MORGAN, J.
Respondents, husband and wife, in their complaint charged, in one count, that appellant maliciously committed battery upon the wife by striking her with his fist, and causing her to fall against the corner of a table, whereby she was permanently injured, and that the husband became obligated for medical attendance and hospital fees. The relief demanded was $10,000 actual damages, $3,000 exemplary damages, and $600 for the expenses mentioned. From a judgment for respondents for $5,000 actual damages and $600 because of said expenses, and from an order denying a new trial, this appeal is taken.
Appellant demurred to the complaint for the reason that it improperly united a cause of action, in favor of the husband and wife, for injuries to the wife, with a cause of action, in favor of the husband only, for expenses. The demurrer was overruled, and motions to require respondents to elect between the causes of action, and to strike, were denied.
There is some conflict in the authorities upon this point arising, largely, from broadly divergent statutory provisions in the several states governing the property rights of husband and wife, and the powers of married women as parties litigant. Approaching this question it must be borne in mind this is a community property state and has the following statutory provisions:
Sec. 2676. “All property of the wife owned by her before marriage, and that acquired afterwards by gift, bequest, or descent, or that which she shall acquire with the proceeds of her separate property, shall remain her sole and separate property, to the same extent and with the same effect, as the property of a husband similarly acquired. ’ ’
Sec. 2679. “All property owned by the husband before marriage, and that acquired by gift, bequest, devise or descent is his separate property.”
[648]*648Sec. 2680. “All other property acquired after marriage by either husband or wife, including the rents and profits of the separate property of the husband and wife, is community property, unless by the instrument by which any such property is acquired by the wife it is provided that the rents and profits thereof be applied to her sole and. separate use; in which case the management and disposal of such rents and profits belong to the wife, and they are not liable for the debts of the husband.”
The right to sue in this case was a chose in action and, by the statutory provisions above quoted, is made community property. Rev. Codes, see. 2686, amended by Sess. Laws, 1913, chap. 105, p. 425, and by Sess. Laws, 1915, chap. 75, p. 187, provides that the husband has the management and control of the community property, except the earnings of the wife for her personal services and the rents and profits of her separate estate. He is, therefore, the only necessary party plaintiff in a ease of this kind and may, in his own name, without joining his wife, sue to recover damages for her personal injuries and for expenses incurred for medical attendance and hospital fees by reason thereof. (Holton v. Sand Point Lumber Co., 7 Ida. 573, 64 Pac. 889; Ezell v. Dodson, 60 Tex. 331; San Antonio Street Ry. Co. v. Helm, 64 Tex. 147; Gallagher v. Bowie, 66 Tex. 265, 17 S. W. 407; Hawkins v. Front-Street Cable Ry. Co., 3 Wash. 592, 28 Am. St. 72, 28 Pac. 1021, 16 L. R. A. 808.)
In Giffen v. City of Lewiston, 6 Ida. 231, 55 Pac. 545, a case arising out of personal injury to the wife, where it was contended that damages for her loss of ability to labor could only be recovered by the husband in a separate action brought for that purpose, this court held that any damage, general or special, recovered by the husband during the marital relation for loss of time or capacity by the wife, in such a case, was community property, and incidentally stated the rule to be that both husband and wife are necessary parties. The latter holding is not the law.
In Lindsay v. Oregon etc. Ry. Co., 13 Ida. 477, 90 Pac. 984, 12 L. R. A., N. S., 184, it is said that the husband must be [649]*649joined with the wife in a suit' for damages for her personal injury, because judgment recovered, if any, would be community property. That case does not decide, and the question was not before the court, whether the husband could maintain the suit alone.
In Sheldon and Wife v. Steamship Uncle Sam, 18 Cal. 527, 79 Am. Dec. 193, the supreme court of California held that the husband and wife must join in an action because of injuries sustained by her and. that he must sue alone for expenses incurred thereby. The court did not discuss the community property feature of the question, nor give any reason for so holding other than that it is in accord with the common law. Following that decision that court decided, in Matthew v. Central Pac. R. R. Co., 63 Cal. 150, that in an action to recover damages for her personal injury the cause of action belongs to the wife, and that the cause of action for expenses growing out of the injury belongs to the husband and cannot be joined with that of the wife, and the same may be said of Tell v. Gibson, 66 Cal. 217, 5 Pac. 223. In deciding these cases that court seems to have overlooked the fact that California had statutory provisions like ours which made damages arising from personal injuries to the wife community property, of which the husband had the management and control, and the further fact that there was no community property known to the common law, hence its rules could have no application to the matter before the court.
