(dissenting). My associates concede that the question presented is a *297very close one and that the stipulation which, to some extent, is relied on by plaintiff, cannot be construed as a waiver of the period of pre-emption.
I believe that the most important thing to determine is whether or not the defendant will or may be prejudiced by allowing the amendment.
Being of the opinion that the proof necessary to the establishment of the allegations in the second or so-called amended petition must have been essentially different from what would have been required to establish those set forth in the original petition, I believe that the second petition was not an amendment of the first, but, in fact, constituted the setting up of a new and different cause of action.
In Clark v. Gulf, Mobile & Northern R. R. Co., 132 Miss. 627, 97 So. 185, 186, is found a ease resembling this one more closely than any of the others cited on either side, and in it the Supreme Court of Mississippi said:
“The original declaration is purely a suit to enforce an .unusual and exceptional right in derogation of the common law-given by this statute. The amendment stated facts for which a cause of action is given either under the common law or the federal Employers’ Liability Act, whichever law governs. By this amendment there was therefore a change from the Mississippi statute in derogation of the common law to the federal Employers’ Liability Act. This is a change or departure from law to law, and therefore the second count states a different cause of action. U. P. Railroad Co. v. Wyler, 158 U. S. 285, 15 S. Ct. 877, 39 L. Ed. 983, is directly in point and determinative of this question. In that case the converse of the question here presented was before the Supreme Court of the United States.”
Counsel for plaintiff relies much on New York Central & H. R. R. Co. v. Kinney, 260 U. S. 340, 43 S. Ct. 122, 67 L. Ed. 294, in which the Supreme Court said that the reason for the enforcement of the statute of limitation does not exist where the defendant has had notice that the plaintiff sets up and is trying to enforce a claim against it, because of conduct specified in the first petition. I, of course, agree with the reasoning of that decision, and I would readily concur in the majority opinion here if I felt that the first petition had set up conduct as a result of which recovery could be had under the second petition. But I believe that by the very reasoning of that decision the sustaining of the plea of' prescription is imperative here.
When the first petition was filed, defendant, it is true, was thereby put on notice that an accident had occurred and that plaintiff’s husband had been killed. But at the same time, and by the same petition, defendant was also put on notice that the suit was brought under the state Compensation Act. There was no alternative prayer that in the event that the state Compensation Act had no application defendant was liable by reason of the negligence of its employees, but the suit was brought solely and only under the state Compensation Act, and under that act the question of negligence vel non did not enter into the case.
More than two years later, by the amendment, defendant was told, “it is your negligence which caused the accident.” Thus, after being lulled into a sense of security so far as the necessity of disproving negligence was concerned, defendant, who may have allowed its employees to become scattered and may have allowed its *298records and statements to be destroyed or lost, found itself under the necessity of re-preparing the case on a new issue entirely.
As illustrative of the fact that in the many cases referred to in the majority opinion the amendment was allowed because both the original petition and the amended petition relied for recovery on negligence, I cite the decision of the Supreme Court of the United States in Seaboard Air Line R. R. Co. v. Koennecke, 239 U.. S. 352, 36 S. Ct. 126, 127, 60 L. Ed. 324, in which that court said:
“The cause of action arose under a different law by the amendment, but the facts constituting the tort were the same.”
It immediately appears that the two claims presented in that case both were alleged to result from tort or negligence, and that therefore the acts complained of were the same, whether the suit was tried under the first petition or under the amendment. But here, if the suit had been tried under the first allegation, negligence would have had no part whatever in the matter, while, if it had been tried under the second, negligence was the sole issue.
I think that all of the reasons for the enforcement of the period of pre-emption as fixed in the federal statute are extant here.
I therefore respectfully dissent.