dissenting: The plaintiff’s intestate was killed in South Eichmond in the service of the defendant while repairing a coal chute that was used for coaling and sanding engines used in both interstate and intrastate commerce. Before the expiration of the year thereafter the plaintiff qualified as his administrator in Wilson County, N. 0., and brought suit in the Superior Court of that county. In filing his complaint he alleged the remedy he sought to be under the Federal Employers’ Liability Act. After 12 months had expired, upon permission of the court, he filed an amended complaint in which he reiterated the matters and things alleged in the original complaint, and, in addition, *189claimed tbe remedy under tbe Virginia statute. On motion of tbe defendant, tbe case was moved to tbe Federal Court, where a motion was made by defendant to dismiss tbe demand for tbe remedy alleged under tbe Virginia statute because more than 12 months bad elapsed since tbe death of tbe plaintiff’s intestate before filing tbe complaint. In tbe Federal Court it was held that tbe case, was one that arose under tbe Federal act, but intimated that tbe additional remedy claimed in tbe amended complaint was barred by tbe statute of limitations. ’ Thereupon tbe plaintiff submitted to a voluntary nonsuit as to that, and on bis motion tbe cause was remanded to tbe State court to be tried under tbe Federal act.
In the State court tbe defendant renewed bis motion to nonsuit tbe plaintiff on tbe ground that tbe plaintiff’s intestate was not engaged in interstate commerce at tbe time of bis death, and hence tbe action was not triable under tbe Federal act. Tbe nonsuit was granted, and on appeal to tbe Supreme Court of North Carolina, this Court affirmed tbe decision of tbe lower court, and an application thereafter by tbe plaintiff to the Supreme Court .of tbe United States for a writ of certiorari was denied. Immediately, however, after tbe case was remanded to tbe State court, tbe plaintiff, who bad submitted to a nonsuit on bis right of remedy under tbe Virginia statute, and before 12 months bad expired, instituted a new suit in tbe Superior Court of Wilson. Tbe defendant pleaded in bar, but this was overruled by Calvert, J., who held that tbe cause of action set out in tbe three pleadings, to wit: By tbe original complaint filed in tbe first suit; amendment thereto, and tbe complaint filed at tbe last suit were tbe same, and not two distinct causes of action. Tbe defendant appealed, but at September term of this Court tbe appeal was dismissed as premature, and in tbe lower court tbe same plea was made at tbe October term of Wilson, before Allen, J., and overruled. Tbe case was tried on its merits, and a verdict of $8,000 was awarded, and from tbe judgment tbe defendant appealed.
It would seem clear that -the sole question is whether or not tbe cause of action set out in tbe three pleadings, to wit: Tbe complaint filed in tbe first suit, seeking tbe remedy under tbe Federal Employers’ Liability Act; tbe amendment adding to that action on tbe same facts a recovery under tbe remedy allowed under tbe Virginia act; and tbe complaint filed in tbe second action brought in Wilson were on tbe same cause of action. Tbe cause of action is one and tbe same — the wrongful death, which occurred but once, and therefore under tbe identical circumstances and at tbe time set out in all three complaints. Tbe jury have settled, upon tbe facts, that tbe death of plaintiff’s intestate was caused by tbe wrongful act of tbe defendant, and that $8,000 is a just measure of compensation which should be awarded.
*190While the remedy which could be awarded for recovery under the Federal Employers’ Liability Act and the remedy under the Virginia act may be somewhat different, the fact remains that there is and can be only one cause of action. Whether the plaintiff claimed a remedy under one act or the other, there was but one cause of action. It would follow, therefore, that when the amendment was allowed to set up a claim for the Virginia remedy, it was not another or different cause of action, but like a second count in a bill of indictment where the transaction is stated in a different form but in reference to the same offense.
When the plaintiff brought his action for the wrongful death, which was valid under the Virginia statute and under the Federal act, if in either a wrong remedy was asked it in no wise affected the statute of limitations of the cause of action. The proceedings in each was in a court having proper jurisdiction, and the subsequent addition, not of another cause of action, but of a claim for a somewhat different remedy, in no wise affected it.
