The primary question here is whether this cause or causes of action are removable under Section 1441(c), 28 U.S.C.A., from the state court where originally filed, to the United States District Court for the Western District of Oklahoma. The question is presented on an appeal from an order еnjoining the parties from proceeding in the state court, and a preliminary question is whether the trial court actually issued the injunctive order from which the appeal was taken; if so, whether the order was set aside so as to moot the question.
The questions are presented on these facts. This action was brought in the District Court of Qeveland County, Oklahoma, by the administratrix of the Estate of Vester E. Willoughby, for compensatory and punitive damages for his wrongful death, allegedly resulting from an explosion when he accidentally lighted propane gas which had gathered around a new hot water heater in the basement of his home. The explosion was alleged to have been caused by the negligent failure of the defendants, Sinclair Oil and Gas Company “and/or” Peppers Refining Company, to effectively odorize the propаne sold by one or both of the defendants, and from whom the decedent purchased it. The explosion is also alleged to have been caused by the failure of defendant, Fischer and Son Plumbing Company, to test the connections when it installed the heater as subcontractor for defendants, Barber and Short. Each of the separate acts of negligence is alleged to have been the proximate cause of the explosion and the resultant injuries. The prayer was for judgment against the defendants jointly and severally in the sum of $165,960.80 compensаtory damages, and $25,000 punitive damages against each of the defendants. Sinclair, the only nonresident defendant, removed the case to the federal court on the grounds that the complaint stated “a separate and independent claim or cause of action” against it under 28 U.S.C.A. § 1441(c).
A motion to remand was sustained.
The Clerk’s minutes, entered July 31, 1950, recited that the motion to remand was overruled, and exception was allowed, and “Plaintiff and her counsel enjoined from proceeding further in the state court.” The Clerk’s minutes also recite that on the same day, plaintiff filed notice of appeal from the order of July 25, 1950, and also from the order of July 31, 1950, enjoining plaintiff from proceeding further in a state court, and that on the same date, a cost bond on appeal was filed. The order signed by the court, filed August 2, 1950, recited that “the court, upon consideration, is of the opinion that an injunction against further proceedings in state court is unnecessary at this time. The order granting an injunction entered at thе hearing is therefore set aside.” The appellees contend that this order is not appealable because it was never entered, and if so, it was set aside when the order on the motion to remand was finally signed and filed.
*904
On the question whether the docket entries by the clerk constituted the judgment of the court, we recently held in Lucas v. Western Casualty & Surety Co., 10 Cir.,
It is settled beyond doubt that an order denying a motion to remand is not appeаlable, but an order enjoining the parties from proceeding in the state court is appealable. See Johnson v. Butler Bros., 8 Cir.,
In denying the motion to remand, the trial court took the ultimate view that the failure to specifically allege concurrent negligence and the specific allegation that the separate acts of negligence were the proximate cause of the harm, amounted to separate and independent claims within the meaning of Section 1441(c).
Under the last construction of the separable controversy clause of Section 71, 28 U.S.C.A., if defendants were charged with negligence, but the charge against the nonresident defendant was based on different and non-concurrent acts of negligence and a cause of action which was joint in character was not alleged, a separable controversy was presented. Where, however, in the absence of clear proof of bad faith in the joinder, concurrent acts of negligence on the part of the defendants sued as joint tort-feasors were sufficiently alleged, a separable controversy was not presented, and the fact that the defendants might have been sued separately afforded no ground for removal. Pullman Co. v. Jenkins,
In the revision of the Code, effective September 1, 1948, Section 71, 28 U.S.C.A., on removal of causes became Section 1441, 28 U.S.C.A., and the litigаtion-provoking separable controversy provisions of the former Code were supplanted by Paragraph (c) of Section 1441, which provides that “Whenever a separate and independent claim or cause of action, which would be removable if sued upоn alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein * * By the substitution of the words “separate and independent claim or cause of aсtion” for the juristic phrase “separable controversy” to delineate federal jurisdiction, the revisers avowedly intended to decrease the volume of federal litigation by eliminating the removability of a separable controversy unless it constitutes a separatе and independent claim or cause of action. See Revisers’ Notes to Section 1441, 28 U.S.C.A. According to Professor Moore, the revisers “eliminated the separable controversy which involves the joinder of multiple parties interested in one cause of action, and confined removal to the situation where there is a joinder of two or more causes of action.” See Prof. Moore’s Commentary on the United States Judicial Code, p. 239, And see American Fire and Casualty Co. v. Finn,
Thus, where in any suit there is more than one defendant, one of whom is a citizen of the state of the plaintiff, in order to be removable under Section 1441 (c), there must be more than one claim or cause of action, and the claim against the *905 non-resident defendant must be separate and independent from the claim or cause of action asserted against the resident defendant.
