cases there shall be only one recovery for | of action given to the injured person, althe same injury." Passing and reserving though such a provision existed in the the question of its application where there statutes of many of the states. Shortly has been a recovery by the decedent in his after the act two cases arose thereunder lifetime (see Michigan C. R. Co. v. Vree- in each of which the personal representative land, supra, p. 70), we think this clause, of an injured employee, who died from his as applied to cases like the present, is not injuries, sought to recover damages for the intended to restrict the personal represen- employee's personal loss and suffering while tative to one right to the exclusion of the he lived as well as for the pecuniary loss other, or to require that he make a choice to the beneficiaries named in the act. between them, but to limit him to one both cases-one in the circuit court for recovery of damages for both, and so to the western district of Arkansas and the avoid the needless litigation in separate ac- other in the circuit court for the district tions of what would better be settled once of Massachusetts-the right of the injured for all in a single action. This view gives employee would have survived if the local full effect to every word in the clause, and statutes were applicable, and the ruling ascribes to it a reasonable purpose without in both was that the Federal act was exbringing it into conflict with other pro- clusive and superseded the local statutes, visions the terms of which are plain and that it made no provision for a survival, unequivocal. Had Congress intended that and therefore that the recovery should be the personal representative should make an confined to damages for the pecuniary loss election between the two rights of action resulting to the designated beneficiaries and sue upon one only, it is not easy to from the death. Fulgham v. Midland Valley believe that it would have chosen the words R. Co. 167 Fed. 660; Walsh v. New York, in this clause to express that intention. N. H. & H. R. Co. 173 Fed. 494. Following In Northern P. R. Co. v. Maerkl, 117 C. these decisions the amendment embodying C. A. 237, 198 Fed. 1, an injured employee the new section was proposed in Congress. brought an action under the statute to In reporting upon it the Committees on the recover for his injuries, and shortly there- Judiciary in the Senate and House of Repreafter died by reason of them. The action sentatives referred at length to the opinions was revived in the name of his personal delivered in the two cases, to the absence representative, and by an amended and from the original act of a provision for a supplemental petition damages were sought survival of the employee's right of action, for the suffering of the deceased while he and to the presence of such a provision in lived, and also for the pecuniary loss to his the statutes of many of the states, and then widow and children by his death. Over recommended the adoption of the amendan objection that there should be an elec- ment, saying that the act should be made tion between the two rights of action, the "as broad, as comprehensive, and as inplaintiff secured a verdict and judgment clusive in its terms as any of the similar assessing the total damages at $9,576.80, remedial statutes existing in any of the being $936.80 on the first right of action states, which are superseded in their operaand $8,640 on the second. The recovery tion by force of the Federal legislation was sustained by the circuit court of ap- upon the subject." Senate Report No. 432, peals for the ninth circuit, the court say- 61st Cong. 2d Sess. pp. 12-15; House Reing that "the plain meaning" of the newport No. 513, 61st Cong. 2d Sess. pp. 3-6. section is that damages for the deceased's | While these reports cannot be taken as givpersonal loss and suffering and for the pecuniary loss to the designated beneficiaries by the death, "not only may be recovered by the personal representative of the deceased in one action, but must be recovered in one action only, if at all." So far as we are advised by the reported decisions, this is the view which has been taken by all the courts, Federal and state, that have had occasion to consider the question.

A brief reference to the particular circumstances in which the new section was adopted will show that they give material support to the conclusion to which we come after considering its terms.

The original act, as we have said, made no provision for the survival of the right

ing to the new section a meaning not fairly within its words, they persuasively show that it should not be narrowly or restrictively interpreted.

For these reasons we think the second objection is not tenable.

Finally, it is said that the award of $5,000 as damages for pain and suffering, even though extreme, for so short a period as approximately thirty minutes, is excessive. The award does seem large, but the power, and with it the duty and responsibility, of dealing with this matter, rested upon the courts below. It involves only a question of fact, and is not open to reconsideration here. New York C. & H. R. R. Co. v. Fraloff, 100 U. S. 24, 31, 25 L. ed. 531, 534; Supreme Justices

v. Murray (Supreme Justices v. United States), 9 Wall. 274, 19 L. ed. 658; New York, L. E. & W. R. Co. v. Winter, 143 U. S. 60, 75, 36 L. ed. 71, 80, 12 Sup. Ct. Rep. 356, 8 Am. Neg. Cas. 690; Herencia v. Guzman, 219 U. S. 44, 55 L. ed. 81, 31 Sup. (t. Rep. 135; Southern RailwayCarolina Division v. Bennett, 233 U. S. 80, 55 L. ed. 860, 34 Sup. Ct. Rep. 560. Judgment aflirmed.

