Dissenting. — This action was brought by respondents primarily to recover damages for personal injuries sustained by the wife of the respondent, Louis Labonte, and in the same count to recover for moneys expended for medical attendance, nursing and hospital fees.
There is a misjoinder of causes of action and a misjoinder of parties plaintiff under the former holdings of this court (Giffen v. City of Lewiston, 6 Ida. 231, 55 Pac. 545; Lindsay v. Oregon Short Line R. Co., 18 Ida. 477, 90 Pac. 984, 12 L. R. A., N. S., 184), and the demurrer to the complaint upon these grounds should have been sustained.
An action to recover damages for personal injuries sustained by the wife must be prosecuted, under the laws of this state, by the husband and wife. (Giffen v. City of Lewiston, supra; Lindsay v. Oregon Short Line R. Co., supra.) In the case of Giffen v. City of Lewiston, which was an action brought by John Giffen and his wife to recover damages for personal injury, this court, at p. 245 of 6 Ida., says: “In the case at bar, both husband and wife are necessary parties. The judgment should run to both. The damages, after recovery thereof, become the common property of both. But should the marital relation terminate, either by death or otherwise, the wife would be entitled to recover for such injuries, and any damages so recovered by her after the termination of the marital relation would belong to her exclusively. ’ ’ And again at p. 250, the court says: “The verdict of the jury was in favor of the plaintiff, Mary Giffen, alone. This was erroneous. The court should have instructed the jury to have amended their verdict so as to find in favor of the plaintiffs, and both of them; and the judgment, whether the verdict was amended or not, should have, been that the plaintiffs, John Giffen and Mary Giffen, recover, etc.” Also in the ease *654of Lindsay v. Oregon Short Line R. Co., supra; this same question received the consideration of this court, wherein it appeared that in a former action brought by Lindsay and his wife to recover damages for injuries sustained by the latter, judgment was in favor of the defendant railroad company. Later, the husband brought an action for injuries sustained by him. The defendant railroad company pleaded, among other things, res judicata. The trial court rejected the evidence offered in support of this defense, and upon an appeal from the judgment in favor of Lindsay this court sustained the ruling of the trial court, and, in discussing the question, said: “It is made necessary by our statute for the husband to join with the wife in an action for damages for personal injuries to herself, where the proceeds recovered is community property, and it is conceded that whatever could have been recovered, if anything, in that action would have been community.”
Under statutes identical with ours, the supreme court of California, in the - case of Sheldon and Wife v. Steamship Uncle Sam, 18 Cal. 527, 79 Am. Dec. 193, held that: “Husband and wife must join in an action for an injury done to the person of the latter.” In Tell v. Gibson, 66 Cal. 247, 5 Pac. 223, an action almost identical with the one now under consideration, the husband and wife brought suit to recover damages for personal injuries sustained by the latter, and it was sought to recover for money expended for medical at-, tendance, care and nursing during the illness of the wife as a result of the injuries so sustained. A demurrer was interposed upon the ground that several causes of action, viz., for the personal injuries to the wife and for money expended for medical attendance and nursing were improperly joined. The demurrer was overruled. The supreme court held that it should have been sustained, and stated that: “It is a well-settled rule of law that if a wife is injured in person or property she cannot sue for redress without her husband’s concurrence, and in his name as well as her own.....For consequential injuries to himself, the husband may sue alone; for the direct injury to the wife, husband and wife must sue, and *655the two causes of action cannot be joined in one suit..... ‘If physicians’ bills, medicines and expenses of nursing were incurred, the husband would be liable for their payment.’ ”
It was urged in that case that the error in overruling the demurrer was error without injury, because at the trial plaintiffs offered no evidence of expenses incurred for medical attendance and nursing. An examination of the case discloses that it was understood that all the- allegations in the complaint with reference to expense incurred for medical attendance and nursing, were stricken out, but upon the trial certain questions were asked the plaintiff, in answer to which she testified as to her inability to take care of herself and do her own work, which questions were predicated, in part at least, upon the loss of services of the wife, and evidence was submitted to the jury as to the elements of damages for injuries consequential upon the injury for which the husband alone could maintain an action. For the foregoing reasons the appellate court reversed the cause.
In the instant case evidence was not only received to support the allegations of the complaint for damages for personal injuries to the wife, but also to support the allegation in the complaint for the recovery of moneys expended for medical care, nursing, etc. This was clearly error. The supreme court of California, in holding that an action for personal injuries to the wife must be brought in the name of the husband and the wife, had clearly in mind the statutory provisions of that state relating to community property, and makes special reference thereto. In McFadden v. Santa Ana etc. Ry. Co., 87 Cal. 464, 25 Pac. 681, 11 L. R. A. 252, which was also an action for personal injuries sustained by the wife, that court, at p. 467 (of 87 Cal.) says: “The right to recover damages for a personal injury, as well as the money recovered as damages, is property, and may be regarded as a chose in action, .... and if this right to damages is acquired by the wife during marriage, it, like the damages when recovered in money, is, in this state, community property of the husband and wife (Civ. Code, sees. 162-164, 169), of which the husband has the management, control and absolute *656power of disposition other than testamentary. (Civ. Code, sec. 172.) Consequently, the wife cannot sue alone for damages on account of an injury to her person as she is permitted to do ‘when the action concerns her separate property.’ (Civ. Code, sec. 370; Tell v. Gibson, 66 Cal. 247, 5 Pac. 223.) In these respects our codes differ from the laws of those states in which the cases cited by appellants were decided, wherein the right to recover, for a personal injury to the wife, and the money recovered, are deemed her separate property.” It was held in McKune v. Santa Clara Valley Mill & Lmbr. Co., 110 Cal. 480, 42 Pac. 980, that, the action being primarily for the recovery of damages for injuries to the wife, the right of action and the damages were community property, over which the husband had the control and management and right to disposition except testamentary, and the two causes of action could not be united; that in the former action the wife was a necessary party and must be joined with her husband; that the husband had a separate action for consequential damages to him for his wife’s injuries, in which were included all expenses incurred looking to her recovery, and that the complaint was open to demurrer for improper joinder of causes of action.
These authorities are clear to the effect that there is one cause of action in favor of the husband and wife, jointly, for injuries to the wife, in which both must join, and another cause of action in favor of the husband alone for expenses to which he has been put in connection with the treatment of his wife, in which the wife would not be a proper party. Evidence of expenses incurred for medical service in joint suit by husband and wife is inadmissible. (Louth v. Thompson, 1 Penne. (Del.) 149, 39 Atl. 1100.)
As will be observed, the rule of law to which attention has been called was declared by the supreme court of California long prior to the adoption by this state of identical statutes. These California decisions were followed by this court in the eases cited above. For twenty years the rule has been regarded as settled that a husband and wife must sue jointly for personal injuries to the latter, and that the husband may *657maintain an action for all consequential damages, to which action the wife is not a proper party. The policy of the law being thus established, it should not be changed in the absence of legislation prescribing a different rule.
There is one other assignment of error to which reference will be made, i. e., the insufficiency of the evidence to support the verdict. No useful purpose would be served in setting out in detail the particulars wherein the evidence fails to justify the verdict, but my examination of the evidence and the surrounding circumstances leads me to the conclusion that there is a total lack of substantial evidence to warrant the jury in finding that appellant struck Mrs. Labonte and that by reason thereof she sustained injuries.
In my judgment the verdict should be set aside and a new trial granted.