[No. 25845.

December 17, 1926]

PARIS-MANILA PERFUME Co., also known as PARIS-

MANILA PERFUMERY Co., plaintiff and appellee, vs.
PHOENIX ASSURANCE Co., LTD., defendant and
appellant.

1. BURDEN OF PROOF.—Where a fire insurance company

issued a policy insuring certain property against loss by
fire, and the insured property was destroyed by fire during
the life of the policy, and the company contended that the
fire was the result of an explosion, which was the primary
cause of the fire, the burden of proof of that fact is on the
company, and for want of such proof, the company is
liable.

2. BY WHOM ACTION CAN BE MAINTAINED.—Where

the policy recites: "This Policy of Insurance Witnesseth.
That in consideration of Messrs. Paris-Manila Perfumery
Co., (Peter Johnson, Prop.), Cavite, P. I., hereinafter called
the insured paying to the Phoenix Assurance Company,
Limited, hereinafter called the company, the sum of pesos
two hundred ninety-two and 50/100, Philippine currency,"
and at the time of its issuance, the Paris-Manila
Perfumery Company issued its own check to the insurance
company for the payment of the premium, which was

754

754 PHILIPPINE REPORTS ANNOTATED

Paris-Manila, Perfume Co. vs. Phœnix Assurance Co.

accepted and cashed by the insurance company, the Paris-

Manila Perfumery Company can maintain an action in its
own name on the policy.

APPEAL from a judgment of the Court of First Instance of

Manila. Imperial, J.
The facts are stated in the opinion of the court.
Ohnick & McFie for appellant.
 J. W. Ferrier for appellee.

STATEMENT

Plaintiff alleges that it is a domestic corporation engaged in

the manufacture of perfumery and toilet articles. That the
defendant is a corporation organized under the laws of
Great Britain, and engaged in the fire insurance business
in the Philippine Islands. That on May 22, 1924, it issued
to plaintiff its fire insurance policy No. 841163 in the sum
of P13,000 upon the property of the plaintiff at No. 1 Calle
Cisneros, Cavite, insuring plaintiff's property against fire f
or that amount; that with the knowledge of the defendant,
the property was also insured in two other companies, one
for P12,000, and the other for P5,000; that on July 4, 1924,
the property covered by the insurance was completely
destroyed by fire for the total loss to the plaintiff of
P38,025.56; that under its policy with the defendant, it
promptly presented its claim; that the def endant wrongf
ully and unjustly refused to pay it; that on September 29,
1924, plaintiff requested the defendant to appoint an
arbitrator under the provisions of section 17 of the policy,
which was also denied; that at the time the policy was
issued, plaintiff had paid the full amount of the premium
up to May 22, 1925, and it prays for judgment against the
defendant for P13,000, with legal interest from July 4,
1924, and costs.
For answer the defendant makes a specific denial of
paragraphs 1, 3, 4, and 5, and admits that the plaintiff,
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VOL. 49, DECEMBER 17, 1926 755

Paris-Manila Perfume Co. vs. Phoenix Assurance Co.

as a corporation, presented its claim against the defendant,

and that payment was refused, and admits that plaintiff
requested the defendant to specify the reason for its
refusal, and that plaintiff has made a demand for
arbitration, and that defendant denied any liability and
refused arbitration, and as a special defense alleges that
the policy in question was issued "to one Peter Johnson, as
proprietor of ParisManila Perfumery Co.," and that the
company was not the insured named in the policy, and that
the insurance was of no legal force and effect with the
company. As a second special defense, it is alleged that "the
policy of insurance did not cover any loss or damage
occasioned by explosion," and that the loss was occasioned
by an explosion, and was not covered by the policy. As a
third special defense, it is alleged that the policy provides
that, if the claim is fraudulent, and that any false
declaration was made or used to obtain it, all benefits are
thereby forfeited; that the claim of the plaintiff is
fraudulent as to the quantity and value of the insured
property at the time of the fire. As a fourth special defense,
it is alleged that the policy becomes forfeited if a loss is
occasioned by the willful act or connivance of the insured,
and that the loss in question was caused by the will ful act
of Peter Johnson, and it prays that plaintiff's complaint be
dismissed, with costs.
Upon such issues, the evidence was taken, and the lower
court rendered judgment in favor of the plaintiff for
P13,000, with legal interest from November 7, 1924, the
date of the filing of the complaint, and costs.
On appeal the def endant assigns the f ollowing errors:

"I. The lower court erred in finding and concluding

that defendant-appellant issued a policy of
insurance to and in the name of plaintiff-appellee.
"II. The lower court erred in finding and concluding
that Peter Johnson was the sole proprietor, or else
the principal stockholder of Paris-Manila Perfume
Co., plaintiff-appellee.

756

756 PHILIPPINE REPORTS ANNOTATED

Paris-Manila Perfume Co. vs. Phœnix Assurance Co.

