The opinion
Beatty, C. J., dissenting.
I dissent. The only real objection to the evidence offered by plaintiff was upon the ground of variance, and that objection was not made. Not being specifically made it was waived, because by section 469 of the Code of Civil Procedure it is expressly declared that “no variance between the *333 allegation in a pleading and the proof is to be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his, action or defense upon the merits. Whenever it appears that a party has been so misled, the court may order the pleading to be amended on such terms as may be just.”
There can be no better evidence that a party has not been misled to his prejudice by a variance in the proof than is afforded by his failure to object to it on that ground. His failure to object is a tacit admission that he will not be prejudiced, and makes it the duty of the court, under the section quoted, to disregard the variance as immaterial. If he does object on that ground, and it appears that he has been misled, it then becomes the duty of the court to order an amendment on such terms as may be just. In this case, if this law had been observed, the worst that could have happened to the plaintiff would have been a continuance at her cost., By disregarding it her action is defeated, regardless of its real merits. I do not think we are warranted in ignoring this provision of the statute in such a case.
Henshaw, J., concurred in the dissenting opinion.