#### L. P. PATTERSON v. CHAMPION LUMBER COMPANY.

(Filed 22 December, 1917.)

1. Removal of Causes — Extension of Time to Plead — Exceptions—Motions— Waiver.

Where a nonresident defendant does not move to remove the cause to the Federal Court for diversity of citizenship within.the statutory time to plead, and the court allows each party time therefor, to which neither has excepted or moved to dismiss for failure to file the complaint, his not having done so will be taken as his consent to the extension of the time allowed, and a waiver of his right to remove the cause.

2. Removal of Causes — Pleadings—Allegation—Tort.

An allegation of the complaint that plaintiff was injured in the course of his employment .while obeying a negligent order of a vice-principal of his employer, which with other of their negligent acts caused the injury, the allegation is a joint tort and the plaintiff had the right to regard the wrong either as joint or several.

3. Removal of Causes — Fraudulent Joinder — Allegations.

Where a nonresident is sued jointly with a resident defendant for a joint tort, a petition to remove the cause to the Federal Court for a fraudulent joinder must do more than allege the fraud by general averment by setting out the essential facts so that the court can see there has been such joinder.

4. Removal of Causes — Petition—Bond—Sufficiency—Jurisdiction—Courts.

Sufficiency of the petition and bond of a nonresident to remove the cause to the Federal Court is decided as a matter of law by the State courts, and if there are questions of fact arising on the motion, they are for decision in the Federal Court.

5. Pleadings — Evidence—Variance—Statutes.

An objection to a variance between the allegations of the pleadings and . the proof, when prejudicial and misleading, etc., should be taken in apt time, under the provisions of Revisal, secs. 515, 516.

6. Pleadings — Verdict — Amendments — Court’s Discretion — Appeal and Error.

It is within the discretion of the trial judge to allow, after verdict, amendments to the complaint in accordance with the evidence, when no-change in the cause of action has been made, and, in the absence of abuse of this discretion, no appeal therefrom will lie. Revisal, secs. 505, 507.

7. Pleadings — Amendments—Presumptions—Appeal and Error.

The trial judge will be presumed to have found the facts necessary to-support his order allowing an amendment to pleading, when no facts are-stated in the record. '

8. Appeal and Error — Issues—Instructions—Assumptions of Risks.

In an action to recover damages for a personal injury, where the judge-has correctly charged the jury on the evidence as to negligence and contributory negligence, including that as to the plaintiff’s assumption of' risks, the failure to submit an issue or give a request for instruction as; to assumption of risks, is not reversible error.

*91Oivrc ACTION, tried before Adams, J., and a jury at May Term, 1917, of Haywood.

Plaintiff alleged that he was employed by defendant as lumber inspector and was required, among other duties, to measure and grade lumber as the same was put upon cars for shipment, he being under the superior authority of Charley Buck and J. O. Orndorff, and subject to their orders, which he was bound to obey. He further alleges that while engaged in the performance of his regular duties he was ordered by Charley Buck to leave the place where he was then at work and to transfer some loaded cars from the planing mill over certain tracks and switches to the bill-dock, where they were to be unloaded. That in order to do this work, it was necessary to move a handcar which was heavily loaded with green lumber and then standing on Track No. 2, back to a place beyond a switch, so that the other cars could pass over the tracks to the place of their destination without any obstruction. While engaged in this business, and without any fault on his part, the loaded car was moved and overturned and the heavy and green lumber fell from the car and upon the plaintiff, whereby he was severely injured. He alleges that the overturning of the car, which caused his injury, was due to its having been improperly and negligently loaded.

The defendant filed a petition for the removal of the case to the United States Court, but the judge refused the motion to remove, and defendant excepted.

At the trial, and after the verdict, the plaintiff moved to amend his complaint by alleging that the overloading of the car with lumber, which upset and caused his injuries, was due to the fact that defendant had negligently failed to provide for itself a sufficient number of cars and trucks with which to handle its output of lumber, and resorted to overloading of the cars it had for the purpose of supplying the deficiency. The motion was granted, and defendant excepted. Evidence had been admitted, over defendant’s objection, that the ear was overloaded, and that there was not a sufficient number of ears for hauling the lumber, and for that reason the car in. question was overloaded. The defendant requested the court to submit an issue as to assumption of risk which it tendered, but this request was refused.

The three issues, as to negligence, contributory negligence, and damages, were submitted, and the jury answered them in favor of the plaintiff, assessing his damages at $6,000. Exceptions were taken to the charge of the court and to the refusal of the court to give special instructions. Judgment for plaintiff was entered upon the verdict, and defendant appealed.

Alley & Leatherwood for plaintiff.

Merrimon, Adams & J ohnston for defendant.

*92Walker, J.,

after stating tbe ease: First. Tbe court properly refused to remove tbe case to tbe United States Court. In tbe first place, tbe petition was not filed witbin tbe time allowed by law. Tbe summons was returnable to September Term, 1916, and at tbat time an order was made enlarging tbe time for filing pleadings, tbe plaintiff being given 60 days for filing bis complaint, and tbe defendant 60 days thereafter to file answers. Tbe plaintiff filed bis complaint witbin tbe 60 days allowed to bim, but tbe defendant’s answer was not filed until 3 February, 1917, after tbe time given by tbe order for filing it bad expired. If there bad been no order extending tbe time, tbe answer was due before adjournment of tbe September term of tbe court, under tbe statute. Tbe defendant did not except to tbe order extending tbe time for filing tbe pleadings, nor did it move to dismiss tbe action for failure to file tbe complaint, and from tbe record it would appear tbat it was made with tbe consent of both parties, if not at their request. Anyhow, tbe law so construes it.

