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 *63not raised by the pleadings or by the pretrial order.
Plaintiff contends that her purported status as an involuntary occupant became an issue during the trial itself and was litigated. In my opinion, this contention is not correct. It is not enough merely to find that there was testimony somewhere in the transcript which might be construed to indicate that plaintiff was an involuntary occupant.
It is settled that where the parties and the court proceed throughout the trial upon the theory that a certain issue is presented for adjudication, both parties are thereafter es-topped from claiming that no such issue was in controversy even though it was not actually raised by the pleadings. However, such principle of estoppel operates only where it appears from the record on appeal that the issue was actually and intentionally tried by the introduction of pertinent evidence and that the party against whom the estoppel is invoked consciously participated or acquiesced in such trial as if the issue had been made by the pleadings. (Miller v. Peters, 37 Cal.2d 89, 93 [2, 3] [230 P.2d 803].)
In the present case there is no showing that the issue of involuntary occupant was “actually and intentionally tried” or that defendant “consciously participated or acquiesced” in such trial.
Defendant did not object to the introduction of certain evidence relating to plaintiff’s protests and request for an opportunity to get out of the car, but that evidence was admissible because relevant to the pleaded issues of contributory negligence and assumption of risk.
It frequently happens that evidence which is admissible to establish one issue may tend to establish an issue other than that for which it is offered. It is the rule that evidence so introduced is available to establish any of the issues in the case. However, this rule is limited to the issues which are to be tried. Accordingly, evidence which is relevant to an issue actually raised by the pleadings cannot be considered as authorizing the determination of an issue not presented. (Inouye v. Pacific Gas & Elec. Co., 53 Cal.2d 361, 366 [1] et seq. [1 Cal.Rptr. 848, 348 P.2d 208]; Lein v. Parkin, 49 Cal.2d 397, 401 [5] [318 P.2d 1]; Miller v. Peters, supra, 37 Cal.2d 89, 93 [4].)
Vaughn v. Jonas, 31 Cal.2d 586 [191 P.2d 432], is in accord with the foregoing rules. In that case the plaintiff was awarded compensatory and punitive damages for battery. One of the questions before us was whether the trial court properly *64submitted the issues of malice and punitive damages to the jury in view of the fact that the complaint neither expressly pleaded malice nor prayed for such damages. Analyzing the allegations of the complaint and the answer, we held that “malice was at all times an issue encompassed by the pleadings.” (Vaughn v. Jonas, supra, at p. 604.) No such conclusion appears in the present case with respect to the issue of “involuntary occupant.’’
I would affirm the judgment.
Schauer, J., concurred.