(49 S.Ct.) taining a suit for compensatory damages under the statute. [1] It was stated, in general terms, in Panama R. R. Co. v. Johnson, supra, at page 388 of 264 U. S. (44 S. Ct. 394), that the statute "extends to injured seamen a right to invoke, at their election, either the relief accorded by the old rules or that provided by the new rules. The election is between alternatives accorded by the maritime law as modified. And see Engel v. Davenport, supra, at page 36 of 271 U. S. (46 S. Ct. 410). But this general statement does not define the scope of the election or the precise alternative accorded-a question which was not involved or discussed in either of these cases. And while an incidental statement in the Engel Case, at page 36 (46 S. Ct. 410), if taken broadly, might well be understood to mean that the right to recover compensatory damages under the new rule was granted as an alternative to the allowances covered by the old rules, including maintenance, cure and wages, this was at the most a general expression respecting a particular as to which no question was raised-no allowance for maintenance, cure and wages being there involved—which ought not to control the judgment in a subsequent suit when the very point is presented for decision, Cohens v. Virginia, 6 Wheat. 264, 399 (5 L. Ed. 257); Downes v. Bidwell, 182 U. S. 244, 258, 21 S. Ct. 770 (45 L. Ed. 1088); Weyerhaeuser v. Hoyt, 219 U. S. 380, 394, 31 S. Ct. 300 (55 L Ed. 258); Bailey v. Baker Ice Machine Co., 239 U. S. 268, 272, 36 S. Ct. 50 (60 L. Ed. 275); or to prevent the determination as an original question of the proper construction of the statute in that particular. See United States v. Corbett, 215 U. S. 233, 239, 30 S. Ct. 81 (54 L. Ed. 173). What then were the "alternatives" accorded to an injured seaman by the maritime law, as modified, between which the statute grants him an election? Plainly, we think, the right under the new rule to compensa *137 tory damages for injuries caused by negligence is not an alternative of the right under the old rule to maintenance, cure and wages -which arises, quite independently of negligence, when the seaman falls sick or is injured in the service of the ship, and grows out of that which was termed in the Montezuma (C. C. A.) 19 F.(2d) 355, 356, the "personal indenture" created by the relation of the seaman to his vessel. In Harden v. Gordon, 2 Mason, 541, 11 Fed. Cas. 480, 481-cited with apparent approval in the Osceola Case, at page 172 of 189 U. S. (23 S. Ct. 485) -Mr. Justice Story said that a claim for the expenses of curing a seaman in case of sickness "constitutes, in contemplation of law, a part of the contract for wages, and is a material ingredient in the compensation for the labour and services of the seamen." And in The A. Heaton (C. C.), 43 F. 592, 595, Mr. Justice Gray, speaking for the court, said that the right of a seaman to receive his wages to the end of the voyage and to be cured at the ship's expense, being "grounded solely upon the benefit which the ship derives from his service, and having no regard to the question whether his injury has been caused by the fault of others or by mere accident, does not extend to compensation or allowance for the effects of the injury; but it is in the nature of an additional privilege, and not of a substitute for or a restriction of other rights and remedies," and "does not, therefore, displace or affect the right of the seaman to recover against the master or owners for injuries by their unlawful or negligent acts." Thus, it has been held that claims for maintenance, cure and wages, and for indemnity for injuries occasioned by unseaworthiness, may be demanded and recov ered in the same proceeding, Roebling's Sons Co. v. Erickson (C. C. A.) 261 F. 986, 988; that a recovery in one proceeding for wages and maintenance does not preclude the recovery in a subsequent proceeding of indemnity for injuries resulting from unseaworthiness, The Rolph (C. C. A.) 299 F. 52, 55; and 138 that there is no inconsistency between the right to recover compensatory damages under the new rule for injuries caused by negligence and the right to recover maintenance, cure and wages under the old rules, the remedies not being of such a nature that the adoption of one is a repudiation or negation of the other, Lippman v. Romich (C. C. A.) 26 F.