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(100 So.) BİTL). The first section of that act and the | The recovery was sustained by the Circuit amendment of April 5, 1910 (chapter 149, § 1, Court of Appeals for the Ninth Circuit. 35 Stat. 65; chapter 143, & 2, 36 Stat. 291; sec-That court held that the plain meaning of tions 8657 and 8665, U. $. Comp. Stat. 1918), the amendment to the federal act of April 5, and our statutes (section 721, Code of 1906, 1910, providing that the right of action given as amended by chapter 214, Laws of 1914 to the person suffering the injury shall sur[Hemingway's Code, g 501), and section 2093, vive to his or her personal representative, Code of 1906 [Hemingway's Code, & 1760]), etc., was that the damages for the deceased's 80 far as our statutes are applicable to the personal loss and suffering as well as for the particular facts of this case, are substantial- pecuniary loss suffered by the beneficiaries ly the same. Those sections of the federal designated by the statute because of his act are as follows:

death “not only may be recovered by the "Every common carrier by railroad while en personal representative of the deceased in gaging in commerce between any of the several one action, but must be recovered in one states or territories, or between any of the action only, if at all." states and territories, or between the District In order to get the full significance of what of Columbia and any of the states or territories, the Supreme Court said in the Craft Case it or between the District of Columbia or any should be borne in mind what that court had of the states or territories and any foreign na held prior to the amendment of the federal tion or nations, shal? be liable in damages to Employers' Liability Act of April 5, 1910. any person suffering injury while he is employed by such carrier in such commerce, or, in In Mich. C. R. Co. v. Vreeland, 227 U. S. 68. case of the death of such employee, to his 33 Sup. Ct. 192, 57 L. Ed. 421, Ann. Cas. or her personal representative for the bene- 1914C, 176, in discussing the character of fit of the surviving widow or husband and chil- the cause of action given to the designated dren of such employee; and, if none, then of beneficiaries by the federal act, the court such employee's parents; and, if none, then of said that it was independent of any cause the next of kin dependent upon such employee, of action which the decedent had, and infor such injury or death resulting in whole or in part from the negligence of any of the offi- cluded no damages which he might have re cers, agents, or employees of such carrier, or covered for his injury if he had survived ; by reason of any defect of insufficiency, due to that it proceeded upon altogether different its negligence, in its cars, engines, appliances, principles; that it was a liability for the machinery, track, roadbed, works, boats, loss and damage sustained by the relatives wbarves, or other equipment. *

dependent upon the decedent; that there"Any right of action given by this act to fore it was a liability for the pecuniary dama person suffering injury shall survive to his of her personal representative, for the benefit ages resulting to the relatives, and for that of the surviving widow or husband and chil-only--and in Am. R. Co. v. Didricksen, 227 dren of such employee, and, if none, then of U. S. 145, 33 Sup. Ct. 224, 57 L. Ed. 456, held such employee's parents; and, if none, then of that the cause of action which was created the next of kin dependent upon such employee, by the statute in behalf of the injured embut in such cases there shall be only one re- ployee did not survive his death nor pass to covery for the same injury."

his representatives, but that the act in case It will be observed that the federal act his injury created a new and distinct right

of the death of such employee resulting from provides that "there shall be only one re- of action for the benefit of the dependent covery for the same injury," while our stat- relatives named in the statute; that the ute provides that "there shall be but one suit for the same death.” N. Pac. R. R. Co. damages recoverable were limited to the loss 1. Maerkl, 198 Fed. 1, 117 C. C. A. 237, and that resulted to them because they had been St. Louis Iron Mt. & So. Ry. Co. v. Craft, deprived of a reasonable expectation of 237 U. S. 648, 35 Sup. Ct. 704, 59 L. Ed. 1160, pecuniary benefits by the wrongful death of are squarely in point in favor of appellant's the injured employee; that "the damage is contention. In the Maerki Case an injured limited strictly to the financial loss thus susemployee brought an action under the fed- tained”; in other words, that the federal eral Employers' Liability Act to recover for act in its first section created two distinct his injuries, and shortly thereafter died by causes of action, entirely separate and inreason of such injuries. The action was re dependent from each other, one to the emvived in the name of his personal represen- ployee for the injuries suffered by him, the tative, and by amended declaration damages other to his dependent relatives designated suffered by his widow and children after his by the statute for the injuries suffered by death were sought to be recovered, as well them. The Craft Case, after reviewing and as damages decedent suffered while he lived analyzing the Vreeland and Didricksen Casand for which he had sued. Objection was

