¶1dissenting.
¶2I do not disagree with the conclusion of the majority opinion that the verdict and judgment of the district court should be reversed.
¶3It is my opinion, however, that the cause should not be dismissed but should be remanded for a new trial. It appears to me that the issues made by the pleadings which were never redefined either by amendment, trial *220order, or by the instructions of the court require a remand rather than dismissal.