Rothschild v. Superior Court

NOURSE, P. J.

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 peti

[347]

tioner 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 1881 of the Code of Civil Procedure. The material provisions of this section read: “A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage. ...”

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 2021 of the Code of Civil Procedure.

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.

Santa Ana etc. Ry. Co.,