Gulf & Ship Island Railroad v. Barnes

48 So. 823, 94 Miss. 484

Opinion

Wiiiteield, C. J.,

delivered the opinion of the court.

The case made by this record is as follows: The original bill was filed by the Gulf & Ship Island Railroad Company on the 15th day of June, 1908; the fiat for -injunction having been issued by circuit Judge W. II. Hardy on the 18th day of June, 1908, and the bill innvoking the exercise of the' equitable jurisdiction of the cliancei’y court in prevention of a multiplicity of suits. To this original bill Virginia M. Barnes and John Goldsby were made respondents. Virginia M. Barnes had sued the Gulf & Ship Island Railroad Company separately at law, and had also brought a suit against the Gulf & Ship Island Railroad Company and the Mobile, Jackson & Kansas City Railroad Company at law, for damages for the death of her husband, the engineer on the Mobile, Jackson & Kansas City Railroad Company engine at the time of the collision. The Gulf & Ship Island Railroad Company pleaded, as one of its defenses to her suit, the contributory negligence of her said husband, Barnes, the engineer. Goldsby sued for damages for personal injury. On the 16th day of June, 1908, the Gulf & Ship Island Railroad Company filed its amended bill against the same two defendants, Virginia M. Barnes and John Goldsby, and also against certain new parties, Mrs. Maggie Gilbert and the Mobile, Jackson & Kansas City Railroad Company, as two ad ditional defendants. The allegation in this amended bill was that Mrs. Gilbert had sued the Gulf & Ship Island Railroad Company for damages growing out of the same collision, and that the Mobile, Jackson & Kansas City Railroad Company was threatening to sue the Gulf & Ship Island Railroad Company for damages to its locomotive and cars injured in the same collision. On the 20th day of October, 1908, the Gulf & Ship Island Railroad Company filed its supplemental bill against Virginia M. Barnes and John Goldsby, defendants to the original bill, and Mrs. Maggie Gilbert, defendant to its amended bill, and also made the Mobile, Jackson & 'Kansas City Railroad Company a defendant. This supplemental bill alleged, amongst other things, that the Mobile, Jackson & Kansas City Railroad Company was threatening to sue the Gulf & Ship Island Railroad Company for damages amounting to $1,400, growing out of the collision, said damáges being due to injury to its locomotives, etc., and further alleged that Virginia M. Barnes had instituted another suit in the circuit eourt of Korrest county against it, the Gulf & Ship Island Railroad Company, joining with it as a defendant the Mobile, Jackson & Kansas City Railroad Company. The said suit was based on the same cause of action as her original suit. The prayer of this supplemental bill was that Virginia M. Barnes be restrained from prosecuting this last suit against the two railroads, and that all the defendants to the supplemental bill be required to propound their cases to the chancery court, and that all the cases to be consolidated into one case, and tried and determined by the chancery court in one suit, for the purpose of avoiding a multiplicity of suits.

On the 10th day of October, 1908, the Mobile, Jackson & Kansas City Railroad Company presented its cross-bill to Judge W.'H. Hardy, praying for and obtaining the issuance of a writ of injunction, requiring all these parties, the Gulf & Ship Island Railroad Company, Virginia M. Barnes, and Maggie Gilbert, to come into the chancery court and have all these claims settled there. This answer and cross-bill of the Mobile, Jack son & Kansas City Railroad Company prayed also that the Gulf & Ship Island Railroad Company be adjudged liable to the Mobile, Jackson & Kansas City Railroad Company for $2,000 damages to its engine and cars, growing out of tbe same collision; and it was alleged in said answer and crpss-bill that, since tbe filing of original bill by tbe Gulf & Sbip Island Railroad Company, Virginia M. Barnes bad sued tbe Mobile, J ackson & Kansas City Railroad Company, separately and also jointly with tbe Gulf & Ship Island Railroad Company, for damages growing out of the same collision, and tbat Maggie Gilbert bad instituted suit against tbe Mobile, J ackson & Kansas City Railroad Company in tbe circuit court of Greene county, growing out of tbe same collision. The' injunction issued on this answer and cross-bill restrained Virginia M. Barnes from prosecuting ber suit against tbe Mobile, Jackson & Kansas City Railroad Company, and also ber suit against tbe Mobile, Jackson & Kansas City Railroad Company and tbe Gulf & Sbip Island Railroad Company jointly. In December, 1908, tbe Gulf & Sbip Island Railroad Company presented a second supplemental bill against Virginia M. Barnes, Jobn Goldsby, Maggie Gilbert, tbe Mobile, Jackson &'Kansas City Railroad Company, and one L. W. Voumans, to Judge W. H. Hardy, and obtained another injunction against L. W. Youmans, to restrain him from prosecuting a suit be bad brought in tbe circuit court of Jones county against tbe Gulf & Sbip Island Railroad Company and tbe Mobile, Jackson & Kansas City Railroad Company jointly for injuries sustained by him in tbe.same collision, while a passenger on tbe Mobile, Jackson & Kansas City Railroad Company’s train.

