Schumm by Whyner v. Berg

• Decision Date: 11 May 1951
• Citation: 231 P.2d 39,37 Cal.2d 174
• Parties: , 21 A.L.R.2d 1051 SCHUMM by WHYNER v. BERG et al. L. A. 21830.
• Court: California Supreme Court

Page 39

231 P.2d 39

37 Cal.2d 174, 21 A.L.R.2d 1051

SCHUMM by WHYNER v. BERG et al.

L. A. 21830.

Supreme Court of California, in Bank.

May 11, 1951.

Maurice Rose, Los Angeles, for appellant.

Loeb & Loeb, Gang, Kopp & Tyre, Keating Coffey, Robert E. Kopp and Milton A. Rudin, all of Los Angeles, for respondents.

CARTER, Justice.

Plaintiff appeals from a judgment of dismissal entered after defendants' demurrer was sustained without leave to amend in an action against a father's estate on a contract for the support and education of an illegitimate child.

Plaintiff, Johan Richard Wallace Schumm, is a minor born on February 7, 1948; he prosecutes the action by his guardian ad litem, Kay Whyner. Defendants are the executors of the estate of Wallace Beery, deceased. According to the complaint, the following facts appear: Plaintiff is the son of Beery and Gloria Schumm, neither of whom was married. He was conceived as the result of an act of sexual intercourse between Beery and Gloria on May 18, 1947. In August, 1947, Gloria's request of Beery that he marry her to legitimatize the expected child being refused, she demanded that he acknowledge his paternity of the expected child or she would institute proceedings to have him declared the father and for support of the child. Beery believed, and it was a likely result, that such a suit would be damaging to his social and professional standing as a prominent motion picture star. Under these circumstances, in August, 1947, while Gloria was pregnant with the child (and acting as the agent of the child see discussion later herein), and for his express benefit, entered into an oral agreement with Beery as follows:

'Whereas, said Gloria Schumm conceived a child by said Wallace Beery as the result of an act of sexual intercourse between them in the County of Los Angeles, State of California, on or about May 18, 1947, and is now pregnant with said child; and

'Whereas, said Wallace Beery is a man of great wealth with very substantial income and well able to make adequate provision for the support and education of said expected child, suitable to Wallace Beery's circumstances, station in life and standard of living; and

'Whereas, said Gloria Schumm is penurious, without property or income and penniless and is unable to make any provision for the support or education of said expected child; and

'Whereas, Gloria Schumm is about to marry one, Hans Schumm; and

'Whereas, neither of the parties hereto wish to impose upon said Hans Schumm any responsibility for the maintenance and support of the said child of said Wallace Beery; and 'Whereas, said Wallace Beery deems it to be to his best interests, social and financial, that no suit be instituted against him in any Court for a public adjudication that he is the father of said expected child and for that reason desires to avoid such paternity suit and the unfavorable publicity such suit might entail.

'Now, Therefore, in consideration of the mutual covenants hereof, said Wallace Beery and Gloria Schumm agree as follows:

'(a) The said Gloria Schumm during the remainder of the period of her said pregnancy until the birth of said child shall institute no action or proceeding in any Court to establish judicially the fact that said Wallace Beery is or will be the father of said child.

'(b) Upon the marriage of said Gloria Schumm and Hans Schumm, said expected child if born alive shall be surnamed 'Schumm' and its name if a male shall include said Beery's Christian name 'Wallace,' or if a female, shall include said Beery's nickname 'Wally.'

'(c) Wallace Beery, if said child be born alive, recognizes and acknowledges the claim of Gloria Schumm in behalf of said expected child that he is morally and legally responsible for the support and education of said child in a manner suitable to said Wallace Beery's circumstances, station in life and standard of living from the date of the birth of said child until said child shall become 21 years of age, or until the death of said child, whichever shall occur sooner, and the said Wallace Beery recognizes the claim of Gloria Schumm in behalf of said expected child that he is morally responsible to afford said child a fair start in its adult life, and that considering the wealth and earning capacity of Wallace Beery the sum of $25,000 would be reasonable for such purpose and should be supplied by Wallace Beery to said child for such start.

