(dissenting). — I cannot agree to the conclusion reached in this case by the majority of the Justices on the question of the statute of limitations, pleaded as a defense to the amended counts of the complaint, and I therefore dissent from their decision, and am constrained, because of the importance of the question, to express my views of the law on the subject, thereby giving my reasons for such dissent. The cause of action as stated in the original complaint is the death of the plaintiff’s intestate, resulting as a proximate consequence from the negligent failure of the defendant to furnish the deceased a reasonably safe place to Avork, in the performance of his duties as a servant and employe. In the third count, which Avas introduced by way of amendment, and to which the defense of the statute of *597limitations ivas pleaded, tlie cause of action as stated is the death of the plaintiff’s intestate, caused by the negligence of a person in the superintendence and control of defendant’s business, in the giving of orders to which said intestate was bound to conform and did conform, and in doing so ivas killed. In the original complaint the liability is based on the common-law7 duty of the master to the servant to .furnish the latter a reasonably safe place in which to work in the discharge of his duties under the employment. In the count introduced by amendment the liability is statutory, and is predicated on subdivision 3 of the employer’s liability statute (section 1749 of the Code of 1896). The question presented for consideration is not whether the amendment, ivas permissible ; but, conceding that it ivas, the question is: Did it relate back to the filing of the original complaint, so as to cut off the defense of the statute of limitations?
In the opinion of my Brother Anderson speaking for the majority of the court, after citing a number of cases of other jurisdictions, and from which extracts are quoted, it is said: “We think that the amendment in the case at bar ivas ivithin the lis pendens, according to the overwhelming weight of authority in other states, and that our oivn court is committed to the same holding” —citing L. & N. R. R. Co. v. Woods, 105 Ala. 561, 17 South. 41; Williams v. McKissack, 125 Ala. 547, 27 South. 922. “We do not consider that what w7as held in the case of Nelson v. First Nat. Bank, 139 Ala. 593, 36 South. 707, 101 Am. St. Rep. 52, is in conflict with this opinion, as the only point decided w7as that, the first count being for money had and received, the second count, being for goods sold, set up a new7 cause of action, which would not relate back, so as to intercept the statute of limitations. Therefore, if anything is said in that opinion in conflict with our holding in the cause at bar, *598it is dictum. * * " The first count of the complaint [in the case at bar] was attempted under section 27 of the Code of 1896, and the amendment was brought, under section 1749. But, conceding that the first was under the common law and the other under the statute, and that there was a change from £law to law,’ this would not prevent the amendment from relating back” — citing Lassiter v. Norfolk R. R., 136 N. C. 89, 48 S. E. 643; L. & N. R. R. Co. v. Pointer's Adm’r, 113 Ky. 952, 69 S. W. 1110; Miller v. Erie R. R. Co., 109 Rpp. Div. 612, 96 N. Y. Supp. 245.
It may not be amiss in this connection, for the purpose of showing that the decision in the Nelson Case was not 'the result of any hasty, but of a very thorough and deliberate, consideration by the court, to state something of its history in this court. When the case was first submitted, elaborate arguments by counsel, both oral and in writing, were had. A conclusion was reached and announced, and thereupon an application was made for a rehearing, on which additional briefs were filed, and upon consideration the application was granted, and the decision theretofore rendered set aside. A second application for rehearing was then filed by the opposite party, and the court of its own motion had the cause restored to the trial docket and set down for further oral argument by counsel, and then it was, after mature deliberation, the case was decided as reported in 139 Ala. 593, 36 South. 707, 101 Am. St. Rep. 58, all of the Justices then composing the court concurring. It may also be said in this connection that no new or novel doctrine is announced in that case. The principles declared were but a reaffirmance of what had already been decided in a number of cases by this court, as may be clearly shown by a review of the cases.
