
    [No. 6321.]
    EDITH HALL NICHOLS, an Infant, by her Guardian, WANTON NICHOLS, Plaintiff, v. WM. DUNPHY and CARMEN DUNPHY, Defendants.
    Breading—Liability of Husband fob Tout of the Wife.—The question whether a husband can be held liable for a tort committed by his wife in his absence and without his command will not be considered in a case where the complaint counts against both as actual tort-feasors, personally participating in the wrong-doing.—[Bepobtee.]
    
      Appeal from the District Court of the Twentieth Judicial District, Santa Clara County.
    The action was brought to recover damages alleged to have been caused by the defendants in negligently driving a buggy along the Alameda avenue, and against a buggy occupied by the plaintiff, in consequence of which the plaintiff was thrown out and injured. The complaint counted against both defendants, and did not allege them to be husband and wife. Judgment •was rendered for the plaintiff in the sum of five thousand dollars, and against both defendants. The defendant Wm. Dunphy appealed:
    
      D. M. Delmas, for Appellant.
    
      J. C. Black and W W. McKaig, for Respondent.
   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.  