In McKune v. Santa Clara Valley Mill & Lumber Co., 110 Cal. 180, 12 Pac. 980, wherein recovery was sought for personal injury to the wife, coupled with a claim by the husband for expenses growing out of it, the California court recognized the claim of damage, by reason of the injury, to be community property, but adhered to the rule stated in the decisions above cited, holding that this class of cases forms an exception to the rule that the husband alone is the proper party plaintiff in suits involving community property, and that the wife must be joined with him in these actions.
No sound reason can be found for any such exception. In this case the $5,000 recovered for injuries to the wife is an [650]*650asset of the community fund, of which the husband has management and control. The $600 expense contracted as a result of her injury is a liability against the same fund, and we are unable to discover any reason why these items should be the subjects of two separate actions. The demurrer and motions were properly overruled.
The complaint commingled two causes of action, not inconsistent, in one count. The proper procedure in such event is by motion to require plaintiff to separately state his causes (Darknell v. Coeur d’Alene etc. Transp. Co., 18 Ida. 61, 108 Pac. 536), and is not by demurrer, or motion to strike out or to compel the pleader to elect. The cases of Fox v. Rogers, 6 Ida. 710, 59 Pac. 538, and Jones v. City of Caldwell, 20 Ida. 5, 116 Pac. 110, 48 L. R. A., N. S., 1021, so far' as they hold to the contrary, are, in that respect, overruled.
The evidence submitted to the jury being sufficient, if uneontradicted, to prove the allegations of the complaint and to support the verdict, the latter will not be disturbed because of conflict. (Raft River Land & Livestock Co. v. Laird, 30 Ida. 804, 168 Pac. 1074.)
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MORGAN, J.
Respondents, husband and wife, in their complaint charged, in one count, that appellant maliciously committed battery upon the wife by striking her with his fist, and causing her to fall against the corner of a table, whereby she was permanently injured, and that the husband became obligated for medical attendance and hospital fees. The relief demanded was $10,000 actual damages, $3,000 exemplary damages, and $600 for the expenses mentioned. From a judgment for respondents for $5,000 actual damages and $600 because of said expenses, and from an order denying a new trial, this appeal is taken.
Appellant demurred to the complaint for the reason that it improperly united a cause of action, in favor of the husband and wife, for injuries to the wife, with a cause of action, in favor of the husband only, for expenses. The demurrer was overruled, and motions to require respondents to elect between the causes of action, and to strike, were denied.
There is some conflict in the authorities upon this point arising, largely, from broadly divergent statutory provisions in the several states governing the property rights of husband and wife, and the powers of married women as parties litigant. Approaching this question it must be borne in mind this is a community property state and has the following statutory provisions:
Sec. 2676. “All property of the wife owned by her before marriage, and that acquired afterwards by gift, bequest, or descent, or that which she shall acquire with the proceeds of her separate property, shall remain her sole and separate property, to the same extent and with the same effect, as the property of a husband similarly acquired. ’ ’
Sec. 2679. “All property owned by the husband before marriage, and that acquired by gift, bequest, devise or descent is his separate property.”
[648]*648Sec. 2680. “All other property acquired after marriage by either husband or wife, including the rents and profits of the separate property of the husband and wife, is community property, unless by the instrument by which any such property is acquired by the wife it is provided that the rents and profits thereof be applied to her sole and. separate use; in which case the management and disposal of such rents and profits belong to the wife, and they are not liable for the debts of the husband.”