(2:7 U. S. 615)

G. & C. MERRIAM COMPANY, Appt.,

V.

Mr. Justice Day delivered the opinion of the court:

This suit was brought by complainant to enjoin the defendant from the use of the name "Webster" as a trademark and tradename, when applied to the sale of dictionaries of the English language. A decree was entered dismissing the bill in the

177, 207 Fed. 515). This decree was affirmed upon appeal to the circuit court of appeals for the second circuit (125 C. C. A. 177, 207 Fed. 515), and from the latter decree an appeal was taken to this court.

SYNDICATE PUBLISHING COMPANY. COURTS (§ 352°)—APPEAL FROM CIRCUIT COURT OF APPEALS-JURISDICTION BELOW. 1. A decree of a Federal circuit courtnited States district court (125 C. C. A. of appeals affirming the dismissal in a district court of a suit to restrain the use of the name "Webster," as applied to the sale of dictionaries of the English language, is not appealable to the Federal Supreme Court on the theory that the jurisdiction ( The original bill set up at great length below was not solely dependent upon diverse the origin and history of the Webster diccitizenship, where the bill rests upon allegations tending to establish unfair competition in trade, which contained no element of a cause of action arising under the Federal Constitution or laws, and upon trademarks having the word "Webster" as their chief characteristic, registered, under the act of March 3, 1881 (21 Stat. at L. 502, chap. 13%), long after the expiration of the copy right securing to the publishers the exclu sive right to publish the Webster dictionaries, and under the act of February 20, 1905 (33 Stat. at 1. 724, chap. 592, Comp. Stat. 1913, § 9155), which contains provisions making the jurisdiction of the circuit courts of appeals fiaal.

tionary publications, the succession of the complainant to the ownership of the rights of publication, and the various copyrights which had been taken out from time to time to protect the use of the name "Webster," as applied to dictionaries of the English language, and facts were set out in detail concerning the various publications which the complainant and its predecessors had made from time to time. The bill, in its original form, relied upon the secondary meaning which, it was alleged, the history of the publications had established in the name "Webster," as applied to English dictionaries, and it was alleged that the exclusive right to use that name in such connection had become the property of the complainant, and entitled it to 2. After the expiration of the copy protection against those who used the word right securing to the publishers the ex- in such manner as to cause their publicaclusive right to publish the Webster dictions to be purchased as and for the pubtionaries, the further use of the word "Webster" to designate dictionaries of the English language could not be acquired by registration as a trademark, as the word had become public property.

[Ed. Note. For other cases, see Courts, Cent.
Dig. 11 1019, 1920, Dec. Dig. § 382."]
TRADE MARKS AND TRADE-NAMES ( 13)
-REGISTRATION EFFECT OF EXPIRATION

or COPYRIGHT.

lications of the complainant. It was charged that the respondent belonged to the class of persons wrongfully using the name thus acquired, and facts in detail were set forth to support this contention of unfair competition in trade. After the bill was filed an amendment was added setting up the ownership in complainant of certain Decided June 1, trademarks, duly registered in the Patent

[1.d. Note.--For other cases, see Trade Man and Trade-Names, Cent. Dig. 16; Dec.Dig. [No. 217.]

Argued April 14, 1915.

A

1915.

PPEAL from the United States Circuit Court of Appeals for the Second Circuit to review a decree which affirmed a decree of the District Court for the South ern District of New York, dismissing the bill in a suit to restrain the use of the name "Webster" as applied to dictionaries

Office of the United States, in accordance with the statutes in such case made and provided. The amendment alleges the reg istration of two trademarks under the act of 1881 (21 Stat. at L. 502, chap. 138), and of eight trademarks under the act of 1905 (33 Stat. at L. 724, chap. 592, Comp. Stat. 1913, § 9485), and it was charged that

•For other cases ree same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the defendant used and imitated the com- | the same has been in use for ten years unplainant's trademarks upon Webster's dic- der conditions named in the statute. That tionaries, by affixing the word "Webster" act was before this court in Thaddeus Dato dictionaries in a manner closely imitat- vids Co. v. Davids, 233 U. S. 461, 58 L. ed. ing complainant's registered trademarks or 1046, 34 Sup. Ct. Rep. 648, and the distincone of them, the natural tendency of such tion between it and former acts was pointed acts being to deceive the public and to pass out, particularly in that the act of 1905 gave off defendant's dictionaries as and for the the right to the use of ordinary surnames dictionaries of the complainant. The as a trademark, which right did not exist prayer of the bill was amended so as to under the prior legislation. The act of ask relief by injunction against the defend- 1905 contains provisions making the jurisant from in any manner copying, imitating, diction of the circuit court of appeals final. or infringing any of complainant's regis- Street v. Atlas Mfg. Co. 231 U. S. 348, 58 tered trademarks. The bill as amended L. ed. 262, 34 Sup. Ct. Rep. 73. therefore rested upon (1) allegations tending to establish unfair competition in trade, (2) trademarks registered under the act of 1881, and (3) trademarks registered under the act of 1905.

