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[FILIPINAS PERALTA DE GUERRERO v. MADRIGAL SHIPPING CO.](https://lawyerly.ph/juris/view/c33fd?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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106 Phil. 485

[ G. R. No. L-12951, November 17, 1959 ]

FILIPINAS PERALTA DE GUERRERO, ET AL., PLAINTIFFS AND APPELLANTS, VS. MADRIGAL SHIPPING CO., INC., DEFENDANT AND APPELLEE.

D E C I S I O N

BAUTISTA ANGELO, J.:

This is an  action instituted before  the Court  of  First Instance  of  Ilocos  Norite  to  recover  damages resulting from the  death  of  Pacifico (Acacio when  the  ship where the latter was riding as passenger capsized in San  Jose, Antique. On April 30, 1957,  the  wife and  daughter of Pacifico Acacio, plaintiffs herein,  filed a complaint against defendant corporation alleging that on  November 1,  1949 Pacifico Acacio entered  into a contract of carriage with defendant  whereby for certain consideration  the  latter undertook to carry the former on its vessel "M.S. Regulus" from Malangas, Zamboanga, to the City of Manila; that while the vessel was passing San Jose, Antique, its  crew without taking the necessary precaution  managed and steered the same in  a  reckless and imprudent manner thereby causing the vessel to capsize and resulting in the death of Pacifico Acacio.

Defendant filed  a motion to dismiss on the ground that plaintiff's cause  of action has  already prescribed. It  contended   that  they  should have filed  the action within six years from the time of  the alleged breach of contract, or on November 1, 1955, and considering that the complaint was filed on April 30, 1957, or more than seven years thereafter, the complaint was filed out of time.

The lower court sustained the motion holding that  since the nature of the action is one for recovery of damages which  is hot based  on  a  written contract, the action  is already  barred  by the  statute  of  limitations.  Hence the present appeal.

It appears  that  the complaint was dismissed by the trial court on the strength of a motion filed by defendant on  the ground that the  cause of action has already prescribed.  No evidence  was presented hy any party in support of or against the  motion, the ruling of the  court having been based merely on the factual allegations of the complaint.  The question that now arises is: Do the allegations of the complaint shows that the cause of action of plaintiffs is merely for recovery of damages, as found by the trial court, or  is one based on a written contract of carriage as claimed by appellants?

We are inclined to uphold the contention of appellants, for a cursory reading of the  complaint would show that their cause of  action is predicated upon  the failure of appellee to comply with its contract of carrying the deceased from Malangas, Zamboanga to the City of Manila safely, in that the vessel on which he was riding belonging to defendant capsized because of the reckless and imprudent manner  it was  managed and  steered by its crew.  It  is true that the complaint does not in so  many words state that the transportation was  undertaken by  virtue of a written contract of carriage, but this can be implied from the complaint because it is a matter of common knowledge that whenever a passenger boards a ship for transportation from one  place to another he is  issued a  ticket by the shipper  wherein the terms of the contract are  specified. According to appellants, "This  ticket is in itself a complete written contract by and between the shipper and the passenger.  It has all the  elements  of a complete  contract, namely: (1) the consent of the contracting parties manifested by the fact that the passenger boards the ship and the shipper  consents  or accepts him  in the ship for transportation; (2)  cause or consideration which is  the  fare paid by the passenger as stated in the ticket; and (3) object, which is the transportation  of the passenger from the place of departure to the  place of  destination which are stated in the ticket."

Considering that the ticket is not now before us because the case has been decided merely on a motion to dismiss, and this ticket is necessary  to  determine the  right of action of appellants,  it would  have been  more  proper had action on the motion been deferred until after  trial on  the  merits.   This  is  authorized by the  rule  if the ground alleged in the  motion does not appear to be indubitable (Section 3, Rule 8, of the Rules of Court).  We are therefore of the opinion that, in fairness to appellants, idle trial court should not have dismissed the case outright but should have deferred action on the  motion until after trial  for the evidence to be presented may still show that the contract of the parties is really written and not merely oral as intimated by the court a quo.

Wherefore, the order appealed from is hereby set aside, and the case is remanded to the lower court for further proceedings.  No pronouncement as to costs.

Paras, C. J., Bengzon, Padilla, Montemayor, Labrador, Reyes, J. B. L., Endencia, Barrera,
and Gutierrez David, JJ., concur.

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