74 P. 551 | Cal. | 1903
The action is for alleged seduction, accomplished by promise of marriage and other inducements. The cause was tried to a jury, and plaintiff had the verdict. Defendant appeals from the judgment on the judgment-roll and statement of the case. There is an appeal by the plaintiff from the order granting a new trial, L.A. No. 1120, which, having been affirmed November 6, 1903, makes it unnecessary to notice the numerous alleged errors of law occurring at the trial, specified in the motion for a new trial.
Defendant interposed a demurrer to the amended complaint which was overruled, and he now insists that it *85 should have been sustained. Counsel for respondent have filed no brief in support of their pleading. The grounds of the demurrer are: 1. Insufficiency of facts alleged; 2. Misjoinder of a cause of action for failure to carry out a promise to marry; and 3. Ambiguity and uncertainty, in that it is not possible to ascertain from the complaint whether the cause of action is based on the alleged seduction or upon the alleged contract to marry referred to, or because of the alleged suffering of plaintiff in consequence of the illness mentioned in the complaint as attending her pregnancy.
In support of the general demurrer it is contended that it is an essential element of a cause of action of this character that the plaintiff was chaste at the time of the alleged seduction, and that without an allegation to that effect there is no cause of action stated (citing Marshall v. Taylor,
There is no allegation of plaintiff's ability and willingness to marry defendant. It is conceded by appellant that in a criminal prosecution for seduction a promise to marry made in good faith which was not fulfilled is no defense (People *87
v. Samonset,
There is no merit in the claim that there is a misjoinder of actions. The promise of marriage is set out as one of the inducements for the seduction, and not otherwise, and the *88 prayer for damages is solely for the alleged seduction. Nor do we think there is any ambiguity in this regard. Clearly the action is based solely upon the alleged seduction, and in no sense on a contract to marry. We think the demurrer was rightly overruled. The judgment, so far as this appeal is concerned, should be affirmed.
Gray, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed, but this affirmance does not affect the order granting a new trial, which has been affirmed, and which vacates the judgment.
McFarland, J., Lorigan, J., Henshaw, J.