*599In King v. Avery, 37 Ala. 169, this court, speaking through Stone, J., states the rule as follows: “We think the rule must he regarded as settled by the authorities that ‘if, during the pendency of a suit, any new matter or claim, not before asserted, is set up and relied upon by the complainant, the defendant has a right to insist upon the benefit of the statute until the time that the new claim is presented, because until that time there was no lis penclens as to that matter between the parties.’ On the contrary, if the amnedment set up no new matter or claim, but simply varied the allegations as to a subject already in issue, then the statute will run only to the filing of the original bill.” In Lansford v. Scott, 51 Ala. 557, the case of King v. Avery is cited and followed, quoting the extract given above from that case, and it was there ruled that, where the original complaint was on a promissory note, an amendment by adding the common count on an account for which the note was given did not relate back to the commencement of the suit, and the statute of limitations ran to the filing of the amendment. In Hendon v. White, 52 Ala. 97, this court, speaking through Brickell, C. J., on page 606, said: “The general rule is that amendments of pleadings have relation to the commencement of suit, without regard to the time or the stage of the cause when introduced. This fiction is not permitted to operate so as to deprive the party against whom the amendment is made of any substantive right. An amendment of a complaint or declaration, introducing a new claim or new matter as to which the statute of limitations has perfected a bar, cannot by relation be referred to the commencement of suit, to avoid the bar” — citing King v. Avery, supra. In Mohr v. Lemle, 69 Ala. 180, this court, again speaking through Brickell, C. J., on page 183 said: “The latitude of amendment allowed the *600plaintiff cannot be permitted to work injustice to the defendant, or to deprive him of any just and rightful defense. The plaintiff may introduce a new cause of action by amendment; but such amendment cannot have relation to the commencement of the suit, so as to avoid the bar of the statute of limitations, if the statute would operate a bar to a■ new suit commenced for that cause at the time of maldng the amendment. The whole doctrine of relation rests in a fiction of law, adopted to sub-serve and not to defeat right and justice. When the amendment introduces a new right or new matter, not within the lis pendens and the issue between the parties, if at the lime of its introduction as to such new right or matter the statute of limitations has operated a bar, the defendant may insist 'apon the benefit of the statute, and to him it is as available as if the amendment were- a new and independen'1- suit” — citing King v. Avery, supra, and Lansford v. Scott, supra. The italicizing above is mine, and is made for reasons that will appear later in what I shall have to say on the question under consideration.
In the case of Adams v. Phillips, 75 Ala. 461, this court, again speaking through Brickell, C. J., on page 463, said : “But if, in the exercise of the right of amendment, new matters or claims are asserted not within the lis pendens, if the amendment is not merely and strictly remedial, curing a defective or imperfect statement of the cansé of action in the original bill, or merely modifying or varying its allegations, the matter or claim introduced hv the amendment will not he referred to the filing of the original hill,,to the prejudice or injury of the parties against whom the amendment is made’* — citing King v. Avery, supra, and quoting from that case the extract hereinabove quoted. Again, in the case of Evans v. Richardson, 76 Ala. 329, this court, speaking through *601Clopton,. J., on page 332, said: “The limitation upon this doctrine of relation to the commencement of the suit is that the amendment will not be permitted to deprive the defendant of any rightful and legal defense. When any new matter or claim (italics ours), not within the Us pendens and the issue between the parties, is introduced by amendment during the progress of the suit, and the statute of limitations operates a bar to such new matter or claim at the time of its introduction, the defendant may insist upon the benefit of the statute as if the amendment were a new and original suilv — citing King v. Avery, supra, and Mohr v. Lemle, supra. To the same effect is the case of Winston v. Mitchell, 93 Ala. 554, 9 South. 551, in an opinion by the same justice. Again, in the case of Turner v. White, 97 Ala. 545, 12 South. 601, this court, speaking through Justice Haralson, on page 550 of 97 Ala., page 603 of 12 South., said : “It is a principle often repeated: Tf,- during the pendency of a suit, any new matter or claim not before asserted, is set up and relied upon by the complainant, the defendant has the right to insist upon the benefit of the statute until the time that the new claim is presented, because until that time there was no Us pendens to to that matter between the parties’ ” — citing King v. Avery, supra, and Anniston & A. R. R. Co. v. Ledbetter, 92 Ala. 326, 9 South. 73. To the same effect are the following cases: Jones v. McPhillips, 82 Ala. 112, 2 South. 468; Springfield, etc., Co. v. DeJarnett, 111 Ala. 248, 19 South. 995; Steiner Bros. v. National Bank of Birmingham, 115 Ala. 379, 22 South. 30; Teal v. Chancellor, 117 Ala. 612, 23 South. 651; Freemam v. Railroad Co., Infra, 45 South. 898.
