The opinion of the court was delivered by: GALSTON
This is a motion by the plaintiff for an order remanding the action to the Supreme Court of New York, County of Kings.
The action is one to recover damages for personal injury sustained as the result of a fall suffered by the plaintiff while working on a tanker owned and operated by the defendant, The Texas Company.
The complaint alleges that on March 27, 1952, the date of the accident, the tanker was in the Brooklyn repair yard of the Bethlehem Steel Company undergoing certain repairs; that the plaintiff was then engaged upon said vessel in making the repairs; and that the defendant, Tollefson Brothers, was engaged in sand blasting the sides of the vessel. It then alleges that while plaintiff was lawfully upon the deck of the vessel, he was caused to slip and fall through the carelessness and negligence of the defendants. The negligence of the defendants is more specifically alleged in the complaint as follows:
'8. The defendant Tollefson Bros. was negligent in that it caused, allowed and permitted the sand blasting material to spray upon and fall upon the deck of the vessel causing said deck to become dangerous and hazardous to persons lawfully thereon; in that it negligently and carelessly failed to provide covers or other devices in connection with the aforesaid sand blasting to prevent the material from falling upon the deck; in that it failed to take any precautions to prevent said material from falling upon the deck; in that it failed to clean the decks and were otherwise negligent in the premises.
'9. The defendant Texas Co., was negligent in that it failed to provide the plaintiff a safe place to work; in that it allowed the decks to become and remain covered with the aforesaid sand blasting material rendering said deck dangerous and slippery and hazardous to persons lawfully thereon.'
The action was removed to this court upon the petition of the defendant, The Texas Company, upon the ground of diversity of citizenship. The petition for removal indicates that the plaintiff and the defendant, Tollefson Brothers, are citizens of the State of New York, and that the defendant, The Texas Company, is a corporation organized and existing under any by virtue of the laws of the State of Delaware, and a corporate resident of Delaware.
The plaintiff urges that Section 1441(c) of Title 28 U.S.C.A., did not permit removal, and the defendant, Tollefson Brothers, supports the plaintiff's motion.
'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, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.'
The question presented, therefore, is whether the action embodies separate and independent claims or causes of action within the meaning of Section 1441(c).
Prior to September 1, 1948, the effective date of the revision of the Judicial Code, the right of removal in similar circumstances was based upon whether there existed 'separable controversies' wholly between citizens of different States. The Supreme Court has pointed out that under the new Section 1441(c), Congress intended to establish a different and more restrictive basis for removal. In American Fire & Cas. Co. v. Finn, 341 U.S. 6, at pages 9-14, 71 S. Ct. 534, at pages 538-540, 95 L. Ed. 702, the Supreme Court, construes this change as follows:
'Another and important purpose was to limit removal from state courts. * * *
'The Congress, in the revision, carried out its purpose to abridge the right of removal. Under the former provision, 28 U.S.C. (1946 ed.) § 71, separable controversies authorized removal of the suit. 'Controversy' had long been associated in legal thinking with 'case.' It covered all disputes that might come before federal courts for adjudication. In § 71 the removable 'controversy' was interpreted as any possible separate suit that a litigant might properly bring in a federal court so long as it was wholly between citizens of different states. * * *
'A separable controversy is no longer an adequate ground for removal unless it also constitutes a separate and independent claim or cause of action. * * * Of course, 'separate cause of action' restricts removal more than 'separable controversy.' In a suit covering multiple parties or issues based on a single claim, there may be only one cause of action and yet the separable controversies. The addition of the word 'independent' gives emphasis to congressional intention to require more complete ...