Opinion
No. 30527.
March 27, 1933.
INJUNCTION. Suit to enjoin separate suits for damages from electric transformer station held not within jurisdiction of equity to avoid multiplicity of suits.
Several owners of property in immediate or practically immediate proximity to property on which power company had erected high-power electric transformer station, brought separate suits to recover damages resulting from the noise, vibration, and shaking of foundations of their houses, and explosions of large balls of fire at the station, particularly during storms or bad weather. The power company thereupon brought its suit to enjoin the several suits and to have the whole matter litigated in one case in the chancery court.
APPEAL from Chancery Court of Marion County.
Wilbourn, Miller Wilbourn, of Meridian, Ford McGehee and Rawls Hathorn, all of Columbia, and Eaton Eaton, of Gulfport, for appellant.
A court of equity has no aversion to the exercise of its jurisdiction to avoid a multiplicity of suits in a proper case. The same principle which, for purposes of practical convenience and the speedy termination of litigation, predisposes a court to resolve doubt against the objection that a bill is multifarious would apply with equal force where objection is interposed to the exercise of the court's jurisdiction to avoid a multiplicity of suits.
Griffith's Chancery Practice, section 203.
While it is difficult sometimes to decide when equity will enjoin actions at law in order to prevent a multiplicity of suits, there is no hard and fast rule upon the subject, either in the state or the federal courts.
Hale v. Allinson, 188 U.S. 56, 23 Sup. Ct. Rep. 244, 47 L.Ed. 380; Telephone Co. v. Williamson, 101 Miss. 1, 57 So. 559; Tribette v. Railroad Co., 70 Miss. 182, 12 So. 32.
Where there is an injury continuing in its nature, which results in the bringing of numerous actions against a person, equity has intervened to prevent a multiplicity of suits.
Railroad Co. v. Garrison, 81 Miss. 257, 32 So. 996, 95 Am. St. Rep. 469; Vandalia Co. v. Lawson, 43 Ind. App. 226, 87 N.E. 47.
In the instant case the alleged injury for which each of the plaintiffs sued in the circuit court was, according to their own claim, as well as in fact, continuing in its nature. If the appellees were allowed to prosecute their suits in the circuit court and were they to recover damages and collect same, they would not be precluded from thereafter instituting another suit for the subsequent damage recurring by reason of the continuing nature of the alleged nuisance. The first suits would not be res adjudicata of such subsequent suits for the subsequently recurring damage. Also, if all the suits by all the plaintiffs were each tried separately in the circuit court and the defendant won each of them, the judgments of the circuit court entered in favor of the appellant would not be a bar to subsequent suits by the same plaintiffs claiming the same character of damage as resulting subsequent to the trial of the prior suits.
Rosamond v. Carroll County, 101 Miss. 701, 57 So. 979.
The jurisdiction of the chancery court to convene all the parties in one suit, and to determine therein the single question on which liability, past, present and future, depends so as to prevent this endless multiplicity of suits, with its attendant useless consumption of time and costs, is too well settled by modern authorities to be doubted.
Illinois Central R.R. Co. v. James Garrison et al., 81 Miss. 257, 32 So. 996; Guice v. Railroad Co., 111 Miss. 36, 71 So. 259.
The jurisdiction of a court of chancery to enjoin suits for damages for a continuing injury was quite recently sustained in the case of Henry et al. v. Mobile Ohio Railroad Co., 142 So. 11.
Griffith's Chancery Practice, section 439.
It seems to us that it cannot be seriously contended that such injury as is claimed in the various suits in the circuit court brought by the appellees is not a continuing injury within the meaning of that term, if it exists at all. Where an injury of this nature is a continuing injury or trespass, it seems equally clear that successive suits may be brought from time to time for such continuing injury or trespass, as such injury or trespass recurs. In cases of this character it has been repeatedly held that the party claiming to be injured may resort to equity for relief in order to prevent the continuance of the trespass and a multiplicity of actions at law on his own part.
Olivella v. N.Y. H.R.R.R. Co., 64 N.Y. Supp. 1086; Mendelson v. McCabe, 77 P. 915; Wheelock v. Noonan, 15 N.E. 67; Boston M.R.R. Co. v. Sullivan, 58 N.E. 689.
Henry Mounger, Goss Goss, and Hall Hall, all of Columbia, and B.O. Mounger, of Tylertown, for appellees.
There must be some recognized ground of equitable interference, or some community of interest in the subject matter of controversy, or a common right or title involved, to warrant the joinder of all in one suit; or there must be some common purpose in pursuit of a common adversary, where each may resort to equity, in order to be joined in one suit; and it is not enough that there is a community of interest merely in the question of law or of fact involved.
Tribette v. I.C.R.R. Co., 70 Miss. 182, 12 So. 32, 19 L.R.A. 660, 35 A.S.R. 642.
The appellant here is seeking to do the very identical thing which the court said in the Tribette case could not be done.
In order for equity to take jurisdiction upon the ground of a multiplicity of suits, there must be some recognized ground of equitable interference, or some community of interest in the subject-matter, or a common right or title involved.
Cumberland Telephone Telegraph Co. v. Williamson, 101 Miss. 1, 57 So. 559; Newton Oil Manufacturing Co. v. Sessums, 102 Miss. 181, 59 So. 9; G. S.I.R.R. Co. v. Walker, 103 Miss. 836, 60 So. 1014; N.O.M. C.R.R. v. Martin, 105 Miss. 231, 62 So. 228; Newell v. I.C.R.R., 106 Miss. 182, 63 So. 351; Henry v. Donovan, 148 Miss. 278, 114 So. 482; Miller v. White, 160 Miss. 32, 133 So. 144; Griffith's Chancery Practice, section 439; 10 R.C.L. 283.
