dissenting:
■' The majority opinion rules .on two/issues- I. concur with ■the-h'oldihg;that the-trial judge;did'not abusé'his-d-iscre.tion in denying the-1 second motion for-a mew -trial,' which >Mapk '-filed under Maryland.Rulé:-625 b claiming neWly;discovered evidence. But I must dissent from the holding that the *279amended declaration did not state a new cause of action, but merely restated the same cause of action, declared upon in the original declaration.
Obviously, the significance of the,issue is that if the amended declaration stated the same cause of action, as the original, it related back to the time the original declaration was filed, and was not barred by the statute of .limitations, if the cause of action sued on in the amended declaration was not the same,' it was filed too laté, and was barred by limitations.
The chronology of this case, as shown by parts of the record which I consider relevant to the issue, is this:
22 January 197b Declaration filed by Lawrence Delbert Webber and State Accident Fund, ' as plaintiffs, against Mack Trucks, Inc. and, William Ross Shire, Sr.,'as defendants.
15 March 1973' — Responsive pleadings filed by Mack.
26 June 1974 — Motion for summary judgment filed by Mack on the ground that there, was no genuine dispute that, the accident sued on was not the responsibility of Mack and that, in any event, the plaintiff ,wras not injured or damaged in the accident. The motion relied upon facts developed in Webber’s deposition taken on 30 May 1974.
11 July 1974 — Answer by the plaintiffs to. Mack’s motion for summary judgment. In , the answer it was asserted that Webber wTas injured on 26 February 1970 as a result of defendant’s negligence, but that the injury occurred at a different place from that alleged in the declaration. The.answer went on to say that the allegation in the .declaration stating where the injury occurred wras made inadvertently, and that plaintiffs intended, to move for leave to amend the declaration.
19 August 1974 — Hearing on Mack’s motion, for summary judgment. Plaintiffs’ oral motion for *280leave to file an amended declaration was granted,' and the motion for summary judgment was denied.
3 September 1974 — Amended declaration filed. Plaintiffs were the same as in the original declaration. Mack Trucks, Inc. was the only defendant.
9 September 1974 — Responsive pleadings, including a plea of limitations, filed by Mack.
9 October 1974 — “Memorandum in Support of Plaintiffs’ Amended Declaration” filed.
23 October 1974. — “Reply Memorandum” filed.
15 November 1974 — Docket entry, “Hearing” *'* * “Plea of Limitation denied”.
5 December 1974 — “Opinion In Support Of Denial Of Plea Of Limitations” filed.
The hearing presumably was confined to argument of counsel, since there is no transcript of it. In counsel’s memoranda and the court’s ruling it appears that by common acquiescence the court proceeded as on a motion for a partial summary judgment, on the issue of limitations. The issue, submitted to the court' upon the entire record, involved no dispute of fact, but turned solely on whether the cause of action sued upon in the amended declaration was the same cause of action sued upon in the original declaration.
Whether the amendment stated the same cause of action or a new cause of action is irrelevant to the right to amend. The trial court properly permitted the amendment. The leave to amend in no way involved a decision by the court whether the amended declaration merely restated the same cause of action originally sued upon or whether it stated a new cause of action. But for the intervening expiration of the period of limitations, the question would be of no significance. Once the amended declaration was filed, more than 4 V2 years after the cause or causes of action arose, the plea of limitations to the amended declaration raised the question.
Facts in the record show that Webber was employed as a *281truck driver, and on 26 February 1970 he was driving a tractor-trailer owned by his employer. The tractor was a 1965 model manufactured by Mack Trucks, Inc. On that day, Webber was involved in two entirely separate and unrelated accidents.
The first accident happened at 8:55 A.M. Webber was driving south on State Route 272, at its intersection with U.S. Route 40, near North East, in Cecil County. The main air line on the trailer broke, and the braking system failed. The tractor collided with a passenger automobile in the intersection. The police report recorded no personal injury, no damage to the tractor, and minor damage to the passenger car. The broken air line was soon repaired, and Webber went about his work.
The second accident happened at 3:43 P.M. Webber was driving north on Interstate Route 95 in Harford County. A spring bracket cap on the right rear tandem of the tractor broke in half, causing the rear axle to shift and the tractor to go out of control and overturn. No other vehicle was involved. Webber was seriously injured.
Each of these two accidents involved facts upon which a cause of action might be asserted by one claiming to have been injured or damaged as a proximate result of a breach of duty or breach of warranty by one or more parties named as defendants. How good a cause of action either may be, how sufficiently or deficiently it may be pleaded, how well it can be supported by proof and succeed at trial, are matters of no moment. I think we may properly concern ourselves with only one question, “What was the cause of action upon which the suit was brought?” We may not properly concern ourselves with what cause of action the plaintiff should have brought, or intended to bring.