es, discussed the effect on the federal act made that there should be an election be of the amendment of April 5, 1910. Construtween the two rights of action. The plaintiff ing the act as amended the Supreme Court recovered a judgment assessing the total in the Craft Case said in part: damages at $9,576.80, being $936.80 on the "It continues, as before, to provide for two first right of action and $8,640 on the second. distinct rights of action: One in the injured

person for his personal loss and suffering where , 809, and as the Supreme Court held in the the injuries are not immediately fatal, and the Craft Case, there are two distinct causes of other in his personal representative for the action under the statute one to the dece. pecuniary loss sustained by designated rela- dent, and in case of his death one to the relatives where the injuries immediately or ulti- tives. But where, after his death, the same mately result in death. Without abrogating or curtailing either right, the new section provides party or parties are given the right to rein exact words that the right given to the in- cover for the entire injury, there ceases to jured person 'shall survive' to his personal rep- be two causes of action. The two causes of resentative for the benefit of the same rela-action are merged into one, and after the tives in whose behalf the other right is given. death of the injured party cannot be divid

And when this provision and section 1 ed up. On the death of the decedent both are read together the conclusion is unavoidable causes of action became one cause, and the that the personal representative is to recover on behalf of the designated beneficiaries, not right to sue for each is lodged in the same only such damages as will compensate them for person, and the fruits of the recovery go to their own pecuniary loss, but also such dam- the same parties. To hold otherwise there ages as will be reasonably compensatory for would be two suits for the same death in the loss and suffering of the injured person the face of the express inhibition of our statwhile he lived. Although originating in the ute that "there shall be but one suit for the same wrongful act or neglect, the two claims are

same death." We hold that, both causes havquite distinct, no part of either being embraced ing become merged into one, both were necin the other. One is for the wrong to the in-essarily involved in the first suit. Each acjured person and is confined to his personal loss and suffering before he died. while the other is tion was based on part of the same cause of for the wrong to the beneficiaries and is con- action. Under these conditions what could fined to their pecuniary loss through his death. have been presented and decided in the first One begins where the other ends, and a re- suit is res judicata, whether in fact it was covery upon both in the same action is not a

or not. S. B. Dean et al. v. De Soto County double recovery for a single wrong but a single (Miss.) 99 South. 563. recovery for a double wrong. “Much stress is laid upon the concluding that case was not governed by section 721,

The appellee relies on the Hamel Case. clause in the new section, but in such cases

Code of 1906, as amended by chapter 214, there shall be only one recovery for the same injury.' Passing and reserving the question Laws of 1914 (Hemingway's Code, $ 501. It of its application where there has been a re

was decided under section 721 of the Code of covery by the decedent in his lifetime (see 1906, which expressly prohibited suits by the Michigan Central R. R. v. Vreeland, supra, p. personal representative where any of the des70), we think this clause, as applied to cases ignated next of kin under the statute were in like the present, is not intended to restrict the existence. The court simply held in that case personal representative to one right to the ex- that the administrator could not sue for the clusion of the other, or to require that he injury to the designated relatives because make a choice between them, but to limit him

the statute said he could not. In that case to one recovery of damages for both, and so to avoid the needless litigation in separate ac- the decedent sued in his lifetime for the tions of what would better be settled once for injury to him. Afterwards he died, and the all in a single action. This view gives full ef- suit was revived in the name of his personfect to every word in the clause and ascribes to al representative under section 2093, Code of it a reasonable purpose without bringing it 1906 (section 1760, Hemingway's Code). The into conflict with other provisions the terms of two causes of action did not merge under the which are plain and unequivocal. Had Congress statute as it then stood because they could intended that the personal representative should make an election between the two rights of not under the very language of the statute, action and sue upon one only, it is not easy

Doubtless the amendment to our statute to believe that it would have chosen the words (chapter 214, Laws of 1914) authorizing the in this clause to express that intention."

personal representative to sue for the benefit

of all was adopted to conform to the federal The Supreme Court in the Craft Case also act, in view of the fact that the latter act reviewed the Maerkl Case, quoting with apgave federal and state courts concurrent juproval the language of the Circuit Court of risdiction of its enforcement. Conflicts and Appeals in that case that damages for both confusion in the administration of the statcauses of action “not only may be recover- ute in the two jurisdictions were sought to ed by the personal representative of the de- be avoided. But whether that was the purceased in one action, but must be recovered pose or not the construction we put on the in one action only, if at all.” The Supreme statute tends to promote that end which is Court said with reference to that language: much to be desired.