Some comment is made by tbe learned counsel for the appellee to tbe effect tbat Mrs. Gilbert was never made a party, and to tbe effect tbat certain of tbe writs were not served on all the parties against whom they were prayed to be issued, and tbat none of tbe defendants appeared at said proceedings, except Virginia M. Barnes and John Goldsby, who presented a demur rer and motions to dissolve, injunctions against them, and the Mobile, Jackson & Kansas City Railroad Company, -which filed Us answer and cross-bill as hereinbefore stated. To this it is replied by the learned counsel for appellants that none of these points were made in the court below, and that the object of the attorneys for all the parties to these various proceedings is to have this court determine, once for all, whether the equitable jurisdiction to void multiplicity of suits can be invoked on the case thus shown by the record. "We shall therefore deal with the case generally, without reference to these minor objection's.

The collision in question occurred on July 12, 1907, at an intersection of the Mobile, Jackson & Kansas City Railroad and the Gulf & Ship Island Railroad near the city of Hattiesburg. It will be noted, as a peculiar feature of the litigation, that the two railroads in question in some resj^ects seems to be making common cause against all the plaintiffs suing them, whether separately or jointly. As an example, the attitude of the Mobile, Jackson & Kansas City Railroad Company is that by its cross-bill it not only seeks to recover $2,000 from the Gulf & Ship Island Railroad Company for damages to its locomotive and cars, but at the same time enj oins Mrs. Barnes and Maggie Gilbert from prosecuting their suits against it; and so the Gulf & Ship Island Railroad Company also seeks 'to enjoin Mrs. Barnes and John Goldsby from prosecuting their suits against it—one for the death of her husband, and one for a personal injury—while at the same time it is contesting with the Mobile, Jackson & Kansas City Railroad Company the question of its liability to that company for alleged damages done to the locomotive and cars of the Mobile, Jackson & Kansas City Railroad Company. In other words, these two railroad companies occupy the attitude of seeking to contest with each other in a court ’of chancery the question of damages to the locomotive and cars of the Mobile, Jackson & Kansas City Railroad Company, and at the same time both said railroads by means of injunctions are seeking to enjoin all the plaintiffs, in all their suits at law, from prosecuting tlieir suits at law. It appears, from the declarations, that Mrs. Barnes sued for the death of her husband, who was the engineer of the Mobile, J'ackson & Kansas City Railroad at the time of the collision. John Goldsby sues for damages sustained from an injury to his leg; he being a fireman •on the same locomotive of the Mobile, Jackson & Kansas City Railroad Company, operated by Barnes as engineer. Maggie Gilbert and Youmans were both passengers on the same train of the Mobile, Jackson & Kansas City Railroad Company, and were hurt in the collision, and sue for damages. The Mobile, Jackson & Kansas City Railroad Company claims damages for injury to its cars and locomotive, and sues the Gulf & Ship Island Railroad Company for such damages. One of the defenses set up against Mrs. Barnes is the contributory negligence of her husband. Again, section 4896 of the Code of 1906 provides as follows: “Where the main track of. two or more railroads shall cross at grade, and the companies owning and operating them shall establish at the crossing an interlocking, derail or other safety device, the commission, if satisfied that it is sufficient to protect persons and property from danger at the crossing, may authorize the railroad companies to run their trains over it without stopping at a rate of speed to be fixed by the commission, and in such event the companies shall not be liable to any penalty for failing to stop their trains before running them.over the crossing.” “Where interlocking or other safety device is used, trains need not stop before crossing.” Laws 1896, p. 15, c. 61.

