ED. A. KELLER & CO. (LTD.), PLAINTIFF AND APPELLEE, VS. ELLERMAN & BUCKNALL STEAMSHIP CO. (LTD.) AND THE INSULAR COLLECTOR OF CUSTOMS, DEFENDANTS. ELLERMAN & BUCKNALL STEAMSHIP …

The defendant, Ellerman & Bucknall Steamship Co., Ltd,, appeals from a
judgment of the Court of First Instance of the city of Manila, finding in favor
of the plaintiff, Ed. A. Keller & Co., Ltd., and absolving the defendant,
Bernard Herstein, Insular Collector of Customs of the Philippine Islands.

Action was begun by complaint of Ed. A. Keller & Co., Ltd., praying
judgment against Ellerman & Bucknall Steamship Co., Ltd., for the sum of
P3,155.39 (as amended), alleged to be due because of the failure of the
defendant company to deliver six cases of goods to the plaintiff. Defendant
answered, alleging compliance with its contract by delivery of the goods in
question into the custody and control of the Philippine Customs authorities.
Later, on motion of plaintiff, Bernard Herstein, the Insular Collector of
Customs for the Philippine Islands, was joined as defendant. The Collector of
Customs’ answer denied all the principal averments of the complaint. After due
trial, judgment was rendered by the Honorable Richard Campbell, judge of first
instance, decreeing that the plaintiff, Ed. A. fceller & Co., Ltd., have and
recover from the defendant, Ellerman & Bucknall Steamship Co., Ltd., the sum
of P2,205.39 with interest thereon since April 24, 1915, together with the costs
of the action. It was further decreed that the complaint be dismissed as against
the defendant, Bernard Herstein, the Collector of Customs for the Philippine
Islands, without costs.

Appellant’s five Assignments of error relate principally to the facts,
incidentally concern a question of evidence relative to the failure of plaintiff
to object to a certain question, and finally impugn the action of the trial
court in rejecting the defendant’s offer in evidence of the original record in
criminal case No. 12920 (The United States vs. Tan Tiap Co et al.^[1]). We proceed first to set forth the facts
as disclosed by the proof and as found by the trial court.

Regarding certain points there is no dispute. Thus, it is agreed that the six
cases of goods in question were delivered at New York, U. S. A., to the
defendant, Ellerman & Bucknall Steamship Co., Ltd., for transportation to
Manila, in pursuance of its business as a common carrier. Further, the plaintiff
admits that it has received two cases of the six cases of merchandise. And,
finally, the value of the goods is admitted by defendant to be as alleged in the
complaint.

The bill of lading constituted the contract of shipment. It provided in part
that:

“In accordance with the regulations of the Philippine Customs Service, cargo
is to be conveyed by the ship’s agents, at consignees’ risk and expense, from
the steamer to the customs house wharf, and there delivered into the custody of
the United States Customs House, for account of the consignee, and such delivery
shall constitute a full discharge of the carrier’s obligation under this bill of
lading, etc., etc.”

The crucial question to decide, therefore, is whether or not the defendant
and appellant made a delivery of the four cases of merchandise to the customs
authorities at the port of Manila or to the plaintiff.

Upon the defendant steamship company rests the burden of proof to establish
actual delivery of the cases of merchandise called for in the bill of lading to
the customs authorities at the port of Manila, or to the plaintiff. As there is
not the slightest intimation that the plaintiff has received the cases, the onus
is on the defendant to account for the goods. (See 10 Corpus Juris,
372; sec. 297, Code of Civil Procedure; art. 1214, Civil Code; Nicolas
vs. Guerrero [1912], 23 Phil., 178; Ortiz and De Rotaeche vs.
Melliza [1912], 22 Phil., 133; Belen vs. Belen [1909], 13 Phil., 202; De Guzman
vs. Balarag [1908], 11 Phil., 503; Insular Government vs.
Behn, Meyer & Co. (Ltd.) [1916], 35 Phil., 281.) Defendant having to assume
this burden, the question thus recurs to ascertaining if defendant has by proof,
direct or circumstantial, shown delivery at the port of Manila.

The only direct proof had to do with the two cases which plaintiff admits
having received. The surveyor of the port, from the customs records,
corroborated by the discharge records, testified that only these two cases were
landed at the customs pier. In addition, the defendant steamship company
presented evidence intended to show by circumstances that it had landed
the goods, and that if the said goods were not delivered to the plaintiff, it
was because the same had been stolen from the pier after delivery to the customs
authorities. The court, however, found that, while there was no doubt as to
theft of merchandise similar to that in question in this case having occurred
from the customs authorities at the port of Manila after delivery by steamship
companies to them, the defendant steamship company had wholly failed to
establish that the goods in question were delivered to the customs authorities
at the port of Manila or that this merchandise had been stolen. Moreover, as
evidence for the plaintiff tending to break the chain of circumstances relied
upon by the defense, there can be mentioned the following: The short landing by
the Steamship Kalomo of a large number of cases and packages; the
overlanding at the customs piers of some 55 packages and cases destined for
consignees in Singapore, Hongkong, and Shanghai; and failure to identify the
four cases involved in this suit as the four cases which had been stolen from
the customs piers. Can we therefore say that the Ellerman & Bucknall
Steamship Co., Ltd., has sustained its defense by a fair preponderance of the
evidence? Are we warranted in asserting that the findings of fact by the trial
court are plainly and manifestly against the proof?