As opposed to the foregoing cases, the case of L. & N. R. R. Co. v. Woods, 105 Ala. 561, 17 South. 41, is cited in the opinion of my Brother Anderson, and relied *602upon as an authority in support of the decision by the majority in the case ai bar. It, is said in the opinion that the Woods Case was cited approvingly in the case of Williams v. McKissack, 125 Ala. 547, 27 South. 922, and we may here add the case of King v. Avery, 37 Ala. 169, also, was cited approvingly in that case. The Woods Case, 105 Ala. 561, 17 South. 41, seems to be a much misunderstood case. When properly understood, it is not opposed to the leading case of King v. Avery, supra, and other cases following that one. In the Woods Case the complaint as originally filed contained but one couni. It averred that the injury arose “on account of the negligence of the agents, servants, or employes, who were fellow servants,” without the necessary averments under the statute'of superintendence and control, etc. Evidently it was intended by the pleader, and was an effort, though an abortive one, to bring the action under the employer’s liability statute (section 1749 of the Code of 1896). The cause of action was the negligent injury of the plaintiff. To fix the liability for the negligent injury on the master under the statute, where the injury was the result of the negligence of a fellow servant, certain averments were necessary, as that of “charge or control” by the negligent servant of the agency through which the injury was inflicted. The complaint contained a defective statement of a good cause of action, as contradistinguished from a statement of a defective cause of action; a distinction well taken in the case of Lassiter v. Norfolk & C. R. R. Co., 136 N. C. 89, 48 S. E. 643 (same case reported 1 Am. & Eng. An. Cases, 456), and'which case is cited in the opinion of my Brother Anderson. In the first instance the defect may be cured and the complaint perfected by amendment, while in the latter it may not be; and this perfecting of the complaint by the addition of the necessary averment could be done without varying *603the cause of action as originally stated or introducing any new claim. The Case of Lassiter, supra, on the question of amendment, is similar in principle to the Woods Case. In the Woods Case the amendment did not vary or change the cause of action as originally stated, namely, the negligent injury of the plaintiff by the defendant’s servant, but relied upon the same facts as to the cause of action, only designating the servant — the engineer in charge of the locomotive — by whose negligence the injury was inflicted. It was merely and strictly remedial, curing a defective statement of the cause of action declared on-in the original complaint. — Adams v. Phillips, supra. In the case of Williams v. McKissack, 125 Ala. 547, 27 South. 922, cited by the majority, the averment consisted in the change of the date as to the time of the alleged wrong, no new claim was introduced, and the cause of action as originally stated continuing the same as to the conversion of the animals. This case certainly furnishes no support for the conclusion reached by the majority in the case at bar.
