(dissenting).
I dissent. The majority opinion compounds the error made in the trial court below by counsel and the trial judge. They all make the assumption that one riding in an automobile cannot recover from the driver except for injuries arising from willful misconduct or intoxication on the part of the driver. Our guest statute as set forth in Utah Code Annotated 1953 is as follows:
41-9-1. Responsibility of owner or driver of a vehicle to guest. — Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways of the state of Utah, and while so riding as such gitest receives or sustains an injury, shall have no right of recovery against the owner or driver or person responsible for the operation of such vehicle. * * * Nothing in this section shall be construed as relieving the owner or driver or person responsible for the operation of a vehicle from liability for injury to or death of such guest proximately resulting from the intoxication or willful misconduct of such owner, driver or person responsible for the operation of such vehicle; * * * [Emphasis added.]
41-9-2. “Guest” defined. For the purpose of this section the term “guest” is hereby defined as being a person who accepts' a ride in any vehicle without giving compensation therefor.
A casual reading of the statute shows that it is the guest who cannot recover from the host, and it matters not whether the host owns the automobile or is simply the person driving or responsible for the operation of the car. The purpose of the statute was to afford protection to the owner or other person in charge of an automobile who gives a free ride to a passenger. As is said in 60 C.J.S. Motor Vehicles § 399 (3) b, at p. 995:
* * * [T]he apparent design and effect of such statutes are to make the duty of the host less onerous than before by relieving him of liability to his guest for mere failure to exercise due care and to make him liable only for such higher degree of misconduct provided for therein; * * *.
Guest statutes apply only to such persons or passengers as come within the contemplation of the particular statute, and as to *388any other person the common law rules of care and liability govern. See 60 C.J.S., supra, p. 997.
The main opinion cites no case showing that a host cannot sue a guest when the host is injured by the ordinary negligent driving of the guest, and one would think that if there was such a case, it would have been cited. My research has revealed no case of such a nature, nor does it seem that the purpose of the statute is to give protection to one who is not furnishing a free ride to a guest.
While a guest driving his host’s car stands in relation to other guests exactly as does the host,1 this is a far different matter than the case where the host sustains injury as a result of the guest’s negligent driving.
When a host permits his guest ts drive the car, he makes the guest his agent for the purpose of driving the car, and the host does not become a guest of the driver so as to be covered by our guest statute above set out.
This matter was determined on a motion for summary judgment. Rule 56(c), U.R. C.P., as amended in 1955, provides as follows :
* * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * [Emphasis added.]
Here the trial court entered a summary judgment of dismissal, not because the defendant was entitled to it as a matter of law, but because the lawyer thought he had to show willful misconduct on the part of the guest driver. Plaintiff’s counsel at pretrial contended that the defendant was negligent in three respects: (a) excessive speed, (b) improper lookout, and (c) failure to keep car under proper control, and that the combination thereof amounted to willful misconduct. The pretrial conference is the time when the court can and should simplify the issues. He should assist counsel in formulating issues, so that no miscarriage of justice will occur. It is not the function of the judge to sit passively by and allow a litigant to lose a perfectly good case simply because counsel may be making an argument based upon a false assumption as to what the law requires in the particular case.
Here the plaintiff was claiming negligent driving on the part of a guest; and despite the inability of the majority of this court to see the point, I think the trial judge should have noted that willful misconduct *389was a necessary element for plaintiff to prove against the guest driver only if he sought punitive damages.
To give a guest who is driving his host’s car the advantage of the guest statute is to rewrite the statute in its entirety and to set Utah apart from all other states of the Union in that regard.
This case should be remanded to the lower court for a trial of the issues of negligence on the part of the defendant and damages, if any, sustained by plaintiff as a result thereof. The plaintiff should have his costs incurred herein.
. Herzog v. Mittleman, 155 Or. 624, 65 P.2d 384, 109 A.L.R. 662 (1937).