Plaintiff-Appellant vs. vs. Defendant-Appellee Delgado, Flores, Macapagal & Dizon Ross, Selph & Carrascoso

EN BANC
[G.R. No. L-17730. September 29, 1962.]
F. H. STEVENS & CO., INC. , plaintiff-appellant, vs. NORDDEUSCHER

LLOYD , defendant-appellee.
Delgado, Flores, Macapagal & Dizon for plaintiff-appellant.

Ross, Selph & Carrascoso for defendant-appellee.
SYLLABUS
1. ACTIONS; DISMISSAL FOR LACK OF JURISDICTION; PERIOD WITHIN

WHICH A NEW ACTION MAY BE COMMENCED. — Where an action commenced in the
municipal court on April 27, 1960, was dismissed for lack of jurisdiction over the
subject-matter on June 13, 1960, or over twenty (20) days after the expiration of the
period of one year, beginning from May 21, 1959, within which plaintiff's action could be
brought, pursuant to Commonwealth Act No. 65, in relation to the Carriage of Goods by
Sea Act, it is Held, that under section 49 of Act No. 190, the period within which plaintiff
could bring a new action in the proper court was renewed for another year, beginning
from June 14, 1960 (Tolentino vs. Vitug, 39 Phil., 126; Smith vs. McNeal, 100 U.S. 426,
27 L. ed. 936).
DECISION
CONCEPCION , J : p
This is an appeal from an order granting defendant's motion to dismiss and,

accordingly, dismissing the case without any pronouncement as to costs.
Plaintiff commenced this action in the Court of First Instance of Manila on June
24, 1960. It alleged in the complaint that on March 28, 1959, it had shipped from
Hamburg to Manila, aboard the "MS SCHWABENSTEIN", a vessel of defendant
Norddeuscher Lloyd, 2,000 pieces of prismatical thermometers valued at $650; that on
May 15, 1959, said vessel arrived at Manila; that on May 21, 1959, the master of said
vessel noti ed the plaintiff, thru its broker, of the delivery of said goods; that, upon
examination of the case containing the same, it turned out that 1,154 pieces of said
thermometers valued at $342.74, were missing and/or destroyed; that plaintiff
immediately led the corresponding notice of loss and/or short delivery, followed by
the corresponding notice and formal claim for loss and/or short delivery; that, despite
several demands, defendant had refused and failed to pay said sum of $342.74; that as
a consequence, plaintiff had, also, incurred damages in the sum of P1,000, as attorney's
fees, and P664.70, as unrealized pro ts; and that an action instituted in the Municipal
Court of Manila on April 27, 1960 — seemingly, for the recovery of the value of said
thermometers and the amount of said damages — was dismissed by said court on
June 13, 1960, without any trial on the merits, upon the ground of lack of jurisdiction
over the subject-matter of the case, inasmuch as the same involved the exercise of
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admiralty and maritime jurisdiction. Plaintiff prayed for judgment for said sums of
$342.74, P1,000 and P664.70 plus costs.
On July 8, 1960, defendant moved to dismiss the complaint upon the ground that
plaintiff's cause of action had prescribed, it having been led on June 24, 1960, or more
than a year from May 21, 1959, when plaintiff was noti ed of the delivery of the case
containing the thermometers in question. This motion having been granted and the
complaint dismissed, plaintiff interposed this appeal, maintaining that the period of one
(1) year prescribed in Commonwealth Act No. 65, in relation to the Carriage of Goods
by Sea Act — within which the liability of carriers, based upon a contract of carriage of
goods by sea, may be enforced by suit — was suspended by the commencement of the
rst action in the municipal court, on April 27, 1960; that the running of said period was
resumed or continued on June 13, 1960, when said action was dismissed; and that,
excluding said period, from April 27, 1960 to June 13, 1960, or forty-seven (47) days,
less than one (1) year has elapsed from May 21, 1959 to June 24, 1960, when this case
was led in the court of rst instance. In support of this pretense, plaintiff invokes
Articles 1155 of the Civil Code of the Philippines, reading:
"The prescription of actions is interrupted when they are filed before the court,
when there is a written extrajudicial demand by the creditors, and when there is
any written acknowledgment of the debt by the debtor."
Upon mature deliberation, we are of the opinion, and so hold, that the order
appealed from should be reversed, not only because of the operation of said Article
1155 of our Civil Code, but, also, in view of the provisions of section 49 of Act No. 190,
pursuant to which:
"If, in an action commenced, in due time, a judgment for the plaintiff be
reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited
for the commencement of such action has, at the date of such reversal or failure,
expired, the plaintiff, or, if he die and the cause of action survive, his
representatives may commence a new action within one, year after such date, and
this provision shall apply to any claim asserted in any pleading by a defendant."
The action commenced by the plaintiff in the Municipal Court of Manila, on April
27, 1960, was dismissed on June 13, 1960, or over twenty (20) days after the expiration
of the period of one (1) year, beginning from May 21, 1959, within which plaintiff's
action could be brought, pursuant to Commonwealth Act No. 65, in relation to the
Carriage of Goods by Sea Act. Under said section 49 of Act No. 190, the period within
which plaintiff could initiate the present case was renewed, therefore, for another year,
beginning from June 14, 1960 (Tolentino vs. Vitug, 39 Phil., 126; Smith vs. McNeal, 100
U.S. 426, 27 L. ed. 986). The case at bar was commenced on June 24, 1960, or within
the period last mentioned.
The cases of Oriental Commercial Co. vs. Jureidini (71 Phil., 25) and Conspecto
vs. Fruto (31 Phil., 144), in which it was held that:
" . . . Cuando se entabía una accion dentro del plazo de prescripcion y se
desiste de ella despues, o se sobresee sin condiciones, por una razon u otra, no
hace que la accion que se entable mas tarde, pero ya fuera del período de
prescripcion, se pueda considerar como presentada dentro de dicho período
porque quiere contarse con la acción entablada con anterioridad. La falta de
geation de la recurrente por cuya causa se desestimaron sus demandas segunda
y tercera, no puede interpretarse sino como una renuncia de su parte; y, al ejercita
su última acción no se ha colocado en la misma situacion en que antes se
hallaba al ejercitar sus tres anteriores acciones. Este es el mismo criterio que
expresamos cuando so nos presentó una cuestión análogia en la causa de
Conspecto contra Fruto, 31 jur. Fil., 155." (Emphasis supplied.)
are not in point, for the dismissal of the herein plaintiff's complaint in the municipal
court was not due to its desistance or voluntary abandonment.
Insofar as inconsistent with the conclusion we have thus reached, the view
adopted in Chua Kuy vs. Everett Steamship Corp., 93 Phil., 207; 50 Off. Gaz. 159 and
Yek Tong Lin Fire & Marine Insurance Co. vs. American President Lines, Inc., L-11081
(April 30, 1958) should be, as it is hereby, modified accordingly.
WHEREFORE, the order appealed from is reversed and this case remanded to the
lower court for further proceedings, with the costs of this instance against defendant
Norddeuscher Lloyd. It is so ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Barrera, Paredes, Dizon, Regala and
Makalintal, JJ., concur.
Labrador, J., concurs in the result.
Reyes, J.B.L., did not take part.

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EN BANC

[G.R. No. L-17730. September 29, 1962.]

F. H. STEVENS & CO., INC. , plaintiff-appellant, vs. NORDDEUSCHER

Delgado, Flores, Macapagal & Dizon for plaintiff-appellant.

1. ACTIONS; DISMISSAL FOR LACK OF JURISDICTION; PERIOD WITHIN

This is an appeal from an order granting defendant's motion to dismiss and,

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