9 Yek Tong Lin Fire & Marine Ins. Co. Ltd. vs. APL -Inc., G.R. No. L-11081.pdf

[No. L-11081. April 30, 1958] THE YEK TONG FIRE & MARINE INSURANCE Co., LTD., plaintiff and appellant, vs. AMERICAN PRESIDENT LINES, INC., defendant and appellee. Appeal from an order of the Court of First Instance of Manila dismissing the complaint filed in this action on the ground of prescription. Plaintiff-appellant claims that defendant-appellee is not allowed to traverse the allegations contained in the complaint but must proceed upon the hypothetical assumption that all the allegations therein are true. The rule requiring a party moving for dismissal to admit or assume the allegations of the complaint is applicable when the ground for the motion to dismiss is that the complaint does not state facts sufficient to constitute a cause of action (Rule 8, section 1 [f]), and not when the ground is prescription of action, which special defense is based not on facts appearing in the complaint but on new matter not disclosed in the complaint. The present motion to dismiss traverses no allegation of the complaint; it sets up as new matter that the goods in question arrived in Manila on July 17, 1952, on which point the complaint has avoided making a statement to avoid a fatal objection. Plaintiff-appellant claims that no evidence was submitted to support this allegation; but the same does not appear to have been denied by plaintiffappellant. This failure to deny can be interpreted as admission. Besides, courts can take judicial notice of the fact that a vessel leaving Japan on June 18, 1952, arrived Manila by July 17, 1952. Plaintiff-appellant argues also that the court erred in not considering its action suspended by the extrajudicial demand which took place, according to defendant's own motion to dismiss, on August 22, 1952. This Court has already held in a case governed by the Carriage of Goods by Sea Act that the general provisions of the Code of Civil Procedure on prescription should not be made to apply.

(Chua Kuy vs. Everett Steamship Corp., 93 Phil., 207; 50 Off. Gaz., [1], 159.) In such a case the general provisions of the new Civil Code (Article 1155) cannot be made to apply, as such application would have the effect of extending the one-year 1126

period of prescription fixed in the law. It is desirable that matters affecting transportation of goods by sea be decided in as short a time as possible; the application of the provisions of Article 1155 of the new Civil Code would unnecessarily extend the period and permit delays in the settlement of questions affecting transportation, contrary to the clear intent and purpose of the law. Decision appealed from is affirmed, with costs. Labrador, J., ponente. ____________

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