If these were separate and distinct causes of action for the same wrong, then if the plaintiff — who could not guess in advance how the Court would hold — had sought to join them, the action would have been demurrable as multifarious. If he had brought two separate and distinct actions, then the defendant could have pleaded the pendency of two actions for the same transaction. This would be worse than the former system of pleading by which if a man did not guess as to what the Court might hold was the proper form of action he would go out of court again and again until he could guess the form of action which the judge might approve; or if he had brought his action at law when it should have been a suit in equity or vice versa, he would go out of court.
It seems, according to the present common-sense method of pleading, that the plaintiff, who is entitled to bring an action for the wrongful death of his intestate, instituted a proceeding setting out the facts thereof, and he was in court claiming compensation for that wrong regardless whether he asked for a remedy under the Federal act or under the Virginia statute.
It follows, therefore, that he having asked, upon the identical facts set out in the complaint, relief under the Federal act, he could amend by asking the additional remedy under the Virginia statute. He could not guess how the judge might view the legal remedy applicable, and therefore the plaintiff has been in court since issuing the first writ under both statutes which give a remedy for the same wrongful death, leaving it to the courts to decide whether it was under one statute or the other.
The amendment, setting up and claiming a remedy under the Virginia statute, was not a new cause of action, and dated back to the original summons.
*191lt is true that tbe plaintiff subsequently took a nonsuit as to tbe assertion of a claim for tbe remedy afforded by tbe Virginia statute, but be instituted a new action witbin 12 months, and, therefore, having come into court witbin tbe time prescribed by tbe Virginia Court, be was authorized to bring this new action.
In Lassiter v. R. R., 136 N. C., 89, this Court held, in an action to recover damages for tbe death of plaintiff’s intestate by wrongful act in another state, where tbe complaint would state a good cause of action bad tbe death occurred in tbe state of tbe forum, an amended conf-plaint setting forth tbe statute of tbe foreign state, which was not done in tbe original, does not introduce a new cause of action, nor admit tbe bar of tbe statute of limitations prescribed by tbe foreign statute giving tbe right of action. Our Code provides that “permitting an amendment setting up additional facts does not add to or change tbe cause of action even when there was a failure to allege an essential fact, but merely gives power to amend by inserting other allegations material to tbe case.” “Tbe perfecting of tbe complaint to cure a defect in tbe complaint, even in material matters, is not changing tbe cause of action nor adding a new cause, but merely making a good cause out of that’ which was a defective statement of a cause of action because of tbe omission of .material allegations.” But this is not even that case. Tbe facts were substantially tbe same as set out in all three instances, to tbe same tenor, and tbe only difference is as to what remedy tbe plaintiff asked or was entitled to receive whether under tbe Virginia statute or under tbe Federal Employers’ Liability Act.
In Lassiter v. R. R., supra, tbe Court said: “Tbe subject of an action is tbe thing, tbe wrongful act for which tbe damages are sought, tbe contract which is broken, tbe act which is sought to be restrained, tbe property of which recovery is asked. Tbe object of an action is tbe relief demanded, tbe recovery of damages or tbe land or personalty sued for, tbe restraint or other relief demanded.” In this case there is but one state of facts, therefore there is but one cause of action; and they have been pending in court since tbe first writ was issued, and against that no statute of limitations has run under either statute. Tbe demand for tbe damages, tbe relief, has been pending since tbe first complaint was filed, and it can make no difference that at one time tbe relief under tbe Virginia statute was added, and that at another time it was withdrawn, because during all tbe time this state of facts has existed in court, which tbe jury has found to be true, that tbe plaintiff’s intestate, under those circumstances, came to bis wrongful death by tbe cause of tbe negligence of tbe defendant, and damages were asked to be assessed. Whether tbe particular form of relief should be granted under the Virginia statute, or under tbe Federal statute, there has been only one cause *192of action instituted. Tbis was instituted witbin tbe statutory period, and lias always been pending, and whether tbe relief sought was under one statute or tbe other, there has been no laches on the part of the plaintiff which entitled the defendant to go out of court without payment, for the wrongful death that he has caused.