in the form covered by the letters patent, but along with the public ownership of the device described there necessarily passed to the public the generic designation of the thing which had arisen during the life of the monopoly. As the cases cited in the opinion in that case show, this doctrine is no less applicable to the expiration of a copyright, upon the termination of which there passes to the public the right to use the generic name by which the publication has been known during the existence of the exclusive right conferred by the copyright. In the Singer Case, at page 202, the same doctrine was applied to a trademark containing the word "Singer" and attempted to be used as one of the constituent elements of a trademark.

221 U. S. 263, 55 L. ed. 729, 31 Sup. Ct. Rep. 555. These cases are readily distingui: hable from the one at bar, in which there was an attempt to register and obtain a statutory trademark upon a proper name, which registration was also long after the expiration of the copyright embodying the same designation as its distinguishing feature.

It follows that this appeal must be dismissed for want of jurisdiction. Dismissed.

(237 U. S. 625)

GEORGE EBELING, Appt.,

V.

THOMAS W. MORGAN, Warden of the United States Penitentiary at Leavenworth, Kansas.

CRIMINAL LAW (§ 1216)-PUNISHMENT
CONTINUING OR SEPARATE OFFENSES.

In that case while the right of another, after the expiration of the monopoly, to use the generic designation, was recognized, it was also stated that its use must be such as not to deprive the original proprietor Each successive cutting into the dif of his rights, or to deceive the public, and ferent mail bags with intent to rob or steal that such use of the name must be accom- the mail therefrom by a person who, in the panied with indications sufficient to show same transaction, tears or cuts successively that the thing manufactured or sold is the a number of such bags with intent to rob work of the one making it, so that the or steal any of the mail, is a distinct offense public may be informed of that fact, this punishable under the Federal Criminal Code, 189,† which provides for the punishlatter consideration arising from the usement of anyone who "shall tear, cut, or of the name as designating the production otherwise injure any mail bag, pouch, or of the original owner, and in order to pre- other thing used or designed for use in the vent confusion and unfair trade, and the conveyance of the mail wrongful appropriation of another's rights. As we have already said, the feature of the case involving unfair competition in trade came within the jurisdiction of the district court because of diverse citizenship, and the right of appeal was limited to the cir- Argued and submitted April 7, 1915. Decuit court of appeals.

tent to rob or steal any such mail."
Cent. Dig. § 3310-3319; Dec. Dig. § 1216.]
[Ed. Note.-For other cases, see Criminal Law,

[No. 736.]

Icided June 1, 1915.

PPEAL from the District Court of the United States for the District of Kansas to review an order refusing to issue a writ of habeas corpus. Affirmed.

The facts are stated in the opinion.

Messrs. Frans E. Lindquist, William P. Borland, Martin J. Ostergard, Charles S. McLane, Edwin J. Shannahan, Oscar F. Wimmer, Herman D. Kissenger, Leonard Waddell, Luther N. Dempsey, and Ira S. Gardner for appellant.

Assistant Attorney General Wallace for appellee.

From what has been said, it follows that the name "Webster" was not subject to appropriation or registration as a trademark, under the act of 181, and the contention to the contrary as a basis for jurisdiction in the district court was devoid of substantial merit and was foreclosed by previous decisions of this court. In reaching this conclusion, we have not overlooked the cases relied upon by the complainant, cited in opposition to the motion to dismiss for want of jurisdiction, in which this court has held that where jurisdiction was invoked upon diverse citizenship and also because of alleged rights arising from the Federal trademark statute of 1881, this court has jurisdiction upon appeal from the circuit court of appeals,-Warner v. Searle The appellant, Ebeling, was convicted in & H. Co. 191 U. S. 195, 48 L. ed. 145, the United States district court for the 24 Sup. Ct. Rep. 79; Standard Paint Co. eastern district of Missouri of violations of v. Trinidad Asphalt Mfg. Co. 220 U. S. 446, § 189 of the Criminal Code [35 Stat. at 55 L. ed. 536, 31 Sup. Ct. Rep. 456; Baglin L. 1124, chap. 321, Comp. Stat. 1913, v. Cusenier Co. 221 I. S. 580, 55 L. ed. 863, § 10,359]. The indictment contains seven 31 Sup. Ct. Rep. 669; Jacobs v. Beecham, counts. The second, third, fourth, fifth, sixth, •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ↑ Act March 4, 1909, c. 321, 35 Stat. 1124 (Comp. St. 1913, 10359).

