Patterson v. Champion Lumber Co

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER
• Citation: Patterson v. Champion Lumber Co, 94 S.E. 692, 175 N.C. 90 (N.C. 1917)
• Decision Date: 23 December 1917
• Docket Number: (No. 579.)
• Parties: PATTERSON . v. CHAMPION LUMBER CO. et al.

94 S.E. 692

(175 N.C. 90)

PATTERSON .

v.CHAMPION LUMBER CO. et al.

(No. 579.)

Supreme Court of North Carolina.

Dec. 23, 1917.

Appeal from Superior Court, Haywood County; Adams, Judge.

Action by L. P. Tatterson against the Champion Lumber Company and others. From a judgment for plaintiff, defendant named appeals. Affirmed.

Plaintiff alleged that he was employed by defendant as lumber inspector, and he 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. C. 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 hand car, 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 it, 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 car was overloaded, and that there was not a sufficient number of cars 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 teu-dered, 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.

Merrimon, Adams & Johnston, of Asheville, for appellant.

Alley & Leatherwood, of Waynesville, for appellee.

WALKER, J. (after stating the facts as above). [1, 2] First The court properly refused to remove the case to the United States court. In the first place, the petition was not filed within the time allowed by law. The summons was returnable to September term, 1916, and at that time an order was made enlarging the time for filing pleadings; the plaintiff being given 60 days for filing his complaint, and the defendant 60 days thereafter to file answers. The plaintiff filed his complaint within the 60 days allowed to him, but the defendant's answer was not filed until February 3, 1917, after the time given, by the order, for filing it had expired. If there had been no order extending the time, the answer was due before adjournment of the September term of the court, under the statute. The defendant did not except to the order extending the time for filing the pleadings, nor did it move to dismiss the action for failure to file the complaint, and from the record it would appear that it was made with the consent of both parties, if not at their request. Anyhow, the law so construes it. A like older was made in Ford v. Lumber Co., 155 N. C. 352, 71 S. E. 439, and the court said, in commenting on a motion to remove the cause to the federal court:

"The summons was returnable to September term, 1910, at which term an order was made in this cause as follows: 'Plaintiff allowed forty days to file complaint; defendant has forty days to file answer.' The defendant did not except to this order and did not move to dismiss the action for failure to file complaint, as it had a right to do. It may be, as contended by defendant, that a petition for removal need not be presented until the complaint is filed, and the record then discloses a removable controversy as to the sum demanded; but under our decisions the defendant has waived his right to remove and submitted itself to the jurisdiction of the court by not excepting to the order we have quoted. By failing to except to it, the defendant is taken to have consented to it. Lewis v. Steamboat Co., 131 N. C. 653 [42 S. E. 9691: Bryson v. Railroad, 141 N. C. 594 [54 S. E. 434]; Garrett v. Bean, 144 N. C. 26 [56 S. E. 479]. * * * When the defendant takes no exception to the order extending the time within which to file complaint and answer, the order is a consent order and voluntary submission by defendant to the jurisdiction of the court and a waiver of a right to remove."

To the same effect is Howard v. Railroad Co., 122 N. C. 944, 29 S. E. 778; Duffy v. Railroad Co., 144 N. C. 26, 56 S. E. 557; Pruitt v. Power Co., 165 N. C. 416, 81 S. E. 624; Spangler v. Railroad Co. (C. C.) 42 Fed 305; Fox v. Railroad Co. (C. C.) 80 Fed. 945; Williams v. Telephone Co., 116 N. C. 558, 21 S. E. 298; K. C, etc., R. Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306, 34 L. Ed. 963.

We also are of the opinion that the plaintiff has stated a joint tort, as having been committed by the defendant, and he had the right thus to regard the wrong, either as joint or as several. Gurley v. Power Co., 173 N. C. 447, 92 S. E. 262; Hough v. Railroad Co., 144 N. C. 704, 57 S. E. 469; Rea v. Mirror Co., 158 N. C. 24, 27, 73 S. E. 116; Southern Ry. Co. v. Miller, 217 U. S. 209, 30 Sup. Ct. 450, 54 L. Ed. 732. The petition for removal does...