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tember 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214); Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6, 40 S. Ct. 255, 64 L. Ed. 421.

(267 U. S. 585)

No. 356. Cattina SALA, plaintiff in error, v. A. CRANE et al. March 16, 1925. In error to the Supreme Court of the State of Idaho. For opinion below, see 38 Idaho, 402, 221 P. 556. Mr. O. C. Moore, of Spokane, Wash., for plaintiff in error.

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No. 904. P. W. EWING, petitioner, v. E. B. SHAUVER et al. March 16, 1925. For opinion below, see 1 F. (2d) 423. Messrs. Harry E. Karr, of Baltimore, Md., Chas. G. Yankey, W. E. Holmes, D. W. Eaton, and John L. Gleason, all of Wichita, Kan. (John E. Semmes, Jr., of PER CURIAM. Dismissed for want of juris- Baltimore, Md., of counsel), for petitioner. diction upon the authority of section 237 of the Mr. Harry William Hart, of Wichita, Kan., for Judicial Code, as amended by the act of Septem-respondents. Petition for a writ of certiorari ber 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. to the United States Circuit Court of Appeals 81214); Jett Bros. Distilling Co. v. Carrollton, for the Eighth Circuit denied. 252 U. S. 1, 5-6, 40 S. Ct. 255, 64 L. Ed. 421.

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No. 906. The BUTTERICK COMPANY et

al., petitioners, v. The FEDERAL TRADE COMMISSION. March 16, 1925. For opinion of New York City (Messrs. Julius M. Mayer, below, see 4 F. (2d) 910. Mr. Herbert Noble, Scott Scammell, James H. Kirkpatrick, and Hartwell P. Heath, all of New York City, of counsel), for petitioners. Mr. James M. Beck, Sol. Gen., of Washington, D. C., and W. H. Fuller, of McAlester, Okl., for Federal Trade Commission. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied.

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No. 917. Edward SMALE, Jr., et al., petitioners, v. The UNITED STATES of America. March 16, 1925. For opinion below, see 3 F. (2d) 101. Mr. Everett Jennings, of Chicago, Ill., for petitioners. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied.

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(267 U. S. 590) No. 922. HARTFORD ACCIDENT & IN

No. 834. Joseph L. LACKNER, Administrator, petitioner, v. Merritt STARR, Surviving Partner of the Firm of Miller & Starr. March 16, 1925. For opinion below, see 2 F. (2d) 516. Messrs. Charles H. Aldrich, Charles S.DEMNITY COMPANY OF HARTFORD, petiCutting, and Donald F. McPherson, all of Chi- tioner, v. SOUTHERN PACIFIC COMPANY cago, Ill., for petitioner. Petition for a writ of certiorari to the United States Circuit Court 3 F.(2d) 923. Petition for a writ of certiorari et al. March 16, 1925. For opinion below, see of Appeals for the Seventh Circuit denied. to the United States Circuit Court of Appeals for the Fifth Circuit granted.

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No. 892. PERE MARQUETTE RAILWAY No. 942. Morray E. BIRNBAUM, petitioner, COMPANY, petitioner, v. LOVELAND & v. The UNITED STATES of America. March HINYAN et al. March 16, 1925. For opinion 16, 1925. For opinion below, see 5 F. (2d) 45. below, see 2 F. (2d) 948. Mr. John C. Shields, Mr. Otho S. Bowling, of New York City, for

(45 S.Ct.)

petitioner. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied.

(267 U. S. 602)

for plaintiffs in error. Mr. R. C. Allen, of Tulsa, Okl., for defendants in error. Motion of the plaintiff in error to overrule the designation filed in behalf of the defendants in error that the entire record as certified to this court by the clerk of the Supreme Court of Oklahoma be printed, is denied, for the reason that the plaintiff in error in his designation of the portions to be printed has not complied with rule Clyde A. DeWitt, both of Manila, Philippine 10, paragraph 9, requiring him to file with the Islands, for petitioners. Petition for a writ of clerk a statement of the points on which he incertiorari to the Supreme Court of the Philip-ord which he has designated for printing. When tends to rely, to accompany the parts of the recpine Islands denied.

No. 945. TAN PHO et al., petitioners, v. Faustino LICHAUCO, as Guardian, etc. March 16, 1925. Messrs. Frederick C. Fisher and

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the plaintiff in error shall have filed such statement with the clerk, together with proof of the service of the same on the defendants in error and the defendants in error take no further action, he may renew the motion now denied.

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No. 269. MISSOURI PACIFIC RAILROAD spondent. Petition for a writ of certiorari to COMPANY, plaintiff in error, V. WALNUT the United States Circuit Court of Appeals RIDGE-ALICIA ROAD IMPROVEMENT for the First Circuit denied.

