongdoer or the person #ho has violated the contract. If the amount paid by the insurance company does not fully cover the in$ury or loss the aggrieved party shall be entitled to recover the deficiency from the person causing the loss or in$ury. A*'ICF9 22-D. In the absence of stipulation attorneyJs fees and e%penses of litigation other than $udicial costs cannot be recovered e%cept2 ,(. When e%emplary damages are a#arded/ ,2. When the defendantJs act or omission has compelled the plaintiff to litigate #ith third persons or to incur e%penses to protect his interest/ casia ,8. In criminal cases of malicious prosecution against the plaintiff/ ,<. In case of a clearly unfounded civil action or proceeding against the plaintiff/ ,E. Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffJs plainly valid $ust and demandable claim/ ,A. In actions for legal support/ ,). In actions for the recovery of #ages of household helpers laborers and s6illed #or6ers/ ,D. In actions for indemnity under #or6menJs compensation and employerJs liability la#s/ ,9. In a separate civil action to recover civil liability arising from a crime/ ,(-. When at least double $udicial costs are a#arded/ ,((. In any other case #here the court deems it $ust and equitable that attorneyJs fees and e%penses of litigation should be recovered. In all cases the attorneyJs fees and e%penses of litigation must be reasonable. A*'ICF9 22-9. If the obligation consists in the payment of a sum of money and the debtor incurs in delay the indemnity for damages there being no stipulation to the contrary shall be the payment of the interest agreed upon and in the absence of stipulation the legal interest #hich is si% per cent per annum. ,((-D. casia A*'ICF9 22(-. contract. A*'ICF9 22((. In crimes and quasi>delicts interest as a part of the damages may in a proper case be ad$udicated in the discretion of the court. A*'ICF9 22(2. Interest due shall earn legal interest from the time it is $udicially demanded although the obligation may be silent upon this point. ,((-9a. A*'ICF9 22(8. Interest cannot be recovered upon unliquidated claims or damages e%cept #hen the demand can be established #ith reasonable certainty. A*'ICF9 22(<. may recover. In quasi>delicts the contributory negligence of the plaintiff shall reduce the damages that he Interest may in the discretion of the court be allo#ed upon damages a#arded for breach of

Cor loss or impairment of earning capacity in cases of temporary or permanent personal in$ury/ Cor in$ury to the plaintiffJs business standing or commercial credit.

A*'ICF9 22-A. 'he amount of damages for death caused by a crime or quasi>delict shall be at least three thousand pesos even though there may have been mitigating circumstances. In addition2 ,(. 'he defendant shall be liable for the loss of the earning capacity of the deceased and the indemnity shall be paid to the heirs of the latter/ such indemnity shall in every case be assessed and a#arded by the court unless the deceased on account of permanent physical disability not caused by the defendant had no earning capacity at the time of his death/

A*'ICF9 22(E. In contracts quasi>contracts and quasi>delicts the court may equitably mitigate the damages under circumstances other than the case referred to in the preceding article as in the follo#ing instances2 cdtai ,(. ,2. ,8. ,<. 'hat the plaintiff himself has contravened the terms of the contract/ 'hat the plaintiff has derived some benefit as a result of the contract/ In cases #here e%emplary damages are to be a#arded that the defendant acted upon the advice of counsel/ 'hat the loss #ould have resulted in any event/

,E.

'hat since the filing of the action the defendant has done his best to lessen the plaintiffJs loss or in$ury. OTHER 2INDS OF DAMAGES

2.

Where it is proved that the carrier #as guilty of fraud or bad faith even if death does not result , Re- Ta-ica5 Co., Inc. vs. Ba(tista, L615* 2, Septe75er *0, 1 602 Singson vs. Co(rt o) Appeals, 282 SCRA 1% ..

A*'ICF9 22(A. 5o proof of pecuniary loss is necessary in order that moral nominal temperate liquidated or e%emplary damages may be ad$udicated. 'he assessment of such damages e%cept liquidated ones is left to the discretion of the court according to the circumstances of each case. cda MORAL DAMAGES A*'ICF9 22(). ;oral damages include physical suffering mental anguish fright serious an%iety besmirched reputation #ounded feelings moral shoc6 social humiliation and similar in$ury. 'hough incapable of pecuniary computation moral damages may be recovered if they are the pro%imate result of the defendantJs #rongful act or omission. A*'ICF9 22(D. be considered. A*'ICF9 22(9. ,(. ,2. ,8. ,<. ,E. ,A. ,). ,D. ,9. ,(-. In the ad$udication of moral damages the sentimental value of property real or personal may

1ad faith means a breach of a 6no#n duty through some motive or ill>#ill. !elf enrichment or fraternal interest and not personal ill>#ill may have been the motive but it is malice nevertheless #hich may be the ground for a#arding moral damages for breach of contract of carriage , Lope$ vs. Pan A7erican 8orl# Air4a's, 16 SCRA %*1 .. 'he bad faith referred to may be bad faith in the securing and in the e%ecution of the contract and in the enforcement of its terms or any other 6ind of deceit #hich may have been used by the carrier ,Ta7a'o vs. A1(ino, L6126*% an# 12720, 7a' 2 , 1 5 .. MAY MORAL DAMAGES BE GRANTED IN CASE OF BREACH OF CONTRACT OF TRANSPORTATION WHICH MERELY CAUSES PHYSICAL IN3URIES TO PASSENGERS? In case of breach of contract of carriage resulting only to physical in$uries of passengers moral damages are not recoverable ,Lag(na Ta'a5as B(s Co. vs. Cornista, 11 SCRA 182. unless the carrier acted fraudulently or #ith malice or in bad faith ,Ro1(e vs. B(an, 21 SCRA 6512 B(lante vs. C"( Liante, 2* SCRA 60%.. NOMINAL DAMAGES

