I dissent from the view of the majority, not on the law, but on its proper application to the facts of the case. Cases where courts of equity have either taken or refused jurisdiction in suits brought to prevent a multiplicity of suits, are so variant that, as said in Hale v. Allinson,188 U.S. 56, 23 S. Ct. 244, 250, 47 L. Ed. 380, "It is difficult, if not impossible, to reconcile the cases." The court also said: "Cases in sufficient number have been cited to show how divergent are the decisions on the question of jurisdiction. It is easy to say it rests upon the prevention of a multiplicity of suits, but to say whether a particular case comes within the principle is sometimes a much more difficult task. Each case, if not brought directly within the principle of some preceding case, must, as we think, be decided upon its own merits and upon a survey of the real and substantial convenience of all parties, the adequacy of the legal remedy, the situations of the different parties, the points to be contested and the result which would follow if jurisdiction should be assumed or denied; these various matters being factors to be taken into consideration upon the question of equitable jurisdiction on this ground, and whether within reasonable and fair grounds the suit is calculated to be in truth one which will practically prevent a multiplicity of litigation, and will be an actual convenience to all parties, and will not unreasonably overlook or obstruct the material interests of any." This view as to the status of the law on the subject was approved in St. Louis, etc., Co. v. Woldert (Tex.Civ.App.) 162 S.W. 1174, 1176, and in Houston Heights v. Gerlach (Tex.Civ.App.) 216 S.W. 634, 637.
Pomeroy's Equity (3d Ed.) § 252 (4th Ed.) § 245, announced the general rule that courts of equity will interfere and take cognizance to prevent a multiplicity of suits in the following, among other, instances: "* * * 2. Where the dispute is between two individuals, A and B, and B institutes or is about to institute a number of actions either successively or simultaneously against A, all depending upon the same legal questions and similar issues of fact, and A by a single equitable suit seeks to bring them all within the scope and effect of one judicial determination. * * *" I think the case at bar should be controlled by this doctrine.
Appellee held 98 separate claims against appellant, ranging in amounts from 52 cents, the minimum, to $9.93, the maximum, each based on alleged loss of grain from carload shipments, originating in Dallas, made by appellee under separate but uniform bills of lading to different consignees, 76 to consignees within the city of Dallas, 11 to Fort Worth, 5 to McKinney, 3 to Sherman, and 3 to Waco. Suits were filed in a justice court on four of these claims, in each recovery was asked for damages and $10 attorney's fee. One of the suits was tried, consuming practically a whole day, resulting in judgment for appellee against appellant for $1.21 damages, $10 attorney's fee, and $4.40 court costs. The judgment was paid, hence that claim is not involved, but appellee is demanding trial of the three remaining suits, and is threatening to file separate suits in a justice court on the other 94 claims, in each of which judgment will be sought, not only for the damages claimed, but for $10 attorney's fee and costs of suit.
It is obvious that appellant can, with propriety, include all these claims in one suit, without violating the rule against misjoinder of causes of action, and, I think, it is equally obvious that the prosecution of 97 separate *Page 306 suits will increase unnecessarily the expense, vexation, and annoyance always incident to litigation. The time consumed in trying one of these suits was approximately one day; this should be a reasonably correct measure of the time necessary to try each of the others, which, in my opinion, would be an inexcusable abuse of the instrumentalities of justice, as the manifest policy and trend of the whole law on the subject is to circumscribe and end rather than enlarge or protract litigation.
Evidently the ruling idea of the majority, in affirming the judgment of the trial court, was this: That the consolidation and trial of these claims in one suit would tend to produce confusion and cloud the issues as to each claim. As mentioned above, these claims could, without violating any procedural rule, be included in one action, whilst the prosecution of separate suits would necessarily cause expense, vexation, and annoyance far in excess of such as would be incident to the prosecution of one suit. The claims depend upon the same legal questions and on similar issues of fact; the shipments were made under uniform bills of lading (articles 890, 891, R.S. 1925); hence there is nothing in the contracts themselves to provoke confusion. Appellant's contention is that, no shortage actually exists, but that the shortage claimed is due to the inaccuracy of appellee's weights. The weighing was all done by two employees of appellee, and it appears that its scales were frequently tested, shipments were made, not on 97, but only on 43, separate days; so it seems that the facts, as to the correctness, whether or not of the weights, or the accuracy, whether or not of the scales, on the dates involved, should be ascertained from the testimony of these persons who did this weighing and testing, without any unusual or extraordinary confusion.
That a large number of claims, each based on a separate but similar contract requiring, in a legal sense, separate proof, will not deter a court of equity from consolidating and enjoining the prosecution of separate suits, is evident from the action of the Supreme Court of California in the case of Southern Pacific Co. v. Robinson, 132 Cal. 408,64 P. 572, 12 L.R.A. (N.S.) 497. Suit was brought to restrain the prosecution of certain suits and the filing of others, based on claims for penalties of $200 each, alleged to have accrued from the violation by the carrier of the statutory right of passengers holding a particular kind of ticket to stop-over privileges, etc. It developed on hearing that 674 suits were pending in various justice courts, and about 2,300 other claims were held by defendants upon which they were threatening suits, altogether about 3,000 alleged causes of action, the aggregate penalties claimed being about $600,000. The right of respondent to injunctive relief was sustained on two grounds. After stating the first, the court said: "And upon the further ground that, in order to avoid a multiplicity of actions, equity will consolidate these 3000 alleged causes of action into one action and thus having taken hold of the matter will dispose of it in its entirety."
As the law furnishes no reliable formula for the disposition of particular cases belonging to this class of litigation, the doctrine being that each must be decided on its own merits, I am of opinion that, under the rule quoted from Pomeroy, as interpreted and applied by our Supreme Court in the case of G., H. S. A. Ry. Co. v. Dowe, 70 Tex. 5,11, 7 S.W. 368, the court below should have assumed jurisdiction, consolidated these claims, and enjoined the prosecution of separate suits, therefore that the judgment below should have been reversed and rendered for appellant.