DISTRICT. March 23, 1925. In error to the Supreme Court of the State of Arkansas. For opinion below, see 160 Ark. 297, 254 S. W. 1065. Messrs. Thomas B. Pryor, of Fort Smith, Ark., and Edward J. White, of St. Louis, Mo., for plaintiff in error. Messrs. G. B. Rose, D. H. Cantrell, J. F. Loughborough, and A. W. Dobyns, all of Little Rock, Ark., for defendant in error. Judgment affirmed upon the authority of Missouri Pacific R. R. Co. v. West Crawford Road Improvement District, 266 U. S. 187, 45 S. Ct. 31, 69 L. Ed.

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No. 650. HIAWASSEE RIVER POWER COMPANY, plaintiff in error, v. CAROLINA TENNESSEE POWER COMPANY. March 23, 1925. In error to the Supreme Court of the State of North Carolina. For opinion below, see 123 S. E. 312. Mr. J. Crawford Biggs, of Raleigh, N. C., for plaintiff in error. Dismissed for want of jurisdiction upon the authority of (1) section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, § 2, 30 Stat. 726 (Comp. St. § 1214); Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6, 40 S. Ct. 255, 64 L. Ed. 421; (2) Farrell v. O'Brien, 199 U. S. 89, 100, 25 S. Ct. 727, 50 L. Ed. 101; Toop v. Ulysses Land Co., 237 U. S. 580, 583, 35 S. Ct. 739, 59 L. Ed. 1127; Piedmont Power & Light Co. v. Graham, 253 U. S. 193, 195, 40 S. Ct. 453, 64 L. Ed. 855.

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No. 928. William STEVENS, petitioner, v. The ATCHISON, TOPEKA & SANTE FE RAILWAY COMPANY. March 23, 1925. For opinion below, see 239 N. Y. 572, 147 N. E. 200, which affirmed 207 App. Div. 442, 202 N. Y. S. 195. Messrs. D. Roger Englar and George S. Brengle, both of New York City, for petitioner. Messrs. Gardiner Lathrop and Homer W. Davis, both of Chicago, Ill., and A. S. H. Bristow, of New York City, for respondent. Petition for a writ of certiorari to the Supreme Court of the State of New York denied.

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No. 775. Beatrice J. WESTON et al., plaintiffs in error, v. The CITY OF TULSA et al. March 23, 1925. For opinion below, see 102 (267 U. S. 603) Okl. 222, 229 P. 108. Messrs. Louis W. Pratt No. 943. The UNITED STATES of Ameriand James M. Springer, both of Tulsa, Okl., ca, petitioner, v. MIDDLETON & COMPANY,

etc., et al.

March 23, 1925. low, see 3 F. (2d) 384.

For opinion be-, 23, 1925. For opinion below, see 2 F. (2d) 447. Mr. James M. Beck, Mr. Francis B. Kavanagh, of Cleveland, Ohio. (James E. Mathews, of Cleveland, Ohio, of counsel), for petitioner. Mr. A. E. Bernsteen, 、 of Cleveland, Ohio, for the United States. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the, Sixth Circuit denied.

Sol. Gen., of Washington, D. C., and J. Frank Staley, Sp. Asst. Atty. Gen., for the United States. Messrs. Alfred Huger and E. Willoughby Middleton, both of Charleston, S. C., for respondent The Tiekoku Menkwa Kabushiki Kaisha and another. Messrs. Mitchell & Horlbeck, of Charleston, S. C., for respondent Carolina Co. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied.

(267 U. S. 604)

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(267 U. S. 604)

No. 959. Marcus GARVEY, petitioner, v. The UNITED STATES of America. March

No. 948. The BAUER COOPERAGE COM-23, 1925. For opinion below, see 4 F. (2d) 974. PANY, petitioner, v. Edgar STARK, Executor, etc.;

No. 949. The BAUER COOPERAGE COMPANY, petitioner, v. The UNION SAVINGS BANK & TRUST COMPANY;

No. 950. The BAUER COOPERAGE COMPANY, petitioner, v. LAWRENCE MAXWELL COMPANY; and

No. 951. The BAUER COOPERAGE COMPANY, petitioner, v. Edgar STARK, Executor, etc. March 23, 1925. For opinion below, see 3 F. (2d) 214. Mr. Murray Seasongood, of Cincinnati, Ohio (Lester A. Jaffe, of Cincinnati, Ohio, on the brief), for petitioner. Petition for writs of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied.

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Mr. George Gordon Battle, of New York City for petitioner. Mr. James M. Beck, Sol. Gen., of Washington, D. C., and William J. Donovan, Asst. Atty. Gen., for the United States. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied.

(267 U. S. 611)

No. 888. Patrick J. O'SHAUGHNESSY et

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-; 268 U.

