Bunton v. Radford

Per Cueiam. “No variance between the allegation in a pleading and the proof shall be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action upon the merits. Whenever it is alleged that a party has been so misled, that fact and in what respect he has been misled must be proved to the satisfaction of the court; * * * Where the variance is not material as herein provided, the judge may direct the fact to be found according to the evidence, or may order an immediate amendment without costs.” G.S. 1-168. On this record it does not appear that the defendant was misled to his prejudice by the variance between the plaintiff’s pleading and proof concerning the name of the street on which the collision occurred and the compass directions in which the vehicles were traveling. Hence the variance was immaterial and was insufficient to support the judgment of nonsuit as to the plaintiff’s cause of action. Zager v. Setzer, 242 N.C. 493, 88 S.E. 2d 94 (1955). The trial judge, having found that the defendants were negligent, that their negligence was a proximate cause of the collision, that the driver of the plaintiff’s automobile was not the plaintiff’s agent, and that the plaintiff was damaged by the collision in the amount of $462.72, and no exception having been taken to any such finding, the plaintiff is entitled, upon the findings of the court, to judgment against the defendants in the amount of $462.72 with interest and costs. The judgment of nonsuit of the plaintiff’s cause of action is reversed and the cause is remanded to the Superior Court of Buncombe County [339] for the entry of a judgment in favor of the plaintiff against both of the defendants in accordance with the findings of fact heretofore made. Reversed and remanded.