Redwing

This is an action for the recovery of special damages resulting from personal injuries to a guest passenger in an automobile, alleged to have been suffered by her because of the intoxication, wilful misconduct or gross negligence of the driver of the car. The action was commenced in this form because of the statute, in force at the time the action was begun, limiting the common-law right of guest passengers to recover against their host drivers to cases of intoxication, wilful misconduct or gross negligence. The question of intoxication was eliminated from the cause at the trial. The injured woman, Rose Marie Red-wing, was married, but her husband is the sole plaintiff in the action. He had judgment for $25,000 and defendant appeals. The cause was tried by a jury.

As the judgment must be reversed and as the action may be tried again, it becomes our duty to place a construction upon the pleadings in order that on a retrial the hearing may be had upon theories different from those upon which it has already been tried and which were erroneous.

The injuries alleged to have been suffered by respondent’s wife resulted from appellant’s car, while being driven by him, colliding with the…