On Motion for Re-hearing-.
Ellison, J.A motion for re-hearing was duly presented in this case in which two points are made against the opinion heretofore promulgated.
It is earnestly urged that the cause of action was-not changed by the amendment made after the reversal of the cause by the Supreme Court, and in consequence' the statute of limitations would not bar the claim. The reasoning of counsel is very persuasive of the correctness of the position taken. But the question is not an. open one in this state. .Under the rule, as frequently declared by the Supreme Court, the amendment in this-case was an introduction of a new cause of action.
It is also contended that the opinion in this causéis in conflict with that of Silvers v. Railroad (21 Mo. App. 5), wherein we declare, on the authority of Scovill *567v. Glasner (79 Mo. 449), that by answering defendant waived any alleged error in the court’s overruling a motion to strike out an amended petition as being a change of the cause of action. That ruling was correct, but as the defence of the statute of limitations was pleaded in the answer in that case and an instruction on limitations was refused, the question as to the change of the cause of action was, by this means, again raised and we should, in order to have been better understood, have proceeded to say in that opinion that the court properly refused the instruction, as, in that case, there was no change of the cause of action. The original was an imperfect and inartistic statement, but both it and the amendment were evidently based on Revised Statutes, section 809. The motion is overruled.