Muller v. Hale

California Supreme Court Dec 23, 1902 No. S.F. No. 2581.Published

Before: Van Dyke

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Holding. The court held that the trial court properly denied peremptory challenges where co-defendants failed to join in the challenge, correctly allowed a deserted wife to sue alone, properly excluded evidence of custom regarding elevator lighting, and correctly submitted the issue of contributory negligence to the jury. The court further held that the defendant was liable for her own negligence regardless of the potential negligence of a third party.

Issues

Whether the denial of separate peremptory challenges for co-defendants violates the Fourteenth Amendment.
Whether a married woman living apart from her husband due to desertion may maintain a personal injury action alone.
Whether the trial court erred in excluding evidence of general custom regarding elevator lighting and conditions on other days.
Whether the trial court erred in refusing instructions regarding the liability of a third party when the defendant's own negligence was at issue.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Either party may challenge the jurors; but where there are several parties on either side they must join in a challenge before it can be made.”

“When a married woman is living separate and apart from her husband, by reason of his desertion of her, she may sue or be sued alone.”

“The question of contributory negligence, under the facts and circumstances surrounding the case, was submitted to the jury, and they found as a fact that plaintiff was not guilty of contributory negligence.”

Synopsis

The facts are stated in the opinion of the court.

VAN DYKE, J.

This action

was

brought to

recover

damages for personal injuries sustained by the plaintiff through

[165]

the alleged negligence of the defendants. The trial court granted a motion for a nonsuit made by the defendant San Francisco District Telegraph Company after the plaintiff’s case in chief was closed. Plaintiff recovered a verdict and judgment of five thousand dollars against the defendant Anais Hale, who now appeals from the judgment, and also from an order denying a motion for a new trial.

1. Appellant claims the court erred in refusing to allow the defendant Hale four peremptory challenges. During the impanelment of the jury the defendants had joined in challenging three jurors, and the defendant Hale peremptorily challenged another juror named Hugh Fraser, but the co-defendant, San Francisco District Telegraph Company, refused to join in this challenge. Thereupon the court overruled the challenge. “Either party may challenge the jurors; but where there are several parties on either side they must join in a challenge before it can be made.” (Code Civ. Proc., sec. 601.) A similar provision was contained in the old Practice Act. The appellant concedes that the ruling of the court was justified by the statute of this state, but contends that it violates the fourteenth amendment of the constitution of the Uni-, ted States, in that it denies persons equal protection of the laws. We see nothing in this contention, inasmuch as the same rule applies to all the parties to an action where they are-united with others, either as plaintiffs or defendants.

2. Appellant contends that there is a defect of parties plaintiff, inasmuch as the plaintiff’s husband was not joined with her in bringing the action. It appears, however, by the testimony of the plaintiff that at the time of the injury, and at the time of bringing the action, she was living separate and apart from her husband, through his own neglect in deserting her, and that before the trial of the action she had obtained a divorce from him. When a married woman is living separate and apart from her husband, by reason of his desertion of her, she may sue or be sued alone. (Code Civ. Proc., sec. 370, subd. 3.)

Muller v. Hale

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Synopsis

VAN DYKE, J.

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