The point involved upon this appeal, under the assignments of error, is whether the amended complaint set up a different cause of action than that stated in the original complaint. The contention of the appellant is that there is but one cause of action, and that under the federal act; while on the part of the respondent it is insisted that the original complaint set up a cause of action under the state law, and that the amendment changed it from a cause of action under the state law to one under the federal act.
It is obvious that but .one cause of action existed upon all the facts stated in the amended complaint. It is equally obvious that the original complaint was defective in failing to state certain facts going to show that at the time the injury was sustained the parties were engaged in interstate commerce. Nothing stated in the amended complaint was in conflict or inconsistent with the allegations of the original complaint. The cause of action upon which the plaintiff *425sought to recover damages was defectively stated in the original complaint and tbe defects were cured by the amendment. But one cause of action was stated. The amendment related back to the original complaint and became a part of it, hence the statute of limitations was no defense. Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135; Gainesville M. R. Co. v. Vandiver, 141 Ga. 350, 80 S. E. 997; Bixler v. Pa. R. Co. 201 Fed. 553; Smith v. A. C. L. R. Co. 210 Fed. 761; Cincinnati, N. O. & T. P. R. Co. v. Goode, 163 Ky. 60, 173 S. W. 329; Vickery v. N. L. N. R. Co. (Conn.) 89 Atl. 277; Schieffelin v. Whipple, 10 Wis. 81; Callahan v. C. & N. W. R. Co. 161 Wis. 288, 154 N. W. 449.
Counsel for respondent has favored us with a very able and exhaustive discussion of cases touching the question involved and we confess that there is some lack of harmony in the decisions. We think, however, that most, if not all, of the authorities cited by counsel for respondent can be distinguished from the instant case.
We shall not attempt to discuss the numerous cases referred to by counsel for respondent except two which are particularly relied upon, namely, Union P. R. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, and Meinshausen v. A. Gettelman B. Co. 133 Wis. 95, 113 N. W. 408.
In Meinshausen v. A. Gettelman B. Co., supra, there were two causes of action, the amended complaint setting up a new and different cause of action from that set up in the original complaint, therefore the case is not in point.
We think a careful examination of Union P. R. Co. v. Wyler, supra, will show that it is clearly distinguishable from the instant’ case. In the Wyler Case the amendment •changed not only the cause of action but the nature and substance of the cause of action. The whole discussion in the opinion in the Wyler Case goes upon the idea that an entirely new and different cause of action cannot be set up by way *426of amendment and thus escape the plea of the statute of limitation on the ground that the new cause of action related back to the time of filing the complaint. But the facts in the Wyler Case and the reasoning in the opinion have no application to a case where there is but one cause of action which is defectively stated and the defect cured by amendment.
The learned trial judge below seems to have attached importance to the fact that counsel for appellant stated that he intended to state a cause of action under the state law. We think this statement wholly immaterial. The mental operations of counsel could not create two causes of action where but one existed. The intent of the pleader might be significant or helpful in giving construction to an allegation which was ambiguous or of doubtful meaning. But there is no such question here.
There is another feature of this case which is worthy of notice. When the defendant answered the original complaint it set up the facts which were omitted in the plaintiff’s defective complaint and necessary to perfect the cause of action under the federal act and which were afterwards set up by plaintiff in the amendment complained of. The defendant was therefore in no way surprised or prejudiced by the amendment. Doubtless the case could have gone to trial on the pleadings as originally framed and the complaint on the trial amended or treated as amended in accordance with the issues made by the pleadings as originally framed. Callahan v. C. & N. W. R. Co. 161 Wis. 288, 154 N. W. 449; Bieri v. Fonger, 139 Wis. 150, 120 N. W. 862; Graber v. D., S. S. & A. R. Co. 159 Wis. 414, 150 N. W. 489; Wabash R. Co. v. Hayes, 234 U. S. 86, 34 Sup. Ct. 729.
As said in Union P. R. Co. v. Wyler, 158 U. S. 285 (15 Sup. Ct. 877) at pp. 297, 298, “The whole doctrine of relation rests in a fiction of law, adopted to subserve, and not to defeat right and justice.”
We are convinced that the amendment did not introduce a *427new cause of action, but cured the defective cause of action originally pleaded, bence tbe amendment was proper.
By the Gourt. — The judgment is reversed, and the cause remanded for further proceedings according to law.