aer t have directed. There is no evidence in this case to warrant you in imposing 10 per cent. damages as' a penalty for a vexatious refusal t& pay the polidy, and you will· not award any such 'penalty, even though you should be of the opinion the plaintiff is entitled to recover.
PRICE and others.
October ,14, 1887.)
(Olrcuu. OOurt, E. D. Mi88ouri, E. D.
JUDGMENT-IN FAVOR OF Co-DEFENDANT-RE8 AnJUDICATA.
'In an action in a :MlsBouristate court against four defendants, judgment was .rendered In favor.of one of them and against .the others, as is permitted by. Code Proc. Mo. § 8678. The latter made a motionfor a new trial, and in arrest of judgment, which was overruled in the court below, but sustained on appeal on' the ground ofinsufilcient' evidence. The action was subsequently dismissed in the state court,· but recommencEld in the federal court againstaU four defendants qn same cause of action. He'(d" that the former ,- judgment, as far as it related to the defendant In whose favor it was rendered, Dot having 'been appealed from,wasa bar to the action against him in the federal,court··
.Mills &:Flitcrajt, for plaintiff. O. M. Naptpn, for defendants.
THAYER, J., (orally.) In the case of A. Bloch against W'I1liam M. pr.we, Stephen G. Price, Darwin W. Marrtl4duke, and Leslie Marmaduke, iug the alleged firm of Price, Marmaduke & Co., Darwin W. Marmaduke has filed a plea of former adjudication, and the testimony relied upon to support the same was submitted the other day for the purpose of having the court determine, in advance of the trial, whether the tes-' timony was sufficient to support the plea. I have looked into the record of the former case, and I find that it was a suit in which the four defendants last named were sued on what was alleged to be a joint contract; .tha,t>. on the trial, of the case in the state court, ajudgment was entered in: favor of the defendant Darwin W. Marmaduke, and against the other defendants; that it was so entered in accordance with section 3673 of the Missouri Code of Procedure, which permits judgment to be given "for or against one or more of $eVe-fal plaintiffa, andJor or against one O'fmore :of 8everal d<je'lU1ant8." I find from an examination of the record that no motion fora new trial, or in arrest of judgment, was filed with respect to the judgment in favor of Dlj.rwiu W. Marmaduke, and no appeal was taken from the Ndgment in his favor. The record shows that a motion for a new trial and in arrest of judgment was filed with respect to the judgment against the other defendants, and, the same having been overruled, that an appeal was taken,by said other defendants from the them, and tbat.the judgment was reversed by the appellate conrt. But
it was not reversed, because the judgment was erroneously entered as against only three of ·the four ,defendants, when it should h!lve been entered, against all. It was reversed"solely upon th.e ground that there no in the opinion. ofthe court to warrant ajudgment even as against the three defendants as to whom the lower court awarded judgment. Subsequently, there was a dismissal of the suit in the state court, and an a.ction has since been brought on the same cause of action against all four of the defendants in the federal court. Upon this state of facts I am of the opinion thf!t the judgment in the state court in favor of D. W. <Marmaduke is a bilr to any further proceeding as against him on the same cause of action. The record of the suit in the sfate court, in myjudgrilent, amply supports the plea of former adjudication. There has been one full and fair trial of the issue, so far a8 he is concerned, in the state court,and a separate judgment entered in his favor in accordance with a rule of practice that is expressly sanctioned by a statute of state. ' No substantial, reason has'been given orean be given why the reversal of the judgment obtained against of the should operate as a reversal of the judgment entered in favor of D.W. Marmad,uke. If the plaintiff desired to contest the judg. ment in favor 'of D. W. Marmaduke, he should have taken an appeal therefrom. Not having done so, that judgment is now a bar to any further proceeding on the same cause of action. There are some decisions in the state of Missouri to the effect that a judgment in a suit at law is a unit, and if reversed as to one defendant is necessarily reversed as to all. Smith v. Rollins, 25 Mo. 408; Dickerson v. Chrisman, 28 Mo. 135; Pdmeroyv: Betts, 31 Mo. 419; Insu1'ance 00. v. Clover, 36 Mo. 392. These decisions; however, have no just application to a case like the present, in 'which two judgments were entered in a suit at law, one in favor of:a certain defendant,and the other against certain defendants, pursuanttoa statute that expressly authorized such practice.
OF NEW YORK "'. TEXAS
& ST. I,. Ry. Co.
((Ji1'ouit Court, E. D. Mis8ouri, E. D. October 10,1887.)
MASTER AND SERVANT-DEFECTIVE MAOHINERy-KNOWLEDGE.
Plaintiff, while assisting as a brakeman in making up a train by the direction or with the cop sent of the yard-master. who bad authority to employ necessary assistants in his department. was thrown violently from the end of the train by the sudden slack of the train caused by the engineer reversing the engine to arrest the speed ofthe train -as it was running down grade, such reversal being rendered necessary because of a defect in a brake which had existed for four or five 1l10nths, and was known to the foreman of the round-house, whose duty it was to repair the defect, but was not known to plaintiff. Held, that plaintiff }Vas entitled to recover for the injuries caused by the fall.
SAME-LU.BILITY FOR NEGLIGENO:E-VOLUNTEER-TRESPASSER.
A person who without pay assists as a brakell1anin making up a railroad train by the direction or with the express permission of a yard-master. who