In Re Strand

SPENCE, J.

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

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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 1881 of the Code of Civil Procedure. It is petitioner’s contention that as the right of action for damages for personal injuries to the wife during marriage is community property, she cannot be compelled to testify for the reason that said section provides that a wife cannot be examined “for or against her husband without his consent”. In support of this contention petitioner relies upon the recent decision of this court in

Rothschild

v.

Superior Court,

109 Cal. App. 345 [293 Pac. 106, 107].

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 1881 of the Code of Civil Procedure. In our opinion she cannot, and we find nothing in

Rothschild

v.

Superior Court, supra,

which is in conflict with this conclusion. In that case we held that where an action is brought by the husband alone to recover damages for injuries sustained by him, the defendant may not compel the wife of the plaintiff to testify as she would then be compelled to testify “for or against her husband”. In that case the wife of plaintiff whose testimony was sought was not a party plaintiff while in the present case the petitioner is a party plaintiff.