Modified April 17, 1917.
On Rehearing.
(164 Pae. 189.)
Former opinion modified on rehearing.
Mr. Hall S. Lusk, Messrs. Carson & Brown and Messrs. Dolph, Mallory, Simon & Gearin, for appellant.
Mr. Abraham Nelson and Messrs. Westbrook & West-brook, for respondents.
Department 1.
Mr. Justice Bensondelivered the opinion of the court.
In an able argument the plaintiff urges that the opinion of the court in this case is erroneous because while it holds that the trial court gave to the jury an incorrect instruction, it further determines that this error is negligible fop the reason that there was a fatal variance between plaintiff’s pleadings and proof which would prevent a recovery in any event. It appears from the record that the complaint bases the right of recovery upon the common-law liability of the carrier *32while upon the trial, plaintiff, in his direct case, offered proof of a written agreement expressly limiting such liability. The evidence of this written agreement is nowhere contradicted. It has been repeatedly held by us that where a plaintiff pleads a common-law liability and proves a written contract expressly limiting such liability, he cannot recover: Normile v. Oregon Nav. Co., 41 Or. 177 (69 Pac. 928); Union St. Ry. Co. v. First Nat. Bank, 42 Or. 606 (72 Pac. 586, 73 Pac. 341); McGregor v. Oregon R. & Nav. Co., 50 Or. 527 (93 Pac. 465, 14 L. R. A. (N. S.) 668); Lacey v. Oregon R. & Nav. Co., 63 Or. 596 (128 Pac. 999). It follows that under the pleadings and proof the plaintiff was not entitled to recover in any event in this particular action. The defendant interposed a seasonable motion for a nonsuit which being resisted by plaintiff was denied.
12. It is now contended that this court should remand the cause to the lower court, with permission to plaintiff to amend his pleadings. This position is based upon the provisions of Section 97, L. O. L., in regard to variance between a pleading and the proof. This section of our Code must be read in connection with Sections 98 and 99, in regard to which it may he said that the phrase “fatal variance” is practically synonymous with the “failure of proof” described in Section 99, L. O. L., and such a variance is termed “fatal” for the reason that it cannot he cured by amendment. Mr. Pomeroy in his work on Code Remedies (4 ed.), at Section 447, classifies disagreements between pleadings and proofs as being of three grades: (1) An immaterial variance; (2) a material variance; and (3) a complete failure of proof. As to the latter he says:
“Finally, if the divergence is total, that is, if it extends to such an important fact, or group of facts, that *33the cause of action or defense as proved would be another than that set up in tbe pleadings, there is plainly no room for amendment, and a dismissal of the complaint or rejection of the defense is the only equitable result”: Pomeroy’s Code Remedies (4 ed.), § 448.
13. While it is true that a judgment of nonsuit was the best which plaintiff might have demanded in the trial court, and although he rejected that by resisting the motion therefor, it is equally true that we are unable to find authority for visiting such failure of proof with a more severe penalty than a judgment of nonsuit and consequently a judgment of that character will be entered here. Affirmed. Modified on Rehearing.
Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Harris concur.