(dissenting). I have set forth my views on the recovery of punitive damages in products liability actions in my dissent to Wangen v. Ford Motor Co., 97 Wis.2d 260, 321, 294 N.W.2d 487 (1980). Therefore, I will not repeat them here. Instead, I will confine my discussion to the statute of limitations question.
It is clear enough that a cause of action for punitive damages is separate from a cause of action for personal injuries, although dependent thereon. The majority analysis of the pleading question in Wangen is based on this premise, as I pointed out in my dissent. Even in this case, despite the majority’s statements to the contrary, *158the result reached by the majority can be supported only on the theory that a punitive damage claim is a separate cause of action. The third amended complaint, filed some 11 months after the three-year limitations period (sec. 893.205, Stats.) had expired, introduced a demand for punitive damages for the first time. Pursuant to the stipulation of settlement, all causes of action were dismissed, “excepting only the Plaintiffs’ cause of action for punitive damages. . . .” If punitive damages were only a remedy, they could not have been awarded in this case because the underlying cause of action had been dismissed. This was the theory of the decision of the court of appeals, and it was correct if punitive damages is not a separate cause of action. The majority’s decision in this case changes what was a cause of action for compensatory damages alone to one now reciting causes of action for punitive and compensatory damages alike, thus again adding a punitive damage claim as the majority has done this date in Wangen v. Ford Motor Co., supra.
The majority disavows Meinshausen v. A. Gettelman Brewing Co., 133 Wis. 95, 113 N.W. 408 (1907), because of ch. 353, Laws of 1911, which provided as follows:
“The court, in its discretion, and on such terms as may be just, may allow a pleading to be amended regardless of whether it will change the nature of the action from one at law to one in equity, or from one on contract to one in tort, or vice versa, provided the pleading, as amended, states a cause of action arising out of the same contract, transaction or is connected with the same subject.”
The 1911 Act had no effect on the rule of Meinshausen, which is that an amendment to a complaint that sets up a new cause of action (allegation) and makes a new demand cannot relate back to the commencement of the *159action, in order to avoid the running of the statute of limitations against the new matter pleaded in the amendment and the trial court thus was without the discretionary authority to allow this amendment. The 1911 Act does no more than to change the application of the Meinshausen rule to the facts of the case. In Mein-shausen, this court applied the rule so as to bar recovery on quantum meruit by an amendment when the complaint had alleged an express contract. In Mein-shausen, if the barred amendment had been allowed by the court, it would have materially changed the action from one at law to one in equity. Therefore, the 1911 Act as applied to the factual situation in Meinshausen would have changed the result but not the rule of law in that case. As the majority concedes, this rule of law has been followed in numerous cases.
The 1911 Act has no application to the case at bar. The amendment in question did not change the nature of the action from one at law to one in equity, nor from one in contract to one in tort, or vice versa. This amendment of the complaint in this case set up a new cause of action (allegation), separately stated, and made a new demand, for punitive damages. It is completely outside of, and unaffected by, the 1911 Act. It is squarely within the rule of Meinshausen, which the Act did not change.
After the date of decision in Drehmel v. Radandt, 75 Wis.2d 223, 249 N.W.2d 274 (1977), the author of the majority opinion in this case wrote the opinion in Achtor v. Pewaukee Lake Sanitary Dist., 88 Wis.2d 658, 277 N.W.2d 778 (1979). In that opinion he stated as follows:
“Prior to the effective date of the new code, amended complaints did not relate back to the time of service of the original summons and complaint for purposes of satisfying statutes of limitations if the amendment changed the cause of action, the party defendant, or the party plaintiff. Meinshausen v. A. Gettelman Brewing *160Co., 138 Wis. 95, 113 N.W. 408 (1907) ; Baker v. Tormey, 209 Wis. 627, 245 N.W. 652 (1932) ; Heifetz v. Johnson, 61 Wis.2d 111, 211 N.W.2d 834 (1973) ; Borde v. Hake, 44 Wis.2d 22, 170 N.W.2d 768 (1969).” Id. at 662.
