65 Cal. 629 | Cal. | 1884
This action was instituted to recover damages for personal injuries alleged to have been occasioned by the negligence of defendants, and comes before this court on appeal of the parties last named from the judgment and order denying a new trial.
Many points are argued in the briefs of counsel, which we are called on to consider and determine.
As to the objections to the complaint, we are of opinion that they are not well taken.
It is urged that the plaintiff was a married woman wdio had deserted her husband, and therefore was not competent to sue alone. The court in its direction to the jury ruled against this contention, and error is assigned on this ruling.
The statute (Civ. Code, art. 71, ch. 2, 1st division) on this subject defines wilful desertion as “ the voluntary separation of
It is further provided in a subsequent section (102) of the article above cited, that if one party deserts the other, and before the expiration of the statutory period required to make the desertion a cause of divorce returns, and offers in good faith to fulfill the marriage contract, and solicits condonation, the desertion is cured. If the other party refuses such offer and condonation, the refusal shall be deemed and treated as desertion by such party from the time of refusal.”
Did not the plaintiff comply with the requirements of this enactment by her offers? It is said she did not, for. the reason that the law requires a return, an actual physical return, and this she did not do. It will be observed that the first offer was made from Umatilla, when she was only twenty miles from the place of his residence, and that he refused to receive her or to have "anything to do with her. Does the law require any actual physical return when the wife, in the vicinity of her husband’s home, offers to go back and resume the performance of her marital duties, and he in effect tells her you need not come, I wish to have nothing to do with you ? Must she perform a journey entirely useless for any purpose when she is told you need not come, for your coming will accomplish nothing? The other offers to return appear to have been after the statutory period had passed, but they tend to sustain the conclusion here reached that the husband was unwilling to receive his wife in January, 1881, when an offer was made within the statutory period, and that his intent was then not to receive her at all. Entertaining these views of the law, we are of opinion that the court below did not err in holding that the plaintiff was competent to maintain this action.
The court erred in not sustaining the motion for a nonsuit as to Loben Seis.
The evidence on the point of contributory negligence on the part of plaintiff was such as must have carried it to the jury under the-rule laid down in Fernandez v. Sacramento City R. R. Co. 52 Cal. 45, which may be regarded as settling the law on this point in this State.
This was in effect telling them that there was no contributory negligence • by plaintiff. If this was so, the court should not have submitted the question to the jury at all, but should have directed them that there was no question of the kind for their consideration. The court did right in submitting the question to the jury, but when the instruction given was qualified by the remark just above quoted, they were directed as to what the evidence proved. The authority of the court is limited to stating the evidence and declaring the law.
The remarks of the court in relation to the contract were, we think, calculated to mislead the jury. We refer to that part of the charge in which the jury is told, that "if, however, at the time the contract was made, it was the fair understanding and intention of all parties that the road was to be dug up for the purpose of building the levee, then I think that whoever made the contract is liable, because if those be the facts, the digging up of a public road was an inherent part of the scheme of building the levee.” If it was a part of the contract that the road was to be dug up to build the levee, Runyon would certainly be
It is said that the matters of law embraced in the requests were given by the court. We do not think, as the case goes back for a new trial, it is necessary to compare the requests referred to with the instructions given by the court, to see whether such was the case, as we cannot think it will occur again in a new trial.
For the errors pointed out, the judgment and order are reversed and cause remanded for a new trial.
Sharpstein, J., and Myrick, J., concurred.
Hearing in Bank denied.