Gulf & Ship Island R. Co. v. Walker

• Decision Date: 17 February 1913
• Docket Number: 15,704
• Parties: GULF & SHIP ISLAND RAILROAD COMPANY v. J. R. WALKER et al
• Court: Mississippi Supreme Court

60 So. 1014

103 Miss. 836

GULF & SHIP ISLAND RAILROAD COMPANY v. J. R. WALKER et al

No. 15,704

Supreme Court of Mississippi

February 17, 1913

APPEAL from the chancery court of Simpson county, HON. R. E. SHEEHY Chancellor.

Bill by the Gulf & Ship Island Railroad Company to restrain J. R Walker and others from prosecuting certain suits and to have them consolidated. From a decree sustaining a demurrer to the bill, complainants appeal.

This suit was begun by a bill for injunction to enjoin the prosecution of three actions at law and have them consolidated and tried as one suit in the chancery court. On the day of August, 1911, J. R. Walker filed suit in the circuit court against the defendant railroad company for damages, alleging that the burial of a dead horse on the railroad right of way near plaintiff's residence had so damaged his property that he had to abandon it because of the noxious odors, swarms of flies, and pollution of his well water, thus rendering his property worthless as a home and bringing sickness to his family. On the same day, his daughter Maude, by her mother and next friend, brought suit in the circuit court for damages for illness caused to her by the pollution of the well water. A third suit was brought by Mrs. Walker, under section 721 of the Code, to recover damages for the death of another daughter, claimed to be due to defendant's wrongful act in polluting and poisoning the water of the well which had been drunk by the daughter. In September following, the railroad company filed its bill in chancery invoking the equitable jurisdiction of that court to prevent a multiplicity of suits, making all three plaintiffs in the actions at law defendants in the injunction suit. These defendants demurred and moved to dissolve the temporary injunction granted. At the hearing, the demurrer was sustained and the injunction dissolved and bill dismissed, and the railroad company appeals.

Affirmed.

B. E Eaton and May & Saunders, attorneys for appellant.

On the first day of September, 1911, the Gulf & Ship Island Railroad Company filed its bill in the chancery court of Simpson county, invoking the exercise of the equitable jurisdiction of the chancery court to prevent a multiplicity of suits and procure an injunction restraining the further prosecution of said suits at law; all of the above named plaintiffs in said suits at law being made parties to the bill and being likewise restrained from further prosecuting the said suits at law. The defendants in said suit filed a demurrer to said bill and interposed a motion to dissolve the injunction. At the hearing of said demurrer and motion to dissolve, the demurrer was sustained, the injunction dissolved, the bill dismissed and an appeal to ths court allowed.

The court will note the general issue defense set out in the bill of complaint. The Mississippi cases have settled the principle here invoked: Nevitt v. Gillespie, 1 How (Miss.) 108, 26 Am. Dec. 696; Tate County v. DeSota County, 51 Miss. 588; Pollock v. Okolona Savings Institution, 61 Miss. 293; Railroad v. Garrison, 81 Miss. 256, 32 So. 996; Crawford v. Railroad Co., 83 Miss. 708, 36 So. 82, 102 Am. St. Rep. 476; Tusdale v. Fire Ins. Co., 84 Miss. 709, 36 So. 568; Blumer v. Ulmer, 44 So. 161; Whitlock v. Railroad, 91 Miss. 779, 45 So. 861; Railroad Co. v. Barnes, 94 Miss. 484, 48 So. 823.