"So far as we are advised by the reported de- Reversed, and judgment here for appelcisions, this is the view which has been taken lants. by all the courts, federal and state, that have bad occasion to consider the question."

ETHRIDGE, J. (dissenting). I cannot

bring my mind to agree to the proposition It is true, as our court held in Hamel v. that the first suit was a bar to the second Railroad, 108 Miss. 172, 66 South. 426 and where the declaration was not amended aft

(100 So.) er the death of the deceased who had prior , new rights of action which have accrued to his death instituted a suit for his own in- since the institution of the original suit to juries.

other parties. I have always understood Section 501, Hemingway's Code (section that rights involved in the suit were deter721, Code of 1906), provides two distinct mined as they existed at the time of the filrights of action for wrongful death, the first ing of the suit, and that the suit would adbeing the right of the deceased for the in- judicate nothing one way or the other that juries to himself, and the second being for was not an existing cause of action at the the injuries to the wife and children as such time of the original suit. It is true that if resulting from the wrongful death. The de no original suit had been instituted under ceased of course had a right to sue for in- | the present statute the administrator could juries to himself during his lifetime, and his have sued and should have sued for the inright of action accrued on being injured, but juries to all of the parties, but the statute the right of the wife and of the children 721, Code of 1906), also gives the widow and

(section 501, Hemingway's Code; section does not accrue under the statute at all until children a right of action, but they could not death results from the injuries. Therefore

as widow and children prosecute the action where a suit has been brought by a deceased already instituted; only the administrator in his lifetime that suit can only cover in- could prosecute that. The construction givjuries resulting to him, and does not include en the statute in the present case takes this the injuries resulting to the wife or children. right clearly given to the widow and chil-The rights are separate, and but for the dren by section 721, Code of 1906, from statute providing that they all might be them, and places it entirely in the hands of brought in one suit separate suits would the administrator. I do not think the stathave to be maintained.

ute should be so construed. It plainly We have two statutes bearing on the right gives the widow and children the right to inof the executors or administrators to bring stitute and prosecute the suit, which of suits for injuries affecting the decedent. course means that they have a right to conSection 1758, Hemingway's Code (section trol the litigation, which is a valuable right, 2091, Code of 1906), provides that executors, but under the present construction, if the de administrators, and temporary administra- ceased in his lifetime instituted a suit for tors may commence and prosecute any per a personal injury, but not contemplating that sonal action whatever, at law or in equity, it would result in death, and dies pending which the testator or intestate might have suit, the right of the wife and children to commenced and prosecuted. And they shall bring suit is taken from them. The injury also be liable to be sued in any court in any to the wife and children was not declared on personal action which might have been main in the first suit, nor could it have been detained against the deceased. This statute clared on at the time suit was instituted. gives the executor or administrator the right It therefore does not bar, in my judgment, to prosecute any personal action which the the right of the wife and children to institestator had a right to institute or prosecute tute the present suit. The right of the husduring his lifetime. Section 1760, Heming- band and wife to maintain separate suits way's Code (section 2093, Code of 1906), pro- for the same injury to either flowing to them vides that, when either of the parties to any separately was distinctly recognized in Brapersonal action shall die before final judg- han v. Meridian Light & Railway Co., 121 ment, the executor or administrator of such Miss. 269, 83 South. 467, decided by this deceased party may prosecute or defend- court in banc. I do not think the present such action. These sections were construed case presents any necessity for departing by this court in Hamel v. Southern Ry. Co., from our own policy to get in line with that 108 Miss. 172, 66 South. 426, 809, and it was of the federal courts for any uniformity of pointed out in that case that the one section law because the actions arise under different applied to rights for which suit had not been statutes, and this court is bound in constru.' instituted during the lifetime of the injured ing the federal Employers' Liability Act by person, and that the other referred to the the decisions of the federal court, and there revival of suits already instituted by the ad- can be no diversity of construction of that ministrator, and it was there held that the act. On the other hand federal courts are former suit for injuries to the deceased was bound by the construction of the state courts not a bar to the right of the widow and child of the state statutes and the rights of acdren to bring an action for their loss result- tion flowing from them; and there can be no ing from the injuries through the death of diversity of decision for that reason. Our the deceased, and that tbeir rights as widow statutes ought to be given that construction and children did not accrue until death in which will give effect to the legislative intervened. The statutes contemplate that a tention, and in doing so we should be govsuit already instituted may be continued by erned by the language of the statute, and the administrator, and it does not require not by rules announced by the federal court bim to amend the pleadings so as to embrace in construing entirely different statutes.