Generally, “a ‘cause of action’ may mean one thing for one purpose and something different for another.” United States v. Memphis Cotton Oil Co.,
Consistently with this cоncept of “claim or cause of action,” Professor Moore says that where “a group of operative facts give rise to a claim on the part of the defendant, as where several persons contribute to his injury and he sues one or more of them in one аction, the plaintiff is proceeding on one cause of action and it is not removable under Section 1441(c).” Thus, “where the plaintiff joins two or more defendants to recover damages for one injury, and even though he charges them with joint and several liability or only several liаbility, or charges them with liability in the alternative, there is no joinder of separate and independent causes of action within the meaning of Section 1441(c).” Moore’s Commentaries, pages 238 and 251. See also Notes 12 and 13, American Fire & Casualty Co. v. Finn, supra.
Thus, in the American Fire and Casualty Company case, the Supreme Court held that a claim for relief in the alternative against three defendants, one of which was a resident of the state of the complainant, was not “separate and independent.” After “Considering the previous history of ‘separable controvеrsy,’ the broad meaning of ‘cause of action,’ and the congressional purpose in the revision resulting in 28 U.S.C, § 1441(c),” the Supreme Court concluded that “where there ' is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c).” [
And, construing the statute in the light of Mr. Moore’s comments, other courts have said that a complaint which alleges but one redressable wrong growing out of a “coincidence of basic operative facts” for which joint and several relief is sought against resident and non-resident defendants, is not a separate and independent claim within the meaning of Section 1441(c). Mayflower Industries v. Thor Corp., 3 Cir.,
Were we to embrace Professor Moore’s interpretation of the statute and the cases in accord, we could conclusively disposе of our question by borrowing the language of Judge Holmes in Edwards v. E. I. DuPont de Nemours & Co., supra,
But we are not prepared to go the whole way, or for that matter to establish the rule of this Circuit governing removability under Section 1441(c), since in our view, the complaint, liberally construed, sufficiently makes out a case of concurrent negligence, which, even under the separable controversy rule, would ibar removal. As the trial court so aptly said when it first remanded the case, “Although there is no express allegation of ‘concurrent’ negligence as such in the plaintiff’s petition, the facts alleged clеarly indicate that the negligence was concurrent in the sense that the tortious act or omission of each defendant was a substantial factor contributing to the ultimate injury.” It went on to say that “Such acts or omissions were also concurrent causes in the sense of being ‘causes acting contemporaneously and which together cause the injury, which injury would not have resulted in the absence of either’.” At that time, the court was of the view that the failure to use the word “concurrent” was not decisive if the factual allegations conveyed the same meaning, citing Bentley v. Halliburton Oil Well Cementing Co., supra. See Willoughby v. Sinclair Oil & Gas. Co., D.C.,
We agree with this view, of the case, and also agree that the allegations in the complaint are clearly susceptible of the theory that the injury was caused by the concurrence of the sepаrate acts of negligence of the two defendants. There can therefore be no separate and independent claim or cause of action asserted against the nonresident defendant.
The case is reversed and remanded with directions to sustain the motion to remand.