concurring only in the result.
San Juan, Puerto Rico, October 14, 1968
The complaint for damages does not state the civil status of the plaintiff, María T. Robles Ostolaza. To an interrogatory of the defendant, which is included in the record, asking her to give her age, civil status, and exact address, the plaintiff answered: “38 years old, married.” On this bare fact the trial court decided the substantive right of the parties dismissing the complaint without going to the merits.
The sole expression in the record that the plaintiff is married, without more, did not inevitably determine the substantive right involved.
Section 91 of the Civil Code, 1930 ed., provides that the husband shall be the administrator of the conjugal property, except when stipulated othenvise. This rule is reaffirmed by the Code in its § 1312, excepting expressly the foregoing exception.
*586Rule 15.3 of the Rules of Civil Procedure of 1958 provides that a married woman needs “the consent” of her husband except: . . (c) When she is living separate and apart from her husband by reason of desertion of either spouse.”1
Pursuant to the foregoing provisions of law a woman, merely because she is married, is not barred from suing in connection with an interest which belongs or affects that body of property or familiar economic unity, sui generis, called conjugal partnership.2 However, she needs “the consent” of her husband, and if the point of fact were that of the exception indicated, she does not even need it. In Fernández v. Condado Beach Hotel, 72 P.R.R. 880 (1951), this Court through the then Mr. Chief Justice Todd, Jr., stated as follows:
“In countless cases we have repeatedly held that a married woman needs the assistance of her husband in order to litigate a cause of action belonging to the conjugal partnership.” (Citations of cases follow beginning with Vázquez v. Valdés et al., 28 P.R.R. 431, decided in 1920.) (Italics ours.)
In view of the facts in the record, or more properly stated, in view of the absence of facts in the record sufficient to decide the substantive right involved, the question to be decided by the trial court, in my opinion, should have been decided as a procedural problem of the plaintiff, nonjoinder of party, or complement of party for the “consent” of a *587husband, if an elucidation of the necessary facts which was not made showed the need of such “consent.”
I agree to the reversal of the judgment, which in substance, definitively dismissed the complaint with the view of the court that it was not subject to amendment, but for the reasons of a procedural nature which I have stated.
In conformance with the foregoing, I leave for the present, and for when in my judgment, it would be inevitable to consider and decide it, any opinion or expression as to whether the compensation or recovery of damages by a spouse as a consequence of personal injuries .sustained by him or her, should be considered now as the separate property of that spouse.
I do not deem it necessary to make such a statement now because the problem raised is not one which will establish the concept of ownership or title of that property between a spouse on one hand, and that peculiar patrimony of property and interest called conjugal partnership on the other — as would be the case if we were considering an action for the dissolution of the marriage and distribution of accrued assets; — but we are considering an action to claim or obtain such compensation or recovery.
And more particularly I abstain from expressing any opinion now under the circumstances of the record which I have announced since today’s decision rejects and repudiates a basic rule of law in our civil code which has governed for almost half a century the family institution in the sensitive aspect of its economic unity.
It is difficult to conceive in a sole act, all the consequences related to the rule now established. Since in my opinion it is not necessary to confront the fact in this Court, if the law in force warrants a change it should preferably be done by legislative action so as to legislate integrally at one time on other areas which could be affected.
*588At the commencement of the 5th Legislature which has just come to an end, on March 11, 1965, S.B. 207 was presented at the Senate, amending § 1299 of the Civil Code to provide that the following is the separate property of each spouse: “that obtained as compensation for damages to his or her separate property and for personal injury.” The bill amended also §§ 1308 and 1802. In the course of said 5th Legislature, neither of the houses approved the bill.
Section 54 of the Code of Civil Procedure, 1933 ed., as well as the former Rule 17(d)(3) of the Rules of Civil Procedure of 1943, conditioned this exception upon the fact that the husband had deserted the wife.
Section 1295 of the Civil Code does not define it, but states, that by virtue of the conjugal partnership the earnings or profits indiscriminately obtained by either of the spouses during the marriage, shall belong to the husband and wife, share and share alike, upon the dissolution of the marriage.
For the purpose of complying with the provisions of this § 1295 upon the dissolution of the marriage, the following § 1301 specifies the property that belongs to the conjugal partnership.