(100 So.) sive). The first section of that act and the amendment of April 5, 1910 (chapter 149, § 1, 35 Stat. 65; chapter 143, § 2, 36 Stat. 291; sections 8657 and 8665, U. S. Comp. Stat. 1918), and our statutes (section 721, Code of 1906, as amended by chapter 214, Laws of 1914 [Hemingway's Code, § 501], and section 2093, Code of 1906 [Hemingway's Code, § 1760]), so far as our statutes are applicable to the particular facts of this case, are substantially the same. Those sections of the federal act are as follows: "Every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign 'nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect of insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. * "Any right of action given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury." The recovery was sustained by the Circuit Court of Appeals for the Ninth Circuit. That court held that the plain meaning of the amendment to the federal act of April 5, 1910, providing that the right of action given to the person suffering the injury shall survive to his or her personal representative, etc., was that the damages for the deceased's personal loss and suffering as well as for the pecuniary loss suffered by the beneficiaries designated by the statute because of his 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." In order to get the full significance of what the Supreme Court said in the Craft Case it should be borne in mind what that court had held prior to the amendment of the federal Employers' Liability Act of April 5, 1910. In Mich. C. R. Co. v. Vreeland, 227 U. S. 68. 33 Sup. Ct. 192, 57 L. Ed. 421, Ann. Cas. 1914C, 176, in discussing the character of the cause of action given to the designated beneficiaries by the federal act, the court said that it was independent of any cause of action which the decedent had, and included no damages which he might have recovered for his injury if he had survived; that it proceeded upon altogether different principles; that it was a liability for the loss and damage sustained by the relatives dependent upon the decedent; that therefore it was a liability for the pecuniary damages resulting to the relatives, and for that only--and in Am. R. Co. v. Didricksen, 227 U. S. 145, 33 Sup. Ct. 224, 57 L. Ed. 456, held that the cause of action which was created by the statute in behalf of the injured employee did not survive his death nor pass to his representatives, but that the act in case of the death of such employee resulting from his injury created a new and distinct right of action for the benefit of the dependent relatives named in the statute; that the damages recoverable were limited to the loss that resulted to them because they had been deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the injured employee; that "the damage is limited strictly to the financial loss thus sustained"; in other words, that the federal act in its first section created two distinct causes of action, entirely separate and independent from each other, one to the em It will be observed that the federal act provides that "there shall be only one recovery for the same injury," while our statute provides that "there shall be but one suit for the same death." N. Pac. R. R. Co. v. Maerkl, 198 Fed. 1, 117 C. C. A. 237, and St. Louis Iron Mt. & So. Ry. Co. v. Craft, 237 U. S. 648, 35 Sup. Ct. 704, 59 L. Ed. 1160, are squarely in point in favor of appellant's contention. In the Maerk! Case an injured employee brought an action under the federal Employers' Liability Act to recover for his injuries, and shortly thereafter died by reason of such injuries. The action was revived in the name of his personal represen-ployee for the injuries suffered by him, the tative, and by amended declaration damages suffered by his widow and children after his death were sought to be recovered, as well as damages decedent suffered while he lived and for which he had sued. Objection was made that there should be an election between the two rights of action. The plaintiff recovered a judgment assessing the total damages at $9,576.80, being $936.80 on the first right of action and $8,640 on the second. other to his dependent relatives designated by the statute for the injuries suffered by them. The Craft Case, after reviewing and analyzing the Vreeland and Didricksen Cases, discussed the effect on the federal act of the amendment of April 5, 1910. Construing the act as amended the Supreme Court in the Craft Case said in part: "It continues, as before, to provide for two distinct rights of action: One in the injured * person for his personal loss and suffering where the injuries are not immediately fatal, and the other in his personal representative for the pecuniary loss sustained by designated relatives where the injuries immediately or ultimately result in death. Without abrogating or curtailing either right, the new section provides in exact words that the right given to the injured person 'shall survive' to his personal representative for the benefit of the same relatives in whose behalf the other right is given. And when this provision and section 1 are read together the conclusion is unavoidable that the personal representative is to recover on behalf of the designated beneficiaries, not only such damages as will compensate them for their own pecuniary loss, but also such damages as will be reasonably compensatory for the loss and suffering of the injured person while he lived. Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries and is confined to their pecumiary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong but a single recovery for a double wrong. "Much stress is laid upon the concluding clause in the new section, but in such cases there shall be only one recovery for the same injury.' Passing and reserving the question of its application where there has been a recovery by the decedent in his lifetime (see Michigan Central R. R. v. Vreeland, supra, p. 70), we think this clause, as applied to cases like the present, is not intended to restrict the personal representative to one right to the exclusion of the other, or to require that he make a choice between them, but to limit him to one recovery of damages for both, and so to avoid the needless litigation in separate actions of what would better be settled once for all in a single action. This view gives full effect to every word in the clause and ascribes to it a reasonable purpose without bringing it into conflict with other provisions the terms of which are plain and unequivocal. Had Congress intended that the personal representative should make an election between the two rights of action and sue upon one only, it is not easy to believe that it would have chosen the words in this clause to express that intention." 809, and as the Supreme Court held in the Craft Case, there are two distinct causes of action under the statute one to the decedent, and in case of his death one to the rela tives. But where, after his death, the same party or parties are given the right to recover for the entire injury, there ceases to be two causes of action. The two causes of action are merged into one, and after the death of the injured party cannot be divided up. On the death of the decedent both causes of action became one cause, and the right to sue for each is lodged in the same person, and the fruits of the recovery go to the same parties. To hold otherwise there would be two suits for the same death in the face of the express inhibition of our statute that "there shall be but one suit for the same death." We hold that, both causes having become merged into one, both were necessarily involved in the first suit. Each action was based on part of the same cause of action. Under these conditions what could have been presented and decided in the first suit is res judicata, whether in fact it was or not. S. B. Dean et al. v. De Soto County (Miss.) 99 South. 563. The appellee relies on the Hamel Case. That case was not governed by section 721, Code of 1906, as amended by chapter 214, Laws of 1914 (Hemingway's Code, § 501. It was decided under section 721 of the Code of 1906, which expressly prohibited suits by the personal representative where any of the designated next of kin under the statute were in existence. The court simply held in that case that the administrator could not sue for the injury to the designated relatives because the statute said he could not. In that case the decedent sued in his lifetime for the injury to him. Afterwards he died, and the suit was revived in the name of his personal representative under section 2093, Code of 1906 (section 1760, Hemingway's Code). The two causes of action did not merge under the statute as it then stood because they could not under the very language of the statute, Doubtless the amendment to our statute (chapter 214, Laws of 1914) authorizing the personal representative to sue for the benefit of all was adopted to conform to the federal act, in view of the fact that the latter act gave federal and state courts concurrent jurisdiction of its enforcement. Conflicts and confusion in the administration of the stat The Supreme Court in the Craft Case also reviewed the Maerkl Case, quoting with approval the language of the Circuit Court of Appeals in that case that damages for both causes of action "not only may be recover-ute in the two jurisdictions were sought to ed by the personal representative of the deceased in one action, but must be recovered in one action only, if at all." The Supreme Court said with reference to that language: "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." It is true, as our court held in Hamel v. be avoided. But whether that was the purpose or not the construction we put on the statute tends to promote that end which is much to be desired. Reversed, and judgment here for appellants. ETHRIDGE, J. (dissenting). I cannot bring my mind to agree to the proposition that the first suit was a bar to the second (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. Section 501, Hemingway's Code (section 721, Code of 1906), provides two distinct rights of action for wrongful death, the first being the right of the deceased for the injuries to himself, and the second being for the injuries to the wife and children as such resulting from the wrongful death. The deceased of course had a right to sue for injuries to himself during his lifetime, and his right of action accrued on being injured, but the right of the wife and of the children does not accrue under the statute at all until death results from the injuries. Therefore where a suit has been brought by a deceased in his lifetime that suit can only cover injuries resulting to him, and does not include the injuries resulting to the wife or children. The rights are separate, and but for the statute providing that they all might be brought in one suit separate suits would have to be maintained. other