On Dеcember 4, 1943, on a public highway about four miles north of Mosinee, Wisconsin, while Mary Mar.uska was riding as a guest in an automobile driven by Hеnry Maruska, her husband, the Maruska automobile collided with an automobile driven by Vincent Chrusicki, and as a result she was injured and suffered рain and loss of income. To recover damages for injuries sustained, she and her husband sued National Casualty Company of Dеtroit, Michigan, who had issued a policy of insurance to Chrusicki, by the terms of which it agreed to pay any damages arising out of thе operation of Chrusicki’s automobile.
On August 11, 1944, plaintiffs filed an amended complaint impleading State Farm
National answered the amended complaint. It denied that Henry Maruska had operated his automobile in a carеful and prudent manner. It denied that Chrusicki had been negligent in'the operation of his automobile, and alleged that the acсident was the result of the negligence of Henry Maruska.
State Farm, in its amended reply, denied that Henry Maruska had been negligent in the operation of his automobile and alleged “that in the event it is determined at the trial of said action that Henry Maruska was guilty of any negligence contributing to the injuries received by plaintiff Mary Maruska, that said Mary Maruska assumed the risk of said negligence.”
The action, under this state of the pleadings, proceeded to trial before the court and jury. By special verdict the jury found that Mary Maruska was free of all negligence and assessed her damages at $3,000. It acquitted Vincent Chrusicki of negligence in the operation of his automobile, but found Henry Maruska guilty of one hundred percent negligence and that the collision wаs the natural result of his negligence. Upon a motion made after verdict the court granted Mary Maruska leave to amend her complaint to conform to the evidence. Judgment was entered on the verdict against Henry Maruska and the State Farm Mutual Automobile Insurance Company for the amount assessed, and the action against National Casualty Company was dismissed.
It is upon this state of the record that appellants claim that the court erred in granting leave to amend the complaint to conform to the evidence. .They concede that Mary Maruska had the right to assert a cause of action against them. They •insist, however, that in her pleadings she asserted no claim against them, and having failed to do so until after the jury returned its verdict, slje is estopped from contending that Henry Maruska was guilty of negligence, and they cite, among other cases, Sullivan v. Colby, 7 Cir.,
The right to amend pleadings to conform to the proof proceeds upon the theory that by such amendment the pleadings are brought in line with the actual issues upon which the case was tried, Simms v. Andrews, 10 Cir.,
In the case befоre us, the record discloses that counsel for appellant State Farm filed a pleading for Henry Maruska denying that Maruska had been negligent in the operation of his automobile, hence appellee did not assume a position cоntrary to the position assumed by appellant State Farm. He took an active part in directing and guiding the course of the action and was aware of the fact that the action was one in connection with the occurrence (cоllision between the Maruska and Chrusicki automobiles), the subject matter of the action upon which the original action was bаsed. In such a situation it is the duty of the court to permit an amendment
Appellants next contend that there is no finding by the jury that Henry Maruska violated any duty that he owed to Mary Maruska. The argument is that the question as submitted to the jury did not require the jury to pass upon that point.
There is no question but what appellee was a guest of appellant Maruska, hence the host-guest rule was applicable. Under that rule, Maruska owed appellee no greater duty than to exercise the skill and judgment which he possessed, Bohren v. Lautenschlager,
In our case, the court did not frame and submit to the jury a question so framed as to elicit a finding upon the crucial issue existing between appellee and apрellants, i. e., whether Maruska had breached any duty he owed appellee. The quéstion framed by the court and submitted to the jury inquired as between Maruska and Chrusicki, only as to whether Maruska had been negligent in the manner of operating his automobile, and the finding of the jury was upon that issue.
In the case of Culver v. Webb,
The judgment of the District Court is reversed and the case is remanded for a new trial.
It is so ordered.