Walling

The plaintiff suffered injuries while riding as the guest of defendant Rugen who was at the time operating an automobile owned by the defendant Schlessinger. She sued the defendant Rugen charging wilful misconduct on his part and joined the defendant Schlessinger on the theory of his imputed negligence as owner under section 1714% of the Civil Code and pleaded a sepa: rate cause charging him with independent negligence on the theory that he wilfully permitted Rugen, an incompetent driver, to operate his car. The cause was tried with a jury and the plaintiff had a verdict for $1,000 against both defendants.

In the oral presentation of their appeal, the appellants conceded that the wilful misconduct of Rugen was properly pleaded and proved and hence no statement of the facts concerning the accident is necessary. They first complain of the instruction, wherein the jury was told that the action was brought for damages suffered “by reason of the negligence of the defendants’’. It is argued that inasmuch as the respondent was the guest of Rugen at the time of the injuries her action must be one based upon his wilful misconduct and not one resting .in negligence alone. The argu ment is…