Walker, J.,
after stating the case: We have uniformly decided in this Court that when a verified petition which contains facts sufficient under the law to entitle the applicant to a removal is filed and is accompanied by a proper bond, the jurisdiction of the State court is at an end, and that the issues of fact, if properly raised by the petition and papers in the cause, are to be tried and determined by the Federal court and not by the State court in which the action was brought. Herrick v. R. R., 158 N. C., 307; Lloyd v. R. R., 162 N. C., 485; R. R. v. McCabe, 213 U. S., 207; Wecker v. National Enameling Co., 204 U. S., 176. But before the State court is under any duty or obligation to surrender its jurisdiction it must appear affirmatively, and by specific allegation of the facts constituting the alleged illegal or fraudulent joinder of a resident with a nonresident defendant, that the same exists, and it is not sufficient to charge generally or by indefinite aver-ments that the joinder is or was intended to be in fraud and prevention of the nonresident’s right of removal. Hough v. R. R., 144 N. C., 692; Tobacco Co. v. Tobacco Co., 144 N. C., 352; Shane, v. R. R., 150 Fed., 801.
The plaintiff is entitled to have his cause of action considered as stated in his complaint. If there has been a joint tort committed, he may sue the wrong-doers jointly or separately, at .his election, as they are liable to him in either form of action. Hough v. R. R., supra; Smith v. Quarries Co., 164 N. C., 338; R. R. v. Miller, 217 U. S., 209; R. R. v. Thompson, 200 U. S., 206. When a party is in the lawful assertion of a right in bringing his action, the law attaches no importance to his motive in pursuing a course which he has a right to tahe. Hough v. R. R., supra. It was said in R. R. v. Dixon, 179 U. S., at p. 135: “The. question to be determined is whether the Court of Appeals erred in affirming the action of the (State) Circuit Court in denying the application to remove; and that depends on whether a separable controversy appeared on the face of plaintiff’s petition or declaration. If the liability of defendants, as set forth in that pleading, was joint, and the cause of action entire, then the controversy was not separable as matter of law, and plaintiff’s purpose in joining Chaildev and Sidles was immaterial. The petition for removal did not charge fraud in that regard or set up any facts and circumstances indicative thereof, and plaintiff’s motive in the performance of a lawful act was not open to inquiry.”
Nor does the fact of the resident defendant’s insolvency make any difference. It is not the amount that may be recovered eventually, but the right to sue him, that is the material question involved. Hough v. R. R., supra. And the mere allegation of a conspiracy to prevent a removal is of no more consequence without the statement of matter [721]*721wbicb shows that one existed to do a wrong. The right to removal then turns upon the allegation of sufficient facts upon which to predicate it. “While a ease may in proper instances be removed on the ground of false and fraudulent allegations of jurisdictional facts, the right does not exist, nor is the question raised hy general allegations of bad faith, but only when, in addition to the positive allegation of fraud, there is full and direct statement of the facts and circumstances of the transaction sufficient, if true, to demonstrate that the adverse party is making a fraudulent attempt to impose upon the court and so deprive the applicant of his right of removal.” Smith v. Quarries Co., 164 N. C., 338, 352, citing Rea v. Mirror Co., 158 N. C., 24; K. C. R. R. Co. v. Herman, 187 U. S., 63; and numerous other cases. The State court does not hear the proof of the fraud and pass upon the issue, as that is left for the other court to do; but this rule applies only “as to such issues of fact as control and determine the right of removal, and on an application for removal hy reason of fraudulent joinder, such an issue is not presented by merely stating the facts of the occurrence showing a right to remove, even though accompanied by general averment of fraud or bad faith; but, as heretofore stated, there must be full and direct statement of facts sufficient, if true, to establish or demonstrate the fraudulent purpose.” Smith v. Quarries Co., supra.
