concurring.
This concurrence represents no disagreement with what Judge Hastie has said but since the statutory language we are concerned with is new and the problem is of some importance, it is thought that the presentation of another point of view on the same question may be helpful.
Since there is diversity of citizenship between Mayflower and Thor but not between Mayflower and Teldisco, our problem under Section 1441(c) of the Revised Title 28 is to determine whether there is pleaded against Thor a cause of action which is “separate and independent” from *540that which is pleaded against Teldisco. While the words of the statute are not self-explanatory and the point not perfectly clear, it seems to me the more logical view is that this case does not present a removable controversy. Counsel for both sides say that Bentley v. Halliburton Oil Well Cementing Co. 5 Cir., 1949, 174 F.2d 788, the only appellate case dealing with the new removal statute, was correctly decided. I agree and think we have here the same situation which faced the Fifth Circuit in the Bentley case, although upon a somewhat more complicated set of facts.1
In that case there were two tortfeasors whose combined negligence invaded the right of the plaintiff to be free from negligent injury to his person. Plaintiff could have sued either and got a judgment. Or he could have sued them successively and procured a judgment first against one and then against the other. Restatement, Judgments § 94,. But the satisfaction of either judgment would have settled the plaintiff’s rights. Restatement, Judgments § 95. He could have proceeded no further against anybody. The conclusion I draw from this is that the invasion of one legally protected interest, i. e., the right to personal security, was the thing which was involved, and since it all occurred in the same transaction the rights of the plaintiff against the various defendants were not “separate and independent.” Hence, the controversy was not removable.
The joint tortfeasor situation involved in the Bentley case would not have presented a removable controversy under the Judicial Code as it read prior to the 1948 revision. McAllister v. Chesapeake & Ohio R. Co., 1917, 243 U.S. 302, 37 S.Ct. 274, 61 L.Ed. 735. And the Reviser’s Note to-Section 1441(c) of the Revised Title 28-tells us that the “separate and independent” language was intended to “somewhat decrease the volume of Federal litigation.” See Moore, Commentary on the Judicial Code 239 (1949).
If a lawsuit against joint tortfeasors was-not removable under the old statute and. remains non-removable under the new, as-the Bentley case holds, and if one purpose-of the new provision is to cut down federal removal jurisdiction, then it seems to me that a remand to the state court must follow here. The right which the plaintiff seeks to vindicate in this case is an economic one, his interest in the profitable relations between himself and Thor, as set out in the contract between them (the existence of the contract and its terms are assumed for the purpose of this discussion). Two defendants have allegedly interfered with that profitable economic relation, just as in the Bentley case the two tortfeasors combined to invade the plaintiff’s right to personal security. Thor violated its promise and Teldisco conspired with Thor to deprive the plaintiff of the value of the economic relationship then existing. It seems to me that the injury is one. Either defendant could be sued for having inflicted it, and if the elements of damage are the same as to both defendants, the satisfaction of a judgment against either would bar the plaintiff from further recovery. An analogous situation is found where a plaintiff pursues separately claims against one who breaks a contract and against another who induced the violation of the contract. Satisfaction of one of these judgments apparently precludes further recovery by plaintiff. Bird v. Randall, *5413 Burr. 1345, 97 Eng.Rep. 866 (K.B. 1762); Restatement, Judgments § 95, Comment b.
It is true that under the plaintiff’s allegations his claims against either defendant are “separate” in the sense that a suit would lie against either one alone. That was also true in the Bentley case. An injured person may sue either tortfeasor. But while it may be conceded that the claims are separate, by a parity of reasoning with the Bentley case, it seems to me it is established that they are not independent. The controversy, therefore, was not properly removable and the case should be remanded to the New Jersey state court.
. The consensus of the district courts supports the reasoning of the Bentley case. Remand was ordered in Duffy v. Duffy, D.C.S.D. Iowa, 1950, 89 F.Supp. 745; Harward v. General Motors, D.C.E.D. N.C.1950, 89 F.Supp. 170; Billups v. American Surety Co., D.C.D.Kan.1950, 87 F.Supp. 894; Board of Directors etc. v. Whiteside, D.C.W.D.Ark.1949, 87 F. Supp. 69; Robinson v. Missouri Pacific Transportation Co., D.C.W.D.Ark.1949, 85 F.Supp. 235; Smith v. Waldemar, D.C. E.D.Tenn.1949, 85 F.Supp. 36; Bachman v. Seaboard Air Line R., D.C.E.D.S.C. 1948, 80 F.Supp. 976; English v. Atlantic Coast Line R., D.O.E.D.S.C.1948, 80 F. Supp. 681; Thomas v. Thompson, D.C. E.D.Ark.1948, 80 F.Supp. 225. Separate and independent causes of action were found to exist in McFadden v. Grace Line, Inc., D.C.S.D.N.Y.1948, 82 F.Supp. 494; President and Directors of Manhattan Co. v. Monogram Associates, Inc., D.C. E.D.N.Y.1949, 81 F.Supp. 739.