The declaration timely filed on 22 January 1973 named Webber and the State Accident Fund as plaintiffs. Defendants were Mack Trucks, Inc. and William Ross Shire, Sr. The declaration contained five counts. In the first three counts Webber claimed against Mack Trucks, Inc. The first was based on negligence, the second on breach of warranty, *282and' the third- on''strict liability. ’In the fourth - count he claimed against Shire,'alleging that Shite was negligent. In. the. fifth'couñt''the Stát'é. Accident Fund'adopted .'all-of the; allegations '•■•of ;the • first- four: counts '-and claimed1' its subrogated interest under the Workmen’s Compensation1' law.- The second, third, .and fourth; counts, adopted, by reference the allegations -of the-first-count .The-factual' allegations there: with which we-áre concerned wore; . A '
* -* * that- on or about’, February 26, _ 1970, near Nqrth East, .Cecil County, Maryland, ■. at - the . .intersection of U. ,S. Route 40 and’Marylápd State - Route'272, the Plaintiff was lawfully, carefully and "prudently operating, in a southerly direction on; said.Maryland, State Route 272, a traqtor’anddump trailer, owned, by his employer, Trego1 Bros., Inc., when suddenly and without, warning a mechanical .or! structural defect or failure ;oh the aforesaid tractor caused the .Plaintiff to losé control'óf the aforesaid tractor and dump trailer; and 'as a direct result the Plaintiff was involved in an accident with ano'thér vehicle opefatéd by William Ross Shire;'Sr'., in'which--accident thé Plaintiff was injured and'damaged”’- ’■ '
In :the amended,declaration the. plaintiffs wére the-sam'e.’, Máck Trucks, Inc. was the only defendant.'There were folk counts: In the first'three Webber- claimed-against; Mack on1 negligence, breach of warranty;.-,andi-'stri.ct liability. In the fourth, -the- State -Accident'- Fund ! asserted -its.'-right - as. subrogee. All- subsequent'counts'adopted by reference theallegátions'of the-first Count. The factual- allegations, there with which we are concerned were:: -, ;
:.‘‘that on or about February' 26,. 1970, op, interstate Highway I 9.5, jin Harford Coupty, .Maryland,.,the Plaiptiff .was lawfully, carefully 'and, prudently'; operating; in a northerly ‘ direction ’ op said Interstate .1,95, a.tractor and",dump trailer, owned by his employer, Trego Bros., Inc!, when suddenly *283and without warning a mechanical or structural defect or failure On the aforesaid tractor caused the Plaintiff to lose control of the aforesaid tractor and dump trailer; and as a direct result the Plaintiff was involved in an accident, in which accident the Plaintiff was injured and damaged.”
. The parallel allegations in the original declaration and in the amendment do indeed make it appear that they are saying almost the same thing — that they are alleging the same cause of action, differing only in describing correctly, rather than erroneously, the geographic location where the cause of action arose,, and in- abandoning the claim against one of the original codefendants. , ,
That appearance of sameness is, to me, superficial only. It is in reality fallacious, and may well have led the trial judge and my colleagues into error. Two causes of action which one person may have against another do not become the same because they arise from events which happen on the same day, any more than if they happened the next day, the next month, or the next year. Conversely, when there is one and only one cause of action, it does not become different because of a misstatement of the time or place, or even the legal theory upon which liability is based. Corrective amendments of such misstatements relate to the time of the original filing, imperfect as it may be, of the only existing cause of action.
With some fear of oversimplification, I say that when there is but one cause of action, it cannot become -two, and when there are two causes of action, they cannot become one.
The cause of action which arose in Webber from the 8:55 A.M. accident in Cecil County, a poor one to be sure, nevertheless became a matured and existing cause of action when that accident happened. The fact upon which Mack’s liability necessarily had to be based was the failure of an air line in the brake system, regardless of the vagueness with which the failure was alleged when that cause of action was asserted in the original declaration.
*284The second cause of action, which arose from the 3:43 P.M. accident in Harford .County, was totally unrelated to the first. It arose when a defective spring bracket-cap failed, and caused the tractor to go out of control. Regardless of how long the danger from the defective part remained potential, no cause of action arose until the defective part in fact failed, and Webber was injured as a result of that failure.
Regardless of the similarities in the words used, it is clear to me that the cause of action sued upon in the amended declaration was entirely different from and in no way, factually or legally similar to the cause of action alleged in the original declaration. The authorities cited and quoted in support of the conclusion reached in the majority opinion merely confirm me in that view. All that Chief Judge McSherry said in Zier v. Chesapeake Beach R. Co., 98 Md. 35, 56 A. 385 (1903) was premised upon the cause of action being the same, but he pointed out, at 40-41:
“When, however, by amendment the cause of action is changed, a new suit is begun when the amendment is made, and if between the accruing of that cause of action and the date of the amendment, which for the first time invokes that cause of action, the period of limitations has supervened, then -the plea may be interposed to that new suit.”
That is precisely what I think happened in the case before us.
The substance of Zier and the other authorities cited is summed up by the Court of Appeals in Crowe v. Houseworth, 272 Md. 481, 325 A. 2d 592 (1974), where it said, at 485-86:
“The modern view seems to be that so long as the operative factual situation remains essentially the same, no new cause of action is stated by a declaration framed on a new theory or invoking different legal principles.”
I see no alternative but to reverse the judgment appealed from.