This brings us to a more specific, consideration of the point
above-mentioned, having to do with the contention of the defendant that the loss
of the plaintiff’s goods was due not to short landing but to the theft of the
property by customs employees conspiring with an employee of the plaintiff.
Appellant says that this has been proved by the statement of one of the customs
employees, a participant in the crime, introduced without objection on the part
of the plaintiff. In this connection, it is to be noted that this statement was
made to M. J. Toomey, a member of the Manila police force during the course of
an investigation of the theft of goods from the customs house preliminary to
criminal prosecution in the case of The United States vs. Tan Tiap Co.
Carlos Lopena, who made the statement, was not presented as a witness, but the
attempt was made to introduce it through the testimony of Toomey in the instant
civil action. Turning to the record, we discover that while the attorney for the
plaintiff appears not to have objected to the particular question having to do
with this statement, he had previously and did thereafter object to questions of
the same tenor.

We find no fault with the principle announced by this Court in Abrenica vs.
Gonda and De Gracia ([1916], 34 Phil., 739), to the effect that an objection to
the admission of evidence must be made at the proper time and if not so made it
will be understood to have been waived. Professional vigilance is the price of
success. But this proposition has various corollaries. For example, a single
objection to a class of evidence when first offered and an exception to an
erroneous ruling admitting it is sufficient, and neither the objection nor the
exception is waived by failure constantly to repeat them when subsequent offers
of the same class of evidence are made. (Salt Lake City vs. Smith
[1900], 104 Fed., 457.) The court may treat the objection as a continuing one.
It is unnecessary when the objection has once been distinctly made further to
vex the court with useless objections and exceptions. (See People
vs. Melvane [1870], 39 Cal., 614; People vs. Mullings [1890],
83 Cal., 138; Diamond Coal Co. vs. Cook et al. [1900], 61 Pac, 578;
McCormick vs. State [1916], 186 S. W., 95; Cathey vs. Missouri
K. & T. Ry. Co. [1911], 104 Tex., 39; Dilleber vs. Home Life Ins.
Co. [1877], 69 N. Y., 256; Cohen and Cohen vs. Benguet Commercial Co.,
Ltd. [1916], 34 Phil., 526.) We believe that in accordance with these rules
seasonable objection and exception was made to the introduction of a class of
hearsay testimony as incompetent. The objections made by the counsel for the
plaintiff seem to have been understood by the court as applying to each
question. Since no one was misled this should be sufficient.

There is another view which can be taken of this question. Let us ask
ourselves if the statement of Lopena was relevant. The rule is that facts may be
established by evidence thereof given on a former trial, provided the court is
satisfied: (1) That the party against whom the evidence is offered, or his
privy, was a party on the former trial; (2) that the issue is substantially the
same in the two cases; (3) that the witness who proposes to testify to the
former evidence is able to state it with satisfactory correctness ; and (4) that
a sufficient reason is shown why the original witness is not produced.. (16 Cyc,
1088.) But where these conditions are not present, a court is justified in not
receiving the evidence. To admit such incompetent and hearsay evidence “would be
contrary to the first principles of justice.”

Appellant’s second assignment of error concerns the subject just discussed,
but in larger form, namely—the action of the court in rejecting defendant’s
offer in evidence of the record in case No. 12920 (The United States
vs. Tan Tiap Co). The decision of the Supreme Court in this case, found
reported in 35 Phil., 611, relates to the theft of cases of cotton fabrics
imported by the firm Forbes, Munn & Co. from Europe on the British steamer
Middleham Castle.

A judgment of conviction in a criminal proceeding cannot be admitted in
evidence in a civil action. The parties and the issues are not the same. It is
an axiom of the law that no man shall be affected by proceedings to which he is
a stranger. In the old case of Jones vs. White (1 Strange, 67), quoted
approvingly by the United States Supreme Court, it was said: “if a verdict be
given in evidence, it must be between the same parties; and therefore an
indictment, which is at the suit of the King, cannot be read in an action which
is at the suit of the party.” There is want of mutuality—of mutual estoppel.
Among many authorities, a decision of the Supreme Court of the United States on
a Philippine appeal, establishes these propositions. (Chantangco vs.
Abaroa [1910], 218 U. S., 476, 481.) A record in a criminal case may be admitted
by way of inducement, or to show a collateral fact, but may not be admitted
where the party has had no right to control in some degree the proceedings and
to appeal from the judgment.

The plaintiff herein took no part in the criminal case. The plaintiff could
not control the trial in the criminal prosecution in any degree. The issues of
the two cases were different. The alleged theft of the cargo with which the
plaintiff was concerned was not directly involved in the criminal case. That
there was theft of goods from the customs piers as disclosed in one instance is
not proof that there was theft of goods in another instance.

To sum up, we hold that the defendant steamship company has not proved, in
accordance with the terms of its contract with plaintiff, the delivery of four
cases of merchandise into the custody of the Philippine Customs authorities. We
further hold that the defendant steamship company has not proved negligence and
consequent liability on the part of the defendant, Bernard Herstein, as Insular
Collector of Customs.

Judgment must be affirmed with costs against appellant. Following the
provisions of section 510 of the Code of Civil Procedure, as construed in Lim
Tuico vs. Cu-Unjieng ([1912], 21 Phil., 493), there shall be added
interest at the rate of 6 per cent per annum on the principal sum and the
interest due thereon from the date of the judgment to. the date of the final
judgment of this Court. So ordered.

Arellano, C. J., Torres, Street, and Fisher, JJ.,
concur.

Johnson, J., concurs in the result.

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^[1] ([1916], 35 Phil., 611.)