In the Lassiter case it is said: “The cause of action plus the right of action thereon constitute what our code styles a good cause of action.”' The injuries complained of in the original complaint filed by the plaintiff, together with his right to sue thereon under the statute of Virginia, constitute a good cause of action, but since the allegation left out, to wit r pleading of the Virginia statute, it was simply a defective statement of a good cause of action, and not a good statement of a defective cause of action, and in such cases the courts have universally held that a complaint may be amended to cure a defective statement of a good cause of action, and in such cases the amendment relates back to the time of filing the original complaint.”
In Pelton v. R. R., (Iowa), 150 N. W., 236-243, approved since in U. S. Supreme Court, the Court held, in effect, that if the original complaint does not allege a cause of action under the Federal act, we are of the opinion that the court had the power to permit it to be amended by alleging that the defendant was employed in interstate commerce at the time of his injury.”
In Renn v. R. R., 170 N. C., 128, the Court cites from R. R. Wulfe, 226 U. S., 570, and says: “In that case Sallie C. Wulfe commenced an action in the U. S. Circuit Court in her individual capacity to recover damages for the death of her son, who was killed in Kansas, under a right of action provided by statute for injury resulting in death. The defendant was engaged in interstate commerce, and the intestate was killed while employed in that commerce. The plaintiff could not sue in her individual capacity under the Federal act. More than two years after the injury'the Circuit- Court permitted an amendment, by which she was allowed to prosecute the action as administratrix of her son. The U. S. Supreme Court approved the amendment, and held that it was not equivalent to the commencement of a new action, so as to-render it subject to the two-years limitation prescribed by section 6 of the Federal Employers’ Liability Act, and that the amendment related back to the beginning of the action.”
In the Berm case the Court said: “When the Federal Employers Liability Act was passed, an anomalous situation was created for that there were two lines of remedies for cases of this kind emanating from different legislative jurisdictions, the one necessarily exclusive of the other, both administered by the same court, and the respective applicability of the one or the other, both determined solely by the relation, or *193want of relation, of the parties to intrastate commerce. It is manifestly desirable that sucb an anomaly should not be made a mere pitfall, and that it should not become an undue obstacle to the prosecution of a cause of action on its larger merits.” This is exactly what the plaintiff is seeking to have held by this Court on this appeal.
There was but one occurrence, creating one cause of action upon the same identical state of'facts. If among those facts the jury should find that the plaintiff’s intestate was killed while employed in intrastate commerce, that would entitle the plaintiff to recover the remedy prescribed by the Virginia statute. If, on the contrary, the jury should determine at the trial that the plaintiff’s intestate was killed while engaged in interstate commerce, then the plaintiff would be entitled to recover the remedy prescribed by the Federal Employers’ Liability Act. The merits are the same in either case. Whether the intestate was engaged in inter- or intrastate commerce does not affect either the cause of action or the right of action, nor the jurisdiction, but merely the remedy to be granted by the same court. Our statute provides, and we have always held, that the relief demanded is immaterial, and that the plaintiff is entitled to recover whatever remedy the facts found by the ■jury entitle him to receive. O. S., 506 (3), and cases cited thereunder.
This being so, and there having never been but one cause of action, the statute of limitations ceased to run from the issuance of the summons in the first case, and from that time the allegations in the complaint have constituted a pending cause of action, on which, if proven, the plaintiff was entitled to recover. It might have been alleged, in claiming the recovery, that the defendant was engaged in interstate commerce, and' in the same complaint, or by amendment, that he was engaged in intrastate commerce, but neither of these affected the right of action. Both could have been alleged at the same time, and if one of these were omitted it could be supplied by an amendment, and when this was done the statement of the cause of action being thus perfected, dated back to the issuance of the original summons. And when a nonsuit was taken under the Virginia cause of action, this could be reinstated within 12 months after such nonsuit in the terms of their statute.