(2d) 601, 602. In short, the right to maintenance, cure and wages, implied in law as a contractual obligation arising out of the nature of the employment, is independent of the right to indemnity or compensatory damages for an injury caused by negligence; and these two rights are consistent and cumulative. recover [2] The right to compensatory damages under the new rule for injuries caused by negligence is, however, an alternative of the right to recover indemnity under the old rules on the ground that the injuries were occasioned by unseaworthiness; and it is between these two inconsistent remedies for an injury, both grounded on tort, that we think an election is to be made under the maritime law as modified by the statute. Unseaworthiness, as is well understood, embraces certain species of negligence; while the statute includes several additional species not embraced in that term. But, whether or not the seaman's injuries were occasioned by the unseaworthiness of the vessel or by the negligence of the master or members of the crew, or both combined, there is but a single wrongful invasion of his primary right of bodily safety and but a single legal wrong, Baltimore S. S. Co. v. Phillips, supra, 321 of 274 U. S. (47 S. Ct. 600), for which he is entitled to but one indemnity by way of compensatory damages. [3, 4] Considered in the light of these sev PER CURIAM. The writs of error are dismissed for want of a properly presented substantial Federal question, on the authority of (1) St. Louis & San Francisco R. Co. v. Shephard, 240 U. S. 240, 36 S. Ct. 274, 60 L. Ed. 622; Jett Bros. Distilling Co. v. City of Carrollton, 252 U. S. 1, 40 S. Ct. 255, 64 L. Ed. 421; (2) Consolidated Turnpike Co. v. Norfolk & Ocean View Ry., 228 U. S. 326, 33 S. Ct. 510, 57 L. Ed. 857; Marvin v. Trout, 199 U. S. 212, 26 S. Ct. 31, 50 L. Ed. 157. New York. Mr. Frank P. Walsh, of New York City, for appellants. The Attorney General, for appellee. PER CURIAM. The appeal is dismissed for lack of a showing of service of summons and severance upon those defendants in the court below who did not join in the appeal. Masterson v. Herndon, 10 Wall. 416, 19 L. Ed. 953; Downing v. McCartney, 131 U. S. XCVIII App'x, 19 L. Ed. 957; Hardee v. Wilson, 146 U. S. 179, 13 S. Ct. 39, 36 L. Ed. 933; Garcia v. Vela, 216 U. S. 598, 30 S. Ct. 439, 54 L. Ed 632. No. 198. Arthur J. KARNUTH, United States Director of Immigration, et al., petitioners, v. UNITED STATES of America, on the petition of Preston M. Albro, an Attorney for Mary Cook and Antonio Danelon. Nov. 19, 1928. The petition for a rehearing is granted. For former opinion, see 278 U. S. 607, 49 S. Ct. 12, 73 L. Ed. For opinion below, see 24 F. (2d) 649. Mr. William D. Mitchell, Sol. Gen., of Washington, D. C., for petitioners. Messrs. Botsford, Mitchell, Albro & Weber, of Buffalo, N. Y. (Messrs. Preston M. Albro, of Buffalo, N. Y., and Robert A. Reid, of Toronto, Ontario, Can., of counsel), for respondents. The order heretofore entered denying the petition for a writ of certiorari in this case is revoked and a writ of certiorari herein is granted. (49 S.Ct.) No. 209. Arthur E. ROBERTS and West End Lumber Company, plaintiffs in error, v. The CITY OF DETROIT, The Common Council for