(dissenting). I dissent and vote to reverse the order and judgment appealed from and to dismiss the complaint. The plaintiff was permitted to recover on a cause of action not alleged in the complaint. No amendment was made to conform the complaint to the proof. This motion was made at the end of the plaintiff’s case and again at the end of the whole case. When the motion was made at the end of all the evidence decision was reserved and an exception was taken. As the ease stood then the defendant’s motion should have been granted and failure to grant it and submit it to the jury over the exception of the defendant was error.