The right to sue in this case was a chose in action and, by the statutory provisions above quoted, is made community property. Rev. Codes, see. 2686, amended by Sess. Laws, 1913, chap. 105, p. 425, and by Sess. Laws, 1915, chap. 75, p. 187, provides that the husband has the management and control of the community property, except the earnings of the wife for her personal services and the rents and profits of her separate estate. He is, therefore, the only necessary party plaintiff in a ease of this kind and may, in his own name, without joining his wife, sue to recover damages for her personal injuries and for expenses incurred for medical attendance and hospital fees by reason thereof. (Holton v. Sand Point Lumber Co., 7 Ida. 573, 64 Pac. 889; Ezell v. Dodson, 60 Tex. 331; San Antonio Street Ry. Co. v. Helm, 64 Tex. 147; Gallagher v. Bowie, 66 Tex. 265, 17 S. W. 407; Hawkins v. Front-Street Cable Ry. Co., 3 Wash. 592, 28 Am. St. 72, 28 Pac. 1021, 16 L. R. A. 808.)
In Giffen v. City of Lewiston, 6 Ida. 231, 55 Pac. 545, a case arising out of personal injury to the wife, where it was contended that damages for her loss of ability to labor could only be recovered by the husband in a separate action brought for that purpose, this court held that any damage, general or special, recovered by the husband during the marital relation for loss of time or capacity by the wife, in such a case, was community property, and incidentally stated the rule to be that both husband and wife are necessary parties. The latter holding is not the law.
In Lindsay v. Oregon etc. Ry. Co., 13 Ida. 477, 90 Pac. 984, 12 L. R. A., N. S., 184, it is said that the husband must be [649]*649joined with the wife in a suit' for damages for her personal injury, because judgment recovered, if any, would be community property. That case does not decide, and the question was not before the court, whether the husband could maintain the suit alone.
In Sheldon and Wife v. Steamship Uncle Sam, 18 Cal. 527, 79 Am. Dec. 193, the supreme court of California held that the husband and wife must join in an action because of injuries sustained by her and. that he must sue alone for expenses incurred thereby. The court did not discuss the community property feature of the question, nor give any reason for so holding other than that it is in accord with the common law. Following that decision that court decided, in Matthew v. Central Pac. R. R. Co., 63 Cal. 150, that in an action to recover damages for her personal injury the cause of action belongs to the wife, and that the cause of action for expenses growing out of the injury belongs to the husband and cannot be joined with that of the wife, and the same may be said of Tell v. Gibson, 66 Cal. 217, 5 Pac. 223. In deciding these cases that court seems to have overlooked the fact that California had statutory provisions like ours which made damages arising from personal injuries to the wife community property, of which the husband had the management and control, and the further fact that there was no community property known to the common law, hence its rules could have no application to the matter before the court.
In McKune v. Santa Clara Valley Mill & Lumber Co., 110 Cal. 180, 12 Pac. 980, wherein recovery was sought for personal injury to the wife, coupled with a claim by the husband for expenses growing out of it, the California court recognized the claim of damage, by reason of the injury, to be community property, but adhered to the rule stated in the decisions above cited, holding that this class of cases forms an exception to the rule that the husband alone is the proper party plaintiff in suits involving community property, and that the wife must be joined with him in these actions.
No sound reason can be found for any such exception. In this case the $5,000 recovered for injuries to the wife is an [650]*650asset of the community fund, of which the husband has management and control. The $600 expense contracted as a result of her injury is a liability against the same fund, and we are unable to discover any reason why these items should be the subjects of two separate actions. The demurrer and motions were properly overruled.
The complaint commingled two causes of action, not inconsistent, in one count. The proper procedure in such event is by motion to require plaintiff to separately state his causes (Darknell v. Coeur d’Alene etc. Transp. Co., 18 Ida. 61, 108 Pac. 536), and is not by demurrer, or motion to strike out or to compel the pleader to elect. The cases of Fox v. Rogers, 6 Ida. 710, 59 Pac. 538, and Jones v. City of Caldwell, 20 Ida. 5, 116 Pac. 110, 48 L. R. A., N. S., 1021, so far' as they hold to the contrary, are, in that respect, overruled.
The evidence submitted to the jury being sufficient, if uneontradicted, to prove the allegations of the complaint and to support the verdict, the latter will not be disturbed because of conflict. (Raft River Land & Livestock Co. v. Laird, 30 Ida. 804, 168 Pac. 1074.)
