*1 еqual the but to below amount here the deter- anee on the risk in an insisted on par- entirely the mination of percentage fixed based its value the matter of experience are of the fire. Though such clauses the before ticular clause. business in the absence Nor offered as to generally enforceable, evidence any held there contrary, prohibition the the under of circumstances conditions statutory $12,000, hv statute in which carried on entirely prohibited the amount they are of $2300, II restricted in Item I were jurisdictions, greatly carried Item some others, a strict con- fixed. subject in all to strict requirement of struction and the record, do be- the we state of
proof. that, though wrong lieve gave it, judge, the the district conclusion of were appellants, they as While their defendants had sustained do, plead co-insurance obliged to did he, clause, on this burden as to this defense, the case on they clause tried record, wrong. The judg- overturned as below, presented it they facts ments are affirmed. ap though were here, the burden as pellees they were not co-in show was,7 upon appel of, it
surers instead as They they were. to convince that
lants here, though too, as there and
tried
experience beforе the fire of business factor, conclu controlling indeed
was the application of coinsurance
sive in directly policy provides
clause. The coinsurance 4(a), contrary. Clause STATES. v. UNITED BRUSZEWSKI I, required amount fixes the clause Item No. 10050. * * * percent sum as “80 no oc (had fire have been earned Appeals of Court United immediately curred) during the 12 months Third Circuit. sup (emphasis loss” date following the Argued 1950. Jan. 3,8“Experience the Busi Clause plied). April 11, 1950. Decided empha provision ness”, further gives this *** providing “that the amount sis II. I. and Item shall covered under Item ** * application for the determined due con giving coinsurance clause the business experience
sideration probable experience and the before fire supplied). (Emphasis thereafter” offered evidence defendants fire, experience after probable
as to the p clause, 7. 500 and eases cited note 26 C.J. has not shown itself to be entitled pages Insurance, 1296b § 46 C.J.S. such reduction.” Cooley’s cited; Briefs cases 352 and Experience “3. the Business—the Insurance, § charges profit, amount net and ex- Wandell, Fire Ass’n v. Ins. In Camden penses covered under I or Item Item page 292, Tex.Civ.App., 195 at S.W. II, determined, shall whether for the said; purpose ascertaining the amount of Appel- assignment is overruled. “This application loss sustained or plead lant, failed to the clause clause, giving the co-insurance assignment policy set tlie out experience consideration to the prove defense, failed to suf- probable business and the fire befоre entitled to show that it was ficient experience (Emphasis sup- thereafter.” of the amount of loss suffered reduction plied.) appellee coinsurance because *2 Freedman, E. Philadelphia, Abraham Pa.
(Freedman, Landy Lorry, Philadelphia, & Pa., brief), appellant. on the for Byrne, Philadelphia, Thomas Jr., E. Pa. (Krusen, Shaw, Philadelphia, Pa., & Evans appellee. brief), GOODRICH, McLAUGHLIN, Before HASTIE, Judges. Circuit HASTIE, Judge. Circuit longshoreman, Bruszewski, Appellant, working personal injuries while suffered ship upon docked owned Steamship States and serviced Agency under standard General corpora- agreement between that Service Claiming that States. tion and the United injuries by the caused his were ship the unsea- operating the of those vessel, worthiness Steamship Company aas sued Isthmian the acts of principal At vessel. the condition crew and case, the plaintiff’s the conclusion of (1) that no lack of judge ruled trial part had been сrew care on had seaworthiness proved, (2) that the defendant been warranted was direct- plaintiff. Accordingly a verdict appeal this On defendant. ed for the judgment.1 affirmed pres- appellant instituted the Thereafter impose responsibility seeking to ent libel injury, pred- upon United States alleged neg- his claim icating Co., Cir., 92 L.Ed. U.S. S.Ct. Isthmian S. S. 1. Bruszewski affirming D.C.B.D.Pa. F.2d F.Supp. 210, denied certiorari such ligence unseaworthiness had been made in the Isthmiaii finding the crew and argues case. case. For the vessel *3 should be contrary finding not bound a judicata. pleaded.reí The States United negligence in that finding case. But a of the entire considered The district court been, not have case Isthmian would a mo- then Tsthmian record and sustained binding against the United States because find- reasoning (1) that the tion to dismiss opportunity the United States had no to' negligence ing in the Isthmian of no finding contest the of issue The no there. negligence claim of against was decisive negligence on was the other hand made here, United States had (2) and that opportunity after full to Bruszewski on his to Bruszew- not seaworthiness