The defendant company relied upon Rea v. Mirror Co., supra, and Wecker v. National Enameling Co., supra; but it will be found upon an examination of those eases that there were direct, positive, and specific statements in the petitions to the effect that the resident defendants had nothing to do with the alleged wrongs, and were not even •present when they were committed, hut were employed in another department of the business not related in any way to the work in which the plaintiffs were engaged, and the facts were fully set forth so that it could be seen that there was a fraudulent joinder. But in this case the plaintiff has alleged in his complaint that J. 0. Hollifield was superintendent of the work in which plaintiff was employed at the time he was injured, had general charge and control of it, and was clothed with authority to employ and discharge the plaintiff, and the other hands, for disobedience of his orders, and generally represented his principal, the telephone -company, in this- respect, and that, holding this position in the service of the company, he directed the plaintiff, who was inexperienced, to perform work which J. C. Hollifield knew to be dangerous, and without proper warning of the danger to his subordinates, or proper instructions to them as to how to do the work with safety. This allegation is not directly controverted or categorically denied, but the petitioner merely avers that Hollifield was a boss of the gang of hands to which plaintiff belonged, and was assisting
[722]*722bim and bis coemployees at tbe time of bis injury, and tbat it is advised and believes tbat Hollifield was tbeir fellow-servant, and tbat tbe duty to furnish a sufficient force to load tbe cars witb tbe poles was one owing by tbe petitioner only, and not by J. C. Hollifield, and tbat tbe latter did not fail to perform any duty owing by bim to tbe plaintiff wbieli proximately caused tbe injury. Tbis is not an adequate denial of Hollifield’s authority over tbe gang of workmen, nor is it any sufficient statement of facts showing a case of fraudulent joinder. It would seem to be more an expression of petitioner’s opinion as to tbe nature of tbe transaction and of inferences it has drawn from undisclosed facts, or from tbe advice of counsel, rather than a plain and direct statement of relevant facts which are indicative of fraud. Tbis case, therefore, is not like Rea v. Mirror Co., supra, or Wecker v. National Enameling Co., supra, but is very much like Smith v. Quarries Co., supra, except that tbe allegation of tbe petition for removal, which was denied, was far more specific, as to tbe authority of Welsh and Eller and tbe plaintiff, in tbat case, and also as to tbeir duties and powers as employees of tbe nonresident defendant, than is tbe corresponding allegation in tbis* case. Tbe petition in Smith’s case was very elaborate in its statements, and charged everything to be found in tbis petition, and contained far more relevant and material facts, and yet it was held to be insufficient to warrant a removal.
We might well rest our conclusion upon tbat decision without further discussion.
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Walker, J.,
after stating the case: We have uniformly decided in this Court that when a verified petition which contains facts sufficient under the law to entitle the applicant to a removal is filed and is accompanied by a proper bond, the jurisdiction of the State court is at an end, and that the issues of fact, if properly raised by the petition and papers in the cause, are to be tried and determined by the Federal court and not by the State court in which the action was brought. Herrick v. R. R., 158 N. C., 307; Lloyd v. R. R., 162 N. C., 485; R. R. v. McCabe, 213 U. S., 207; Wecker v. National Enameling Co., 204 U. S., 176. But before the State court is under any duty or obligation to surrender its jurisdiction it must appear affirmatively, and by specific allegation of the facts constituting the alleged illegal or fraudulent joinder of a resident with a nonresident defendant, that the same exists, and it is not sufficient to charge generally or by indefinite aver-ments that the joinder is or was intended to be in fraud and prevention of the nonresident’s right of removal. Hough v. R. R., 144 N. C., 692; Tobacco Co. v. Tobacco Co., 144 N. C., 352; Shane, v. R. R., 150 Fed., 801.
The plaintiff is entitled to have his cause of action considered as stated in his complaint. If there has been a joint tort committed, he may sue the wrong-doers jointly or separately, at .his election, as they are liable to him in either form of action. Hough v. R. R., supra; Smith v. Quarries Co., 164 N. C., 338; R. R. v. Miller, 217 U. S., 209; R. R. v. Thompson, 200 U. S., 206. When a party is in the lawful assertion of a right in bringing his action, the law attaches no importance to his motive in pursuing a course which he has a right to tahe. Hough v. R. R., supra. It was said in R. R. v. Dixon, 179 U. S., at p. 135: “The. question to be determined is whether the Court of Appeals erred in affirming the action of the (State) Circuit Court in denying the application to remove; and that depends on whether a separable controversy appeared on the face of plaintiff’s petition or declaration. If the liability of defendants, as set forth in that pleading, was joint, and the cause of action entire, then the controversy was not separable as matter of law, and plaintiff’s purpose in joining Chaildev and Sidles was immaterial. The petition for removal did not charge fraud in that regard or set up any facts and circumstances indicative thereof, and plaintiff’s motive in the performance of a lawful act was not open to inquiry.”
