Before HASTINGS, Chief Judge, and CASTLE and KILEY, Circuit Judges.
Richard Parker (plaintiff-appellee) brought this diversity action against Andrew Heresz (defendant-appellant), and two other defendants,*fn1 to recover damages for personal injuries; medical, hospital and nursing care; and loss of wages arising out of an automobile accident in Lake County, Indiana on January 28, 1957. Plaintiff was riding in a car driven by defendant and owned by defendant's father.
The cause was tried to the court without the intervention of a jury. At the conclusion of the trial, the court made findings of fact and stated conclusions of law, with a memorandum opinion, and rendered judgment that plaintiff recover damages from defendant in the sum of $15,000 and costs.
The trial court denied defendant's posttrial motions to vacate and set aside the judgment and for a new trial. This appeal followed. The amount of the recovery is not in dispute here.
This appeal presents two ultimate contested issues properly stated by defendant as follows:
"1. Considering the pleadings and the theory upon which this cause was submitted for trial could the court make a finding and enter judgment on a theory entirely different from that raised by the complaint and answer?
"2. Considering all of the competent evidence and reasonable inferences drawn therefrom, could the trial court make a finding that the plaintiff was not a guest passenger in the automobile of the defendant, Heresz at the time of the accident in question?"
The trial court found and concluded that the negligence of defendant was the sole proximate cause of the collision of his automobile with another car and of plaintiff's resulting injuries, and that at the time of the accident plaintiff was not a guest of defendant within the meaning of the Indiana Guest Statute, Burns' Indiana Statutes Annotated, 1952 Replacement, § 47-1021.*fn2
Defendant's first contention is premised on the argument that plaintiff's complaint is predicated on the Indiana Guest Statute and that the trial court erroneously allowed a recovery under the theory of common law negligence. Defendant urges that plaintiff can recover only on the theory of his complaint and that no common law action was pleaded in the complaint.
An examination of relevant parts of the complaint reveals the following allegations:
"1. On the 28th day of January, 1957, at 6:30 P.M., the plaintiff was a guest passenger in the rear seat of a Ford sedan, Model 1949, which was then being driven by the defendant Andrew Heresz, a minor, then aged 17 years,
"5. Said defendants did operate their automobile in such willful and wanton manner and did commit willful and wanton acts of negligence as hereinafter set forth, all over the objections and admonishments of the plaintiff, riding in the back seat of said automobile. But the said defendants did continue willfully and wantonly to drive north on Cline Avenue, up the southern slope of said Indiana East-West Toll Road overpass and down the northerly slope thereof at said increasing rate of speed, knowing that the said Ford automobile could not ...