The declarations of Mrs. Barnes and John Goldsby charge that these roads did cross at grade, and that the interlocking device had been established, and that at the time of the collision, and for some time prior thereto, it was not in working order, and was spiked down, but that this fact was not known to Engineer Barnes. They further charged that the ]\Iobile, Jackson & Kansas City Railroad Company had obtained the consent ■of the railroad commission to run over the crossing without stop ping, which fact was known to Engineer Barnes, and that on this account he was accustomed to run over the said crossing without stopping, but that the Gulf & Ship Island Bailroad Company did not have such permission. Now, it is perfectly obvious that it .was the duty of both these railroads to keep this interlocking device in order, so far as the public were concerned, and that both were negligent as regards the public in not doing so. If the negligence of the Mobile, Jackson & Kansas City Bailroad Company in this particular would prevent its recovery from the other railroad for damages to its locomotive and cars, such negligence, nevertheless, would in no way affect the right of Mrs. Barnes and John Goldsby to recover from the Gulf & Ship Island Bailroad Company, nor the right of Mrs. Gilbert and Toumans.

Again, if, under section 1985, Code of 1906, the proof should show that the death of Barnes, and the injuries to Mrs. Gilbert, to Goldsby, to Toumans, and to the locomotive and cars of the Mobile, Jackson & Kansas City Bailroad Company, were all caused by the running of the locomotive of the Gulf & Ship Island Bailroad Company, then manifestly there would arise prima facie cases for all these parties against that company; and that company, the Gulf & Ship Island Bailroad Company, might overcome this presumption by proof that its locomotive was operated in a lawful manner, and not negligently. Suppose, however, the proof should show that the locomotive of the Gulf & Ship Island Bailroad Company was negligently operated, and that this negligent operation was the proximate cause of the' death of Barnes, the injury of the other persons, and the damage to the locomtoive and cars of the Mobile, Jackson & Kansas City Bailroad Company; then the Gulf & Ship Island Bailroad Company would be liable for all the injuries and damages, unless it could show contributory negligence on the part of the servants of the Mobile, Jackson & Kansas City Bailroad Company, in charge of that company’s locomotive, in which case the Gulf & Ship Island Bailroad Company would not be liable to Mrs. Barnes for the death of her husband, nor to the Mobile, Jackson & Kansas City Railroad Company for the damage to its locomotive and cars.

Let us take one other view of this curiously conceived bill, and let us present this feature of the case in the language of the very able bief of the learned counsel for appellee. The, counsel say:

“The amended and supplemental bills of the Guil & Ship Island Railroad Company and the cross-bill of the Mobile, Jackson & Kansas City Railroad Company allege that the same law and facts apply to all the parties injured in the collision, yet it may be possible under the law and the testimony for both roads to escape liability for the death of the engineer Bames; but it is utterly, impossible for both roads to avoid liability to John Goldsby and the passengers, Mrs. Gilbert and Youmans, for the two locomotives collided on the crossing, thus causing the injuries, and it is inconceivable that the fireman and the passengers could be responsible for the collision, but one or the other of the railroad companies, or perhaps both, are responsible. Therefore the same law and facts do not apply to all the persons suing. If the collision was caused by the negligence of Bames, then Mrs. Bames cannot recover from either of the railroad companies; but the very negligence of Bames would entitle the injured passengers and John Goldsby to recover from the Mobile, Jackson & Kansas City Railroad Company, and would prevent the Mobile, Jáckson & Kansas City Railroad Company from recovering against the Gulf & Ship Island Railroad Company for damages to the locomotive and cars, for the reason that the negligence of Barnes is the negligence of the Mobile, Jackson & Kansas City Railroad Company.

. “If these cases were being tried separately in the circuit court, as they should be, but for these injunctions, the following would be about the way the cases would be tried:

“(a) In the case of Mrs. Barnes v. Gulf & Ship Island Railroad Company the plaintiff would prove that Bames was the en gineer of the Mobile, Jackson & Kansas City Raili*oad Company; that he was proceeding’ over the crossing under the belief that the derail switch was in good order, and with the consent of the commission to pass over without stopping, and that he had a clear board; that the engineer of the Gulf & Ship Island Railroad Company was seen by witnesses to approach the crossing at high speed, and that he was signaled to stop, but ignored the signals, and the collision occurred, and Barnes was killed. The defendant would attempt to contradict this testimony, especially as to the manner in which its engineer approached the crossing, and would try to show that Barnes was guilty or contributory negligence. This defense would be met by the contention that the Gulf & Ship Island Railroad Company engine was run over the crossing in a reckless and criminally negligent manner, and t.hát contributory negligence would not avail to avoid liability.

