Souter v. Baymore

• Decision Date: 27 March 1847
• Citation: 7 Pa. 415
• Parties: SOUTER <I>v.</I> BAYMORE.
• Court: Pennsylvania Supreme Court

7 Pa. 415

SOUTER v. BAYMORE.

Supreme Court of Pennsylvania.

March 16, 1847.

March 27, 1847.

March 16.

IN error from the District Court of Philadelphia.

Guillou and Dunlap, for plaintiff in error.—The decision of the admiralty was on the same point now in controversy, and an allowance was made for the very subject of the present demand; it was, therefore, a mere question for a jury to determine whether the parties or privies to that action are parties or privies to this: Pet. C. C. R. 202; Marsh v. Pier, 4 Rawle, 285; Carvill v. Garrigues, 5 Barr, 152; 2 Saund. Pl. and Ev. 611; Hibshman v. Dulleban, 4 Watts, 183; Kilheffer v. Herr, 17 Serg. & Rawle, 322.

The deviation, it is admitted, would discharge an insurer; and the same consequences must result where the shipper stands his own insurer; the reason is the same; the risks are varied: Hughes on Ins. 180; Coles v. Marine Ins., 3 Wash. C. C. Rep. 159; Martin v. Delaware, 2 Wash. C. C. Rep. 254. More particularly is this so, where there was a contract for a direct voyage.

G. M. Wharton, contrà.—The plea is defective in form and substance. In form, as not pleaded puis darrein continuance,

which it should have been, as the decree was subsequent to the bringing of this action; in substance, because the record shows the matter is yet at large by the appeal, according to the settled practice of the admiralty.

The ruling of the judge, as to the effect of the deviation, was clearly in accordance with the cases. In Davis v. Garrett, 6 Bing. 716, the jury found specially there had been an unnecessary deviation, which caused the loss. So in Hart v. Allen, 2 Watts, 114, it was held to be necessary to prove the loss to have been occasioned by the unskilfulness of the crew, or want of seaworthiness: 3 Kent's Com. 209, 210; Davidson v. Gwynne, 12 East, 381; Palmer, 397.

Reply.—The appeal does not make the former decision less a binding one, until reversed, for the purposes of pleading. This is shown from the cases of awards: Reed v. Garvins, 7 Serg. & Rawle, 354.

March 27. BELL, J.

The plaintiff in error suggested two points for consideration. The first of these is, whether a conclusive effect is to be ascribed to the decree pronounced in the admiralty, by which an allowance of the charge for freight claimed in this action was accorded to the defendant in error by way of set-off? Though the affirmative of the proposition was argued with very considerable emphasis by the plaintiff here, no hesitancy is felt in resolving it negatively.

It is conceded, as an unquestionable rule, founded on public policy, that the judgment of a court of competent jurisdiction on the same subject-matter is, as a plea, a bar, and as evidence, where it is receivable without being specially pleaded, conclusive between the same parties or their privies, and this without regard to the variant forms of action or modes of proceedings which may happen to be adopted as a means of litigating the points in issue: Cist v. Zeigler, 16 Serg. & Rawle, 285; Darlington v. Gray, 5 Whart. 493. Nor is it material that the plea is pleaded or the evidence given in an action instituted before the proceedings in which the former judgment or decree was pronounced; for it is still within the maxim nemo debet bis vexare pro una et eadem causa: March v. Pier, 4 Rawle, 284. But a judgment must be, in its nature, final before it can be permitted to operate as an estoppel. He who adduces it as a means of conclusive defence must be able to show, that, until reversed, it binds the respective rights of the parties to it, or his antagonist may go behind it. But it is conceded, though imperfectly shown by the records given in evidence, that the decree, upon which the plaintiff in error founds in part his defence, has been regularly appealed from, and this appeal is now pending and undetermined in the Circuit Court of the United States. Now, it is settled, that, in admiralty and maritime causes, an appeal suspends the sentence altogether, and it is not res adjudicata until the final sentence of the appellate court is pronounced. The cause is there heard de novo, as if no sentence had ever been passed: Dunlap's Adm. Pr. 316, 317. The information filed in the inferior may be amended in the superior tribunal; for, on the appeal, it is admissible to allege what has not before been alleged, and to prove what has not before been proved: 2 Brown's Civ. and Adm. Law, 436, 437; The Venus, 1 Wheat. 113; The San Pedro, 2 Wheat. 140; Hawthorne v. United States, 7 Cranch, 157. So far is the principle carried, that, in Yeaton v. United States, 5 Cranch, 281, where a ship had been condemned for the violation of an existing statute by both the District and Circuit Courts; but, after appeal to the Supreme Court of the United States, the statute expired by its own limitation; it was held the penalty of the act could not be enforced. In delivering the opinion of the court, Chief Justice Marshall said the cause was to be...