Schumm v. Berg

• Decision Date: 14 November 1950
• Citation: 224 P.2d 56
• Court: California Court of Appeals Court of Appeals
• Parties: SCHUMM v. BERG et al. Civ. 17717.

Page 56

224 P.2d 56

SCHUMM v. BERG et al.

Civ. 17717.

District Court of Appeal, Second District, Division 2, California.

Nov. 14, 1950.

Hearing Granted Jan. 11, 1951. ^*

Maurice Rose, Los Angeles, for appellant.

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

MOORE, Presiding Justice.

Johan Richard Wallace Schumm, an infant, through his guardian ad litem sued the executors of the estate of Wallace Berry, deceased, to recover damages for the breach of an oral contract alleged to have been made by and between Beery and one Gloria Schumm, mother of the minor, for the latter's benefit. In substance ¹ the alleged agreement was that in August, 1947, Beery acknowledged that he was the father of Gloria's unborn child and was obligated to provide for its support; in consideration of her not instituting paternity proceedings prior to the birth of the child and her promise to name the child Wallace (or Wally, if a girl), Beery would procure fully paid-up insurance policies to provide the child with an income of $100 per week until it shall have reached the age of 21 years and the sum of $25,000 on its attaining its majority 'to afford said child a fair start in adult life'; that notwithstanding Gloria's performance of all conditions and covenants on her part to be performed and her demand to Beery for performance, he breached his agreement and subsequently deceased on April 15, 1949, leaving an estate of two million dollars or more. A general demurrer having been sustained without leave to amend, judgment was entered that 'plaintiff take nothing against the said defendants.'

In presenting the matter to this court appellant has the laboring oar to support his pleading as a valid complaint. In order to do this it was incumbent upon him to analyze and present his arguments on all the 12 points upon which the demurrer was attacked in the trial court. This has been done in a commendable manner. Inasmuch as we are convinced that the contract sued upon was made without a valuable consideration, it is deemed unnecessary to discuss any other topic.

Two promises of Gloria were made to Beery as considerations for his agreement to acquire for, and deliver to, the infant two fully paid-up policies of life insurance, to wit, (1) a policy that would pay the child $100 per week during his minority and (2) a paid-up policy on the twenty-year endowment plan whereby the life insurance company would pay to the child $25,000 on attaining his majority. The two promises of Gloria were as follows: (1) During the remainder of the period of her pregnancy she will institute no action or proceeding to establish judicially that Beery is the father of the child; (2) In the event of Gloria's marriage to Schumm, the child, if a boy, shall have Beery's Christian name Wallace, or if a female, her name shall include his nickname 'Wally.'

Neither of her promises nor both combined constitute a valid consideration for the alleged promise of Beery. Considering the allegations as true, Beery was the father of the unborn child. Therefore, he was obligated to protect and support it during gestation, and after birth to support and educate it in a manner suitable to the father's circumstances. Civ.Code, sec. 196a. It follows that a paternity action might be instituted only by the child to compel the father to fulfill his parental obligation. While under the statute a mother may sue without first being formally appointed as guardian ad litem for her illegitimate infant, in suing the putative father she acts solely on behalf of the child and all benefits flowing from such action inure to its benefit. See McLain v. Meadows, 44 Cal.App. 402, 403, 186 P. 411; Stevens v. Kelley, 57 Cal.App.2d 318, 323, 134 P.2d 56. The right of action authorized by the Civil Code, sections 196a and 231 ² is by no law or logic vested in the mother of illegitimate progeny. Since she had no right to sue Beery on her own behalf to compel him to support his child prior to its birth, then her forbearance to initiate such action can by no orthodox logic be held to constitute a valid consideration for Beery's promise to provide the child with $134,000.

