4 Cal.App. 760, Civ. 261, Lanigan v. Neely

CourtCalifornia Court of Appeals
Writing for the CourtHART, Judge
JudgeJUDGES: HART, J. Burnett, J., and Chipman, P. J., concurred. Burnett, J., and Chipman, P. J., concurred.
Citation89 P. 441,4 Cal.App. 760
PartiesMARY LANIGAN, Respondent, v. DAVID NEELY, Appellant
Date06 February 1907
Docket NumberCiv. 261

Page 760

4 Cal.App. 760

89 P. 441

MARY LANIGAN, Respondent,


DAVID NEELY, Appellant

Civ. No. 261

Court of Appeals of California, Third District

February 6, 1907

Page 761

A Petition for a Rehearing of this Cause was Denied by the District Court of Appeal on March 7, 1907, and a Petition to have the Cause Heard in the Supreme Court, after Judgment in the District Court of Appeal, was Denied by the Supreme Court on April 5, 1907.

APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. John Ellsworth, Judge.

The judgment and order are affirmed.


Snook & Church, for Appellant.

Sullivan & Sullivan, for Respondent.

JUDGES: HART, J. Burnett, J., and Chipman, P. J., concurred.


HART, Judge

Page 762

[89 P. 442] This is an action for damages for breach of promise of marriage. The case was tried by jury, the plaintiff obtained a verdict for the sum of $ 8,000, and thereupon the court caused judgment to be entered in her favor in the amount found by the jury. Defendant appeals from the judgment and an order denying his motion for a new trial.

The complaint, after alleging that both plaintiff and defendant are unmarried, their mutual agreement and promise to marry, the violation and breach by defendant of such agreement and promise, and other facts sufficiently well pleaded to render the complaint immune from successful attack by a general demurrer, proceeds in paragraph 6 thereof: " After said promise to marry was made by defendant, as aforesaid, he seduced and had sexual intercourse with plaintiff. Said seduction and sexual intercourse were brought about and accomplished by means of said promise previously made, through defendant's persuasions and importunities, and by reason of plaintiff's reliance upon the good faith of defendant, in making said promise, and her belief that defendant intended to and would marry her, in pursuance of his said promise."

Further, in paragraph 8 it is averred: " By reason of defendant's breach of his said promise to marry plaintiff, and her seduction by defendant, plaintiff became greatly distressed in mind and body, suffered humiliation and disgrace, and will suffer humiliation and disgrace the remainder of her life, became and is now sick and will remain sick for a long time to come, all to her damage in the sum of twenty-five thousand ($ 25,000) dollars."

Page 763

The defendant demurred specifically and generally to the complaint, the demurrer was overruled by the court, and thereafter an answer was filed, specifically denying all the material averments of the complaint. Appellant has specified a number of errors (in addition to that claimed in the order of the court overruling the demurrer), involving rulings of the court, insufficiency of the evidence to sustain the verdict, or what is tantamount thereto, excessive damages under the evidence as presented by the record, and instructions given [89 P. 443] and refused. We will take up the points in the order in which they are presented.

Undoubtedly, the theory upon which counsel for respondent drafted the complaint in this action, and, manifestly, the one upon which it was tried by the court below, was that for the breach of a marriage contract, with averments of seduction for the purposes merely of enhancement or aggravation of damages. But appellant contends that the demurrer to the complaint should have been sustained, because there is contained therein a misjoinder of causes of action, in that an action ex contractu has been improperly united with an action ex delicto, claiming that if respondent intended to rely upon her action upon contract, with allegations of seduction only in aggravation of damages, she has failed to accomplish her purpose, because it appears from the complaint itself that the character and manner of the averments of seduction necessarily involve the statement of a substantive cause of action in tort, independent of and distinct from that of contract, upon which she declares in the first count of her pleading. Appellant also contends that, assuming the complaint is not obnoxious to the criticism thus made, and that seduction is therefore well pleaded for the purpose of enhancement of damages, he was nevertheless entitled to the ruling on his demurrer, inasmuch as plaintiff is given, by the express terms of the statute (Code Civ. Proc., sec. 374 ), a right of action for her own seduction. This claim has its inspiration in the reasoning of some of the cases cited by appellant, to be hereafter noticed. And it is further claimed that, if she be permitted in her action for breach of promise of marriage to allege seduction in aggravation of damages, she is thereby allowed to do indirectly what the law does not permit to be directly done, that is, uniting an action upon contract with an action upon tort. But a much more serious result which is

Page 764

seen by appellant in pleading seduction in aggravation of damages in an action upon a breach of promise of marriage, is that, if she should in such a case obtain judgment, she could still prosecute and maintain her action for seduction, because the judgment in the former, treated, properly of course, as an action upon contract, could not be set up in bar of the latter.