the City of Detroit, Philip A. Callahan, et al. Nov. 19, 1928. In error to the Supreme Court of the State of Michigan. For opinion below, see 241 Mich. 71, 216 N. W. 410. Mr. S. Homer Ferguson, of Detroit, Mich., for plaintiffs in error. Mr. Clarence E. Wilcox, of Detroit, Mich., for defendants in error. PER CURIAM. The motion to dismiss is granted on the authority of Meyer v. Richmond, 172 U. S. 82, 19 S. Ct. 106, 43 L. Ed. 374. Treating the writ of error as an application for certiorari the same is denied. er, et al., etc. Nov. 19, 1928. For opinion below, see Johnson v. Dunn, 266 P. 1099. Mr. James H. Hawley, of Boise, Idaho, for appellants. Appeal from the Supreme Court of the State of Idaho. PER CURIAM. The appeal is dismissed on the authority of section 237 of the Judicial Code, as amended by the act of February 13, 1925 (43 Stat. 936, 937; 28 USCA § 344, for lack of jurisdiction. Treating the appeal as an application for certiorari, the same is denied for want of a substantial Federal question on the authority of Shulthis v. McDougal, 225 U. S. 561, 569, 32 S. Ct. 704, 56 L. Ed. 1205; Hull v. Burr, 234 U. S. 712, 720, 34 S. Ct. 892, 58 L. Ed. 1557; Norton v. Whiteside, 239 U. S. 144, 147, 36 S. Ct. 97, 60 L. Ed. 186. No. 361. Shanker Laxman GOKHALE, petitioner, v. The UNITED STATES of America. Nov. 19, 1928. On writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit. For opinion below, see 26 F. (2d) 360. Mr. Meyer Kraushaar, of New York City, for petitioner. The judgments of the District Court of the United States for the Northern District of New York and of the United States Circuit Court of Appeals for the Second Circuit in this cause vacated and set aside, and the cause remanded to the District Court of the United States for the Northern District of New York with direction to dismiss the bill of complaint, pursuant to stipulation filed herein, and on motion of Mr. Solicitor General Mitchell in that behalf. No. 464. The UNITED RAILWAYS & ELECTRIC COMPANY OF BALTIMORE, appellant, v. Harold E. WEST, Chairman, and J. Frank Harper and Steuart Purcell, members, constituting the Public Service Commission of Maryland; and No. 465. Harold E. WEST, Chairman, and J. Frank Harper and Steuart Purcell, members, constituting the Public Service Commission of Maryland, appellants, v. The UNITED RAILWAYS & ELECTRIC COMPANY OF BALTIMORE. Nov. 19, 1928. Appeals from the Court of Appeals of the State of Maryland. For opinion below, see 142 A. 870. Messrs. Charles McHenry Howard, Charles Markell, W. W. Willoughby and Henry H. Waters, all of Baltimore, Md., for United Railways & Electric Co. Messrs. Raymond S. Williams and Thomas J. Tingley, both of Baltimore, Md., for West and others. PER CURIAM. The appeals are dismissed on the authority of section 237 (a) of the Judicial Code, as amended by the act of February 13, 1925 (43 Stat. 936, 937; 28 USCA § 344 (a), for lack of jurisdiction, on the ground that the decree sought to be reviewed is not a final one. Haseltine v. Central Bank of Springfield (No. 1), 183 U. S. 130, 131, 22 S. Ct. 49, 46 L. Ed. 117; Schlosser v. Hemphill, 198 U. S. 173, 175, 25 S. Ct. 654, 49 L. Ed. 1000; Arnold v. United States for the use of Guimarin & Co., 263 U. S. 427, 434, 44 S. Ct. 144, 68 L. Ed. 371. The petition for certiorari in No. 465 is denied for the same reason. No. 486. The NEW YORK TRUST COMPANY and John F. Downing, Trustees, petitioners, v. CONTINENTAL & COMMERCIAL TRUST & SAVINGS BANK, and Edward F. Swinney, Trustees, et al. Nov. 19, 1928. For opinion below, see 26 F. (2d) 872. Mr. John W. Davis, of New York City, for petitioners. Messrs. Henry Russell Platt, of Chicago, Ill., and Powell C. Groner, of Kansas City, Mo., for respondents. Petition for writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. No. 