;oral damages may be recovered in the follo#ing and analogous cases2

5ominal damages are a#arded not to compensate but to vindicate a right of the plaintiff that has been violated by the defendant. 'emperate damages on the other hand refers to pecuniary loss suffered but cannot be proven #ith certainty. A*'ICF9 222(. 5ominal damages are ad$udicated in order that a right of the plaintiff #hich has been violated or invaded by the defendant may be vindicated or recogni4ed and not for the purpose of indemnifying the plaintiff for any loss suffered by him. cd A*'ICF9 2222. 'he court may a#ard nominal damages in every obligation arising from any source enumerated in article ((E) or in every case #here any property right has been invaded. A*'ICF9 2228. 'he ad$udication of nominal damages shall preclude further contest upon the right involved and all accessory questions as bet#een the parties to the suit or their respective heirs and assigns. cdtai TEMPERATE OR MODERATE DAMAGES A*'ICF9 222<. 'emperate or moderate damages #hich are more than nominal but less than compensatory damages may be recovered #hen the court finds that some pecuniary loss has been suffered but its amount can not from the nature of the case be proved #ith certainty. A*'ICF9 222E. 'emperate damages must be reasonable under the circumstances. LIQUIDATED DAMAGES A*'ICF9 222A. breach thereof. aisa dc Fiquidated damages are those agreed upon by the parties to a contract to be paid in case of

A criminal offense resulting in physical in$uries/ =uasi>delicts causing physical in$uries/ !eduction abduction rape or other lascivious acts/ Adultery or concubinage/ Illegal or arbitrary detention or arrest/ Illegal search/ Fibel slander or any other form of defamation/ ;alicious prosecution/ Acts mentioned in article 8-9/ Acts and actions referred to in articles 2( 2A 2) 2D 29 8- 82 8< and 8E. casia

'he parents of the female seduced abducted raped or abused referred to in 5o. 8 of this article may also recover moral damages. 'he spouse descendants ascendants and brothers and sisters may bring the action mentioned in 5o. 9 of this article in the order named. A*'ICF9 222-. Willful in$ury to property may be a legal ground for a#arding moral damages if the court should find that under the circumstances such damages are $ustly due. 'he same rule applies to breaches of contract #here the defendant acted fraudulently or in bad faith. AS A GENERAL RULE, MAY MORAL DAMAGES BE RECOVERED IN BREACH OF CONTRACT OF TRANSPORTATION? ;oral damages are not recoverable in damage actions predicated on a breach of contract of transportation in vie# of the provisions of Articles 22(9 and 222-. 'he said provisions limited the a#ard of moral damages to those enumerated therein and analogous cases&. A breach of contract cannot be considered included in the descriptive term analogous cases& used in Article 22(9 not only because Article 222- specifically provided for damages that are caused by contractual breach but because the definition of 1(asi #elict in Article 2()A e%pressly e%cludes the cases #here there is a pre>e%isting contractual relation bet#een the parties& ,&er$osa vs. Ba'tan, 107 P"il. 10102 !artine$ vs. .on$ales, 6 SCRA **1.. WHAT ARE THE E1CEPTIONS TO THE FOREGOING RULE WHEN MORAL DAMAGES MAY BE RECOVERED IN BREACH OF CONTRACT OF TRANSPORTATION? ;oral damages may be recovered in an action for breach of contract of transportation in the follo#ing cases2 (. When the mishap results in the death of a passenger , !. R(i$ 3ig"4a' Transit, Inc. vs. Co(rt o) Appeals, 11 SCRA 8./

A*'ICF9 222). Fiquidated damages #hether intended as an indemnity or a penalty shall be equitably reduced if they are iniquitous or unconscionable. A*'ICF9 222D. When the breach of the contract committed by the defendant is not the one contemplated by the parties in agreeing upon the liquidated damages the la# shall determine the measure of damages and not the stipulation. E1EMPLARY OR CORRECTIVE DAMAGES A*'ICF9 2229. 9%emplary or corrective damages are imposed by #ay of e%ample or correction for the public good in addition to the moral temperate liquidated or compensatory damages. A*'ICF9 228-. In criminal offenses e%emplary damages as a part of the civil liability may be imposed #hen the crime #as committed #ith one or more aggravating circumstances. !uch damages are separate and distinct from fines and shall be paid to the offended party.

A*'ICF9 228(. negligence.

In quasi>delicts e%emplary damages may be granted if the defendant acted #ith gross

A*'ICF9 2282. In contracts and quasi>contracts the court may a#ard e%emplary damages if the defendant acted in a #anton fraudulent rec6less oppressive or malevolent manner. A*'ICF9 2288. 9%emplary damages cannot be recovered as a matter of right/ the court #ill decide #hether or not they should be ad$udicated. cdt A*'ICF9 228<. While the amount of the e%emplary damages need not be proved the plaintiff must sho# that he is entitled to moral temperate or compensatory damages before the court may consider the question of #hether or not e%emplary damages should be a#arded. In case liquidated damages have been agreed upon although no proof of loss is necessary in order that such liquidated damages may be recovered nevertheless before the court may consider the question of granting e%emplary in addition to the liquidated damages the plaintiff must sho# that he #ould be entitled to moral temperate or compensatory damages #ere it not for the stipulation for liquidated damages. cdtai A*'ICF9 228E. 4)5 A stipulation #hereby e%emplary damages are renounced in advance shall be null and void.