parties. I have always understood that rights involved in the suit were determined as they existed at the time of the filing of the suit, and that the suit would adjudicate nothing one way or the other that was not an existing cause of action at the time of the original suit. It is true that if no original suit had been instituted under the present statute the administrator could have sued and should have sued for the injuries to all of the parties, but the statute 721, Code of 1906), also gives the widow and (section 501, Hemingway's Code; section children a right of action, but they could not as widow and children prosecute the action already instituted; only the administrator could prosecute that. The construction given the statute in the present case takes this right clearly given to the widow and chil-. dren by section 721, Code of 1906, from them, and places it entirely in the hands of the administrator. I do not think the statute 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 deadministrators, 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 chil- 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 their 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 him 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.) (Syllabus by the Court.) 1. Contracts 168-No duty implied where private contract states the rights, duties, and liabilities of both parties. In cases of private contract setting forth the rights, duties, and liabilities of both parties thereto, there is no implied duty owed the other by either party, and their rights and liabilities must be measured by the contract. 2. Sales288 (4)-Breach of warranty held not available to buyer because of failure to notify seller of defects within time specified in contract. Where the seller of a gin in a written contract with the buyer warrants the gin to perform well, and the contract provides that the purchaser must inform the seller of any defects in the gin within 10 days after he be gins operations,, and that a failure on his part to do so shall be conclusive evidence of the fulfillment of the warranty, a suit for damages for setting fire to cotton because of an alleged defective manufacture or construction of the gin over a year after its sale, and without a notification to the manufacturer or seller of this alleged defect in accordance with the terms of the contract, cannot be maintained. Appeal from Chancery Court, Quitman County; C. L. Lomax, Chancellor. Suit by J. J. McPherson against the Gullett Gin Company and others. Decree of dismissal, and complainant appeals. Affirmed. Lowrey & Lamb, of Marks, for appellant. Mack & Manship, of Marks, for appellees. of purchase of this gin, signed by both purchaser and seller, is made an exhibit to the bill. The following warranty constitutes a part of this agreement: "Said machinery is warranted to be of good material and to perform well, if properly operated by competent persons. Upon starting, if the purchaser at any time within 10 days is unable to make same operate well, telegraph or written notice stating where it fails to conform to the warranty is to be given by the purchaser to the Gullett Gin Company, at Amite, La. (and not verbally to any of its traveling men), and reasonable time shall be given the Gullett Gin Company to remedy the defect, the purchaser rendering all necessary and friendfrom a clearly defined original defect in the maly assistance; and, in case trouble be caused chine itself, the Gullett Gin Company reserved the right to replace any defective parts, without charge, but such defective parts, or part, shall not condemn the machine to which it belongs. If on trial the machine cannot be made to fulfill the warranty, and the default is in the machine itself, the amount of the purchase price of the same is to be credited on the notes pro rata, or money paid thereon, refund pro rata; the purchaser in such case to have nor make any claim for any damages of any nature or character whatsoever against the Gullett Gin Company by reason of the failure of said machine to fulfill the warranty, but the pro rata diminution of purchase price aforesaid to be the sole and only element of damage for breach of this warranty. Failure of any article named herein to comply with this aforesaid warranty shall in no way effect this contract, nor the notes and chattel mortgage and trust deed given in accordance therewith as to the other articles named therein. Failure to make such trial, or to give such notice, or use after 10 days without such notice, or use for any 10 days without notice, shall be conclusive evidence of the fulfillment of the warranty. The Gullett Gin Company shall, at the request of the purchaser, render assistance of any kind in operating said machine, or any part thereof, or in remedying any defects at any time said assistance shall in no case be deemed an acknowledgement on its part of a breach by it of this warranty, or a waiver of or excuse for any failure of the purchaser to fully keep and perform the conditions of this warranty. SYKES, P. J. This is an attachment suit in the chancery court, instituted by the appellant, McPherson, as complainant, against the Gullett Gin Company and others. In his bill McPherson seeks to recover damages against the appellee Gullett Gin Company for the burning of a lot of cotton alleged to have been caused by the negligence of the gin company in the improper construction and assembling of a gin. The bill