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Snow v. Powell.

May 15, 1951

SNOW
v.
POWELL.



Phillips

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

PHILLIPS, Chief Judge.

Snow, a citizen of Utah, commenced this action in a Utah state court of general jurisdiction, against Powell, a citizen of Utah, and the The Denver and Rio Grande Western Railroad Company,*fn1 a corporation organized under the laws of Delaware and authorized to do business in Utah. The Railroad Company removed the action to the United States District Court for the District of Utah under 28 U.S.C.A. § 1441(c), which provides: "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."

In his complaint filed in the state court Snow alleged that he went into the depot of the Railroad Company, at Price, Utah, at the special invitation of Fred I. Gordon,*fn2 station agent of the Railroad Company for the purpose of discussing with the agent the construction of a coal tipple or other loading facilities for Snow's coal business; that when Snow entered the depot Powell was present therein; that Powell accused Snow of having in his possession certain horses which Powell claimed to own; that Snow denied such accusation; that Powell immediately became enraged and attacked Snow; that Snow undertook to defend himself with his fists and retreated out of the agent's office through the depot waiting room, and out of the depot door; that Powell seized a hammer, followed Snow, and after Snow had retreated through the depot door, struck Snow's head with the hammer, causing Snow serious personal injuries.

The complaint further alleged that the Railroad Company and the agent, prior to such assault, knew that Powell was a man of extremely vicious disposition; that the agent having such knowledge and having authority to evict Powell from the Railroad Company's premises, nevertheless invited Powell on to such premises; that the agent had the authority and was under the duty to preserve peace and order on such premises; that the agent, although he observed the commencement of such assault, took no action to preserve peace and order and neglected, failed, and refused to take any measures to prevent or arrest such assault. Snow prayed for damages jointly and severally against Powell and the Railroad Company.

After the action was removed, the Railroad Company filed a motion for severance, which was granted.Thereupon, Snow filed a motion to remand the severed cause of action against Powell, not on the ground it was improperly removed, but under the discretionary power vested in the District Court by § 1441(c), supra. That motion was denied. The claim against the Railroad Company was compromised and a judgment was entered dismissing the action against the Railroad Company, but reserving to Snow all of his rights, claims, and demands against Powell.

From a judgment in favor of Powell, Snow has appealed.

The term "claim" and the phrase "cause of action" we think are used synonymously in § 1441(c), supra, and we shall use the word "claim" hereinafter as embracing both that term and the phrase "cause of action."

An action is removable under § 1441(c), supra, only when the complaint in the state court sets up two or more claims, where one of such claims is separate and independent from the others and where an action brought on it alone would have been removable.*fn3

The critical words "separate" and "independent" are used in the conjunctive and should be given their full significance in order to carry out the intent and purpose of Congress to limit removals and to simplify the determination of removability.*fn4

The word "separate" means distinct; apart from; not united or associated. The word "independent" means not resting on something else for support; self-sustaining; not contingent or conditioned.

While here the complaint charged two wrongs in the sense of a wilful, wrongful act on the part of Powell and a negligent breach of duty on the part of the Railroad Company, the positive act of Powell and the omission of the Railroad Company coacted to cause a single injury to Snow. The wrong of the Railroad Company was not independent of the wrong of Powell. It was contingent and dependent upon it. Without the act of Powell the wrong of the Railroad Company could not have resulted in any injury to Snow. Prompt performance of the Railroad Company's duty to preserve order would have prevented the blow which injured Snow.

Since there was a single injury for which Snow sought relief, and since the omission of the Railroad Company was associated with and dependent upon the positive act of Powell, we are of the opinion that no separate and independent claim was alleged ...


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