Appellant cites numerous authorities, Beattie v. Traynor, 114 Vt. 238, 42 A.2d 435, 159 L.R.A.1399; Redmon v. Roberts, 198 N.C. 161, 150 S.E. 881; Conley v. Cable, 198 N.C. 298, 151 S.E. 645; Thayer v. Thayer, 189 N.C. 502, 127 S.E. 553, 39 L.R.A. 428; Clark's Adm'x v. Campbell, 212 Ky. 341, 279 S.W. 327; Lewis v. Creech's Adm'r, 162 Ky. 763, 173 S.W. 133; Sybilla v. Connally, 66 Ga.App. 678, 18 S.E.2d 783, in support of his contention that the mother's forbearance to institute filiation proceedings during her pregnancy is a valid consideration for the putative father's promise to make provision for the child after birth. In the states in which those decisions were announced the purpose of the filiation statutes was that if the suspected person is proved to be the natural ancestor of the illegitimate, he is, ipso facto, obligated to make payments to the mother for the maintenance of her offspring. Because in those states she has the right to compel his compliance with his obligation, her forbearance is a valid consideration to support the putative father's agreement made with the mother on her behalf. The purpose of our own filiation statute, Civ.Code, sec. 196a, is to create a cause of action for the illegitimate child against the putative father. Therefore, while in the jurisdictions of the cited decisions the mother had a cause of action in her own right, in California she has none. Moreover, while some states authorize the unwed mother to compromise her claim against the putative father, as in Oregon, Oregon's Compiled Laws, sec. 28-912, California has no such statute.

Appellant argues in extenso that because Beery owed a moral obligation to support his child in addition to his legal obligation under section 196a, a 'self-sufficient' consideration for the contract existed aside from Gloria's waiver of her right to sue, citing McLain v. Meadows, supra, 44 Cal.App. 403, 186 P. 411. The court there held that although a man fathered an illegitimate child and therefore is morally bound to support it, yet such obligation is not enforceable in the absence of a filiation statute; that it is to enforce the legal duty that an action is instituted. Only that moral obligation can constitute a good consideration where it originates in some benefit conferred upon the promisor, or detriment suffered by the promisee. Civ.Code, sec. 1606. In other words, a moral obligation will support a promise only where a valuable consideration therefor once existed. Estate of McConnell, 6 Cal.2d 493, 498, 58 P.2d 639. The authorities cited by appellant are not in point. In Chapman v. Jocelyn, 182 Cal. 294, 187 P. 962, a bond and statute were held to be a contract. In Scott v. Superior Sunset Oil Company, 144 Cal. 140, 77 P. 817, 'moral obligation' is not mentioned. In Glidden v. Nelson, 15 Ill.App. 297, it was held that a putative father is not liable except on an order of filiation or on an express promise to a third person to pay for the child's support actually furnished. Similarly, other cases cited may be distinguished. Not a single decision in California holds that the mother of an illegitimate has an enforceable claim against the putative father on her own account. Indeed, if she should expend moneys to support her illegitimate child she cannot compel its father to reimburse her, Demartini v. Marini, 45 Cal.App. 418, 419, 187 P. 985; McKay v. McKay, 125 Cal. 65, 72, 57 P. 677; Civ.Code, sec. 208, since the obligation of both parents is joint and several to support their child.

The Name 'Wallace'

Gloria's promise to give her illegitimate child the Christian name of 'Wallace' was no consideration for Beery's agreement to provide $134,000 for the child. The people who bear that name are as numerous as the leaves of Valambrosa. So frequently is it seen and heard that it has no significance except possibly the Scottish extraction of him who bears it. Moreover, even though a person of normal tendencies should admit his illegitimate paternity of an infant, is it reasonable to believe that he would even request that his own name be attached to the child? If he would not do so, can it reasonably be said to constitute a valuable consideration for so extravagant a promise as that ascribed to Beery?

In support of his contention that the promise by Gloria to give him a third Christian name, to wit, Wallace, was consideration for the agreement, he has cited Eaton v. Libbey, 165 Mass. 218, 42 N.E. 1127; Daily v. Minnick, 117 Iowa 563, 91 N.W. 913; Freeman v. Morris, 131 Wis. 216, 109 N.W. 983; Gardner v. Denison, 217 Mass. 492, 105 N.E. 359. Prior to those...