The suit under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., was for recovery of amounts paid by plaintiff, appellant here, in settlement of suits and claims of its employees for damages caused by the inhalation of and contact with gas from poisonous gas bombs shipped by defendant and hauled by plaintiff over its line.

The claim was: that defendant, without giving plaintiff the proper warnings, or taking the proper precautions as to the bombs to prevent injury therefrom, but negligently omitting both, had, without any fault on plaintiff's part, permitted the bombs to become leaky and dangerous and to cause injury and damage to plaintiff's employees; that plaintiff had settled and compromised the claims for reasonable and just sums; that, as between it and defendant, plaintiff was without fault and defendant was wholly to blame for the conditions and their consequences; and that plaintiff was therefore entitled to recover of defendant the just and reasonable amounts it had been compelled to pay out.

The defendant, insisting that the complaint failed to state a cause of action, moved to dismiss it.

The district judge was of the opinion1 that the payment of the claims against it gave plaintiff no right or cause of action in Mississippi under the Tort Claims Act, and that under Mississippi law there was no subrogation of the plaintiff to the c-aims of its employees. He sustained the motion, and plaintiff has appealed.

Here, citing many cases,2 federal and state, appellant insists that the basis for determining its rights of subrogation and indemnity was the Federal Employers Liability Law,3 but that if this is not so, the law of Mississippi, as to subrogation and indemnity is in substance the same.

We need not undertake to determine whether appellant is right in its claim that the Federal Employers Liability Law, rather than the law of Mississippi, determines its right to recovery. We are in no doubt that under the authorities cited by appellant, the complaint stated a cause of action under the law of Mississippi and that it was error to dismiss it.

The recent opinions of the Supreme Court in United States v. Yellow Cab Co. (Capital Transit Co. v. United States,) 71 S. Ct. 399, have re-recognized and re-affirmed the wide scope of the Federal Tort Claims Act. Declaring there that Congress recognized a clearly defined 'breadth of purpose for the bill as a whole and the general trend toward increasing the scope of waiver by the United States of its sovereign immunity from suit', the court went on to hold that 'it is inconsistent to whittle it down by refinements'.

In so holding, the court put the weight of its authority behind brushing aside refinements of construction which would set unreasonable limits upon the broad application of the act.

Because the questions for decision here have been so firmly settled, we need not labor them. It is sufficient to say: that in Mississippi, as generally elsewhere, a right of indemnity, as distinguished from a right of contribution, arises in favor of one not actively at fault against an active wrongdoer; that the facts pleaded would, if the suit were between private parties, make out a case, within the settled rule; and that this being so, a case is made out against the United States under the Federal Tort Claims Act.

It was error to dismiss the complaint. The judgment dismissing it is reversed and the cause is remanded for further and not inconsistent proceedings. Reversed and remanded.