A like order was made in Ford v. Lumber Co., 155 N. C., 352, and tbe Court said, in commenting on a motion to remove tbe cause to tbe Federal Court: “Tbe summons was returnable to September Term, 1910, at which term an order was made in this cause as follows: ‘Plaintiff allowed 40 days to file complaint; defendant has 40 days to file answer.’ Tbe defendant did not except to this order and did not move to dismiss tbe action for failure to file complaint, as it bad a right to do. It may be, as contended by defendant, tbat a petition for removal need not be presented until the complaint is filed, and tbe record then discloses a removable controversy as to tbe sum demanded, but under our decisions tbe defendant has waived bis right to remove and submitted himself to tbe jurisdiction of tbe court by not excepting to tbe order we have quoted. By failing to except to it, tbe defendant is taken to have consented to it. Lewis v. Steamboat Co., 131 N. C., 653; Bryson v. R. R., 141 N. C., 594; Garrett v. Bear, 144 N. C., 23. . . . "When tbe defendant takes no exception to tbe order extending tbe time witbin which to file complaint and answer, tbe order is a consent order and voluntary submission by defendant to tbe 'jurisdiction of tbe court and waiver of a right to remove.”

To tbe same effect is Howard v. R. R., 122 N. C., 944; Duffy v. R. R., 144 N. C., 26; Pruitt v. Power Co., 165 N. C., 416; Spangler v. R. R., 42 Fed., 305; Fox v. R. R., 80 Fed., 945; Williams v. Telephone Co., 116 N. C., 558; R. R. v. Daughtry, 138 U. S., 298.

We also are of opinion tbat tbe plaintiff has stated a joint tort as having been committed by the defendant, and be bad tbe right thus to regard tbe wrong either as joint or as several. Gurley v. Power Co., *93 173 N. C., 447; Hough v. R. R., 144 N. C., 704; Rea v. Mirror Co., 158 N. C., 24, 27; R. R. v. Miller, 217 U. S., 209.

Tbe petition for removal does not sufficiently allege a fraudulent joinder, and tbe State court was not required to give up its jurisdiction. General averments will not do, but tbe essential facts must be stated so that we can see that there bas been sucb a joinder. Hough v. R. R., supra, 144 N. C., 700; Tobacco Co. v. Tobacco Co., ibid., 367; Smith v. Quarries Co., 164 N. C., 351; Pruitt v. Power Co., 165 N. C., 418; R. R. v. Thompson, 200 U. S., 215. It can easily be seen from these authori-. ties that defendant bas not complied with tbe statute, and tbe judge was right in refusing to remove tbe case. Questions of law in removal cases are decided by tbe State court, that is, as to tbe sufficiency of tbe papers, and questions of fact by tbe Federal court. Kansas City R. Co. v. Daughtry, supra, and 5 Rose’s Notes to that case (Sup.), p. 233.

When tbe evidence was offered as to tbe shortage in cars, tbe defendant should have proceeded under Revisal, secs. 515 and 516, as for a variance, if there was thought to be one. We do not think that there was any change in tbe cause of action by reason of tbe amendment, and we doubt if tbe amendment was necessary. Simpson v. Lumber Co., 133 N. C., 95; Williams v. May, 173 N. C., 78. Tbe amendment merely added an additional ground of negligence, and did not alter tbe original nature of tbe action. Tbe court has ample power to amend, in furtherance of justice, either before or after verdict, Revisal, secs. 505, 507, and we do not review tbe exercise of its discretion in tbe absence of a clear abuse of tbe power. Tbe judge must be presumed to have found tbe facts necessary to support bis order when no.facts are stated in tbe record. McLeod v. Gooch, 162 N. C., 122; Gardiner v. May, 172 N. C., 192; Alston v. Holt, ibid., 417. We also are of tbe opinion that tbe allegations of tbe complaint, though somewhat general, were reasonably sufficient to include tbe matter covered by tbe amendment. Our ruling upon these questions disposes of tbe first six assignments of error, as to tbe removal of tbe cause and tbe matters of evidence, and, as to tbe latter, we think it was otherwise competent.

Tbe exceptions to tbe charge of tbe Court and to tbe refusal of prayers for instructions to tbe jury are without merit. There was evidence of negligence sufficient to support tbe verdict. Tbe real and proximate cause of tbe injuries to the plaintiff was tbe careless overloading of tbe ear, which became topbeavy and when it was put in motion tbe lumber lost its balance and toppled over and upon him. As bis injury was due to tbe defendant’s negligence, we do not see that there was any assumption of risk. Hux v. Refining Co., 173 N. C., 97. Plaintiff was ordered to do tbe work by a person in authority over him whose orders be was bound to obey, and tbe jury have virtually found that tbe risk *94and danger were not so obvious tbat a man of ordinary prudence would not have gone on with, tbe work, under tbe circumstances, and in tbe presence of tbe danger, for tbe court charged fully as to these matters, and we must presume tbat tbe jury observed tbe instructions. Tbe charge as to contributory negligence fully covered tbe question as to assumption of risks, and when this is tbe case;, we have held tbat a sj)ecific instruction as to assumption of risks or an issue as to it is not necessary. Hux v. Refining Co., supra. This case is very much like tbe one just cited in all its essential features. Tbe charge was clear and accurate in its recital of tbe evidence, and in tbe explanation of tbe law applicable to it, and requests for instructions were substantially given in tbe charge. Upon tbe question of negligence, contributory negligence, including assumption of risks, and also upon concurring negligence, and tbe negligence of a fellow servant, the law could not well have been more correctly stated.

We affirm tbe judgment because we can find no error in tbe record.

No error.