Nor does the fact of the resident defendant’s insolvency make any difference. It is not the amount that may be recovered eventually, but the right to sue him, that is the material question involved. Hough v. R. R., supra. And the mere allegation of a conspiracy to prevent a removal is of no more consequence without the statement of matter [721]*721wbicb shows that one existed to do a wrong. The right to removal then turns upon the allegation of sufficient facts upon which to predicate it. “While a ease may in proper instances be removed on the ground of false and fraudulent allegations of jurisdictional facts, the right does not exist, nor is the question raised hy general allegations of bad faith, but only when, in addition to the positive allegation of fraud, there is full and direct statement of the facts and circumstances of the transaction sufficient, if true, to demonstrate that the adverse party is making a fraudulent attempt to impose upon the court and so deprive the applicant of his right of removal.” Smith v. Quarries Co., 164 N. C., 338, 352, citing Rea v. Mirror Co., 158 N. C., 24; K. C. R. R. Co. v. Herman, 187 U. S., 63; and numerous other cases. The State court does not hear the proof of the fraud and pass upon the issue, as that is left for the other court to do; but this rule applies only “as to such issues of fact as control and determine the right of removal, and on an application for removal hy reason of fraudulent joinder, such an issue is not presented by merely stating the facts of the occurrence showing a right to remove, even though accompanied by general averment of fraud or bad faith; but, as heretofore stated, there must be full and direct statement of facts sufficient, if true, to establish or demonstrate the fraudulent purpose.” Smith v. Quarries Co., supra.
The defendant company relied upon Rea v. Mirror Co., supra, and Wecker v. National Enameling Co., supra; but it will be found upon an examination of those eases that there were direct, positive, and specific statements in the petitions to the effect that the resident defendants had nothing to do with the alleged wrongs, and were not even •present when they were committed, hut were employed in another department of the business not related in any way to the work in which the plaintiffs were engaged, and the facts were fully set forth so that it could be seen that there was a fraudulent joinder. But in this case the plaintiff has alleged in his complaint that J. 0. Hollifield was superintendent of the work in which plaintiff was employed at the time he was injured, had general charge and control of it, and was clothed with authority to employ and discharge the plaintiff, and the other hands, for disobedience of his orders, and generally represented his principal, the telephone -company, in this- respect, and that, holding this position in the service of the company, he directed the plaintiff, who was inexperienced, to perform work which J. C. Hollifield knew to be dangerous, and without proper warning of the danger to his subordinates, or proper instructions to them as to how to do the work with safety. This allegation is not directly controverted or categorically denied, but the petitioner merely avers that Hollifield was a boss of the gang of hands to which plaintiff belonged, and was assisting
[722]*722bim and bis coemployees at tbe time of bis injury, and tbat it is advised and believes tbat Hollifield was tbeir fellow-servant, and tbat tbe duty to furnish a sufficient force to load tbe cars witb tbe poles was one owing by tbe petitioner only, and not by J. C. Hollifield, and tbat tbe latter did not fail to perform any duty owing by bim to tbe plaintiff wbieli proximately caused tbe injury. Tbis is not an adequate denial of Hollifield’s authority over tbe gang of workmen, nor is it any sufficient statement of facts showing a case of fraudulent joinder. It would seem to be more an expression of petitioner’s opinion as to tbe nature of tbe transaction and of inferences it has drawn from undisclosed facts, or from tbe advice of counsel, rather than a plain and direct statement of relevant facts which are indicative of fraud. Tbis case, therefore, is not like Rea v. Mirror Co., supra, or Wecker v. National Enameling Co., supra, but is very much like Smith v. Quarries Co., supra, except that tbe allegation of tbe petition for removal, which was denied, was far more specific, as to tbe authority of Welsh and Eller and tbe plaintiff, in tbat case, and also as to tbeir duties and powers as employees of tbe nonresident defendant, than is tbe corresponding allegation in tbis* case. Tbe petition in Smith’s case was very elaborate in its statements, and charged everything to be found in tbis petition, and contained far more relevant and material facts, and yet it was held to be insufficient to warrant a removal.