It would seem, from adjudged cases of our own which I have cited above, that there is no room for judicial misinterpretation of what is intended and meant by the employment of the expression “new cause of action” where the statute of limitations is pleaded to the amendment. I think my Brothers fall into error in failing to distinguish, or rather to separate, the law of amendments from the doctrine of relation of amendment. The law of amendments is statutory, the creation of the law-making power. The doctrine of relation of amendments is a mere fiction of law — as often expressed, “relatio est fictio juris” — invented by the courts to promote right, but not to prevent it, in the administration of the law. Our statute of amendments is broad and liberal, and such has been the construction put upon it by this court; *604the only limitations placed upon the right of amendment being that by it there shall not be wrought a different cause of action or entire change of parties. On the other hand, the statute of limitations of actions is as imperative as the statute of amendments is liberal. The right to invoke the benefit of the former as a defense should never be circumvented by a fiction in pleading, and cannot be without overruling the express mandate of the Legislature. There should be no difficulty in the application to amendments of the doctrine of relation under the decisions of this court from the case of King v. Avery, down to the case of Freeman v. Cent. of Ga. Ry., Infra, 45 South. 898 inclusive, when the cases are carefully analyzed. It may be that in some of our cases there is a lack of accuracy by the writer in judicial expression when speaking of amendments, in the employment of the term “new cause of action” as being synonymous with the term “entirely new cause of action,” or “a different and independent cause of action,” that is possibly calculated to produce some confusion. But this seeming confusion is dispelled upon a careful examination of the cases. There can be no doubt of the proposition that under the well-established rule of law a new cause of action, or, if we choose to so term it, an entirely new cause of action — that is to say, one that is different and independent, not relating to the same general transaction as stated in the original complaint, although it might have been joined in a separate count in the first instance — cannot be introduced into the complaint, if objected to. This is definitely settled in the case of Mahan v. Smitherman, 71 Ala. 563, as well as in other cases; but it is entirely unnecessary to cite authorities on so plain a proposition of law: On the other hand, it is equally well settled that a new cause of action may be introduced into the complaint by amendment, when it re*605lates to tlie same transaction declared on in the original complaint. This is stated in Mohr v. Lemle, supra, as well as in other cases, and is recognized in all of the cases cited above. Such is the law as to the right of amendment, without reference to the statute of limitations as a defense or to the doctrine of relation back of the amendment.
When the statute of limitations is set up as a defense to the new cause of action, or new claim of matter, introduced by the amendment, then is the question presented, not as to the abstract right of amendment, but as to its limitation as affecting the rights of the party to claim the benefit of the statute of limitations against the new claim of matter introduced. In speaking on the question of relation of amendments, what is meant by a new cause of action, new claim or matter, not before within the lis pendens, seems to me to be misunderstood by the majority, and they have been led into error in their decision in this case through a misconception of the rule. That a new cause of action, in this connection, does not mean an independent and different cause of action, not relating to the same transaction, the foundation of the suit in the original complaint, is too plain to admit of controversy, since such an amendment is not permissible against the objection of the opposite party, although it might have been joined under a separate count in the commencement of the suit. — Mahan v. Smitherman, supra. The new cause of action, or new claim of matter, spoken of in the cases in reference to the doctrine of relation, must therefore necessarily relate to the same transaction declared on in the original complaint. In the next place, if the new cause of action, or new claim of matter, introduced hv amendment, is not within the lis pendens, then under all of the authorities the doctrine of relation will not he imputed, or *606be permitted, to cut off the defense of the statute of limitations when pleaded to the amendment.
What is meant by “within the lis pendens” in the case cited? It is to be remarked .that in declaring the rule, from the language employed, it is not intended what might have been, or, perhaps, what should have been, within the lis pendens, but, on the contrary, that which is intended is, what is actually within the lis pendens? And this is still further emphasized in some of the cases by the employment of the conjunctive clause, “and within the issues between the parties.” See cases above cited. What are the issues between the parties? Certainly none others than those tendered by the averments in the original complaint, such only as it would be competent to introduce evidence to support. If the amendment be more than “merely and strictly remedial, curing a defective or imperfect statement of the cause of action” in the original complaint, and introduces a new claim as a basis of recovery, requiring evidence for its support, that would have been irrelevant and inadmissible to prove the cause of action laid in the original complaint, certainly it cannot be said that such claim, prior to the amendment, was “within the issue between the parties” made by the original complaint. As to what is meant by new cause of action, or new claim or matter, not within the lis pendens, “and not within the issue between the parties,” and such as will not be referred to the commencement of the suit, when introduced by amendment, is .still further illustrated in some of our cases, where it is said that “the statute of limitations is as available to the defendant against such new claim so introduced as if the same had been declared on in a new and original suit.” — Evans v. Richardson and Mohr v Lemle, supra. And this may be said to be one of the tests in the application of the doctrine of relation back of amendments: *607that is to say, if the new claim or matter sought to be introduced, by amendment as a basis of recovery would be open to the defense of the statute of limitations if declared on in a new and independent suit, then relation to the commencement of the suit will not be imputed, to the prejudice of the defendant in pleading the statute to the amendment.