Mr. Justice Day delivered the opinion of the court:

and seventh charge that, on the 21st day of January, 1910, said Ebeling did wilfully, knowingly, and feloniously tear, cut, and injure a certain bag then and there used for the conveyance of mails of the United States, each count describing the mail pouch so torn, cut, and injured by its lock and rotary number, and in each count it was alleged that the pouch in such count named was in a certain railway postal car, then and there in transit on a certain railroad, and that the act was done with intent to forcibly, knowingly, and feloniously rob, steal, and carry away the contents of the pouch. Ebeling entered a plea of guilty, and was sentenced to pay a fine of $500 and be imprisoned in the United States penitentiary at Leavenworth, Kansas, for a period of three years on the second count; and a like fine and imprisonment were imposed because of each the third, fourth, fifth, sixth, and seventh counts, to run consecutively with the sentence under the second count; but it was provided that the imprisonment as to the seventh count should begin, run, and terminate concurrently with the sentences imposed under the other counts, making in all a period of fifteen years' imprisonment. Ebeling, having served the sentence of three years imposed under the second count, applied to the district court of the United States for the district of Kansas for a writ of habeas corpus to procure his release from further imprisonment, upon the ground that he had endured all the punishment that could be legally imposed upon him by imprisonment under said indictment. The district court denied the application, and refused to is sue the writ, and appeal was then prosecuted to this court.

staple or loosen any part of any lock, chain, or strap attached thereto, with intent to rob or steal any such mail, or to render the same insecure, shall be fined not more than five hundred dollars, or imprisoned not more than three years, or both."

Reading the statute with a view to ascertaining its meaning, it is apparent that it undertakes to make an offender of anyone who shall cut, tear, or otherwise injure any mail bag, or who shall draw or break any staple or loosen any part of any lock, chain, or strap attached thereto, with the felonious intent denounced by the statute. These words plainly indicate that it was the intention of the lawmakers to protect each and every mail bag from felonious injury and mutilation. Whenever any one mail bag is thus torn, cut, or injured, the offense is complete. Although the transaction of cutting the mail bags was in a sense continuous, the complete statutory offense was committed every time a mail bag was cut in the manner described, with the intent charged. The offense as to each separate bag was complete when that bag was cut, irrespective of any attack upon, or mutilation of, any other bag. The words are so plain as to require little discussion or further amplification to ascertain their meaning. The separate counts each charged by its distinctive number the separate bag, and each time one of them was cut there was, as we have said, a separate offense committed against the statute. Congress evidently intended to protect the mail in each sack, and to make an attack thereon in the manner described a distinct and separate offense.

The case is not like those charges of continuous offenses where the crime is necessarily, and because of its nature, a single one, though committed over a period of time. Such is the English case of Crepps v. Durden, Cowp. pt. 2, p. 640, wherein Lord Mansfield held that one who was charged with exercising his ordinary trade on the Lord's Day could not be convicted of separate offenses because of a number of acts performed on that day which made up the offense of exercising his trade. It was there said that every stitch that a tailor takes and everything that a shoemaker or carpenter may do for different customers at different times on the same Sunday did not constitute separate offenses, for the offense was one and entire of exercising the trade and calling upon the Lord's Day, and the object of the legislation was Section 189, under which this indictment to punish a man for exercising his trade on was prosecuted, provides:

This case raises the question whether one who, in the same transaction, tears or cuts successively mail bags of the United States used in conveyance of the mails, with intent to rob or steal any such mail, is guilty of a single offense, or of additional offenses because of each successive cutting with the criminal intent charged. If the successive cuttings into the different bags constitute different offenses, then the court below was right in refusing the writ of habeas corpus. If but a single offense was committed, notwithstanding separate mail bags were successively cut with the felonious intent named in the statute, then the appellant was entitled to the writ, and should have 'been discharged by order of the court upon the proceedings below.

"Whoever shall tear, cut, or otherwise injure any mail bag, pouch, or other thing used or designed for use in the conveyance of the mail, or shall draw or break any

Sunday, and not to make a separate offense of each thing he did in the exercise of that trade. So, in Re Snow, 120 U. S. 274, 30 L. ed. 658, 7 Sup. Ct. Rep. 556, where an attempt was made to divide into