on November 4, 1921, while the gins were McPHERSON V. GULLETT GIN CO. et al. being properly operated, cotton was set on (No. 23878.)

fire'which resulted in the burning up of the (Supreme Court of Mississippi, Division B. cotton here sued for. The written agreement May 12, 1924.)

of purchase of this gin, signed by both pur

chaser and seller, is made an exhibit to the (Syllabus by the Court.)

bill. The following warranty constitutes a I. Contracts em 168-No duty implied where part of this agreement: private contract states the rights, duties, and

"Said machinery is warranted to be of good liabilities of both parties.

material and to perform well, if properly opIn cases of private contract setting forth erated by competent persons. Upon starting, if the rights, duties, and liabilities of both par- the purchaser at any time within 10 days is ties thereto, there is no implied duty owed the unable to make same operate well, telegraph other by either party, and their rights and lia

or written notice stating where it fails to conbilities must be measured by the contract. form to the warranty is to be given by the pur2. Sales 288(4)-Breach of warranty held chaser to the Gullett Gin Company, at Amite,

not available to buyer because of failure to La. (and not verbally to any of its traveling notify seller of defects within time specified men), and reasonable time shall be given the in contract.

Gullett Gin Company to remedy the defect, the Where the seller of a gin in a written purchaser rendering all necessary and friendcontract with the buyer warrants the gin to from a clearly defined original defect in the ma

ly assistance; and, in case trouble be caused perform well, and the contract provides that chine itself, the Gullett Gin Company reserved the purchaser must inform the seller of any defects in the gin within 10 days after he be- | the right to replace any defective parts, withging operations, and that a failure on his part shall not condemn the machine to which it be

'out'charge, but such defective parts, or part, to do so shall be conclusive evidence of the longs. If on trial the machine cannot be made fulfillment of the warranty, a suit for damages to fulfill the warranty, and the default is in for setting fire to cotton because of an alleg- the machine itself, the amount of the purcbase ed defective manufacture or construction of the price of the same is to be credited on the notes gin over a year after its sale, and without a notification to the manufacturer or seller of pro rata, or money paid thereon, refund pro this alleged defect in accordance with the rata; the purchaser in such case to have nor

make any claim for any damages of any nature terms of the contract, cannot be maintained.

or character whatsoever against the Gullett Appeal from Chancery Court, Quitman machine to fulfill the warranty, but the pro

Gin Company by reason of the failure of said County; C. L. Lomax, Chancellor.

rata diminution of purchase price aforesaid to Suit by J. J. McPherson against the Guld be the sole and only element of damage for lett Gin Company and others. Decree of dis- breach of this warranty. Failure of any armissal, and complainant appeals. Affirmed. ticle named herein to comply with this afore

said warranty shall in no way effect this conLowrey & Lamb, of Marks, for appellant. tract, nor the notes and chattel mortgage and Mack & Manship, of Marks, for appellees. trust deed given in accordance therewith as to

the other articles named therein. Failure to SYKES, P. J. This is an attachment suit make such trial, or to give such notice, or use in the chancery court, instituted by the ap- after 10 days without such potice, or use for pellant, McPherson, as complainant, against any, 10 days without notice, shall be conclusive the Gullett Gin Company and others. In his The Gullett Gin Company shall, at the request

evidence of the fulfillment of the warranty. bill McPherson seeks to recover damages of the purchaser, render assistance of any kind against the appellee Gullett Gin Company in operating said machine, or any part thereof, for the burning of a lot of cotton alleged to or in remedying any defects at any time said have been caused by the negligence of the assistance shall in no case be deemed an acgin company in the improper construction knowledgement on its part of a breach by it of and assembling of a gin. The bill alleges this warranty, or a waiver of or excuse for any that appellant purchased of appellee two failure of the purchaser to fully keep and per

form the conditions of this warranty. gins on or about the 11th day of October,

"The purchaser agrees to properly put up and 1920; that the gin company, in constructing operate the machinery according to the diand assembling the gins, carelessly and nego rections furnished by the Gullett Gin Comligently so arranged the saws and ribs as to pany, and that, if the fault be traceable to pot cause the saws to come in contact with the putting up or operating according to direcribs, thereby producing friction and heat, tions, purchaser agrees to pay all expenses inresulting repeatedly in setting fire to cotton curred in rectifying it. that was being ginned; that, beginning soon

"Any failure on the part of the purchaser to

comply with this contract releases this warafter the gins were installed, cotton being

ranty entirely." ginned was frequently set on fire, which fact was usually discovered in time to prevent There was a demurrer interposed to this loss and damage; that appellant was not bill. Among other grounds therein alleged able to discover the cause of the fire; that is one which states that the bill does not