“(b) In John Goldsby v. Gulf & Ship Island Railroad Company the sole question would be the negligent operation of the switch engine of the Gulf & Ship Island Railroad Company as the proximate cause of the injury. No question of contributoi’y negligence could arise on this trial. No evidence in regard to the derail switch and the duty .to keep it in repair would be admissible.

“(c) The cases of Mrs. Gilbert and Youmans against the Gulf & Ship Island Railroad Company would be controlled largely by the same 'law and evidence as the John Goldsby case, except evidence of the nature of the injuries sustained. The evidence would have to be established by different witnesses in all the cases.”

The trial of the case of Mobile, Jackson & Kansas City Railroad Company v. Gulf & Ship Island Railroad Company would not be controlled by the same law and evidence as the other cases, or any one of them, entirely. The question of contributory negligence of the engineer of the Mobile, Jackson & Kansas City Railroad Company might be raised by the Gulf & Ship Island Railroad Company; but the further question which might arise between the railroads as to the special duty of one or the other to keep the derail switch in operation or repair and in the event the Gulf & Ship Island Railroad Company should prove that it was the duty of the Mobile, Jackson & Kansas City Railroad Company under a special arrangement to keep the derail switch in repair, and it had neglected to do this, and this was the cause of the injury, the breach of duty of the Mobile, Jackson & Kansas City Railroad Company would prohibit recovery by it; but the other persons injured would not be bound by this arrangement, for as to them it was the duty of both roads to keep the derail switch in repair. Other questions of law and fact can arise between these railroads that .the other litigants can have no interest in.

“Looking at this case from the standpoints of the suits against these railroads jointly, we see, for the reasons given above, that the same law and facts will not apply to all the persons injured. In such event the Mobile, Jackson & Kansas City Railroad Company would not be governed and controlled by any law applicable to the plaintiffs suing the roads jointly. If the suits should not be tried against the Gulf & Ship Island Railroad Company individually, nor against the two roads jointly, but should be tried against the Mobile, Jackson & Kansas City Railroad Company individually, then the Gulf & Ship Island Railroad Company is not concerned in the litigation at all, and the law and the facts would not apply alike to all the parties suing; nor would the same law and facts apply in the defense of the Mobile, Jackson & Kansas City Railroad Company, for some of the persons suing were its servants and others were its passengers.”

It surely connot be necessary to do more than thus clearly state the case made by this record, to show that equity has no sort of jurisdiction in this case;.that the grounds upon which jurisdiction of equity may be successfully invoked in order to present a multiplicity of suits have no existence in this case. The true .ground of this equitable jurisdiction was most admirably stated by Chalmers, Justice, in the opinion of this court in Pollard v. Okolona Savings & Trust Co., 61 Miss. 293. And this same doctrine has been announced in Nevitt v. Gillespie, 1 How. (Miss.) 108, 26 Am. Dec. 696. Yet, strange to say, in the case of Tribette v. I. C. Railroad Co., 70 Miss. 192, 12 South. 32, 19 L. R. A. 660, 35 Am. St. Rep. 642, the directly opposite doctrine was laid down, without the slightest reference being made to either the Nevitt-Gillespie case or the Pollard-Okolona Savings & Trust Co. case. This court has in many cases recently most carefully re-examined this whole subject, and has re-established the doctrine announced in Pollard v. Okolona Savings & Trust Co., and overruled the case of Tribette v. I. C. Railroad Co. These latter cases to which.we refer are Railroad v. Garrison, 81 Miss. 257, 32 South. 996; Crawford v. Railroad Co., 83 Miss. 708, 36 South. 82, 102 Am. St. Rep. 476; Tisdale v. Fire Ins. Co., 84 Miss. 709, 36 South. 568, and Whitlock v. Railroad, 91 Miss. 779, 45 South. 861. All these cases receive the hearty indorsement of the learned counsel for both the appellant and appellee in this cause.

