dissenting: The appeal brings sharply to the front what happened before Judge Frizzclle when the matter was before him upon defendants’ first demurrer. Decision of this case definitely rests on a proper interpretation of his judgment, its intent and effect, and his power to allow the amendment which was made to the complaint. That neither the intent nor the effect of his order was to dismiss the action for failure to state a cause of action, is, I think, apparent from his statement of the nature of the objection and his action thereupon as found on page 3 of the record.
The objection to the complaint did not go to a defect in the cause of action, but only to its defective statement. The judgment thereupon did not dismiss the cause of action, but on the contrary, allowed an amendment. The demurrer was not general but was special — directed to a particular objection to the complaint, amendable on the face of the objection, and the judgment, eodem modo, authorized an amendment in that particular. H did not go to the cause of action but to a defect in its manner of statement.
A reading of the original, complaint makes clear the propriety and the discretion in the court in permitting the amendment as clarifying or making more certain a merely defective statement of a good cause of action.
*579The complaint alleges that plaintiff’s intestate was killed through .the negligence of the defendant and states that the facts wer.e as follows:
. ., while the plaintiff’s intestate was driving his truck from Wilson, N. C., towards Raleigh, N. C., in a prudent and careful manner on the right hand side of the highway approaching the town of Sims and on a,straight and unobstructed section of said highway, the defendant’s truck was so carelessly and negligently driven that it was run into and upon the rear end of plaintiff’s intestate’s truck, knocking the said intestate’s truck along the highway for a considerable distance, throwing the said intestate out of his truck and upon the highway, killing said intestate and damaging and destroying said truck; and from the impact of the collision causing said plaintiff’s intestate’s truck to run off the highway some distance in an adjacent field.”
The acts attributed to defendant, in their physical implication, spell negligence in any language, lay or legal, implying excessive speed, want of lookout, failure to apply brakes, at least.
Supposing the complaint to be merely defective in its statement of the cause of action, — is it amendable? Not only so, but that is enjoined by the statute, its propriety is urged by the courts, and it is familiar practice. G. S., 1-163, and annotations. The change in the system of pleading from common law to code is supposed to prevent technical defeat of justice by substituting for a baseless strictness a liberality which will promote trial on the merits. Page v. McDonald, 159 N. C., 38, 74 S. E., 642; Bullard v. Johnson, 65 N. C., 436, 438; Cheatham, v. Crews, 81 N. C., 343, 345.
The plaintiff before Judge Frizzelle was in the same position as one who has alleged fraud in an action for deceit and has not stated the .particulars, or facts constituting the fraud, and the sufficiency of the complaint has been challenged. If he elects to stand by his pleading, the court, in the exercise of its supervisory powers, may dismiss his action; if he desires to amend, that privilege, in the discretion of the court, is uniformly accorded him. ' The limitation of the power of the court to permit amendments to the complaint is that the court is without power to allow such amendment when the effect is to change the asserted cause of action into another, or add a new cause of action, or change the subject matter of the original action. Lefler v. Lane, 170 N. C., 181, 86 S. E., 1022; Wilmington v. Board of Education, 210 N. C., 197, 85 S. E., 767; 41 Am. Jur., 508, Sec. 310. From Lefler v. Lane, supra, I quote:
“Under the statutes regulating our present system of procedure, Revisal 1905, sec. 507 (now O. S. 547) et seq., and numerous deci*580sions construing the same, tie power of amendment has been very broadly conferred, and may and ordinarily should be exercised in furtherance of justice, unless the effect is to add a new cause of action or change the subject-matter thereof, and our cases on the subject hold that, where the amendment is germane to the original ■ action, involving substantially the same transaction and •presenting no real departure from the demand as originally stated, it shall, when allowed, have reference by relation to the original institution of the suit. Gadsden v. Crafts, 175 N. C., 358, 361, 95 S. E., 610; McLaughlin v. R. R. 174 N. C., 182, 93 S. E., 748; R. R. v. Dill, 171 N. C., 176, 88 S. E., 144., ‘It is expressly provided by statute that if a demurrer is filed the plaintiff may be allowed to amend.’ C. S., 513.” Goins v. Sargent, 196 N. C., 478, 481; 482, 146 S. E., 131. See G. S., 1-163.