We might well rest our conclusion upon tbat decision without further discussion. But it is suggested that tbe plaintiff has not pursued his action against tbe resident defendant to final judgment. Tbis is a clear error, as the record shows. He failed to plead, and judgment by default was entered against him, which established as against him, under our procedure, and procedure generally, the cause of action alleged in the complaint. Blow v. Joyner, 156 N. C., 140; Graves v. Cameron, 161 N. C., 549; Patrick v. Dunn, 162 N. C., 19; Plumbing Co. v. Hotel Co., 168 N. C., 577. It was not necessary to submit an issue as to bis negligence, when be admitted it by failing to answer. Justice Brown well says in Plumbing Co. v. Hotel Co., supra: “The default is an admission of every material and traversable allegation of tbe declaration or complaint necessary to tbe plaintiff’s cause of action. 23 Oyc., 752. It a'dmits all.tbe material averments properly set forth in the complaint, and of course everything essential to establish tbe right of tbe plaintiff to recover. Any testimony, therefore, tending to prove tbat no right of action existed, or denying tbe cause of action, is irrelevant and inadmissible,” citing Garrard v. Dollar, 49 N. C., 176; Lee v. Knapp, 90 N. C., 171; Blow v. Joyner, supra; Graves v. Cameron, supra. Tbis being -so, tbe only thing left to do in regard to tbe resident defendant was the assessment of damages, after [723]*723ascertaining tbe negligence of tbe other defendant. This was done, as tbe record shows, and a final judgment was then entered against both defendants for tbe amount of damages, and costs. Tbe language of tbe judgment is “that plaintiff have and recover judgment against tbe defendants in tbe sum of $5,000 and for tbe costs.” Tbe remark attributed to counsel was explained, and tbe record stands as we have stated it to be.
We have sufficiently considered Rea v. Mirror Co., 158 N. C., 25, which was much relied on by tbe defendant, and shown that it is like Wicker v. Enameling Co., 204 U. S., 176, in tbe respect that in both cases tbe servant injured and the one sued were in different branches of the service, and admittedly so; but in Smith v. Quarries Co., 164 N. C., 338, both servants were engaged in tbe same employment, as is tbe case here, and we cannot well remove this suit without seriously impairing that case as an authority, if not overruling it, and we think it was correctly decided and is well supported by authorities in tbe Federal and State courts. We said in Hough v. R. R., 144 N. C., at 700: “Tbe defendant, who petitioned for a removal, simply controverts tbe allegation of tbe complaint, for that is what tbe petition means, and all that it means. Its vituperative expressions prove nothing. Calling an act fraudulent does not make it so. It must be alleged in what tbe fraud consists. We have practically nothing before us but tbe joinder and tbe bare allegations of fraud. That will not do.” What was said in that case'as to proof of the fraud referred, of course, to such proof in tbe Federal court, where tbe issue of fraud is tried, if properly made in the State court. The Hough case is a direct authority in support of tbe right to join tbe defendants in this action. In respect to this right of joinder we find tbe following clear statement of law in 1 Mechem on Agency (2 Ed.), sec. 1460: “In practically every case in which tbe master could be held liable for tbe negligence of bis servant, tbe servant himself is personally liable. This must be so from tbe very nature of tbe case. The whole theory of tbe master’s liability is that tbe servant has done a legal wrong for which the law imposes a liability upon tbe master, however innocent he may be. Tbe person actually and primarily at fault, however, is the servant, and if be would not be liable, tbe master ordinarily cannot be.' Tbe liability of the servant is the direct and primary one; that of the master is a secondary and imputed one. In actual practice tbe liability of the servant or agent is usually ignored because it-is more convenient or effective to pursue tbe master; but the servant’s liability nevertheless exists.” The Court expressed a doubt in Dishon v. R. R., 133 Fed. Rep., 471, which was afterwards resolved against its view in R. R. v. Thompson, 200 U. S., 206, to which it had referred for a solution of the question in doubt, as the writ of error was then pending.
