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Bayview Hotel V Phoenix Assurance
Bayview Hotel V Phoenix Assurance
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SUPREME COURT REPORTS ANNOTATED VOLUME 116 17/3/20, 12:17 AM
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* FIRST DIVISION
328
shows that Phoenix did join Ker & Co. in moving for the dismissal
of the case and prayed „that the present action be dismissed as
against Ker & Co., Ltd., because being purely and simply the agent
of the insurer, it is not liable under the policy and as against the
Phoenix Assurance Co., Ltd. because by failing to seek an
arbitration within twelve months from the date of its receipt of the
denial of its claim on June 22, 1965, plaintiff, Bay View Hotel, Inc ,
is deemed under condition 8 of the policy, to have abandoned its
claim against said defendant Phoenix Assurance Co., Ltd.‰
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SUPREME COURT REPORTS ANNOTATED VOLUME 116 17/3/20, 12:17 AM
Evidence, The rule of res inter alios acta is not applicable here,
re: on the implied admission made in favor of the agent The main
opinion should have been based on some other precept of
329
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SUPREME COURT REPORTS ANNOTATED VOLUME 116 17/3/20, 12:17 AM
TEEHANKEE, J.:
330
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SUPREME COURT REPORTS ANNOTATED VOLUME 116 17/3/20, 12:17 AM
331
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SUPREME COURT REPORTS ANNOTATED VOLUME 116 17/3/20, 12:17 AM
„I
The lower court erred and acted with grave abuse of discretion in
extending the legal effects, if any, of the request for admission filed
by Ker & Co., Ltd. to the Phoenix Assurance Co., Ltd., which was
not a party-defendant at the time said request was filed and for
whom no similar request was ever filed.
„II
The lower court erred and acted with grave abuse of discretion in
giving legal effects to a request for admission by the defendant-
appellee under the original complaint after the said original
complaint was, with leave of court, amended.
332
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SUPREME COURT REPORTS ANNOTATED VOLUME 116 17/3/20, 12:17 AM
„III
The lower court erred and acted with grave abuse of discretion in
holding that ÂCondition No. 8 of the Policy No. FGC-5018-P requires
that should there be a controversy in the payment of the claims, it
should be submitted to an arbitrationÊ despite the admissions by the
parties and the established fact that Condition No. 8 of said Policy
No. FGC-5018-P provides for Arbitration if any dispute shall arise
as to the amount of companyÊs liability.Ê
„IV
The lower court erred and acted with grave abuse of discretion in
granting the Motion for Summary Judgment and dismissing the
complaint.‰
333
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SUPREME COURT REPORTS ANNOTATED VOLUME 116 17/3/20, 12:17 AM
ought to favor the principal. This has to be the rule, for the
act or declarations of an agent of the party within the scope
of the agency and during its existence are considered and
treated in turn as the declarations,1
acts and
representations of his principal and may be given in
evidence against such party.
Plaintiff-appellant insists that since the motion for
summary judgment was filed on behalf of defendant-
appellee Ker & Co, alone, there was no motion for
summary judgment as far as Phoenix was concerned and
the trial courtÊs decision dismissing the case should not
have included the principal Phoenix.
But the motion for summary judgment was filed after
the complaint had been amended and answer thereto had
been filed. The issues, therefore, with respect to Phoenix
had already been likewise joined. Moreover, a reading of
the said motion for summary judgment, more particularly
the prayer thereof, shows that Phoenix did join Ker & Co.
in moving for the dismissal of the case and prayed „that the
present action be dismissed as against Ker & Co., Ltd.,
because being purely and simply the agent of the insurer, it
is not liable under the policy and as against the Phoenix
Assurance Co., Ltd. because by failing to seek an
arbitration within twelve months from the date of its
receipt of the denial of its claim on June 22, 1965, plaintiff,
Bay View Hotel, Inc., is deemed under condition 8 of the
policy, to have abandoned its claim against said defendant
Phoenix Assurance Co., Ltd.‰
The main issue raised by plaintiff-appellant is with
respect to Condition No. 8 of the insurance policy,
photostatic copy of which was submitted to the trial court
and reproduced as follows:
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SUPREME COURT REPORTS ANNOTATED VOLUME 116 17/3/20, 12:17 AM
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334
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SUPREME COURT REPORTS ANNOTATED VOLUME 116 17/3/20, 12:17 AM
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2 Emphasis supplied.
335
The authority cited for this view, to wit, Section 26, Rule
130 of the Rules of Court, reveals that the same is being
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SUPREME COURT REPORTS ANNOTATED VOLUME 116 17/3/20, 12:17 AM
336
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