Rabago

Plaintiff appeals from a judgment, based upon a jury verdict, in favor of defendant in an action for damages for injuries suffered by plaintiff when defendant drove his automobile, in which plaintiff was riding, into a parked vehicle. As the main ground for reversal she contends that the trial court erred in its instructions. We are of the opinion that, for the reasons set forth below, the jury was erroneously instructed, and that the judgment must be reversed.

The principal questions presented revolve around plaintiff’s status at the moment of the accident. To assess properly these problems reference will be made to the pleadings,- the evidence, and the jury charge.

In her first cause of action plaintiff alleged that she was a guest in defendant’s car, that defendant was intoxicated, and that his condition of insobriety was the proximate cause of the accident. In her second cause of action she simply alleged that she was a passenger, and was injured as a proximate result of defendant's negligence. The answer pleaded a general denial, contributory negligence, and assumption of risk. In a joint pretrial statement the issues were limited to (a) “Whether plaintiff was a guest or…

I dissent.

In my opinion, the issue of “involuntary occupant” was not properly in the case.

In plaintiff’s first cause of action she alleged that she was a guest in defendant’s car and that he was intoxicated at the time of the accident. In her second cause of action she alleged simply that she was “a passenger in the said automobile” and was injured by defendant’s negligent driving.

The answer pleaded a general denial, contributory negligence, and assumption of risk.

In the joint pretrial statement the issues were limited to (a) “Whether plaintiff was a guest or a passenger,” (b) defendant’s intoxication and negligence, and (c) plaintiff’s contributory negligence and assumption of risk.

The pretrial order recited the issues thus agreed upon, but set forth that under her second cause of action plaintiff had alleged that she was a passenger “for hire” at the time of the accident. The parties subsequently stipulated to defendant’s denial of the latter allegation.

An “involuntary occupant” does not come within the classification of either guest or passenger. (Rocha v. Hulen, 6 Cal.App.2d 245, 254 [ 44 P.2d 478 ].)

It is thus clear that the issue of involuntary occupant was *63…