Andrews v. Runyon

California Supreme Court Sep 30, 1884 No. No. 9,203Published

Before: Thornton

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Holding. The court held that a married woman living apart from her husband due to his desertion may sue alone, but reversed the judgment due to the trial court's improper comments on evidence regarding contributory negligence and contractual liability.

Issues

Whether a married woman living apart from her husband is competent to sue alone under the statute.
Whether the trial court improperly invaded the province of the jury by commenting on the evidence of contributory negligence.
Whether the trial court erred in its instructions regarding the scope of an oral contract and the refusal to consider requested instructions.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Does the law require any actual physical return when the wife, in the vicinity of her husband’s home, offers to go back and resume the performance of her marital duties, and he in effect tells her you need not come”

“The authority of the court is limited to stating the evidence and declaring the law.”

“For the errors pointed out, the judgment and order are reversed and cause remanded for a new trial.”

Synopsis

Husband and Wife —Suit by Harmed Woman—Deseetion—Parties.—Where a wife deserts her husband, but before the expiration of the statutory period ' required to make the desertion a cause of divorce offers, by letter, and in good faith, to return and resume the performance of her marital duties, and he informs her that he will not receive her, such refusal amounts to desertion on his part, and she may sue alone to recover damages for personal injuries.

Contbibutoby Negligence—Instbuctions—Remarks of the Judge. —The action was brought to recover damages for personal injuries caused by the alleged negligence of the defendants, and contributory negligence on the part of the plaintiff was set up as a defense. After submitting to the jury the question of contributory negligence, the judge remarked to the jury that he did not see how ■ the acts alleged to constitute contributory negligence were unreasonable, or something which an ordinary man would not do. Eeld, error.

Id.—Illegal Act of Employee—Llabillty of Employer. — One who employs another to repair a levee in the vicinity of a highway is not responsible for the consequences of an illegal act of the latter in removing earth from the highway, . to be used in making the repairs, unless such removal entered into and formed a part of the contract of employment.

Instructions—Refusal to Give on Account of Length.—It is error for the court to refuse instructions on account of their number and length.

Thornton, J. This action was instituted to recover damages for personal injuries alleged to have been occasioned by the negligence of defendants, and comes before this court on appeal of the parties last named from the judgment and order denying a new trial.

Many points are argued in the briefs of counsel, which we are called on to consider and determine.

As to the objections to the complaint, we are of opinion that they are not well taken.

It is urged that the plaintiff was a married woman wdio had deserted her husband, and therefore was not competent to sue alone. The court in its direction to the jury ruled against this contention, and error is assigned on this ruling. [631]The statute (Code Civ. Proc. § 370) requires that when a married woman is a party, her husband must be joined with her, except under certain conditions therein specified. The exception under which the plaintiff claims that she is authorized to sue alone is that she was, when this action was commenced, living separate and apart from her husband by reason of his desertion of her. The evidence on this point is as follows: The plaintiff and her husband resided at Walla Walla, in the Territory of Washington. The husband failed to support her and his child by a former marriage (the support of the child and herself thus falling on her), and on this account she left him in May, 1880; that she offered to go back to him and perform her duties as a wife in January, 1881, again in May, 1881, a third time in July, 1881, and still a fourth time in October, 1882, and that he refused to take her back. When she made the offer in January, 1881, she was in Umatilla, in Western Oregon, about twenty miles from Walla Walla. That she did not return at that time, because she was sick and unable to go. Of this sickness her husband knew, and manifested no interest in her, never inquired about her, but simply refused to have anything to do with her or take her back. That if she had not been sick and unable to go she would have gone back. These offers were made" in good faith, as the plaintiff testified, and there is no contradictory testimony. It further appears that in August, 1882, she received a letter from her husband asking her to come back; that in reply she wrote an amiable answer; that in October, 1882, he wrote her another letter stating that ho had a home in Lewiston, Idaho, describing the house, and saying he wanted her to be with him, but before she received this letter she had another from him in answer to one from her written from the county hospital, refusing to live with her, and telling her that the county hospital was the proper place for her. This last was written after he had heard of her crippled condition, caused by the injury on which this action is based. These offers by the plaintiff to return were all made by letter, and except the first in January, 1881, written from Umatilla, were written from this State, to which she had subsequently come.

Andrews v. Runyon

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