Mr. Harry The Attorney Writ of er

al., plaintiffs in error, v. The UNITED STATES
of America. March 23, 1925. See, also, 267
U. S. 610, 45 S. Ct. 353, 69 L. Ed.
S., 45 S. Ct. 512, 69 L. Ed.
H. Smith, for plaintiffs in error.
General, for the United States.
ror dismissed as to plaintiffs in error Harry B.
O'Connor, Daniel L. Jemison, Geronimo Perez.
and James F. Daves, on motion of Mr. Harry
H. Smith for the plaintiffs in error.

(45 S.Ct.)

(268 U. S. 146)
STANDARD OIL CO. OF NEW JERSEY V.
SOUTHERN PAC. CO. et al.

6. Damages 105-Neither cost of reproduction new, nor that less depreciation, is sole guide to market value of thing destroyed. Neither cost of reproduction new, nor that

(Argued Jan. 19, 20, 1925. Decided April 20, less depreciation, is measure or sole guide of

1925.)

No. 197.

market value of thing destroyed, to be ascertained as measure of damages for such destruction.

7. Collision

133-Evidence held to sustain finding as to market value of vessel lost. Evidence held to sustain finding as to mar

1. Railroads 52, New, vol. 6A Key-No. Series-Railroad's settlement with Director General for loss of vessel held not extinguishment of claim against owner of collid- ket value of vessel totally lost by collision. ing vessel.

Where railroad, as owner of vessel lost

from collision during federal control, together with Director General, had been litigating question of liability with owner of other vessel, and alone appealed from decree of District Court, and pending such appeal made settlement with Director General, held, that rule as to release of one joint tort-feasor did not apply, so as to extinguish any claim which railroad had against owner of other vessel, since under Federal Control Act, § 10 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 31154j), waiver of sovereign immunity from suit was not broad enough to permit railroad to sue Director General in tort.

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3. Damages -Injured party is entitled to compensation for loss, and in case of destroyed property is entitled to its value.

It is fundamental, in law of damages, that injured party is entitled to compensation, and, where property is destroyed, is entitled to its money equivalent.

4. Collision

133-Measure of damages for total loss of vessel is market value, or, if none exists, the sum which could have been obtained for her.

Measure of damages for total loss of vessel is its market value, if it has a market value at time of destruction, or, if there be no market value, its value may be taken as that sum which, considering all the circumstances, probably could have been obtained for her on date of destruction.

5. Evidence 113(10)—Cost of reproduction as of date of valuation constitutes evidence of value, affecting measure of damages.

Cost of reproduction as of date of valuation constitutes evidence properly to be considered in ascertainment of value, as measure of damages for destruction of property.

On Writ of Certiorari to the Circuit Court of Appeals, Second Circuit.

Consolidated proceedings in admiralty on petitions by the Standard Oil Company of New Jersey, as owner of steamship Cushing, and the Southern Pacific Company, and the Director General of Railroads, as owner and operator of the vessel Proteus, for limitation of liability for collision between the two vessels, resulting in total loss of the Proteus. On writ of certiorari by Standard Oil Company to review judgment of Circuit Court of Appeals (292 Fed. 560), modifying and affirming, on appeals by both parties, decision of ing of commissioner as to value of the ProDistrict Court (285 Fed. 617), confirming findteus. Decree of Circuit Court of Appeals af

firmed.

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Mr. Justice BUTLER delivered the opinion of the Court.

August 19, 1918, the steamship Cushing,
owned by the petitioner, Standard Oil Com-
pany, and the Proteus, owned by the respond-
ent Southern Pacific Company, and operated
by the Director General of Railroads, col-
lided. The Proteus and her cargo were lost.
Petitioner and respondents filed their peti-
tions for limitation of liability. R. S. §§
4283-4285 (Comp. St. §§ 8021-8023); admiral-
ty rule 54. The proceedings were consoli-
dated. The District Court found that both
tion of damages to a commissioner.
vessels were at fault and referred the ques-
The
Cushing, 266 F. 570. He reported that there
should be awarded on account of the loss of
the Proteus $750,000, with interest. The re-
port was confirmed and decree entered, No-
vember 28, 1922. Petition of Standard Oil
Co. of New Jersey, 285 F. 617. Petitioner
and Southern Pacific Company appealed;
the Director General did not appeal. The pe-
titioner maintained that the Cushing was not
at fault, and sought reversal on that ground.
The Southern Pacific Company contended

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
45 S.CT.-30

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the value of the Proteus, or as to the amount included in the lump sum on account of her loss, or on account of any other item. On the facts disclosed, it is impossible to attribute to her loss any particular amount.

pany did not have the same remedy against the Director General that an owner would have against a private charterer. Waiver of sovereign immunity from suit was not broad enough to permit an action in tort by the company against the Director General for the loss of the Proteus. See section 10, Federal Control Act, 40 Stat. 456, c. 25 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115

