Nichols v. Dunphy

53 Cal. 654

Opinion

By the Court:

There is no pretense that the appellant was personally present at or in anywise personally participated in the collision, to recover damages for which this action is brought.

As to whether the appellant, as being the husband of his co-defendant, could be held liable for the tort committed by her in his absence and without his command, is a question which does not arise upon the record, because the complaint does not allege that the defendants are husband and wife, but counts against them as actual tort-feasors, personally participating in the wrong complained of.

Judgment reversed and cause remanded. Remittitur forthwith.