warranted prove very own election matter which ski. urges Thus, now a un second time. I estoppel fairness results here from judicata pre- concerning res ruling The argument is not mutual.2 reality In of appeal. principal question sents the on this appellant application is merely that the of since the same The issue narrow one is a judicata res in this case makes thе law manner injury occurring in the same is the asymmetrical. But achievement of sub In claim gravamen suits. both the of both justice stantial symmetry rather than is the negligence depends of same acts or measure of the fairness of the rules of persons omissions same in the actual judicata. res оperation ship. They only differ in of applicant the claimant’s of the doctrine approved Other cases findings have respondeat superior; in suit so judicata closely analogous of res in situa Steamship Company the to make Isthmian applicable tions reasoning hеre. E. I. here, responsible principal, and the United DuPont DeNemours & Co. v. Richmond States. 580; Co., 1924, Cir., 4 Guano 297 F. Bern prove hard v. Bank negli America Trust effort Nat. & This second Savings Association, 1942, 807, gence generally 19 comprehended by ac Cal.2d 892; Pepsi- cepted 122 precept P.2d v. a who has had Cоca-Cola that Company, Del.Super.1934, opportunity prove fair Cola 6 one and full a W.W 124, 260; effort, City 172 claim has that A. failed .Harr. Richmond Davis, 1923, permitted go not be to trial on merits v. 135 Va. 116 S.E. 492. Particularly that claim Both orderli noteworthy a second and relevant arc time. saving judicial ness and time against reasonable situations which an a action require administration that this be so un alleged negligent an master for act of his overriding less some consideration of fair finding has neg servant resulted in a of no litigant a a different ness to dictates result ligence subsequently finding held particular in the circumstances case. against judicata res in an action be alleged negligence. servant same countervailing The consideration Donovan, 1932, Giedrewicz 277 estoppel. v. Mass. urged mutuality here is lack of 246; Fowler, Emery Bruszewski N.E. v. In suit would not permitted advantage Myhra to take have been Me. Am.Dec. finding negligence, earlier affirmative Park, an Minn. N.W. 515. though noteworthy, obliged de- It also thus to consolidate his cisive, suits, requires sustained no canon of fairness single single injury given special advantage from a cause principals believing trying two twice the same issue where he might negligеnt join conduct did not elect to them. joined claim Although decisions in the converse situa- Steam- States and that finding exonerating tion where ser- ship Company event, In such for trial. blameworthy res vant of conduct held finding single proof prin- judicata subsequent in a action cipal have cov- issue alleged his master servant’s While the claimant ered both claims. cited,5 enlarged cases the area of all, above satisfied that we are categories beyond any sound res application judicata is both definable res Cer- privity a substantial of principle and in with betwеen the defendants.6 accord tainly the cases that the body already decisions. cited show of well-reasoned by prior moving party ad- has been bound exists “privity” question whether judication against him where in situations between the United the relation between successive defendants argued to this Company was Steamship- significant than was no closer or more application of court as relevant Isthmi- between the States and United judicata. *4 in Steamship Company an here. We are in be a party the to bound Where development of accord with this the law pаr the from proceeding is different second impedes away from the formalism which original adjudication ty against whom the achievement of fair desirable results. and relationship between made, a was close may requirement fairness them is a II process law. provide be necessary Appellant if has that even the contended parties privies only Thus, rule that the judicata invocation res the on judgment unques by prior is a are bound time, might one a have been sound at the case correct. tionably Supreme very Court recent decision of the judgment against whom very party points requires a He different result now. in subse be bound is to was rendered Eckert,7 out that in v. the Su- Caldarola quent action. preme “agent” an has decided that Court plaintiffs sue different Where Steamship position in of Isthmian Com- suits, many in successive defendant same is pany pro an оwner hac vice and not in fairness questioned the courts have persons in legally not judicata, against the defendant voking res op- appellant negligent ship situation of relationship can be significant unless a eration. where, the.plaintiffs.4 But between found contrary presuppоsed A rule was judicata invoked case, res as in this Indeed, the throughout case.8 the Isthmian asserted plaintiff twice who has a Supreme Hust v. decision of in Court against different claim essentially the same Lines,9 while handed McCormack down have, defendants, as indicated courts give general thеy sometimes to may distinguishable, effect wrong look binding judgment only Mining a way. that parties doctrine Gold Portland same extending privies by Independence Ltd., between Company v. Stratton’s significance ‘privies’ L.B.A.,N.S., 63, word 1907, Cir., 16 158 F. 8 relationships Burgess originally include em not and Town Brobston v. 1927, Borough Darby, in whereas the true reason braced Council holding 849, does 331, issues res A.L.R. 1285. 