INSURANCE COMPANY OF NORTH AMERICA, PLAINTIFF-APPELLEE, VS. C.F. SHARP & COMPANY, INC., AND/OR DELGADO BROKERAGE CORPORATION, DEFENDANTS, DELGADO BROKERAGE CORPORATION, DEFENDAN…

Seventy-four cases of automotive
parts were shipped from Antwerp,
Belgium to
Manila aboard MS
“Hannover.” The shipment was consigned to
the Manila Trading & Supply Co., and insured by Insurance Company of
North
America.

All the cases were received in
good order, except two: (1) Case No. 70 – in which three pieces of windshield
were broken; and (2) Case No. 24 – from which one hundred four pieces of spark
plugs were missing.

After paying the consignee for
the afore-stated loss and damage – in the total amount of P811.07 – the insurer
filed in the Court of First Instance of Manila a suit to recover the damages
aforementioned as subrogee to the consignee. Alleging
that the loss and/or damage occurred either in transit or after discharge of the
cargo, in the custody of the broker,^[1] plaintiff joined as
alternative defendants the carrier C.F. Sharp & Co., Inc., and the broker
Delgado Brokerage Corporation (DELBROCO).

Answering thereto, DELBROCO
disclaimed liability, alleging that the goods were delivered in the same
condition as when they were discharged from the carrier.

As to the defendant C.F. Sharp
& Co., Inc., it settled part of the claim, leaving only about P328.00
unsatisfied.^[2]

Subsequently, the trial having
been completed, the case was submitted for decision. DELBROCO then filed, on
March 2,
1964, a
motion to dismiss for lack of jurisdiction over the subject matter. Since the
suit against DELBROCO was not in admiralty, and the amount Involved was only
P811.07 – later reduced to P328.00 – it was argued that it pertained to the
municipal court’s jurisdiction.

Resolving against said motion,
the trial court rendered judgment on March 3,
1964,
sentencing. DELBROCO to pay the plaintiff the sum of P328.73 –
corresponding to the broken windshields – plus interest thereon at the legal
rate from the date of the filing of the complaint and
costs.

Appealing therefrom directly to Us upon
questions of law, DELBROCO assails, first, the jurisdiction of the court a quo
over the case, and, second, the finding that it is liable to
plaintiff.

The present case was filed, as
stated, against C.F. Sharp & Co., Inc. and DELBROCO in the alternative. The
suit against C.F. Sharp & Co., Inc., being predicated upon a contract of
carriage by sea, is one in admiralty, and thus falls within the Court of First
Instance’s jurisdiction.^[3]To this, DELBROCO was
properly joined, since the causes of action against the two defendants in the
alternative arise out of the same transaction, which is the basis for recovery
of the value of the lost or damaged merchandise, and plaintiff was not certain
whether the loss or damage was sustained when the goods were in the hands of the
carrier or of the broker. And pursuant to Section 5 of Rule 2 of the Rules of
Court:

“SEC.
5. Joinder of causes of
action. -Subject to rules regarding jurisdiction, venue and
joinder of parties, a party may in one pleading state,
in the alternative or otherwise, as many causes of action as he may have against
an opposing party (a) if the causes of action arise out of the same contract,
transaction or relation between the parties, or (b) if the causes of action are
for demands for money, or are of the same nature and
character.

“In the cases falling under
clause (a) of the preceding paragraph, the action shall be filed in the inferior
court unless any of the causes joined falls within the jurisdiction of the Court
of First Instance, in which case it shall be filed in the latter
court.

“In the cases falling under
clause (b) the Jurisdiction shall be determined by the aggregate amount of the
demands, if for money, or by their nature and
character, if otherwise.” the suit herein was rightly filed in the Court of
First Instance.^[4]

Appellant would, however, fall
back on the contention that the goods in question – the three windshields -were
already damaged when DELBROCO received them. Thus, it is pointed out that even
plaintiff’s complaint states that Case No. 70 was discharged by the carrier “in
bad order condition, containing three (3) pieces of windshield glass found to be
later broken.”^[5] Said portion of the
complaint should be read with that which alleges the loss to have occurred
either “while defendant carrier had custody of the cargo… or after discharge
of the cargo, while defendant Delgado Brokerage Corporation had custody of the
goods.”^[6] And, besides, the phrase
“found to be later broken” could also mean that breakage took place after the
discharge.

This is what the court a quo
found as a fact: that the windshields were broken while under the custody and
responsibility of DELBROCO.^[7]And this finding of fact will
not be reviewed In an appeal like this confined to questions of law.
Furthermore, it is rested upon plaintiff’s evidence that DELBROCO’s authorized representative – F. Saligumba – accepted the cargo “O.K. and complete” as shown
in the surveyor’s report countersigned by him (Exh.
A). Since it was obviously Saligumba’s assigned task
to note defects in the cargo, said acceptance – if not binding outright upon
DELBROCO – is at least evidentiary of the condition of the goods when thus
received.

Finally, appellant would contend
that plaintiff has no capacity to sue and is not the real party in interest. It
is now too late to raise these objections here. These should have been asserted
in the motion to dismiss filed by defendant below. Not having been included
therein, they are now barred by the rule on omnibus motion.^[8]

WHEREFORE, the judgment appealed from is
hereby affirmed, with treble costs in this Instance against appellant, the
appeal being frivolous.

SO
ORDERED.

Concepcion, C. J., Reyes, J. B. L., Dizon, Regala, Makalintal, Zaldivar, Sanchez
and
Ruiz Castro, JJ.,
concur.

^[1] Par. 8 of Complaint, R.A., p.
4.

^[2] See Record on Appeal, p.
12.

^[3] Sec. 44(d), RA 296;
International Harvester vs. Aragon, 84 Phil. 363.

^[4]Rizal Surety &
Ins. Co. v. MRR, G.R. No. L-20875,
April 30,
1966; Rizal
Surety & Ins. Co. v. MRR, G.R. No. L-21623, April 30,
1966.

^[5] par. 6, Complaint, R.A., p.
4.

^[6] Par. 8, Complaint, R.A., p.
4.

^[7] Decision of CFI, R.A., p.
34.

^[8]Sec. 8, Rule 15: “A motion
attacking a. pleading or a proceeding shall include all objections then
available, and all objections not so included shall be deemed waived.” (Rules of
Court)