[724]*724Coming to the exceptions taken at the trial before the jury, we find several questions of evidence presented. Some of the questions put to witnesses were unanswered, and, therefore, harmless. There is nothing to show what the answer would have been, nor what was expected to be proved, and we cannot see that the appellant was in any way prejudiced by the ruling of the court. Jenkins v. Long, 170 N. C., 269. It was competent to show who was in charge of the work, and that J. C. Hollifield was the man. That was one of the important questions in the case. We do not see why it was not also competent to prove that the hands complained to Hollifield that the force was not sufficient to handle the poles, and his reply admitting it, with the order to go on with the work. It was a part of what was done at the time, and the declaration of one who was then acting in the place of his principal. The order given by J. C. Hollifield to the hands was a relevant fact and the court properly admitted evidence to prove what it was. It is one of the allegations of the complaint that plaintiifs were ordered by Hollifield to do the work and that he had the power to give the order. The court did not err in allowing plaintiff to. testify how the injury was received or what caused it, and why more hands were needed. He was merely stating facts within his own knowledge. In other words, he was stating what he had seen and the nature of which he understood by former experience. It was not merely an opinion. Murdock v. R. R., 159 N. C., 131; Britt v. R. R., 148 N. C., 37; and especially Ives v. Lumber Co., 147 N. C., 306, which is similar in this respect. All these rulings were correct. There was evidence in the case from which the jury could reasonably draw the inference that J. C. Holli-field was superintendent or foreman of the gang of laborers and as such represented his principal, and that those who acted under his orders had just reason to believe' that the refusal or failure to obey him would or might be followed by a discharge from the service in which they were engaged. Turner v. Lumber Co., 119 N. C., 387; Mason v. R. R., 111 N. C., 482 (s. c., 114 N. C., 718); Shadd v. R. R., 116 N. C., 968. Upon the question of the plaintiffs earning, capacity and the extent to which it had been impaired by the injury, we do hot see why it was not competent to prove his habits, that is, that he was sober and industrious, for such a man would surely be able to do more for himself in the world than a lazy, drunken, and thriftless one. 8 Rul. Case Law, sec. 172; C. M. and E. Company v. Anderson, 98 Texas, 156; Kinston v. R. R., 112 Mich., 40. The testimony of Dr. Justice seems to be based upon a personal examination of plaintiff to ascertain his mental and physical condition, and he really spoke only of such condition. In answer to the hypothetical question, he simply stated that he [725]*725could form an opinion as to whether the plaintiff’s condition will continue as it is or whether it will be worse. In this respect nothing harmful was said by him. This also, substantially applies to the testimony of the medical experts. The motion to strike out testimony, even if the latter is incompetent, was within the sound discretion of the court. S. v. Efler, 85 N. C., 585; Johnson v. Allen, 100 N. C., 136; Duggar v. McKesson, ibid,., 1; S. v. Pratt, 88 N. C., 639; Simpson v. Pegram, 112 N. C., 541.
There was evidence for the jury upon the question of negligence, and the motion for a nonsuit was properly overruled. The jury could infer from the evidence submitted to them that J. 0. Ilollifield was representing the defendant in superintending the work of loading the cars with telephone poles, and had power and authority over the hands engaged in it. 26 Cyc., 1307. If he ordered them to do work which would expose them to danger, and this order was negligently given, he would be liable jointly with his master, the defendant, for the resultant injury. Means v. R. R., 126 N. C., 424; Allison v. R. R., 129 N. C., 336; 26 Cyc., 1383, and especially Wright v. Crompton, 53 Ind., 337; Howe v. R. R., 60 L. R. A. (Wash.), 959; R. R. v. Thompson, 200 U. S., 206. There was no expression of opinion by the Court, but simply a statement that if defendant was short of hands this would be no legal excuse for the wrong. It was its duty to have a sufficient force to do the work and make it reasonably safe to perform it. Pigford v. P. R., 160 N. C., 93; Shaw v. Mfg. Co., 146 N. C., 235.
The charge of the court as to negligence and contributory negligence was in accordance with our decisions upon those questions. The court defined the duty of the defendants with respect to the plaintiff while he was performing the.task assigned to him, and also the duty of plaintiff to himself, and this was done with full statement as to what care and circumspection was required of each. The judge did not place too great a burden upon the defendants, or either of them, nor was there any departure from the true rule as to proximate cause. We stated the doctrine of proximate cause as applicable to both negligence and contributory negligence in Treadwell v. R. R., 169 N. C., 701, The judge gave the instructions requested by the defendant, as far as he could do so and stay within the law of the case, and they were not only' given to this extent, but in a very clear and ample manner. The charge and responses to special prayers embraced all the law which was applicable to the facts, disclosed by the evidence, including that relating to assumption of risk.
We have, after a thorough examination of the case, been unable to discover any error therein.
No error.