ON REHEARING.
TYSON, C. J.I did not sit when this case was originally decided; but, now that it has become necessary for me to take part in the disposition of this application, I feel it my duty to express my views upon the questions involved. It will be readily seen from the opinion, from which a majority of the court decline to recede, that the fate of the controversy is made to turn upon the sufficiency of the plea of the statute of limitations interposed as a defense to the sixth count, which was added by way of amendment to the complaint, and which counted for a recovery upon the willful or wanton conduct of defendant’s servants, and, therefore, in case. It will also be noted that the first, second, and third counts of the complaint as originally filed were in case, counting for a recovery upon the negligence of defendant. So, then, the simple question is: Can a count in case, predicating a recovery upon willful or wanton conduct of the servants of defendant, be properly added by amendment to a complaint which sought a recovery for negligence? I regard this question as settled in the affirmative by the case of Central of Ga. Ry. Co. v. Foshee, 125 Ala. 221, 27 South. 1006. If the added count introduced no new cause of action, and it did not, as was held in the case above cited, then the matter brought forward in the amended count is necessarily within the lis pendens of the original counts, and is not subject to be defeated by the plea of the statute of limitations, unless the cause of action laid *625in the original counts was barred at the time the action was brought.
The reasoning in the case of Nelson v. First National Bank, relied on as supporting the holding of my Brothers, is, in my judgment, wholly unsound, and my reasons in part for holding this view will be found extendedly set forth in the case of Ala. T. & I. Co. v. Hall, 152 Ala. 262, 44 South. 586, 597. In addition to what I then said, I wish to say, further, that the doctrine sustaining the defense of the statute of limitations to a new claim, introduced by amendment, growing out of the cause of action originally sued on, is, in my opinion, wholly untenable and cannot be sustained. Logically, this holding would lead to the result that the plaintiff in this case could have maintained, at the same time, two separate and distinct actions upon the same cause of action, but each asserting a different claim growing out of that cause of action, and a recovery upon one of those claims would be no bar to a recovery upon the other. In short, this plaintiff could have sued this defendant in one action for negligently injuring him, and in the other for his willful and wanton injury by defendant’s servants; and, clearly, if the claim sought to be recovered for in the latter case was not within the lis pendens of the former, a judgment in the former would not be res adjudicata as to the latter. So, then, under the doctrine announced, although the plaintiff be cast in one of his actions he may have judgment upon the same cause of action in his other; or he may institute only one action, say, for his willful or wanton injury, and if he he cast in that suit he may then institute another action upon his new claim for negligent injury, and, if not barred by the statute of limitations when begun, recover, notwithstanding he had only suffered one injury at the hands of defendant’s servants.
*626Tbe application for rehearing, in my judgment, should be granted.