There is a scant suggestion in the brief of the learned counsel for appellant, that the Whitlock case is authority for the exercise of this jurisdiction here; but that contention is not seriously pressed, as most manifestly it could not possibly be. That the total dissimilarity of the two cases, so far as the exercise of this jurisdiction in prevention, of the multiplicity of suits is concerned, may appear at a glance, it is only necessary, having set out the facts making this case,'to now set out, over against them, the facts making the Whitlock case in 91 Miss. 779, 45 South. 861. What were those facts? These in brief: That Whitlock and forty-nine other negroes had sued the Yazoo & Mississippi Valley Railroad Company for damages in fifty separate actions at law. Each one of these plaintiffs claimed to have been a passenger on the very same excursion train, and that he was unreasonably delayed on that train by the negligence of the railroad company, and each demanded actual and punitive damages for the delay, and the demand of each was based upon the identical facts on which the demand of every other plaintiff was based, and the principles of law applicable to each one of these forty-nine suits were precisely the same. It certainly would be idle to waste further time showing the utter lack of similarity between these two cases. The Whitlock case rested, like all the other cases, securely upon the basic proposition that this jurisdiction is exercisable where the principles of law are identically the same and the facts are substantially the same. Indeed, one of the learned counsel for appellees not only correctly says that the Whitlock case was properly decided, but that it is perfectly manifest it is not at all analogous to the case under consideration, and further states the correct proposition that the Whitlock case is supported in all particulars by the recent cases of Southern Steel Co. v. Hopkins, decided by the supreme court of Alabama on the 13 th of February, 1908, and reported in 47 South. 274, to which we especially refer. It is too plain for serious discussion that the same principles of law will not apply in all the suits here involved, and just as plain that the same facts will not determine the liability in all the various suits. It would be needless to enter into any further detailed statement to show this. What we have quoted from the very able brief of the learned counsel for appellee has already demonstrated that beyond cavil.

Before passing from this discussion of the true principle on which the equitable jurisdiction to prevent multiplicity of suits in reason rests, we must call especial attention to the masterly opinion of Chief Justice Tyson, of Alabama, in the case of Southern Steel Co. v. Hopkins et al., 47 South. 274, just above referred to. In the judgment of the writer of this opinion, this is the ablest discussion of the subject he has met with in any of the Reports, and we will therefore be pardoned for a liberal quotation from that opinion. That court says, at page 276:

“The question here, then, is: What is the principle upon which equity interferes to avoid a multiplicity of suits? In determining this, it may be borne in mind that the jurisdiction is not to be invoked when the remedy at law is plain, adequate, and complete; and that no court has the right to infringe upon the wholesome doctrine of multifariousness -which prevents a mingling in one suit of entirely distinct and separate causes of action between different parties. Subject to these restrictions, the principle and rale is that where numerous parties are jointly and severally claiming against one, or where one is claiming against may liable jointly or severally, and the same title or right of defense will be called in question, and will be determinative of the issue for or against all, a case for the interposition of equity to avoid a multiplicity of suits is made, without the aid of any independent equity. The fact that this unity of claim or defense frequently or generally arises from privity or joint action by or between the many affords an obvious instance of the application of the rule, and it has induced some to suppose that the junction and unity of interest calling for the application of the rule is limited to such cases. But the association and unity of interest in the many as to the other party may be brought about just as well by the nature of the transaction, or the situation and relation of the parties, independent of all privity or joint action. And therefore privity, or joint right or liability, although good examples for the application of the principle, afford no test for the propriety of its application.

“The case made by the bill in this ease is this: An explosion in a coal mine killed one hundred ten persons. The several administrators of these persons have brought several suits against 1he appellant as the owner and operator for damages, insisting lhat its negligence was the proximate cause of the accident. The appellant iii effect says, if these actions are allowed to proceed at law, it will be ruined in costs and expenses, though it be successful in every suit; that the plaintiffs are all insolvent, and thus could hot pay the taxed costs against them, should they be unsuccessful ; that the suits are pending in different courts, and will be called for trial in different courts at the same time; that by reason of this, and the necessity of having the same witnesses in each trial, it is impossible for the defendants to present a proper defense to these multitudes of claims. The appellant says, moreover, that it has one and the same and a perfect defense or defenses to all these suits, which will be put forward in each case, and which will be determinative of all alike; and on this ground it is insisted that this is a plain case for the application of the jurisdiction of a court of equity to avoid a multiplicity of suits. We agree with this contention on principle.

