HAZEL JEANNE BOYD, Plaintiff and Appellant, v. JOHN H. BOYD, Defendant and Respondent.
Civ. No. 10759
Third Dist.
July 8, 1964
228 Cal. App. 2d 374
FRIEDMAN, J.—According to her complaint, plaintiff‘s first husband died in 1956. Following his demise she commenced receiving monthly payments of $75 from the Veter
The lower court sustained a general demurrer to this complaint and plaintiff failed to amend. Judgment was entered for defendant and plaintiff appeals. The allegations of the complaint are deemed admitted for the purpose of this appeal. The problem on appeal is whether these claims are barred by Civil Code sections 43.4 and 43.5, abolishing so-called “heart balm” actions.1
Section 43.5, the original statute outlawing this group of actions, was enacted in 1939. Subdivision (d) aimed at so-called breach of promise suits, but its scope was sharply confined in 1956 when the Supreme Court held that it barred only causes of action for breach of contract, not actions resting upon allegations of a fraudulent promise of marriage. (Langley v. Schumacker, 46 Cal.2d 601 [297 P.2d 977]; see Note 8 Hastings L.J. 210.) In response, the 1959 Legislature adopted section 43.4, barring actions based upon fraudulent promises.
Most of the reported decisions collected in annotations to sections 43.4 and 43.5 involve head-on attempts by plaintiffs’ attorneys to crush rather than avoid the statutes. In Langley v. Schumacker, however, counsel succeeded after several
Does the marriage ceremony take the case out of the class of suits prohibited by
From a teleological view the matter is somewhat more doubtful.
The policy objective of
We consider next the impact of the plea of an express promise of support and the claim of special monetary loss.
The marriage institution comprehends an array of interrelated commitments and expectations. These commitments include the usual incidents of matrimonial existence such as mutual affection, companionship, sexual relations and the traditional distribution of domestic activities. The notion of financial support by the male is implicit in marital status. Even in this era of working wives the husband has ultimate economic responsibility. In outlawing breach of promise actions,
From this bundle of expectations and commitments Count I of the complaint plucks the single commitment of economic support, in this case alleged to be an express oral promise. Its isolation from the bundle gives it no added sanctity, no added enforceability. In this case, says plaintiff, the defendant made and broke an express oral promise, and this breach—
Breach of promise actions generally aim at financial vindication of the entire group of marital expectations and commitments. (See 11 C.J.S., Breach of Marriage Promise, § 40, pp. 808-810; 12 Am.Jur.2d, Breach of Promise, § 26, pp. 726-727.) That one plaintiff seeks compensation for outraged affection or loss of companionship, while another expresses loss of expected support, is not a pivotal factor.2 Loss of support may arouse more sympathy than balm for outrage and humiliation, but the statute no more allows the former variety of damage than the latter. Thus a plaintiff may not, by selecting frustrated economic expectations as the sole item of damage, escape the bar of the statute.
The cancellation of plaintiff‘s government payments represents a substantial variation on the damage theme usually sounded in breach of promise actions. As a result of defendant‘s breach, plaintiff has suffered not only the loss of future support from defendant, but the loss of assured income from independent sources. On the face of the matter defendant‘s wrong has caused genuine hardship of a special kind which is quite distinct from her loss of the standard group of marital advantages. It has been noted that statutes outlawing such suits undoubtedly deny relief in many cases of serious and
Such an argument is not completely persuasive. The statute on its face makes no distinction between one kind of damage and another. It abolishes the remedy for the wrong without express recognition of such an individualized loss, however genuine. Thus literal pursuit of literal language tends to bar recognition of plaintiff‘s special loss. In deference to hard cases outside the seeming reach of legislative foresight, courts occasionally elevate pursuit of statutory policy over literal obedience. This case is not that hard. Plaintiff has alternative remedies which, so far as her pleading goes, she has not pursued. She has not, as did the plaintiff in Langley, preceded this action by an annulment for fraud. Her present suit insists on the binding character of defendant‘s commitments. If she extends equivalent recognition to the marriage, she may file suit for divorce or separate maintenance, seeking support payments approximating the loss asserted here. On the other hand, if a wronged woman is permitted to recover a damage judgment under these circumstances, she may then pursue cumulative legal remedies to secure additional money, vengeance or both. The availability of alternative remedies to recoup her loss persuades us that her claim of special damage should not escape the bar of
Count II alleges a fraudulent promise “to live with
At this point too, plaintiff‘s loss of government payments arouses real concern. Notwithstanding the special character of the loss, the gravamen of Count II is defendant‘s fraudulent promise to live with and support plaintiff, that is, to cohabit after marriage. The allegation calls upon the trial court to explore the suitor‘s mind to determine the sincerity of his marriage proposal, a function decried by statutory policy. (A. B. v. C. D., 36 F.Supp. 85, 87.) Defendant received no money or property. The objective of the action is damages, not restitution. (Cf. Mack v. White, supra; Norman v. Burks, supra.) Thus, the legal character of the injury and the character of the litigation objective bring the claim within the jaws of
Count III of the complaint, after alleging the same marital promises as the preceding counts, asserts that “defendant either negligently married plaintiff or negligently left plaintiff without giving reasonable care as to the support of plaintiff. . . .” Here plaintiff grasps the seeming opportunity offered by Langley v. Schumacker of pleading in tort rather than contract. There are many instances where an injured party has the election of an action ex contractu or ex delicto. (See Eads v. Marks, 39 Cal.2d 807, 810-811 [249 P.2d 257].) There are also injuries which fall entirely into one class or the other, where the claim is purely a breach of promise and cannot be transmuted into a tort action by allegations that the promise was negligently or maliciously broken. (Estep v. Budger Mfg. Co., 164 Cal.App.2d 119, 123-124 [330 P.2d 298]; Peterson v. Sherman, 68 Cal.App.2d 706, 711 [157 P.2d 863]; 1 C.J.S., Actions, § 47, p. 1103.) Election is particularly impermissible where the injection of tort language in a complaint is, as here, a transparent pleading device for circumventing a statutory barrier. (See cases cited 1 Witkin, Cal. Procedure, Actions, § 43, pp. 539-540.) The demurrer to the third count was properly sustained.