493. W. & J. SLOANE MANUFACTURING COMPANY, petitioner, v. ARMSTRONG CORK COMPANY. Nov. 19, 1928. For opinion below, see 27 F. (2d) 644. Messrs. Emerson R. Newell, of New York City, and Owen J. Roberts, of Philadelphia, Pa., for petitioner. Messrs. Clarence P. Byrnes and George E. Stebbins, both of Pittsburgh, Pa., for respondent. Petition for writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied. (278 U. S. 645) No. 494. ERIE RAILROAD COMPANY, petitioner, v. PILLSBURY FLOUR MILLS COMPANY. Nov. 19, 1928. For opinion of New York Court of Appeals, see 248 N. Y. 649, 162 N. E. 560. Messrs. William C. Cannon and Theodore Kiendl, both of New York City, for petitioner. Mr. Van Vechten Veeder, of New York City, for respondent. Petition for writ of certiorari to the Supreme Court of the State of New York denied No. 33. SURPLUS TRADING COMPANY, plaintiff in error, v. J. M. HAYNIE, as Sheriff, etc. Nov. 21, 1928. For opinion below, see 174 Ark. 507, 297 S. W. 822. Messrs. G. B. Rose, D. H. Cantrell, and G. Denison Cherry, all of Little Rock, Ark., for plaintiff in error. Messrs. Sam T. Poe and Tom Poe, both of Little Rock, Ark., for defendant in error. Argued on motion to dismiss by Mr. G. Denison Cherry for the plaintiff in error, and by Mr. Sam T. Poe for the defendant in error. Motion to dismiss denied. Ry., 228 U. S. 326, 33 S. Ct. 510, 57 L. Ed. 857. No. 306. CARSON PETROLEUM COMPANY, petitioner, v. Leon C. VIAL, Sheriff, etc. Nov. 26, 1928. For opinion below, see 117 So. 432. Mr. William E. Leahy, of Washington, D. C., for plaintiff in error. Petition for writ of certiorari to the Supreme Court of the State of Louisiana granted. (278 U. S. 568) No. In Re Disbarment of John H. ADRIAANS. Nov. 26, 1928. Motion to revoke order of disbarment denied. No. 50. MISSOURI PACIFIC RAILROAD CORPORATION IN NEBRASKA and E. P. Boyer Lumber Co. & Coal Co. et al., plaintiffs in error, v. NEBRASKA STATE RAILWAY COMMISSION. Nov. 26, 1928. In error to the Supreme Court of the State of Nebraska. For opinion below, see 115 Neb. 856, 215 N. W. 138. Messrs. Francis A. Brogan, Alfred G. Ellick, J. A. C. Kennedy, and Anan Raymond, all of Omaha, Neb., for plaintiffs in error. PER CURIAM. The writ of error is dismissed for want of a properly presented substantial federal question, on the authority of St. Louis & San Francisco R. R. v. Shepherd, 240 U. S. 240, 36 S, Ct. 274, 60 L. Ed. 622; Jett Bros. Distilling Co. v. City of Carrollton, 252 U. S. 1. 40 S. Ct. 255, 64 L. Ed. 421; Consolidated Turnpike Co. v. Norfolk & Ocean View 49 S.CT.-6 No. 424. SECURITY NATIONAL BANK OF WATERTOWN, SOUTH DAKOTA, appellant, v. Iver TWINDE, Pat Walsh, J. A. Kiley, et al., etc., et al. Nov. 26, 1928. Appeal from the Supreme Court of the State of South Dakota. For opinion below, see 217 N. W. 542. Mr. Perry F. Loucks, of Watertown, S. D., for appellant. PER CURIAM. The appeal is dismissed for the reason that the judgment of the state court sought here to be reviewed was based on a non-Federal ground adequate to support it. Bilby v. Stewart, 246 U. S. 255, 257, 38 S. Ct. 264, 62 L. Ed. 701; Farson Son & Co. v. Bird, 248 U. S. 268, 271, 39 S. Ct. 111, 63 L. Ed. 233. (278 U. S. 570) No. 430. Theodore J. DIMITRY, A. T. Pattison, and H. P. Dart, Senior, Trustees, etc., appellants, v. Mrs. Lillian LEWIS et al. Nov. 26, 1928. Appeal from the Supreme Court of the State of Mississippi. For opinion below, see 117 So. 265. Mr. R. A. Wallace, of Gulfport, Miss., for appellants. PER CURIAM. The appeal is dismissed for the reason that the judgment of the state court sought here to be reviewed was based on a nonFederal ground adequate to support it. Bilby v. Stewart, 246 U. S. 255, 257, 38 S. Ct. 264, 62 L. Ed. 701; Farson, Son & Co. v. Bird, 248 U. S. 268, 271, 39 S. Ct. 111, 63 L. Ed. 233. |