Mississippi Power Co. v. Ballard

• Decision Date: 27 March 1933
• Docket Number: 30527
• Citation: Mississippi Power Co. v. Ballard, 166 Miss. 631, 146 So. 874 (Miss. 1933)
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI POWER CO. v. BALLARD et al

146 So. 874

166 Miss. 631

MISSISSIPPI POWER CO. v. BALLARD et al

No. 30527

Supreme Court of Mississippi

March 27, 1933

Division B

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.

HON. T PRICE DALE, Chancellor.

APPEAL from chancery court of Marion county HON T. PRICE DALE, Chancellor.

Suit by the Mississippi Power Company against A. M. Ballard and others. From a decree in favor of the defendants, the plaintiff appeals. Affirmed, and the bill dismissed.

Affirmed, and bill dismissed.

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 S.Ct. 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.S. 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...