In the law cases sought to be enjoined by this proceeding, the same principles of law are relied upon, and similar questions of fact are involved, but there is absolutely no community of interest whatsoever between the plaintiffs in any one of the law actions and the plaintiffs in the others.
In harmony with the doctrine that the community of interest necessary to justify equity jurisdiction must extend to the subject-matter of the litigation, and that a community of interest in the question of law and fact involved will not be sufficient, it seems to be generally held that a defendant sued for damages by several different plaintiffs, who have no community or tie connecting them, except that each has suffered by the same wrongful and tortious act, whether of omission or commission, cannot enjoin them from prosecuting their actions separately at law, and compel them to obtain relief by a single suit in chancery.
10 R.C.L. 285-286.
It will be noted that on the very point for which appellants now seek to reverse this case and to sustain their bill of complaint, Judge GRIFFITH says that where there is a continuing or recurring damage, this alone is not sufficient, but there must be successive suits brought by the injured parties, and then equity takes jurisdiction to restrain the filing of such successive and continuous suits.
Griffith's Chancery Practice, section 439; Warren Mills v. New Orleans Seed Co., 65 Miss. 391, 4 So. 298.
From a review of the decisions in Mississippi it is seen that in every case where the Supreme Court has permitted equity jurisdiction to prevent a multiplicity of suits where the injury or damages were continuous or recurring, there had been previous successive suits filed by the interested parties, and there is no case in Mississippi where the jurisdiction of equity has been maintained when the parties filed their first suit in a law court for the first time. The question now squarely presented is whether or not the court will permit the plaintiffs to be drawn into equity upon the first filing of their first suit.
Boise Artesian Hot Cold Water Co. v. Boise City, 213 U.S. 276, 29 Sup. Ct. 426, 53 L.Ed. 796.
A defendant who has committed a tort by which he injured one or a hundred persons has no equity to prevent each and every one of them from maintaining an action against him to recover damages.
10 R.C.L. 285.
We think that the whole error into which counsel for appellant have fallen is that they have failed to grasp the distinction between multitude of suits and multiplicity of suits as pointed out in the Williamson case.
The injured party has the option of determining what character of suit he will bring and it is not for the party who commits the wrong to say how and where and for what he shall be sued. It would have been the utmost folly, in the light of the situation in the case at bar, for these appellees to have joined in a suit to restrain and abate the nuisance in this case. The appellant is a public service corporation and has the right of eminent domain, and it cannot be enjoined from carrying on its business.
Reber v. I.C.R.R., 161 Miss. 885, 138 So. 574.
Equity will not take jurisdiction except when there is no adequate remedy at law.
Coulson v. Harris, 43 Miss. 728; Pennsylvania v. Wheeling Bridge Co., 13 How. (U.S.) 567, 14 L.Ed. 249; Martin Bldg. Co. v. Imperial Laundry Co., 124 So. 82.
It seems to be undisputed that a person may maintain an action at law for damages caused by a nuisance; and this, without praying an abatement of the wrong.
20 R.C.L. 463; Nevins v. McGavock, 106 So. 597.
Argued orally by R.E. Wilbourn, for appellant, and Lee D. Hall, for appellee.
Five separate suits were instituted in the circuit court of Marion county by five parties, wholly separate in title and ownership, against the appellant, in which it was alleged that appellant had erected a high-power electric transformer station in a residential district of the city of Columbia in immediate or practically immediate proximity to each of the said five owners; and each of the plaintiffs sought the recovery of damages to their respective properties, declared as resulting from the noise, the vibration, and shaking of the foundations of appellees' houses, and the explosions of "large balls of fire" in said station, particularly in times of storms or bad weather. The power company thereupon brought its bill to enjoin this alleged multiplicity of suits and sought to have the whole matter litigated in one case in the chancery court. Appellees demurred to the bill, which demurrer was sustained, and the case has been brought here.
It is admitted that there is a community of interest between all the parties in the questions of law and of fact; but in the Tribette case, 70 Miss. 188, 12 So. 32, 19 L.R.A. 660, 35 Am. St. Rep. 642, it was held that this is not sufficient but that there must be some recognized ground of equitable interference or some community of interest in the subject-matter of the controversy, or a common right or title involved to warrant the joinder in one suit, or there must be some common purpose in the pursuit of a common adversary where each may resort to equity in order to be joined in one suit.
Appellant replies, however, that this injury, if injury, will be continuous night and day, and that the rule relied on by appellees has no application to alleged continuous injuries — that appellant expects to continue the electric transformer station as it now is.
An author on the practice in the chancery courts in this state has stated that where the injury is not past and complete as was the Tribette case, and that where there are continuous injuries, the rule taken from the Tribette case is modified as follows: "But it is nevertheless the rule that if the acts or conditions which are subject-matter of the several actions at law are continuous or recurring and the plaintiffs continue to bring successive actions equity has jurisdiction to enjoin the multiplicity of continuing actions particularly if they be vexatious." Griffith, Chancery Practice, section 439. This text is sustained by a number of our cases, and is the present established rule in this court. It is not alleged that the plaintiffs have brought successive actions. It is admitted that but one action in behalf of each of the separate parties has been brought, and no threats are alleged of future actions. In fact, the plaintiffs, appellees, assert in their briefs that each must recover all the damages in his present suit to which he shall be entitled, past, present, and prospective; and while we think appellees are correct in this and that any future suit by them could be met by the plea of res adjudicata, we do not expressly pass on this question here, but confine our decision to the points of equity jurisdiction above quoted. We do not believe it to be sound in principle or ultimately advantageous in practical judicial administration to extend the jurisdiction of equity in regard to the prevention of a multiplicity of suits further than as hereinabove stated; and hence the decree of the chancellor is affirmed.
Affirmed, and bill dismissed.