'(d) Promptly upon the birth of said child, if born alive, said Wallace Berry shall purchase and acquire and deliver to and for said child two fully paid-up policies of a Life Insurance Company, towit: (1) one fully paid-up policy to be applied on account of the support and education of said child, whereby the Life Insurance Company shall have agreed to pay to said child beginning as of the date of his birth until he shall have reached the age of 21 years, or until his death, whichever occurs sooner, the sum of $100 per week; (2) a second fully paid-up policy on the Twenty Year Endowment plan, to afford said child a fair start in its adult life, whereby the Life Insurance Company on said child's twenty-first birthday, if he be then living, shall have agreed to pay to said child the sum of $25,000; the said child to have no interest in the life insurance features, if any, of said policies, which shall be exclusively matters of Wallace Beery's own concern; provided however, that said Wallace Beery in lieu of said first mentioned policy to be applied on account of support and education may promptly on the birth of said child designate a Bank in the City of Los Angeles, State of California as Trustee, and forthwith deposit with such Trustee interest or dividend bearing securities sufficient in amount to yield over and above the Trustee's charges and costs, a minimum net income of $100 per week, with provision in the Trust Agreement that the Trustee, beginning from the date of the birth of said child until the said child reaches the age of 21 years, or until said child's death, wichever occurs sooner, shall pay to said child the sum of $100 per week.

'(e) Said child shall be maintained, supported whichever occurs sooner, shall pay to said of a prominent public man of wealth. Recognizing that the child's receipts under one of said policies of $100 per week will be wholly inadequate to accomplish the desired result, even without taking into account illness of the child from time to time during its minority, possible accidents, educational and other extraordinary unforeseen expenses, it is stipulated that nothing hereinbefore stated shall be deemed to be an intention on the part of any of the parties hereto to modify, decrease or compromise the legal and moral obligations of Wallace Beery to his said child to provide it during its minority with the necessary funds for its maintenance, support and education according to the station in life and standard of living of Wallace Beery.'

Pursuant thereto Gloria married Hans Schumm on August 21, 1947, and on the birth of plaintiff, gave him the name above mentioned including 'Wallace' and the surname 'Schumm'; no proceeding was instituted until after the birth. Beery refused to comply with any of the provisions of the contract, except he paid nine weekly installments of $25, beginning July 6, 1948. Damages of $104,135 are claimed. Beery died and a claim against his estate was rejected. Another phase of the controversy has been decided on appeal. Schumm v. Beery, 100 Cal.App.2d 407, 224 P.2d 54.

In support of the order sustaining the demurrer defendants assert that it is alleged in the complaint that Gloria 'acting as agent of said expected child (plaintiff) expressly for his benefit' entered into the contract, that is, the contract was plaintiff's contract made by Gloria as his agent; that, therefore, it is void because 'a minor cannot give a delegation of power'. (Civ.Code, § 33) Plaintiff asserts, however, that the contract was not between him and Beery but between Gloria and Beery for the benefit of plaintiff as a third party beneficiary. (There is no dispute that recovery may be had on such a contract, if valid.) The matter turns, therefore, on whether the complaint shows such a contract. It does allege that the contract was made by Gloria 'acting as agent' for the expected child. That allegation was stricken, but the complaint goes on to state that she entered into the contract 'expressly for his benefit.' It is said in the contract that Gloria and Beery 'agree' to the then following terms. She agrees not to institute a paternity suit during pregnancy, hardly something the child could agree that she would not do. The whole tenor of the contract points to it being between Gloria and Beery for plaintiff's and Gloria's benefit. There are no obligations assumed by plaintiff in the contract. Moreover, it might be mentioned that under some authorities the theory of liability under a contract in favor of a third party beneficiary, that the contracting party-promisee was the agent for the beneficiary, is purely a fiction. Corbin on Contracts, § 794. The allegations indicating agency may well refer to a fictional agency. The creditor's claim that was filed against Beery's estate states that Gloria and Beery entered into the contract.

Defendants assert that under § 196a of the Civil Code, a mother of an illegitimate child has no action against the father for its support, but only an action in a representative capacity on behalf of the child, and that in agreeing not to institute a suit, plaintiff's right was bargained away, and therefore, plaintiff must be the contracting party, and Gloria acted solely in a representative capacity. There may be some logic in the argument, but it may also be said that she is not promising away plaintiff's right, as possibly she could not do; she is agreeing that she will not take steps to enforce it, and that only before the birth of the child.

Defendants point to allegations...