It is alleged in the complaint that respondents are husband and wife, and both testified to their marriage in Portland, Oregon; to the birth of their two children, and that they had lived together in Oregon and Idaho since their wedding. Appellant, as part of his defense, called as a witness one of the official custodians of the marriage records, of Multnomah County, in which Portland is situated, who testified that in an inspection of such records he found no mention of a marriage between Louis Labonte and Josephine M. Labonte, during the year given by them as that of their marriage. Thereafter, over the objection of appellant, Mrs. Labonte and another witness testified that respondents were married under the name of Clement, that Labonte was one of the Christian names of the husband; that while in Oregon they had been known by both the names, Labonte and Clement, but in Boise had at all times used the name Labonte. The presumption of law is in favor of the validity of a marriage (Huff w. Huff, 20 Ida. 450, 118 Pac. 1080), and the direct testimony of re[651]*651spondents was sufficient to establish, prima, facie, their relation of husband and wife. Marriage may be proven by the testimony of one of the parties. (Watson v. Lawrence, 134 La. 194, Ann. Cas. 1916A, 651, and note, 63 So. 873, L. R. A. 1915E, 121.) It was not error to permit respondents to explain the apparent absence of record evidence of their marriage, by showing the name under which it was consummated, for appellant’s evidence as to the contents of the Oregon records was negative only, and did not conclusively disprove-the marriage nor, for that matter, preclude the existence of a record of it.
Appellant’s contention that he was taken by surprise by such testimony is met by the affidavit of one Grimand to the effect that long previous to the trial he informed Dirks, a co-defendant of appellant, who was represented by the same counsel and who joined in the answer, that respondents were known in Portland and in Joseph, Oregon, by both the name Clement and Labonte. This affidavit was not denied, and upon the hearing of the motion for a new trial the judge apparently concluded, as, in his discretion, he had a right to do, that the contention of surprise was not established.
Testimony was admitted touching the physical ability of Mrs. Labonte to perform labor before and after her injury. Though she claimed no damage for loss of employment, and her husband none for loss of her services, such evidence was competent as tending to show the extent of her injury and suffering. (Graham v. Coeur d’Alene etc. Transp. Co., Ltd., 27 Ida. 454, 149 Pac. 509.)
Counsel for respondents, upon argument to the jury, called attention to the wealth of appellant and contrasted it with the poverty of respondents. To these remarks appellant’s attorney made objection, immediately after their utterance, on the ground that the evidence did not disclose the financial situation of either of the parties. The objection was sustained. The statements are here assigned as error and as constituting prejudicial misconduct of counsel. The record presents no exception upon which appellant may predicate error in this connection. No motion to strike the alleged im[652]*652proper remarks or to instruct the jury to disregard the same, or to dismiss the jury because of the prejudicial statements, Avas made and denied. Appellant contented himself with an objection which was sustained. There was no ruling of the trial judge adverse to him and the incident presents nothing to this court for review. (Palcher v. Oregon Short Line R. Co., ante, p. 93, 169 Pac. 298.)
Appellant complains of an instruction to the effect that if the jury found that he acted maliciously and violently, exemplary damages might be allowed. The verdict contained an aAvard of $5 exemplary damages which, whether .correctly or not, was later set aside by the trial' judge. It is thus apparent that the giving of the instruction worked no harm to appellant.
The instructions of the court, taken as a whole, presented the laAV of the case without prejudice to appellant, and substantially embodied the requests of counsel for special instructions. They afford no reason for disturbing the verdict. (Saccamonno v. Great Northern Ry. Co., 30 Ida. 513, 166 Pac. 267; Dore v. Cottom, 30 Ida. 696, 167 Pac. 1164; State v. Curtis, 30 Ida. 537, 165 Pac. 999.)
Mrs. Labonte, at the time of the trial, was twenty-three years old, the mother of two small children, and was in good health previous to the injury, which occurred while she was pregnant. The evidence shows that her injuries are “permanent and progressive.” An award of $5,000 damages is not excessive.
In support of the motion for a new trial upon the ground of newly discovered evidence, appellant filed affidavits to the effect that respondent Louis Labonte had made certain statements and suggestions derogatory, not only to the character of his wife, but, by inference, to his own. This evidence of specific instances of misconduct is evidently intended to discredit him as a witness. That form of impeachment is prohibited by Rev. Codes, sec. 6082. The evidence is inadmissible and furnishes no reason for granting a new trial.
[653]*653We find no prejudicial error in the record. The judgment and order appealed from are affirmed. Costs are awarded to respondents.
Rice, J., concurs.