On Petition for Rehearing
PER CURIAM.A majority of the judges in active service having voted pursuant to 28 U.S.C. § 46(c) for a determination in banc of the plaintiff’s petition for a rehearing of the judgment of reversal entered herein on April 7, 1958, the determination will be so made. Plaintiff, a seaman, suing un*376der the Jones Act, 46 U.S.C. § 688, had recovered a verdict and judgment of $1,600 for damages for personal injuries, which the panel previously sitting reversed for a new trial, with an opinion written by Judge Swan, concurred in by Judge Waterman, and with a dissenting opinion by Judge Medina. Judges Swan and Medina have not participated in the present decision. A majority of the judges participating concur in the views expressed by Judge Medina in his dissenting opinion. Accordingly the previous judgment of reversal is withdrawn, and the judgment below is affirmed.
The previous ruling was based on a finding of error on the part of the trial judge in holding inadmissible evidence offered by the defendant to prove that it, pursuant to its collective bargaining agreement with the union, had paid, plaintiff for maintenance and cure for the 72-day period of convalescence, at the rate of $8 per day, a total of $576. No issue of allowance for maintenance and cure was before the jury, and the judge specifically charged that the jury should not consider the cost of room and board during convalescence. Our previous majority held that if the $576 exceeded plaintiff’s actual expenses for maintenance, the defendant should have been allowed to deduct the excess from the alleged damage item of lost wages to avoid “double compensation,” and hence that evidence bearing upon this issue should have been admitted. But we agree with Judge Medina that the amount of $8 per day for this item fixed in the collective bargaining agreement was a fair and proper pre-estimate which neither party could repudiate. Hence the defendant could not be heard to say that when it paid plaintiff the agreed-upon amount it had overpaid him.
The parties have presented arguments on the issue whether in this class of cases a claim for maintenance and cure should or should not be heard by the jury along with the Jones Act claim — an issue much mooted by text writers and in other circuits. But as we have just indicated, the issue before us is not one of an affirmative award for that purpose, only of a deduction or refund on a jury award. We may add, however, that we see no reason to depart from our previous rulings in effect holding' the form of trial in the discretion of the trial court so long as care is taken to see that double compensation is not allowed. Gonzales v. United Fruit Co., 2 Cir., 193 F.2d 479, 480, note 1; Weiss v. Central R. Co. of N. J., 2 Cir., 235 F.2d 309, 310, note 1.
Judgment of the district court affirmed.
MOORE, Circuit Judge, concurs in the result.