"III. The lower court erred in finding and concluding

that the explosion referred to and excepted in
defendantappellant's policy of insurance concerned
only an explosion where no fire ensues.
"IV. The lower court erred in finding and concluding
that the claim presented by plaintiff-appellee as not
'necesariamente' fraudulent.
"V. The lower court erred in overruling defendant-
appellant's objection to the admission of Exhibit C
in evidence.
"VI. The lower court erred in overruling defendant-
appellant's objection to the admission of Exhibit D
in evidence.
"VII. The lower court erred in overruling defendant-
appellant's objection to the admission of Exhibits E
and F in evidence.
"VIII. The lower court erred in overruling
defendantappellant's objection to the admission of
Exhibit G in evidence.
"IX. The lower court erred in overruling
defendantappellant's objection to the admission of
Exhibits H and H-1 in evidence.
"X. The lower court erred in overruling defendant-
appellant's objection to the admission of Exhibits J,
K, L, N, and O in evidence.
"XI. The lower court erred in finding and concluding
that the weight and preponderance of all of the
proofs submitted upon the trial did not sustain the
contention of defendant-appellant that the fire was
occasioned by the willful act, or with the
connivance, of the insured.
"XII. The lower court erred in finding and concluding
that the fire was caused by a firecracker.
"XIII. The lower court erred in concluding that
plaintiffappellee was entitled to judgment upon the
facts found by the lower court.
"XIV. The lower court erred in rendering judgment in
favor of plaintiff-appellee, and in refusing to render
its judgment dismissing the complaint of plaintiff-
appellee and absolving defendant-appellant
therefrom.

757

VOL. 49, DECEMBER 17, 1926 757

Paris-Manila, Perfume Co. vs. Phœnix Assurance Co.

"XV. The lower court erred in denying defendant-

appellant's motion for a new trial."

JOHNS, J.:

It is admitted that the policy in question was issued on

May 22, 1924.
Upon its face it recites:
"This Policy of Insurance Witnesseth. That in
consideration of Messrs. Paris-Manila Perfumery Co. (Peter
Johnson, Prop.), Cavite, P. I., hereinafter called the insured
paying to the Phoenix Assurance Company, Limited,
hereinafter called the company, the sum of pesos two
hundred ninety-two and 50/100, Philippine currency."
 It also appears that the premium on the policy was paid
to the defendant by a company check, which was signed by
Johnson, and that the policy in question was prepared by
the defendant.
The real cause of the fire is more or less a matter of
conjecture, upon which there is little, if any, evidence.
In appellant's brief, it is said:
"The cause of the explosion was and is unknown and
wholly a matter of conjecture. Neither Peter Johnson nor
Francisco Banta (the only persons in the building at the
time) claimed that either of them saw anything explode.
(Words in parenthesis inserted by me.)"
Both Johnson and Banta testified that they heard an
explosion, and when they looked around, they saw fire and
felt heat. There is no evidence as to whether the fire was
started before or after the explosion. Neither is there any
competent testimony as to the cause of the explosion.
The f actory where the fire occurred was filled with
numerous kinds of essences and oils used in the manuf
acture of perfumery and with a quantity of alcohol and
manufac-tured perfumes, all of which were of a highly
inflammable nature, and the fire may have started from
any one of a number of reasons. But in the final analysis,
the fact remains that there was a fire, and that plaintiff's
property was destroyed. It is true that it may be that the
explosion
758

758 PHILIPPINE REPORTS ANNOTATED

Paris-Manila Perfume, Co. vs. Phœnix Assurance Co.

was the primary cause of the fire, but that is only a matter
of conjecture, and upon that point, the burden of proof was
upon the defendant.
Defendant relies upon section 6 of the policy, as f ollows:
"6. Unless otherwise expressly stated in the policy the
insurance does not cover—

*      *      *      *      *      *      *

"(h) Loss or damage occasioned by explosion; but loss or

damage by explosion of gas for illuminating or domestic
purposes in a building in which gas is not generated and
which does not form part of any gas works, will be deemed
to be loss by fire within the meaning of this policy."
In answer to that, plaintiff relies upon section 5, which
is as f ollows:
 "5. The insurance does not cover—

*      *      *      *      *      *      *

"(d) Loss or damage occasioned directly or indirectly,

approximately or remotely by or through or in consequence
of:
"(1) Earthquake, hurricane, volcanic eruption or other
convulsion of nature, and the company shall not be liable
for loss or damage arising during or within a reasonable
time after any of the said occurrences, unless it be proved
by the insured to the satisfaction of the company that such
loss or damage was not in any way occasioned by or
through or in consequence of any of the said occurrences."
It will be noted that section 5 excludes not only the
damages which may immediately result from an
earthquake, but also any damage which may follow the
earthquake, and that section 6 excludes only the damages
which are the direct result of the explosion itself, and that
it does not except damages which occurred from the fire
occurring after the explosion, even though the explosion
may have been the primary cause of the fire. But assuming,
without deciding, that if it be a fact that the fire resulted
from an explosion that that fact, if proven, would be a
complete defense, the burden of the proof of that f act is
upon the def endant, and
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VOL. 49, DECEMBER 17, 1926 759

People vs. Cabigas and Lofranco

upon that point, there is a failure of proof. There is no

competent evidence as to whether the explosion caused the
fire or the fire caused the explosion.
The defendant has assigned numerous and different
errors, but exclusive of the first and second, they are
largely questions of fact and objections to the admissibility
of the evidence, and upon all of the material questions of
fact, the lower court found for the plaintiff. That is to say,
the lower court found as a fact that there was no fraud in
the insurance, and that the value of the property destroyed
by the fire was more than the amount of the insurance. The
defendant having issued its policy which was in legal force
and effect at the time of the fire, it is bound by its terms
and conditions, and the property having been destroyed,
the burden of proof was upon the defendant to show that it
 was exempt from liability under the terms and conditions
of the policy, and upon that point, there is a failure of proof.
The judgment of the lower court is affirmed, with costs.
So ordered.

Avanceña, C. J., Johnson, Street, Malcolm, Ostrand,

Romualdez, and Villa-Real, JJ., concur.

Judgment affirmed.

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