For other cases see same topic and KEY-NUMBER in all Koy-Numbered Digests and Indexes

and face he general rule is that a contractor, manua

(100 So.) state any cause of action. This demurrer | He is held liable "(1) when he is negligent in was sustained, complainant declined to the manufacture and sale of an article intrinsi- * amend, and a final decree was entered dis- cally or inherently dangerous to health, limb or missing the bill, from which decree this ap- life; (2) when the maker sells an article for

general use which he knows to be imminently peal is here prosecuted.

dangerous and unsafe and conceals from the It is the contention of the appellant that purchaser defects in its construction, from this is an action in tort for damages for the which injury might reasonably be expected to negligent act of the defendant in selling him happen to those using it." machinery defectively manufactured or assembled, which was the proximate cause of Under the first class are such articles as the fire; that appellant can maintain this poisons and drugs. suit, regardless of the terms of the contract; The liability of the manufacturer in these that the cause of action is not for a breach cases is rested upon his public duty because of the warranty or contract; that where the of the danger to life and limb in the neglithing manufactured or sold is not necessar- gent manufacture of automobiles. There ily and patently a dangerous instrumental- was no contract between the parties in those ity, but only becomes such by reason of the cases. defect, the manufacturer is not usually li The rule is thus stated in 29 Cyc. 478: able to persons other than the purchaser,

"The liability of a vendor or manufacturer but is liable to the purchaser, because the for negligence, except as regulated by con. Degligence of the manufacturer is held to be tract, must arise from breach of a duty which the proximate cause of the damage, whereas he owes to the public." to other persons the negligence is regarded as remote; that in all cases where the man- | facturer, vendor, or furnisher of an article is ufacturer or seller has been held liable to not liable to third parties who have no contracthird persons it would have been liable to tual relations with him for negligence in the the purchaser.

construction, manufacture, or sale of such Appellant cites cases where the manufac- ) article." 2 Cooley on Torts (3d Ed.) p. 1486. turer of automobiles was held liable to third persons for defects in the construction of

One of the exceptions to this rule as statthe automobile. MacPherson v. Buick Mo- ed by Mr. Cooley is thattor Co., 217 N. Y. 382, 111 N. E 1050, L. R. "A person who knowingly sells or furnishes A. 1916F, 696, Ann. Cas. 1916C, 440; Olds an article which, by reason of defective conMotor Works y, Shaffer, 145 Ky. 616, 140 s. struction or otherwise, is imminently dangerW. 1047, 37 L. R. A. (N. S.) 560, Ann. Cas. ing of the defect or danger, is liable to third

ous to life or property, without notice or warn1913B, 689.

persons who suffer therefrom." In the MacPherson Case, the New York court rests the liability upon the following

An interesting case on this subject is proposition:

Huset v. Threshing Mach. Co., 120 Fed. 865, "If the nature of a thing is such that it is 57 C. C. A. 237, 61 L. R. A. 303. In the opinreasonably certain to place life and limb in ion in that case it is said that: peril when negligently made, it is then a

"Actions for negligence are for breaches of thing of danger. Its nature gives warning of

duty. Actions on contracts are for breaches the consequences to be expected. If to the element of danger there is added knowledge

of agreements." that the thing will be used by persons other than the purchaser, and used without new tests, See, also, Heizer v. Mfg. Co., 110 Mo. 605, then, irrespective of contract, the manufacturer 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. of this thing of danger is under a duty to make | 482. it carefully."

These cases while instructive upon the

duty of a manufacturer to the ultimate purIn another place in this opinion the New chaser of his article, are not directly in York court is careful to say that it is deal- point. In this case there was a contract for ing with the liability of the manufacturer the purchase of the gins between the parties of the finished product who puts it on the to this suit. The undertakings of each party market to be used without inspection by his are stipulated thereon. Their rights and customers.

liabilities are therein fully stated. There In the Shaffer Case, supra, the court states was no necessity for making this contract. that the liability of a manufacturer to third No public duty nor public policy required it persons in cases of this kind is put upon the to be made. It is simply a private contract ground of a public duty owed to every per- between private parties that neither was son using the article, which duty is to con. compelled to make. This contract provides struct this article so that it will not be und that the seller warrants the machinery to be safe and dangerous. The rule of liability of of good material and to perform well. The & manufacturer to third persons is thus well bill in effect alleges a breach of this agree stated in this opinion:

ment, in that the machinery did not perform 100 SO.-2

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