This case arises under the old code of procedure. Therefore, the rule of Meinshausen must control.
The majority says in a footnote that Achtor “dealt only with an amendment that tardily sought to join unknown and unnamed persons as parties plaintiff.” (Supra, 148, n. 3.) However, the author of the majority opinion wrote in Achtor:
“Moreover, the addition of the unknown party plaintiffs purported to add an entirely new cause of action to the complaint. Hence, the rationale discussed in Drehmel v. Radandt, 75 Wis.2d 223, 249 N.W.2d 274 (1977) — which permits, in some circumstances, the addition of parties, even before the date of the new code— is inapplicable.” (Emphasis supplied.) Id. at 662.
Thus, Drehmel “is inapplicable” where the amendment “purport [s] to add an entirely new cause of action.” That is what happened here. This is not a case in which the plaintiff merely restated his complaint, introducing a substitute theory to support a previously pleaded demand for damages. The third amended complaint, filed almost four years later, added a new cause of action, separately stated, for punitive damages, and retained the previous plea for compensatory damages.
In discussing the question of whether two causes of action were identical, Meinshausen quoted from Whalen v. Gordon, 95 F. 305 (1899), as follows:
“There are three established tests that are always useful to determine the identity of two causes of action: Will the same evidence support both? Will the same measure of damages govern both? And will a judgment against one bar the other? Causes of action may differ, concerning which some of these questions may be answered in the affirmative. But it can be safely said that *161no two causes of action can be identical concerning which all these questions must be answered in the negative.” Meinshausen v. A. Gettelman Brewing Co., supra at 103.
In this case sound legal reasoning requires that all three questions must be answered in the negative. The same evidence will not support both because evidence of “outrageous conduct” is not material to a cause of action based on strict liability. The same measure of damages obviously does not govern both. Finally, the majority in its holding states that a judgment dismissing a cause of action for compensatory damages does not bar an action for punitive damages.
I would hold that the court’s allowance of the fourth complaint (third amended), filed some four years after the accident in 1976, set forth a new cause of action for punitive damages which had not been previously pleaded and thus deprived the defendants of their constitutionally vested right in a proper statute of limitations defense (sec. 893.205(1), Stats.)1. See: Haase v. Sawicki, 20 Wis.2d 308, 121 N.W.2d 876 (1963). The majority states *162that the trial judge did not abuse his discretion in permitting Wussow to amend his complaint and add a claim for punitive damages. I disagree with the majority because the trial court was without discretionary authority to allow the amendment of the complaint and I would hold that the doctrine of relation back cannot be used to circumvent the statute of limitations. Id. at 313; Eingartner v. Illinois Steel Co., 103 Wis. 373 (1899). See also: Pulchinski v. Strnad, 88 Wis.2d 423, 276 N.W.2d 781 (1979). I would affirm the decision of the court of appeals.
I am authorized to state that Mr. Justice CONNOR T. HANSEN joins in this dissent.In Eingartner v. Illinois Steel Co., 103 Wis. 373 (1899), this court stated:
“. . . that a right to insist upon the statutory bar is a vested property right protected by the constitution, the effect of which is to forever prevent the judicial enforcement of the demand affected by it, against the will of the owner of the prescriptive right. . . .
“It follows necessarily that when a defense to a right has become vested beyond recall without consent of the person in whose favor it operates, so that his adversary is powerless to enforce such right beyond power of adverse restoration, it is, to all intents and purposes, as effectually satisfied as if paid or otherwise discharged. As the court put it in Woodman v. Fulton . . . [(1873), 47 Miss. 682], ‘The bar created by the statute of limitations is as effectual as payment or any other defense, and when once vested cannot be taken away even by the legislature.’ That is the doctrine of this court expressed in many cases.” Id. at 376.