“The first thing to obliterate from the mind in considering the question is that it is immaterial how the unity of title, claim, or defense is brought about. It is the factum of a single title against mány, or a common defense against many, which is the foundation of the jurisdiction. A vested right of property and a vested cause of defense for protection against liability stand precisely on the same basis; and whence and how such right originated is wholly immaterial. 8 Cyc. 911; Pritchard v. Norton, 106 U. S. 125, 132, 1 Sup. Ct. 102, 27 L. Ed. 104. If the unfortunate persons who lost their lives by the explosion had j ointly leased the mine, and their administrators had instituted several actions, as in this case, against the owner, it is conceded that the privity between the plaintiffs established by the contract would justify a bill to have the question of liability determined in one suit. But why ? Only because a single and common defense would, if successful, determine all the suits. Suppose, however, the owner leased to a third party, instead of the operators, and the same accident happened, and a thousand suits were brought or threatened by solvent, or especially by insolvent, parties; what reason is there for, or could there be for, denying the jurisdiction to enforce in a single suit the common cause of defense against all? Ingenuity, we think, cannot discover a substantial distinction between the two cases, under which the owner in one instance may take shelter in a court of equity against the wrongful and vexatious suits, while in the other he must submit to financial ruin in defending a thousand vexatious actions at law.”

The learned Chief Justice Tyson then goes on to show, by ref erence to the case of Lord Tenham v. Herbert, 2 Atk. 483, and other English cases, that that doctrine has been “followed and approved in England to the present day.” He especially refers to the case of Sheffield Waterworks v. Yoemans, L. R. 2 Chan. 8, decided in 1866. Chief Justice Tyson then proceeds further to show that the same view, the correct modern view, was approved in Hale v. Allinson, 188 U. S. 77, 23 Sup. Ct. 244, 47 L. Ed. 380, and in Bitterman v. L. N. R. R. Co., 207 U. S. 205, 28 Sup. Ct. 91, 52 L. Ed. 171, decided in 1907, that great court in those two cases holding “that it did not require a common title, nor community of right or interest in the subject-matter, among the defendants, but only a common interest in the questions of law or fact in controversy.” In concluding his opinion, Chief Justice Tyson reviews both the case of Turner v. Mobile, 135 Ala. 77, 33 South. 132, and Tribette v. Railroad Co., 70 Miss. 182, 12 South. 32, 19 L. R. A. 660, 35 Am. St. Rep. 642. In speaking of the case of Turner v. Mobile, he distinguishes that case from the fourth class of cases mentioned by Mr. Pomeroy; but he frankly says that there are many expressions in the opinion in Turner v. Mobile that cannot be approved, but that those expressions are not to be taken as decision, but the Turner case is to be looked at, as every case should be looked at, in the light of the exact facts before the court. He thus distinguishes that case, the case of Turner v. Mobile. Then, turning to the case of Tribette v. Railroad Company, supra, he says as follows:

“The case, however, of Tribette v. Railroad Co., 70 Miss. 182, 12 South. 32, 19 L. R. A. 660, 35 Am. St. Rep. 642, is directly opposed to our views. That case we consider as overruled by the subsequent one in the same court of Hightower & Crawford v. Railroad Co., 83 Miss. 708, 36 South. 83, 102 Am. St. Rep. 476, in which the court expressly approved the view repudiated in the Tribette case. It is said in the Hightower case: ‘We think the doctrine announced.by Pomeroy is sound .and clearly established by the best-considered modem cases.’ After this repudiation of the Tribette case by the supreme court of Mississippi, we will not follow the reasoning of the opinion in that case'to point out its deflection from and opposition, in our opinion, to the ancient, as well as modem, view of the extent of the jurisdiction of courts of equity in reference to multiplicity of suits. That jurisdiction is too well established and too beneficent, when wisely exercised, to be any longer called in question. It would be a strange casus in juridical evolution to meet the needs of society if there was no remedy against a party being vexatiously prosecuted at the same time by over seven thousand separate invalid claims held by insolvent plaintiffs, as in the Sheffield Waterworks case, L. R. 2 Chan. 8, when each case is founded upon the same facts, and when it is alleged and admitted, by the objection to the jurisdiction, that there is a defense common to all the claims. It is to avoid the monstrosity of such a result that the court of cháncery extends its plenary jurisdiction to stay the proceedings at law until the question of liability can be determined in one suit, and therefore we hold that the bill in the case was well filed.”