We have not been able to find nor have counsel in their briefs cited us to, any California cases which discuss and adjudicate the precise questions thus presented by the demurrer. An instruction to the jury, in Moore v. Hopkins, 83 Cal. 270, [17 Am. St. Rep. 248, 23 P. 318.], to the effect that " a man who enters into a contract of marriage with a woman with improper motives, and then ruthlessly and unjustifiably breaks it off, does a wrong to the woman for which she is entitled to exemplary damages," was criticized and held to be error, because " there was no evidence whatever in the record to show that the defendant, if he entered into a marriage contract with the plaintiff, intended to make any effort to undermine her chastity, or to do any other improper act of that sort." The court in that case does not decide that allegations in the complaint which would make the quoted instruction pertinent would be proper or improper, but neither does it hold that the matters to which the instruction would relate, and which would be the basis of an action ex delicto if relied upon alone, could not be pleaded in the action for breach of promise in aggravation of damages.

The crux of the whole matter, as appellant views it, seems to be in paragraph 8, and it is charged that therein are contained " substantive averments of the ground of damages resulting from seduction." Is this true? After alleging mutual promises to marry, refusal on part of defendant, etc., appellant is alleged in paragraph 6 to have succeeded in seducing and having sexual intercourse with plaintiff (we construe the allegation in our own language) through and by reason and as the result of said " promise previously made," and that the same were " brought about and accomplished" how? In the language of the paragraph in question, " by means of said promise previously made, through defendant's persuasions and importunities (founded on the promise of marriage), and by reason of plaintiff's reliance upon the good faith of defendant, in making said promise and

Page 765

her belief that defendant intended to and would marry her in pursuance of his said promise ." There can be nothing clearer than that paragraph 6 intends to and does allege seduction only in enhancement of damages. And we do not think that an analysis of paragraph 8, keeping in view the averments of paragraph 6, will justify the criticism to which it is subjected by appellant. It, in reasonably clear language, states facts which describe the effect upon plaintiff, resulting from the breach of the promise and the seduction accomplished by means of such promise--facts, it may be said, which common experience teaches would ordinarily be the consequence of such conduct. It merely charges, to paraphrase the paragraph, " that because of the violation of the contract heretofore alleged, and because of the seduction of plaintiff, as the result of the alleged broken contract," plaintiff became greatly distressed in mind and body and became sick, etc. Strike out the allegation of seduction, and still the language of the paragraph that she became " greatly distressed in mind and body and became sick, suffered humiliation and disgrace," etc., could not necessarily be inappropriate nor without truth, because it would be by no means unnatural that such consequences would flow from the violation of a marriage contract, unintensified by the fact of seduction. The act of seduction alleged against appellant is charged to have grown out of and been the direct result of his promise to marry, and it is reasonably certain from the averments of the complaint that seduction would not have occurred but [89 P. 444] for the previous promise of marriage. We can perceive no analogy between this case and Lamb v. Harbaugh, 105 Cal. 680, [39 P. 56], cited by appellant. There, in the third paragraph of the complaint, plaintiff alleges a trespass upon her real property as a ground for damages. In the fourth paragraph she sets out personal injury as a ground for damages. The court said: " The complaint cannot be sustained upon the ground that the action is brought to recover damages merely for a trespass upon the real property of the plaintiff under circumstances of such aggravation as entitle her to exemplary damages. It is not in terms limited to a recovery for such trespass, but the fourth paragraph thereof contains substantive averments of the other grounds of damage above shown; and that the complaint was not so considered by the plaintiff is shown by the fact that at the trial she offered proof of the

Page 766

injuries to her person, and of the effect produced thereby upon her...

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