11 P.2d 89 | Cal. Ct. App. | 1932
Petitioner was adjudged guilty of contempt for refusing to answer the questions propounded upon the taking of her deposition and was remanded to custody until she answered said questions. She seeks her release on habeas corpus.
The action in which the defendant sought to take petitioner's deposition was brought by Peder Strand and petitioner Paula Strand, his wife, as plaintiffs against the Market Street Railway Company as defendant. In that *171
action the plaintiffs sought to recover damages for personal injuries sustained by petitioner as the result of the alleged negligence of the defendant. The sole ground upon which petitioner seeks to justify her refusal to answer the questions is privilege under subdivision 1 of section
[1] The facts in the present case present the question of whether a wife, who is a party plaintiff in an action brought to recover damages for injuries sustained by her, can deprive the defendant of the benefit of her testimony by reason of the provisions of subdivision 1 of section
The right of action to recover for personal injuries sustained by either husband or wife is community property and their interests in such right of action are "present, existing and equal interests". (Civ. Code, sec. 161a) However, under the law of this state the injured party may bring the action without joining the other. (Code Civ. Proc., sec. 370.) [2] If an injured husband or wife sues as party plaintiff in an action to recover for his or her injuries, can it be said that the effect of section
We have found no authority on all-fours with the present case. Apparently the precise question has never been before the courts of this state and we know of no other state with statutes similar to our own relating to both community property and to witnesses. The question of waiver of privilege under subdivision 1 of section
From what has been said we conclude that the privilege under said section had been waived in the present case and that the trial court properly directed the petitioner to answer the questions propounded. *173
The writ is discharged and the petitioner is remanded to custody.
Nourse, P.J., and Sturtevant, J., concurred.