There are one or two other observations due to be made. First, it is said by one of the learned counsel for appellant, that the principal controversy in this case is whether the Mobile, Jackson & Kansas City Eailroad Company is liable, or the Gulf & Ship Island Eailroad Company is liable. This is an ingenious effort to" save the case, but it cannot suffice so to do.- The injunctions here were not sued out on the ground that the complainant, the Gulf & Ship Island Eailroad Company was likely to be held liable twice for the same injury, because it was sued individually, and also jointly with the Mobile, Jackson & Kansas City Eailroad Company. Indeed, there could be but one recovery, and that recovery against one railroad could be pleaded in bar of any other suit for the same injury. Besides, the mere, doubt as to which railroad was responsible falls far short of entitling this jurisdiction to be exercised, in view of the manifest differences in other respects, both as to principles of law applica ble, and as to the different facts involved in the different suits by the different parties. Again, it must be remembered that there is a very marked difference between a “multiplicity of suits” and “a multitude of suits.” It is not because there are so many suits that this jurisdiction is exercised; but it is only where, there being many suits, they may all be determined by the same principles of law and the proof of practically the same facts. In other words, mere multitude of suits does not confer this jurisdiction, but it is conferred solely by the existence of a condition precedent, no matter how many suits there shall be, that all of them may be determinable by the application of the same principles of law, and by the establishment of practically the same, facts. See High on Injunctions, p. 329; Murphy v. City of Wilmington, 6 Houst. (Del.) 139, 22 Am. St. Rep. 345. And especially see Hale v. Allinson, 188 U. S. 77, 23 Sup. Ct. 252, 47 L. Ed. 380.

We quote from this last case the following: “Manifestly, as it seems to me, the defendants have no common interest in these questions, or in the relief sought by the receiver against each defendant. • The receiver’s cause of action against each defendant is, no doubt, similar to his cause of action against every other; but this is only part of the matter. The real issue, the actual dispute, can only be known after each defendant has set up his defense, and defenses may vary so widely that no twO' controversies may be exactly, or even nearly, alike. If, as is sure to happen, differing defenses are put in by different defendants, the bill evidently becomes a single proceeding only in name. , In reality it is a congeries of suits, with little relation to each other, except that there is a common plaintiff, who has similar claims against many persons. But as each of these persons became liable, if at all, by reason of a contract entered into by himself alone, with the making of which his codefendants had nothing whatever to do, so he continues to be liable, if at all, because-he himself, and not they, has done nothing to discharge the liability. Suppose A. to aver that his signature to the subscrip tion list was a forgery; what connection has that averment with B.’s contention that his subscription was made by an agent who had exceeded his powers, or with C.’s defense that his subscription was obtained by fraudulent representations, or with D.’s defense that he has discharged his full liability by a voluntary payment to the receiver himself, or with E.’s defense that he has paid to a creditor of the corporation a larger sum than is now demanded ? These are separate and individual defenses, having nothing in common; and upon each the defendant setting it up is entitled to a trial by jury, although it may be somewhat troublesome and expensive to' award him his constitutional right. But, even if the ground of diminished trouble and expense may sometime be sufficient, I should still be much inclined to hesitate before I conceded the superiority of the equitable remedy in the present case. Such a bill as is now before the court is certain to he the beginning of a long and expensive litigation. The hearings are sure to be protracted. Several, perhaps many, counsel will no doubt be concerned, whose convenience must be consulted. The testimony will soon grow to be voluminous. The expense of printing will be large. The cost of witnesses will not in any degree be diminished, and, if some docket costs may be escaped, this is probably the only pecuniary advantage to be enjoyed by this one cumbersome bill over sexiarate actions at law. We are in accord with the views thus expressed, and we therefore must deny the jurisdiction of equity, so far as it is based upon the asserted prevention of a multiplicity of suits.” The above we think directly applicable to this ease.

