Thornton v. American Zinc, Lead & Smelting Co.

Citations

• 178 Mo. App. 38
• 163 S.W. 293
• 1914 Mo. App. LEXIS 91

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. PLEADING AND PROOF: Variance: Failure of Proof. One cannot plead one act of negligence as the basis of his action and have a recovery on another and different act of negligence.</p> <p>2. -: Variance: No Objection Made: Affidavit of Being Misled. A variance of the facts proven from those alleged, not amounting to a failure of proof as defined by Sec. 2021, R. S. 1909, when no objection is made to the introduction of evidence on this ground, does not constitute reversible error unless the defendant files his affidavit of being misled. (Citing, Sec. 1846, R. S. 1909).</p> <p>3. -: Variance: Test of Materiality. The affidavit setting forth that a party has been misled to his prejudice by a variance of the facts proven and those alleged is the sole test of materiality between the allegata and probata.</p> <p>4. -: Variance: Material and Immaterial: Failure of Proof. A divergence of the facts proven from those alleged may amount to (a) an immaterial variance, (h) a material variance, or (c) a failure of proof. (Citing Secs. 1846 and 2021, R. S. 1909).</p> <p>5. -: -: When Deemed Immaterial: Effect of. A variance between the allegations in a pleading and the proof is not deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits, and in such case no amendment of the petition is necessary. Sec. 1847, R. S. 1909.</p> <p>6. -: -: When Deemed Material: Effect Of. Where the variance is material so as to mislead the adverse party to his prejudice an affidavit to this effect must be filled and an opportunity to amend be given, with further time to meet the new allegations when necessary; otherwise the error is waived and the court should submit the case on the facts proven. Sec. 1846, R. S. 1909.</p> <p>7. -: —--: Failure of Proof: Effect Of. Failure of proof is where the allegations of the cause of action or defense are unproved in their entire scope and meaning and th