Finally, plaintiff asserts that sections 43.4 and 43.5 are unconstitutional, destroying a cause of action without due process of law. The claim is made after repeated decisions to the contrary and is untenable. (Jacks v. Jacks, 140 Cal.App.2d 852 [295 P.2d 921]; Ikuta v. Ikuta, supra, 97 Cal.App.2d 787; Langdon v. Sayre, 74 Cal.App.2d 41 [168 P.2d 57]; see Fearon v. Treanor, 273 N.Y. 645 [8 N.E.2d 36], appeal dismissed 301 U.S. 667 [57 S.Ct. 933, 81 L.Ed. 1332], reh. denied 302 U.S. 774 [58 S.Ct. 6, 82 L.Ed. 600]; cases collected 158 A.L.R. at 618-623; see also Werner v. Southern Cal. Assoc. Newspapers, 35 Cal.2d 121, 125-128 [216 P.2d 825, 13 A.L.R.2d 252].)
Judgment affirmed.
Schottky, J., concurred.
PIERCE, P. J.—I dissent. In my opinion Count II states a cause of action in fraud and deceit.
Count II effectually alleges that defendant, with knowledge that plaintiff would thereby lose valuable rights in the nature of pensions, represented (promised) to her that he would live with and support her, a representation which he
There is no question that this, at common law, would state a cause of action in deceit, and that the common law is applicable in California unless changed by statute. When, therefore, we turn to
As the opinion of Justice Friedman points out, this section was written into the anti-heart-balm law after Langley v. Schumacker (June 1956) 46 Cal.2d 601 [297 P.2d 977], and no doubt with that opinion in mind. The facts in Langley were that plaintiff gave up her job upon defendant‘s fraudulent representation that he would marry her; and “consummate the marriage” by having “marital intercourse” and by cohabiting with plaintiff. The court in Langley held that
When the Legislature in 1959 stated in response to the Langley decision that a fraudulent promise to cohabit after marriage was not actionable, there is no gainsaying that a plaintiff who bases her (or his) complaint wholly upon a fraudulent representation of “cohabitation” as the word was applied in Langley and as it was intended to be applied by the Legislature when it “overruled” Langley, states no cause of action.
But, where I part company with the majority opinion is its tenet that the cause of action stated here is based upon nothing other than a fraudulent promise of cohabitation. The opinion states that the “complaint indulges in the dancing footwork of artful pleading, meticulously avoiding the word ‘cohabit’ and resorting to a series of equivalent terms.”
I cannot agree that the terms of this complaint are “equivalent.” The fraudulent acts alleged here undoubtedly embrace cohabitation but they go beyond that.
Defendant, it is alleged, not only promised the plaintiff he would live with her as a husband and wife live together, which is the common meaning of “cohabit,” he also promised that when she surrendered valuable property—her pension rights—she would receive in lieu thereof his labor to
The majority opinion argues that because support by the male is the usual concomitant of marriage it is also a necessary component part of the defined term “cohabitation.” I do not agree. In marriage where both the husband and wife work or, where the husband does not work, can it be said that because of this they do not cohabit?
Nor, remembering the objectives in mind in the adoption of anti-heart-balm legislation, is there any conceivable reason in my opinion why the Legislature should have intended to legislate against fraudulent promises for support. Why should it so discriminate against a plaintiff, and in favor of a defendant, merely because the fraudulent representations included the added bait of unfulfilled connubial enjoyment? The ruling of the majority means that no matter how treacherous the fraud, no matter how grievous the monetary loss, there can be no recovery so long as the promisor has been astute enough to couple his promise of support with a promise to cohabit in marriage. The plaintiff who gives up a pension to become the unwed companion of the deceitful defendant can be made whole, but the plaintiff who succumbs to wiles which include marriage cannot recover—not even if plaintiff gives up pension rights equal to a fortune. The spouses may contract between themselves regarding their property and right of support. When they do so they are, because of the closeness of the relation, held to the strictest rectitude. The slightest fraud by one spouse will give the other right of redress—in all matters, that is, save when the contract includes, however casually and incidentally, the intimacy of cohabitation; or so say my colleagues here.
In my opinion the all-embracive interpretation given by the majority to the word “cohabit” as used in
A petition for a rehearing was denied July 30, 1964. Pierce, P. J., was of the opinion that the petition should be granted. Appellant‘s petition for a hearing by the Supreme Court was denied September 2, 1964. Peters, J., was of the opinion that the petition should be granted.