Paganini v. Polostrini

THE COURT.

This is an appeal from an order of the trial court granting a motion for nonsuit.

The plaintiff, a married woman living with her husband, brings this action to recover the reasonable value of certain necessaries of life furnished a minor while not under the care of his parents or guardian, and while said minor was living in the home of the plaintiff and her husband, and was being supplied with such necesaries out of their community property. There is no averment or proof that the plaintiff rendered to the minor any special service, or expended upon him any money form her own separate estate. On the contrary, it appears that the necessaries which the minor received were furnished chiefly from the grocery store of her husband, from which the general supplies of the household were taken. Upon the conclusion of the plaintiff’s case in which these facts appeared, the defendant moved for a non-suit upon the ground that the plaintiff had no right -of action, and that the husband would have been the only proper party to bring the suit.

We think the court committed no error in granting the motion for nonsuit. This is not a case of defect or nonjoinder of parties plaintiff. The sole right of recovery in this transaction was in the husband, and he alone had the original right to sue. The cases cited by the appellant have no application to the question in issue here. In each of these cases the plaintiff, the wife, was suing in her own name on account of some special contractual or personal right of her own which had been violated; as in the case of

Schwarze

v.

Mahoney,

97 Cal. 133 [31 Pac. 908], for the unlawful detainer of premises of which she was the lessor; and in the case of

Tingley

v.

Times-Mirror Co.,

151 Cal. 2, [89 Pac. 1097], for damages for libel directly affecting the plaintiff’s personal character; and in the case of

Baldwin

v.

Second

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