Coming to the case at bar, we find the original complaint declaring on a common-law liability, the negligent failure of the defendant to furnish the injured party a safe place in which to work; while the count added by way of amendment declares on a statutory liability, under subdivision 3, § 1749, of the Code of 1896. In this there was a complete shifting of the ground of liability. In the case of Anniston, etc. R. R. Co. v. Ledbetter, 92 Ala. 326, 9 South. 73, the action was to recover against the defendant for loss of goods, and both the original and amended complaint related to the same subject matter and sought to recover the same damages; but in the original complaint the claim was made against it as a warehouseman. There was in that a case a shifting of the ground of liability, calling for the application of different principles of law and requiring different evidence. The court ruled that the amendment was permissible, but at the same time it was subject to ihe defense of the statute of limitations. In principle there can be no distinction between that case and the one at bar. In the case at bar the measure of recovery is different in the original complaint and the amendment. Under the original complaint punitive damages may be assessed, while under the amendment only such damages as are compensatory. Again, under the original complaint for a negligent failure to furnish a safe place of business, would the plaintiff be permitted to introduce evidence to show that his injury was not because of an *608unsafe place for business, but because of negligent orders given by some person in the employment of the master? Certainly not, and for the reason that no such issue was between the parties. Then, if the matter introduced by the amendment was not before within the is'sue between the partis, under all of our cases the defendant could claim the benefit of the statute of limitations. It would seem that under the cases of our own which I have cited above there should be no necessity for resort to other jurisdictions for authority on the question under -consideration. My Brother Anderson says in his opinion that “there is some conflict in authorities, as well as considerable confusion among die profession,” on this question. I may add here, if the decision by the majority, in this case be permitted to stand, without at the same time expressly overruling the cases of our own which I have cited above from King v. Avery down to Freeman v. Railroad Co., Infra, 45 South. 898 inclusive, then there will not only be confusion among the profession, but “confusion worse confounded,” as the decision in the case before us is diametrically opposed to those cases.
In the recent case of Alabama Terminal & Improvement Co. v. Hall & Farley, 152 Ala. 262, 44 South. 592, the case of Nelson v.First National Bank, 139 Ala. 590, 36 South. 707, 101 Am. St. Rep. 52, is criticised; but the criticism can be regarded only as a digression - of the writer in that case, since the learned Chief Justice concludes the criticism with the statement: “But, whether the reasoning in the Nelson Case is sound or no*, it can have no possible influence in the determination of the question here presented for consideration.” Moreover, it cannot be supposed that the justices composing the section of the court who sat in that case intended by anything that was said in the opinion, or by the decision *609in that case, to overrule or materially modify the Nelson Case, since that could not he done by a “section” or “division” of the court, without overriding the express mandate of the statute dividing the court into sections (Gen. Acts 1903, p. 494, § 2), which provides as follows: “Provided, that no former adjudication of the court shall be overruled or materially modified except upon consultation of the court as a Avhole” — which was not done in the case referred to. Besides, Justice Simpson, who sat in that case, expressly disclaims any such purpose on his part and affirms his adherence to Avhat Avas said in the Nelson Case.