Finally, there is one other most important fact to which attention should be called, and that is that the Gulf & Ship Island Railroad Company, in all its bills, never once set up its defenses to any of the several actions. It merely says that it was not liable, without showing by any statement of facts, why it was not liable in any of the cases. Before any injunction should be issued in the exercise of this jurisdiction, the bills should show, by a statement of the facts, plainly, that the complainant has a good cause of action, whether by way of claim or defense, either legal or equitable. It need not necessarily be an equitable cause of action. This principle is clearly stated in Pomeroy, Equity Jurisdiction, vol. 1, p. 365: ”In the first place, and as a fundamental proposition, it is plain that prevention of a multiplicity of suits is not, considered by itself alone, an independent source or occasion of jurisdiction, in such a sense that it can create a cause of action where none at all otherwise existed. In other words, a court of equity cannot exercise its jurisdiction for the purpose of preventing a multiplicity of suits in cases where the plaintiff invoking such jurisdiction has not any prior existing cause of action, either equitable or legal—has not any prior existing right to some relief, either equitable or legal. The very object of preventing a multiplicity of suits assumes that there are relations between the parties out of which other litigations of some form might arise. But this prior existing cause of action, this existing right to some relief, of the plaintiff, need not be equitable in its nqture”—citing Storrs v. Pensacola, & A. R. R. Co., 29 Fla. 617, 11 South. 226, 231; Roland Park Co. v. Hull, 92 Md. 301, 48 Atl. 366; Turner v. City of Mobile, 135 Ala. 73, 33 South. 133, 141; Purdy v. Manhattan El. R. R. Co. (Com. Pl.) 13 N. Y. Supp. 295; Alleghany & K. R. R. Co. v. Weidenfeld, 5 Misc. Rep. 43, 25 N. Y. Supp. 71, 76.

In the case of Storrs v. Pensacola & A. R. R. Co., 29 Fla. 618, 11 South. 231, that able court said: “A reading of the bill discloses the fact that no community of title or right, or joint interest in the subject-matter of the suit, is alleged in the persons sought to be enjoined; but it does appear that there is a community of interest among them in the questions of law and fact involved in the general controversy, or in the kind of relief asked against each individual person insisting on similar claims against appellee. In view of the fact that the bill fails to allege any sufficient defense, either at law or in equity, on the part of ■ appellee in the suits instituted or threatened, it becomes unne cessary for us to decide whether or not its allegations are sufficient in other respects to justify the interposition-of the court of chancery by injunction. The jurisdiction of chancery to prevent a multiplicity of suits cannot be extended to confer upon a party remedial rights where none of any kind existed before. Its exercise necessarily assumes that the complainant in the class of cases before us has some defense, either legal or equitable, to the numerous suits instituted or threatened against him.”

There need be no apprehension that this court will ever recede from the doctrine approved by all the best-considered modern authorities, the doctrine as announced in Pollard v. Okolona Swings & Trust Co., 61 Miss. 293, or that we will hesitate to approve the exercises of this equitable jurisdiction to prevent multiplicity of suits, in a case falling within the limitations marked out in that case, and in the later cases recently decided by this court. But, when this court is asked, on facts such as appear in this record, to approve the exercise of this jurisdiction in this sort of case, it is asking what no court of equity could with any possibility be brought to consider for one moment.

Just look, in one closing view, at the incongruities of the situation.. Here Mrs. Barnes has brought two actions at law, she being the .widow of the deceased engineer, an employee of the Mobile, Jackson & Kansas Oity Railroad Company—one suit against the Mobile, Jackson & Kansas City Railroad Company, and one against the Mobile, Jackson & Kansas City Railroad Company and the Gulf & Ship Island Railroad Company jointly. Her husband was an employee of the one company, and not of the other. Her rights of action, as regards the two railroads, were distinct in many respects. So Goldsby sues, being an employee of the Mobile, Jackson & Kansas City Railroad Conipany, not an employee of the Gulf & Ship Island Railroad Company. One of the defenses against Mrs. Barnes is the contributory negligence of her husband. That defense is not pleaded against the other plaintiffs, and in some of these suits manifestly could not be pleaded against some of the plaintiffs. Mrs. Gilbert sues in tbe capacity of passenger on the Mobile, Jackson & Kansas City Railroad, and, it is to be specially noted, sues on an entirely distinct ground from any of the other suits, to wit, that the collision occurred from the negligence of the tower employee in not giving the proper signals to the engineers on the two engines on the two railroad trains. Here is a wholly different cause of action presented by Mrs. Gilbert from any in the entire list of cases. Again, the Mobile, Jackson & Kansas-City Railroad Company sues the other railroad company for damages to its locomotive and cars, raising a question in which these two railroads are concerned, but with respect to which the other parties have no concern whatever.

And, lastly, the questions which arise in respect to section 4896, Code of 1906, under the facts in this record, are wholly different, according to the parties whose rights are being considered. In short, there is no possible view of the particular case made by the precise facts in this record under which the exercise of this equitable jurisdiction is entitled to be invoked. And let it always be kept religiously in mind that what a court always decides is the exact ease made by the precise facts in the particular record examined.

From these views it follows that the decree of the court below was correct, and it is affiimed.