alleges that appellant purchased of appellee two gins on or about the 11th day of October, 1920; that the gin company, in constructing and assembling the gins, carelessly and neg-rections furnished by the Gullett Gin Comligently so arranged the saws and ribs as to cause the saws to come in contact with the ribs, thereby producing friction and heat, resulting repeatedly in setting fire to cotton that was being ginned; that, beginning soon after the gins were installed, cotton being 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 "The purchaser agrees to properly put up and operate the machinery according to the di pany, and that, if the fault be traceable to not putting up or operating according to directions, purchaser agrees to pay all expenses incurred in rectifying it. "Any failure on the part of the purchaser to comply with this contract releases this warranty entirely." (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 intrinsiamend, and a final decree was entered dis- cally or inherently dangerous to health, limb or missing the bill, from which decree this ap- general use which he knows to be imminently life; (2) when the maker sells an article for peal is here prosecuted. dangerous and unsafe and conceals from the purchaser defects in its construction, from which injury might reasonably be expected to happen to those using it." It is the contention of the appellant that this is an action in tort for damages for the negligent act of the defendant in selling him machinery defectively manufactured or assembled, which was the proximate cause of the fire; that appellant can maintain this suit, regardless of the terms of the contract; that the cause of action is not for a breach of the warranty or contract; that where the thing manufactured or sold is not necessarily and patently a dangerous instrumentality, but only becomes such by reason of the defect, the manufacturer is not usually liable to persons other than the purchaser, but is liable to the purchaser, because the negligence of the manufacturer is held to be the proximate cause of the damage, whereas to other persons the negligence is regarded as remote; that in all cases where the manufacturer or seller has been held liable to third persons it would have been liable to the purchaser. Under the first class are such articles as poisons and drugs. The liability of the manufacturer in these cases is rested upon his public duty because of the danger to life and limb in the negli gent manufacture of automobiles. There was no contract between the parties in those cases. The rule is thus stated in 29 Cyc. 478: "The liability of a vendor or manufacturer for negligence, except as regulated by contract, must arise from breach of a duty which he owes to the public." "The general rule is that a contractor, manufacturer, vendor, or furnisher of an article is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of such article." 2 Cooley on Torts (3d Ed.) p. 1486. Appellant cites cases where the manufacturer of automobiles was held liable to third persons for defects in the construction of the automobile. MacPherson v. Buick Mo-ed by Mr. Cooley is thattor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440; Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 560, Ann. Cas. 1913B, 689. One of the exceptions to this rule as stat In the MacPherson Case, the New York court rests the liability upon the following proposition: "If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully." In another, place in this opinion the New York court is careful to say that it is dealing with the liability of the manufacturer of the finished product who puts it on the market to be used without inspection by his customers. In the Shaffer Case, supra, the court states that the liability of a manufacturer to third persons in cases of this kind is put upon the ground of a public duty owed to every person using the article, which duty is to construct this article so that it will not be unsafe and dangerous. The rule of liability of a manufacturer to third persons is thus well stated in this opinion: 100 SO.-2 "A person who knowingly sells or furnishes an article which, by reason of defective construction or otherwise, is imminently dangerous to life or property, without notice or warning of the defect or danger, is liable to third persons who suffer therefrom." An interesting case on this subject is Huset v. Threshing Mach. Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303. In the opinion in that case it is said that: "Actions for negligence are for breaches of duty. Actions on contracts are for breaches of agreements." See, also, Heizer v. Mfg. Co., 110 Mo. 605, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 482. These cases while instructive upon the duty of a manufacturer to the ultimate purchaser of his article, are not directly in point. In this case there was a contract for the purchase of the gins between the parties to this suit. The undertakings of each party are stipulated thereon. Their rights and liabilities are therein fully stated. There was no necessity for making this contract. No public duty nor public policy required it to be made. It is simply a private contract between private parties that neither was compelled to make. This contract provides that the seller warrants the machinery to be of good material and to perform well. The bill in effect alleges a breach of this agreement, in that the machinery did not perform |