293 P. 106 | Cal. Ct. App. | 1930
Petitioner seeks an original writ of mandamus to compel Naomi Roloff to be sworn and to testify as a witness upon the taking of her deposition in an action pending in said court.
Arnold R. Roloff sued petitioner for damages for personal injuries resulting from a fall from a ladder on premises leased from petitioner. Pending the trial of the action petitioner *347
sought to take the deposition of plaintiff's wife, Naomi Roloff. She refused to testify on the ground that she was excused under the provisions of subdivision 1 of section
Under the plain wording of the section it is manifest that if the husband is the sole party in interest in an action his wife may not be called to testify for or against him without his consent. Petitioner seeks to avoid this exemption on the ground that in the action here pending the wife has a present and existing interest because any judgment recovered by the husband would be the community property of the two spouses, and the wife, therefore, becomes a "person for whose immediate benefit" the action is prosecuted and hence one whose deposition may be taken under section
It may be conceded that, since the addition of section 161a of the Civil Code, the wife has a "present, existing, and equal interest" in the community property with the husband. It may also be conceded that any recovery for personal injuries to either spouse sustained during coverture, as well as the chose in action to enforce recovery is community property. (McFadden v. SantaAna etc. Ry. Co.,
[2] Thus, under the general provisions of section
[4] We may add that we reach the views herein announced the more readily because we find that the remaining portions of section
The writ is denied and proceedings dismissed.
Sturtevant, J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on December 5, 1930, and an *349 application by petitioner to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 29, 1930.