Shifting from asking one remedy to another, or adding an additional claim for remedy upon the same state of facts, does not work any change in the cause of action. This has been often decided. In Woodcock v. Bostic, 128 N. C., 243, the Court held that an action at law may be converted into a suit in equity by an amended complaint when the facts of the transaction at the base of both are the same, without the statute of limitations coming into play. There are numerous decisions in the other states to the same effect, but this is a clear statement in our own Court of the basic principle of our procedure, which abolishes.,, distinc*194tions in forms of action and tbe distinction formerly existing between actions at law and proceedings in equity. In all tbe courts in wbicb tbe reform procedure obtains, it bas been beld tbat a change from tort to contract, or vice versa, by amending tbe pleadings, is regarded as a mere variation in a matter of form. In Howard v. R. R., 11 App. D. C., 300, it was beld tbat wben an amendment bas been made to a declaration, tbe question wbetber tbe action bas been thereby opelied to tbe bar of limitations depends upon tbe matter of substance. Wbetber tbe question of action remains tbe same is tbe test, and tbe mere change from tbe form of action in assumpsit to one in tort is immaterial. In several of tbe states where an action can be grounded upon a right conferred by statute, or upon a right at common law, it bas been beld tbat where tbe basic transaction is tbe same tbe change from one to tbe other does not make a new cause of action.
In R. R. v. Pointer, 113 Conn., 952, tbe Court beld tbat where, in an action against a railroad corporation for negligently causing tbe death of tbe plaintiff’s intestate in another state, tbe plaintiff omits to plead tbe foreign statute giving a right of action for such cause, be may amend and supply such omission, and tbe amendment will relate back to tbe commencement of tbe action so tbat tbe bar of tbe statute of limitations will not come into play.
Tbe Supreme Court of North Carolina bas repeatedly beld tbat there is a distinction between tbe cause of action and tbe right of action, tbe cause being tbe wrongful acts wbicb caused tbe death and tbe consequences, the right of action being tbe right to sue for tbat cause conferred by tbe statute, and tbe Supreme Court of tbe United States bas repeatedly upheld such decisions of this Court, though in some jurisdictions a contrary doctrine bas been sustained.
There bas been much ingenuity in arguing tbat tbe plaintiff bas lost tbe right to recover for tbe wrongful death of bis intestate, but upon tbe plain intendment of our statutes and procedure, and in equity and justice, in this case in wbicb tbe allegations in tbe complaint have been approved by tbe jury, and therefore must be taken as true, tbe beneficiaries of tbe deceased are entitled to recover compensation for tbe wrongful death inflicted upon, him by tbe defendant.
Within tbe statutory time, tbe plaintiff brought this action upon tbe allegations of facts wbicb have been sustained by tbe jury, and wbicb, as a matter of law, wbetber under the Federal statute or under tbe Virginia statute entitle tbe plaintiff to recover. Tbe only difference bas been, not as to tbe cause of action, or as to tbe damages, or as to tbe right of tbe plaintiff to recover, but wbetber be was entitled to tbe remedy granted by tbe Virginia statute or under tbe Federal statute. This being so, and the cause of action having been pleaded and pending in court ever since *195the original summons were issued, certainly the plaintiff should be entitled to recover, irrespective whether the remedy asked should be that authorized by one statute or the other, or under both, or whether both remedies were asked in the same action, or whether one was added and unaffected by the fact that in deference to the ruling of a judge who took a contrary view, a nonsuit was entered as to the demand for remedy under the Yirginia statute, especially as that demand was reinstated 'in a new action instituted within 12 months, as authorized by the Yirginia statute.
An action for a serious wrong in a court of justice ought not to be denied upon metaphysical distinctions, or ingenious discussions based upon a matching of wits between counsel. The judgment obtained by the plaintiff, after so long a delay, upon a verdict of the jury, in my judgment, should be affirmed.