The emphasis in the above quotation is supplied, but note its significance. It is in accord with 41 Am. Jur., 509, Sec. 315:
“Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth in the original pleading, the amendment relates back to the date of the original pleading.” Fleischman Constru. Co. v. United States, 70 U. S., 349; 70 L. ed. 624 (This bears on a statute similar to ours in respect to the condition that the suit must be brought within a year.)
In the instant case the plaintiff has never pursued any other cause of action or joined issue with another defendant.
What is the effect of such an amendment when made? What relation does it have to the elapse of the period during which the action must be brought ? The theory that the one year of grace given by the statute 'to begin the action automatically dates from the filing of a complaint invulnerable on any ground works a supersession of the statutes cited and recognized liberal rules of civil procedure, and is definitely contrary to authority heretofore followed.
A civil action is begun by the issue of a summons. G. S., 1-88. The Court will take judicial notice of the summons to ascertain when the action was commenced, Harrell v. Lumber Co., 172 N. C., 827, 90 S. E., 148, and it will be presumed to have issued at the time it bears.
The complaint when filed in accordance with the statute relates back to the issue of the summons. This much is conceded in the main opinion to be ordinarily true, but it is held that the case at bar forms an exception because the complaint was not perfected within the year following the death.
*581The conclusión reached by the Court rests on the authority of George v. R. R., 210 N. C., 58, 185 S. E., 431; the same case reported in 207 N. C., 457; and Ballinger v. Thomas and So. R. R., 195 N. C., 517, 142 S. E., 761. These cases form a triad to be studied together and are not in disagreement with the position I have taken. All of them refer to defective causes of action dismissed upon demurrer and not within the power of the Court to renew by amendment. The decisions in the two George cases rest upon the authority of the Ballinger case. In that case the complaint not only did not state a cause of action but it affirmatively negatived such a cause, and the opinion therein, by Mr. Chief Justice Stacy, said that the effect of the complaint was the same as to have stated a cause of action against the railroad company and then to have withdrawn it. The action against the railroad company was, therefore, dismissed. In George v. R. R., 207 N. C., 457, where the situation in so far as insulated negligence was concerned, was so stated in the complaint as to exonerate the defendant and form an exact parallel with the situation in the Ballinger case, the brief opinion by Justice Brogden dismissed the action by a reference to the controlling authority of the Ballinger case. When the case came back here on appeal, in George v. R. R., 210 N. C., 58, there had been an attempted amendment, but this Court, in an opinion by Mr. Justice Devin, dismissed .the action on the ground that the former judgment of Brogden, J., had become the law of the case. It is true that attention was called to the fact that the amendment was not made within one year after the alleged wrongful death; but the continuity of the relation back was broken by the former dismissal of the action for a defect going to the cause of action.
In Capps v. R. R., 183 N. C., 181, 111 S. E., 533, the plaintiff brought his action in the State court under the Federal Employers’ Liability Act and after it had been pending for more than a year after the wrongful death sought by amendment to substitute for the. action created by this statute a cause of action under the State law. The opinion by Mr. Chief Justice Stacy held that the effect of the amendment would be to create a new cause of action and beyond the power of the Court to allow; again calling attention to the fact that the substituted cause of action had been asserted for the first time more than a year after the wrongful death.
All of these cases taken together are too disparate in legal principle, history and in factual conditions to be cited as authority for the position now taken in this decision. In all of them the judgment was final, going to the cause of action, and could not be renewed by an amendment. 41 Am. Jur., Pleading, Sec. 251. In the ease at bar the amendment was within the power of the Court and the principle of relation back not *582disturbed. 41 Am. Jur., Pleading, See. 315; Gadsden v. Crafts, 175 N. C., 358, 361, 85 S. E., 610.
The judgment of nonsuit should be reversed and the case sent back for a.trial on the merits.