As clear a statement of the rule as we have noted is to be found in the case of Railroad Co. v. Garrison, supra, which was a suit by several plaintiffs seeking to recover for alleged improper construction of a railway embankment. The court, at page 264, 81 Miss., uses this language: "In every one of these cases past, present, and future, the liability of the railroad company depends upon whether it has properly constructed its railroad track." So, in the case at bar in every one of these actions at law the liability of the railroad company depends upon whether its section foreman negligently buried a dead horse in dangerous proximity to plaintiff's well. This is the only question involved in determining whether the equity jurisdiction exists. The nature and extent of ailments and injuries of the several plaintiffs, if any, growing out of the use of the polluted water only go to the measure of damages in each separate case. Of course, we concede that the burden will rest upon each separate plaintiff to show that the alleged negligent act of the section foreman proximately caused such plaintiff to sustain some injury or damage, and if any such plaintiff should fail to meet this burden, the cause will fail. But this is true in every similar situation. If any one of the adjacent land proprietors, in the Garrison case, supra, was unable to show that he had been damaged by the improperly constructed embankment, then the court would have denied him recovery; but not so with others whose lands were damaged. There is but one tortious act complained of; there is but one fact essential to establish the railroad company's liability to all persons involved. If the section foreman negligently buried the animal in dangerous proximity to plaintiff's well when it was reasonably probable that the members of plaintiff's family would be injured, then the company is responsible to all such who were without fault.

It was argued in the court below that because it might be possible for one suit to succeed and another to fail, that the same legal questions and substantially the same facts are not involved, this being the true test to determine whether separate prosecution of suits will be restrained, counsel depending upon the case of Railroad Company v. Barnes, supra. We do not so understand the Barnes case. That case was decided upon the ground that there were varying causes of liability on the part of the two defendants. In other words, what would be a good defense in one action would not be a good defense in another, and facts that would give rise to a cause of action for one would not support a claim for another. In one case negligence of the engineer in charge of the Gulf & Ship Island Railroad Company's switch engine, if established, would sustain the suit; in another, it would not. In another case the negligence of the engineer in charge of the locomotive drawing the passenger train of the M., J. & K. C. Railroad Company, if established, would sustain the action, and in another it would not. And so with reference to the negligence of the towerman operating the interlocking device, and also the negligence of one railroad company in spiking down derail switch. No such questions are here presented. There are no two joint tort-feasors; there are no numerous alleged acts or omissions by different servants of different defendants constituting the negligence relied upon in any of the several suits, but it is one act of a single servant of a single defendant that is complained of. That act gives rise to liability or it does not. The only remaining question after the alleged negligent act is established, is for the several plaintiffs to show injury or damage to each respectively.

The law of the company's liability is necessary the same in all three suits because there is but one alleged tortious act which forms the basis of the suits, just as was true in the Whitlock case, supra, where a number of passengers sued to cover for negligent delay of the train on which they were traveling. There was but one fact in that case to establish the company's liability--that is, whether or not the train was negligently delayed; that issue being settled in the affirmative, the company's liability attached, otherwise, there was no liability. So here, if the railroad company negligently buried the animal in dangerous proximity to plaintiff's well, the liability of the company attaches, otherwise there is no liability. All other questions of fact which may be brought into the case will necessarily go to show whether or not the negligence of the railroad company caused any of the several plaintiffs to suffer injury or damage. But these facts are brought into the case after the principle of liability has been settled. Of course, acts of negligence which are not the proximate cause of injury cannot be made the basis of a suit, and if some of the plaintiffs did not sustain injury or damage their suits must fail but not because of any different legal principle or different state of facts. When the court says that the cases must depend upon a common state of facts and upon a common principle, it means the facts relied upon to establish liability and the principle which imposes liability.

We respectfully assert there is no reasonable ground for difference of opinion upon the proposition that the principle of liability in these cases is identical in so far as the negligence of the railroad company is concerned, and the negligence of the railroad company is the gist of the action--the negligent act of the section foreman. This one act supports as many actions as may result proximately from it. Then the principle of law involved in the several suits must be referred to this one act, and and must, therefore, be necessarily the same in all cases. The court will not go beyond the facts essential to establish the liability of the railroad company in determining whether equity jurisdiction exists. It will not inquire into the question as to whether the plaintiffs sustained damages as a result of the negligent act, until a trial upon the merits of the case is entered into.

Hilton & Hilton, attorneys for the appellee.

We feel that we could cite the case of Cumberland Telephone &amp Telegraph Company v. Williamson, 57 So. 559, and rest our case there, and be sure of an affirmance. But it may be insisted by the appellant that the Cumberland Telephone & Telegraph Company case does...