(dissenting). I cannot concur in the opinion of the majority.
*273Under the original petition, upon which the cause was tried until the close of the evidence, the alleged basis for liability of the defendant railroad company was not negligence of the company but that of a fellow-servant for whose negligence the company becomes liable solely by reason of a provision of the Constitution (Const. Art. IX, sec. 36). Under the amendment to the petition which, over objection, was permitted to be filed after the close of the evidence, the alleged basis of liability of the company is that of the negligence of such company as the sole proximate cause. Therefore, it was not an amendment to the cause of action originally stated, but was an attempt to state a new, separate and distinct cause of action.
These issues are clearly distinct because, severally stated, either, if good in fact and law, would sustain a recovery for the probable damage sustained, independently of the merits of the other issue. Conceding for the purpose of the discussion only, that the issues are consistent and could be joined, it follows that, if both were stated in the petition when filed, they should appear in different counts, because, presenting distinct claims involving distinct issues of both fact and law, the jury would have to be instructed as to each. It is not only manifest that the claims are distinct but also the defenses would be different both as to the facts and the law involved.
The authority relied on for the amendment is Tit. 12 O. S. 1941 §317. The right thereunder for an amendment at such time as here is limited by the following: “when such amendment does not change substantially the claim or defense.” In construing this statute, we held in Combs v. Gough, 147 Okla. 40, 294 P. 165, as follows:
“It is reversible error to permit, after the evidence is in, an amendment to plaintiffs petition so as to change substantially his claim and the defense thereto. Jones v. Exchange Nat. Bank, 124 Okla. 5, 253 P. 49.”
And to the effect that authorities generally hold that amendments after close of evidence presenting new issues should be refused, see text and cases cited 49 C. J. 481, §614; p. 493, §652.
In the majority opinion reliance is placed upon Oklahoma, K. & M. R. Co. v. Wilson, 84 Okla. 118, 202 P. 275, wherein it is held that the insertion of additional grounds of negligence may be inserted in the petition during the progress of the trial. Therein a new cause of action, upon a new and distinct theory of negligence, was not stated, but merely new allegations of negligent acts, consistent with the acts of negligence which formed the basis of the action. Such is not the case here.
In my opinion the ground of action alleged in the amendment is inconsistent with, because contradictory of, that alleged in the petition. The substance of the amendment is that by reason of a disease suffered by plaintiff, any bruise or other slight injury was liable to produce serious results. That by reason thereof he was not physically fit to bear the risks of the work of a section hand. That he was not aware of the fact that he had such disease. That the company knew or is charged with knowledge that defendant had such disease and therefore was negligent in employing him to do that work, and that same was the proximate cause of the injury received. In the petition it is alleged that through the negligent act of a fellow-servant he was thrown into a ditch, thereby causing the injury sustained.
I consider the negligence of the company, if any, which is sought to be' alleged in the amendment,, would be-in exposing the plaintiff to those incidental risks of the employment normally assumed by the servant but which plaintiff, by reason of his unfitness and ignorance thereof, could not, in law, beheld to have assumed. The idea that, plaintiff received his injury as the result of any such ordinary risk is not. only inconsistent with but expressly-negatived by the charge in the peti*274tion that same was caused by the negligent act of another. If it be true he was caused to fall by the negligent act of another, then, even though the company was negligent in so employing plaintiff, such negligence could not have been the proximate cause of the injury. The two theories of liability cannot co-exist because liability under either excludes the existence of the ground upon which the other liability rests.
Mention is made in the majority opinion of the opening statements of counsel. New causes of action cannot be alleged by plaintiffs attorney stating to the jury what his facts would show.
The effect of the amendment is to permit the plaintiff, on the basis of evidence introduced on the trial of one issue, to claim and the jury to award damages on a distinct theory which was neither tried nor placed in issue in time to be tried and which in effect is a departure from the theory upon which the cause was tried. To my mind the situation is a flagrant example of the abuse of judicial power the statute was designed to prevent.
It is said in the opinion:
“After allowance of the amendment defendants made no request for continuance, or time, nor sought to amend their answer, which contained a denial of allegations of negligence and a plea of contributory negligence, nor made any request to introduce further evidence.”
After both plaintiff and defendant had rested, the record discloses the following:
“Mr. Fred Reily: If the court please, at this time, the plaintiff desires to file an amendment to his petition to conform to the evidence, and we ask leave to file an amended petition to conform to their proof and to conform to our proof.
“Mr. Gibbens: The defendant objects as being a complete change of the issues in the case, and a change the defendant is not prepared to defend, and it comes as a complete surprise to these defendants.
“The Court: Let the record show the objection is overruled; the application to amend the petition to conform to the evidence is granted.
“Mr. Gibbens: The defendants except.”
In view of the fact that the amendment was in reality the allegation of a new cause of action, I think the grounds of objection of the defendant were sufficient.
Since the issue of negligence of the company alleged in the petition has not been tried below, I think the question of the sufficiency of the amendment to state and that of the evidence to prove a right of action thereunder is not properly involved on this appeal.
However, if it were proper to consider the amendment and the evidence supporting it, I think the judgment would have to be reversed for it nowhere appears that defendant knew that plaintiff did not know of his diseased condition and any consequent danger therefrom. For that reason I think instruction No. 9 was erroneous and instruction No. 16 was equally erroneous.
Mr. Justice BAYLESS concurs in these views.