This cause was transferred to the district court of appeal and therein, upon an opinion by Mr. Justice James, the judgment was reversed. Thereupon this court vacated' that decision and transferred the cause to the supreme court. Upon further consideration we are satisfied with the reasoning and conclusion of the learned justice of the district court and adopt his opinion as the opinion of this court. It is as follows:

The rehearing was granted chiefly for the purpose of again considering the previous decisions of this court upon the subject.

In this state all property acquired by a husband or wife during marriage, and while they are living together, is community property, except that which is acquired by gift, devise, or descent. At common law, property acquired by either spouse during marriage, otherwise than by gift, devise, or descent- to the wife, was the separate property of the husband. A right of action for damages caused by personal injuries to the wife during marriage is property. By the common-law rule it was the separate property of the husband. According to the rule in this state it is community property. The husband has the like absolute power to dispose of the community property, other than household goods -and clothing, that he has of his own separate property, except that he cannot make a gift thereof without the consent of the wife. (Civ Code, sec. 172.) In general, the husband is the only party entitled to sue in respect to community property and the wife is neither a necessary nor a proper party to such suit. So far as we are advised, the sole exception to this rule is the case of an action for damages for injury and suffering of the wife caused by a personal injury to her. In such cases it has become the settled rule in this state that the wife is a necessary party. We speak here only of causes of action for the pain and suffering endured by the wife. A different cause of action arises for the recovery of consequential damages to the husband for the loss of her services or for expenses for her treatment for the injury, and for that cause the husband is the sole party plaintiff. (McKune v. Santa Clara etc. Co., 110 Cal. 480, 487 , [ 42 Pac. 980 ]; Schouler on Husband and Wife, sec. 142.)

Although at common law the cause of action for the wife’s suffering was the separate property of the husband, it was settled that the wife was a necessary party to the suit, the reasoning being that, as the authorities express it, she was the “meritorious cause of action,” and that in ease of his death pending the suit the cause of action would survive to her. (10 Ency. of Plead. & Prac., 205; Schouler on Husband and Wife, sec. 142.) It did not descend to her, as does the community property in this state; it remained to her as the survivor and she could continue the prosecution of the action in her own name after his death. (Id.) The early decisions in this state declared that the wife was a necessary party to the action. (Sheldon v. Steamship “Uncle Sam,,” 18 Cal. 526 , [ 79 Am. Dec. 193 ]; Matthew v. Central Pacific R. R., 63 Cal. 450 ; Tell v. Gibson, 66 Cal. 247 , [ 5 Pac. 223 ].) These decisions were based on the decisions at common law, but did not mention the fact that the right of action in this state was community property. In McFadden v. Santa Ana etc. Co., 87 Cal. 464 , [11 L. R. A. 252, 25 Pac. 681 ], the question arose whether in such an action the contributory negligence of the husband would bar a recovery in such an action. It was for the first time held that the right of action was community property, enuring directly to the benefit of the husband, and that, as he could not be allowed to benefit from his own wrong, his contributory negligence would defeat the action. Ever since this decision the courts have held it to be community property, but, following the common-law rule, they have also uniformly declared that the wife is a necessary party to an action for its recovery. (Neale v. Depot Ry. Co., 94 Cal. 429 , [ 29 Pac. 959 ]; McKune v. Santa Clara etc. Co., 110 Cal. 480 , [ 42 Pac. 980 ]; Paine v. San Bernardino etc. Co., 143 Cal. 658 , [ 77 Pac. 659 ] ; Gomez v. Scanlan, 155 Cal. 530 , [ 102 Pac. 12 ] ; Gomez v. Scanlan, 2 Cal. App. 579 , [ 84 Pac. 50 ] ; Justis v. Atchison etc. Co., 12 Cal. App. 642 , [ 108 Pac. 328 ].) In Lamb v. Harbaugh, 105 Cal. 691 , [ 39 Pac. 56 ], and Williams v. Casebeer, 126 Cal. 82 , [ 82 Pac. 376 ], the court decided that the wife could not sue alone for such injuries.

We are now asked to overrule these decisions. The argument is that the right of action is community property, of which the husband has sole control and power of disposition, that even the title thereto is vested in him so that upon his death the title goes to the wife by descent and not by survivor-ship (Civ. Code, sec. 1402), that there is no ground for any distinction between this right and other community property and that, consequently, an action upon it should be governed by the code rule that “every action must be prosecuted in the name of the real party in interest” (Code Civ. Proc., sec. 367); whereupon it would follow that the husband is the only proper party plaintiff in such an action. The reasoning is forceful, but the rule has been followed so long and so often that it should be considered settled. The proposition that, although the right of action is community property, yet the wife is a necessary party in this particular class of cases, is no more illogical than the rule at common law that the wife must join though the right was the separate property of the husband. The reasons for the decisions under the common law are applicable to the case where the right is community property, as fully and completely as to the case where it is the husband’s separate property. The remedy for any hardships or anomalies resulting from this long settled rule rests with the legislature. It may be remarked that it has acted in the matter by the amendment of 1913 [Stats. 1913, p. 217] to section 370 of the Code of Civil Procedure, whereby the wife may sue alone in such actions. This amendment was enacted after this action was begun and it does not affect this case.

The judgment is reversed.

■Sloss, J., Angellotti, J., Lorigan, J., Henshaw, J., and Melvin J., concurred.