Willoughby v. Sinclair Oil & Gas Co.

• Citation: 188 F.2d 902
• Decision Date: 19 April 1951
• Docket Number: No. 4152.,4152.
• Parties: WILLOUGHBY v. SINCLAIR OIL & GAS CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

188 F.2d 902 (1951)

WILLOUGHBY v. SINCLAIR OIL & GAS CO. et al.

No. 4152.

United States Court of Appeals Tenth Circuit.

April 19, 1951.

Paul W. Updegraff, Norman, Okl. (Joe A. Smalley, Norman, Okl., was with him on the brief), for appellant.

Robert L. Imler, Tulsa, Okl., and Clyde J. Watts, Oklahoma City, Okl. (Ralph W. Garrett, Dudley C. Phillips, Tulsa, Okl., and Mart Brown, Oklahoma City, Okl., were with them on the brief), for appellees.

Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.

MURRAH, Circuit Judge.

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 enjoining 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 Cleveland 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 propane 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 compensatory 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. 89 F.Supp. 994. After remand, Peppers Refining Company was dismissed from the suit without further amendment. Thereupon, Sinclair again removed the case, contending that since Peppers was the only defendant jointly or concurrently liable, the case was now removable by it as a separate and independent cause of action. When, in the hearing on the second motion to remand, the trial court indicated its disposition to retain jurisdiction, and plaintiff's attorney indicated his intention to nevertheless proceed in the state court, the trial court stated for the record that "the motion to remand is overruled and an injunction against the parties to proceed in the state court is entered."

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 the 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.

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., 176 F.2d 506, following Rules 79 and 58, Fed.Rules Civ.Proc. 28 U.S.C.A. and supplemental Rule VII of the Western District of Oklahoma, that no order of this kind was effective in the Western District of Oklahoma before its notation in the civil docket by the clerk at the specific direction of the court. But here, unlike the Lucas case, the order appealed from was entered by an appropriate notation on the docket at the specific direction of the court, and the judgment was therefore effective as of that date, to-wit, July 31, 1950. The filing of notice of appeal and the cost bond on the same date deprived the court of jurisdiction to set aside the judgment at a later date. Miller v. United States, 7 Cir., 114 F.2d 267; Jordan v. Federal Farm Mortgage Corp., 8 Cir., 152 F.2d 642; Midland Terminal Ry. Co. v. Warinner, 10 Cir., 294 F. 185.

It is settled beyond doubt that an order denying a motion to remand is not appealable, but an order enjoining the parties from proceeding in the state court is appealable. See Johnson v. Butler Bros., 8 Cir., 162 F.2d 87, 172 A.L.R. 1157; Morgan v. Kroger Groc. & Baking Co., 8 Cir., 96 F.2d 470; Cray, McFawn & Co. v. Hegarty, Conroy & Co., 2 Cir., 85 F.2d 516; Peters v. Standard Oil Co. of Texas, 5 Cir., 174 F.2d 162, 164. We conclude that the judgment is appealable.

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 non-resident 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, 305 U.S. 534, 538, 59 S.Ct. 347, 83 L.Ed. 334. But see Mr. Justice Black's concurring opinion, 305 U.S. at page 544, 59 S.Ct. 347, 83 L.Ed. 334.

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 litigation-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 upon 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 action" 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 separate 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, 71 S.Ct. 534.

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 non-resident de...