In support of the conclusion reached by the majority quite a number of cases from other jurisdictions are cited, and from some of these cases quotations arc made. From an examination of these cases I find that in some of them the statute of limitations Avas not pleaded as a defense, and hence the doctrine of relation back of amendment was not before the court for decision; the question being only as to the right of amendment. In some others, I find, according to my understanding of them, that the doctrine for which I contend is sustained. Of ■ the first class are the folioAving cases: Pickett v. So. R. R. Co., 74 S. C. 236, 54 S. E. 377; Harris v. Central R. R. Co., 78 Ga. 525, 3 S. E. 355; Daley v. Gates, 65 Vt. 592, 2 7South. 193; Lassiter v. Norfolk & C. R. R., 136 N. C. 89, 48 S. E. 644. Among those of the second class above referred to, I may mention the first three cases cited in the opinion of the majority; Terre Haute R. R. v. Zehner, 166 Ind. 149, 76 N. E. 169, 3 L. R. A. (N. S.) 277; Pratt v. Montcalm Circuit Judge, 105 Mich. 499, 63 N. W. 507; City of Detroit v. Hosmer, 125 Mich. 634, 85 N. W. 2. Pratt v. Montcalm Circuit Judge, supra, cites approvingly the cases of People v. Judge of Newaygo Circuit, 27 Mich, 138, and Nugent’s *610Case, 93 Mich. 462, 53 N. W. 620, which two last named cases sustain the principle declared in the Nelson Case. The case of I. C. R. R. Co. v. Ccmpbell, 58 Ill. App. 277, 278, is quoted from with approval in the opinion of my Brother Anderson. This case was reversed by 'the Supreme Court of Illinois (170 Ill. 163, 49 N. E. 314) on the very point relied on by my Brother in citing that case as an authority. The case of Kuhns v. Wis. I. & N. Ry. Co., 76 Iowa, 67, 40 N. W. 93, is cited and quoted from in the opinion. This case seems to have been modified in the Box Case, 107 Iowa, 660, 78 N. W. 694, which is a later case. The Box Case is in line with our own cases, and cites approvingly Union Pac. Ry. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983. The Wyler Case, by the Supreme Court of the United States, is subsequent in time and directly opposed to the case of Smith v. Mo. Pac. Ry. Co., 56 Fed. 458, 5 C. C. A. 559, cited and relied on by the majority of the court in the case at bar, and hence the Smith Case cannot he considered of any weight as an authority.
It is said in the majority opinion that the case of Bolton v. Ga. Pac. R. R., 83 Ga. 659, 10 S. E. 352, which is cited in the Wyler Case, was subsequently in effect overruled by the case of Ellison v. Ga. R. R. Co., 87 Ga. 691, 13 S. E. 809. In this I think the majority have fallen into error. At least the Supreme Court of Georgia seems not to have so considered it, since the Bolton Case is cited approvingly by that court in the still later-case of Charleston, etc., R. R. Co. v. Miller, 113 Ga. 15, 38 S. E. 338, where the same question was under consider-, ation. The case of Union Pac. R. R. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, which is cited in our case of Nelson v. Bank, supra, is summarily disposed of in the opinion of the majority in the case at bar, as a case that “is based on antiquated principles and a *611misconception of authorities cited, as well as some which were in effect overruled by the court rendering them.” The opinion then proceeds to point out the cases of Mohr v. Lemle, 69 Ala. 180, and A. G. S. R. R. Co. v. Smith, 81 Ala. 229, 1 South. 723, as being among the cases cited in the Wyler Case, and which do not support the opinion in that case. In this statement I think the misconception of the authorities is not with the Supreme Court of the United States in the Wyler Case, hut with 'my Brothers who constitute the majority in this case. The principles are the same in those cases, with like questions under consideration. The majority do not undertake to differentiate those cases in principle from the Wyler Case, and I think it would be a difficult task to do so. The opinion then points out the Bolton Case as being one relied on in the Wyler Case, and as having-been overruled by the court that decided it. I have already adverted to this above, as a mistake on the part of the majority. It may he that the principles declared in tiie Wyler Case are “antiquated,” in the sense that they are old, and, like the common law in Avhich avc justly take pride, goeth back Avhereof the memory of man runneth not to the contrary; but they are for that none the less sound, and, as long as adhered to, Avill conserve the right and promote justice in the administration of the laAV by the courts.
It is stated in the opinion of the majority that the overAvhelming weight of authority in cases from other jurisdictions is in support of the vieAvs of the majority in the case at bar. I do not find such to be the case from my investigation. On the contrary, I find the overAvhelming Aveight to be opposed to the views of the majority ; and in support of this statement, Avithout unduly prolonging this opinion by citing the cases, I content myself by referring to the brief of counsel for appellant on *612application for a modification of the majority opinion, where in a very exhaustive manner the cases of other jurisdictions are cited and examined. I think the judgment in this case should be reversed, not only for the reasons stated in the opinion of the majority, but also for the reasons I have stated above, and to that end and extent the majority opinion modified.
Simpson and McClellan, JJ., concur in the dissenting opinion of Dowdell, J.