*that the commissioner's valuation of the Proteus was too low. The Circuit Court of Appeals affirmed the fault of the Cushing, and held that the value of the Proteus at the time of the collision was $1,225,000, and the [1] The rule of the common law that one decree of the District Court was modified ac- who is injured by a joint tort and accepts cordingly. The Cushing, 292 F. 560. The satisfaction from one of the wrongdoers canpetition to this court for a writ of certiorari not recover from the other does not apply. alleges that at the time of the collision the By reason of the immunity of the United Proteus was under the sole control of the Di-States from suit, the Southern Pacific Comrector General of Railroads, and that, if the vessel had not been lost, it would have continued in his control until March 1, 1920; that the claim of the Southern Pacific Company was against the Standard Oil Company and the Director General, who were joint tort-feasors causing the loss of the Proteus; and that, after the expiration of the term of the Circuit Court of Appeals, petitioner learned that a final settlement had been made between the Southern Pacific Company and the Director General, by which the liability of the latter for the loss of the Proteus was satisfied by payment of $750,000, or by adjustment and settlement on that basis. And the petition asserts that thereby any claim of the Southern Pacific Company against petitioner was extinguished, because a settlement with one joint tort-feasor precludes recovery from the other for the same loss.

The petition was granted. 263 U. S. 696, 44 S. Ct. 133, 68 L. Ed. 511. Later the order granting the writ was vacated as to personal injury, cargo, and passenger claimants against whom no error was assigned. 263 U. S. 681, 44 S. Ct. 135, 68 L. Ed. 504. By leave of this court, additional testimony relating to the settlement was taken in accordance with paragraph 2 of rule 12. 265 U. S. 569, 44 S. Ct. 458, 68 L. Ed. 1184.

The material facts may be briefly stated. December 28, 1917, the President took over the combined rail and water transportation system of the Southern Pacific Company and its subsidiaries. February 19, 1919, the Director General and the owner made a contract in respect of the operation and upkeep of the properties and for the compensation to be paid for their use during federal control. By it the Director General was required to

*154

pay for property destroyed and not replaced. December 19, 1922, final settlement under the contract was made. The total amount of all items claimed by the company was $54,252,694.57. There was paid $9,250,000 as a lump sum, and that was accepted in full satisfaction of all claims, with certain exceptions not here material. The company claimed $1,268,090.26 for the Proteus and $16,663.80 for the lighter Confidence. The Railroad Administration kept a record, showing how the lump sum was arrived at. In this record there was allocated on account of the Proteus and the Confidence a lump sum of $885,000, but this was not in any wise communicated to the company. There was no agreement as to

j); Dupont De Nemours & Co. v. Davis, 264 U. S. 456, 462, 44 S. Ct. 364, 68 L. Ed. 788; Missouri Pacific R. R. Co. v. Ault, 256 U. S. 551, 41 S. Ct. 593, 65 L. Ed. 1087. In respect of that, there was no breach of duty owed to the respondent by the Director General as a common carrier. As was said in The Western Maid, 257 U. S. 419, 433, 42 S. Ct. 159, 161 (66 L. Ed. 299):

"The United States has not consented to be sued for torts, and therefore it cannot be said that in a legal sense the United States has been guilty of a tort."

[2] At the time of the collision, the Director General was a special owner having ex

*155

clusive possession and control of the vessel; the Southern Pacific Company was the owner of the reversion. Together they had full title, and joined in the petition for limitation of liability. Adjustment of their interests under the contract could be made before as well as after the end of litigation. No question of tort or negligence on the part of the Director General was involved. The settlement had no relation to the wrongful act of petitioner and did not affect its liability. Ridgeway v. Sayre Electric Co., 258 Pa. 400, 406, 102 A. 123, L. R. A. 1918A, 991, Ann. Cas. 1918D, 1. Petitioner is not entitled to dismissal as against the Southern Pacific Company. Nor is the Director General bound by the decree of the District Court as to the amount of damages. On appeal in admiralty, there is a trial de novo. The whole case was opened in the Circuit Court of Appeals by the appeal of the Southern Pacific Company, as much as it would have been if the Director General had also appealed. Reid v. American Express Co., 241 U. S. 544, 36 S. Ct. 712, 60 L. Ed. 1156; Watts, Watts & Co. v. Unione Austriaca, 248 U. S. 9, 21, 39 S. Ct. 1, 63 L. Ed. 100, 3 A. L. R. 323; The John Twohy, 255 U. S. 77, 41 S. Ct. 251, 65 L. Ed. 511; Munson S. S. Line v. Miramar S. S. Co., 167 F. 960, 93 C. C. A. 360. And see

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