138 A. 54 290 Pa. necessarily depend upon privity, but not division, example, of the See, 4. litigation policy of on the the law end Appeals York Elder New Court by preventing who has had one Pennsylvania Ex Motor New York & v. question again fair trial of of fact frоm 350, Inc., 1940, press, 31 284 N.E. N.Y. controversy.” Taylor drawing it into 188, A.L.B. 176. 2d 133 Mo.App. Sartorious, 1908, 38, v. particularly 1089, v. Bank of Bernhard 5. See 1094. S.W. Savings Trust & Associa- America Nat. 155, 1947, 1569, 67 S.Ct. 91 L. 332 U.S. 7. supra, tion, and Coca-Cola Cosmopolitan Ship followed Ed. supra. Company, Pepsi-Cola McAllister, ping Co. v. 337 U.S. * * “* question con- of who is 6. 1317. S.Ct. by judgment has been obscured cluded 8. expressly court found The district ‘privity’ words the use of the Steamship pro Co. was owner * * * precise ‘privies’, in their D.C., F.Supp. 210, vice. hac scarcely meaning determinative are in law appeal. was not on issue contested This always bound is and not of who who ' judgment. 66 S.Ct. U.S. have striven Courts L.Ed. 1534. until grounds appeal these pending accepting ment Isthmian case was part necessary the such commitment becomes a require that seemed of the a case. decision of responsible. “agent” be held Hastie’s Judge The difference between subsequent that the We are satisfied brought analysis out my own will be Supreme Court position change of following hypothetical case: af responsibility does this issue of B for in- brings A an action judicata in this applicability fect the of res fringement patent. B defends aof deprived Isthmian trial was case. The patent was void and ground alleged that the case legal significance Caldarola brings action for judgment. A an obtains been affected than it would have more infringement patent same changing the re subsequent statute judgment interpose the who seeks C “agents” situated. similarly sponsibility of up setting judicаta, B but favor negligence in The issue of no relation with B. legally was real decision and its *5 decision did significant. The Caldarola say Judge would gather I that Hastie set aside the court, vacate or sense has lost day that A has his had Appellant’s argument judgment. chance. On have should not another that, if Isth than should, advised, establishes no more dis- this I as at date, the filed at a later mian suit been hypothetical put had agree. The Illus- never have been issue of would tration to Section 93 of the Restatement complete defense because a reached Judgments. on the face of the been available My view law is that a man pleadings. does not af That circumstance estopped collaterally day had court is of our decision. fect the basis judgment as by rendered in the lawsuit opponent. against his He is likewise es- Ill persons topped sufficiently сlose as opinion district court indicates The opponent to that make it fair to have the responsibility that the lack of estoppel This run them also. last Bruszewski for seaworthiness States is, “priv- phrase I take what meant of law as matter decided ity.” Privity for includ- states pleadings, face appearing excluding estoppel ing or one from judicata. by application of res rather than judgment. merely It is used word most, was treated At the Isthmian decision relationship say between the one precedent the claim controlling as a is a on the record and another who ship repairing longshoreman of a enough to include that other within close of the structure under the seaworthiness judicata. the res repair The district is warranted him. relationship I think that here the between reason- correctly concluded operating ship company and the United ing rule which defeated the claim enough was close so that what binds require earlier case warranty in the and, bind the other one should the same same conclusion now. token, what frees one should free the other judgment will affirmed. plaintiff. I So think was bound in second suit GOODRICH, Judge (concur- Cirсuit judgment against him in the first. ring). Judgments I As read Restatement of agree with the result While I reached supported views set out above are case, grounds which it propositions stated discussed in majority theory reached following. 93 and Sections Grief And seems to me somewhat Dullea, 1944, Cal.App.2d 986, 153 P.2d like I avoid unusual. commit- point. right on the seems