Opinion
Hearing Granted by Supreme Court June 15, 1937.
Appeal from Superior Court, Los Angeles County; Charles L. Bogue, Judge.
Action by Mary Carter, by her guardian ad litem, Irene Brooks, against Jerry Murphy. Judgment for the plaintiff, and the defendant appeals.
Reversed.
Ezra Neff and Edwin C. Boehler, both of Los Angeles (Livingston & Livingston, of Los Angeles, of counsel), for appellant.
S. S. Hahn, W. O. Graf, and Stanton Rippey (by Stanton Rippey), all of Los Angeles, for respondent.
OPINION
McCOMB, Justice.
Defendant appeals from a judgment in favor of plaintiff in an action for seduction after trial by the court without a jury.
Viewing the evidence most favorable to plaintiff (Ah Gett v. Carr, 3 Cal.App. 47, 48, 84 P. 458), the facts in the instant case are:
In 1934 defendant met Mary Carter, a female who was eighteen years of age on October 28, 1935. She, aware of the fact that he was married, became extremely friendly with him and was escorted by him on many occasions to night clubs and other places of amusement, frequently at such times partaking of intoxicating beverages. The trial court found in accordance with the allegations of the complaint that Mary Carter and defendant had sexual intercourse on the following dates: September 8, 1935; September 15, 1935; February 14, 1936; and April 8, 1936. It was also conceded that prior to the dates alleged in the complaint, to wit, in August, 1935, she had engaged in an act of sexual intercourse. The trial court gave judgment in favor of plaintiff in the sum of $10,000.
This is the sole question presented for determination: Was there substantial evidence to sustain the findings of fact upon which the judgment was necessarily predicated?
This question must be answered in the negative. In order to recover in an action for seduction the following elements must be alleged and proved:
First. There must be an act of sexual intercourse between the seducer and seducee.
Second. At the time of the act of sexual intercourse the seducee must be chaste (Swett v. Gray, 141 Cal. 83, 86, 74 P. 551), that is, one who has not prior thereto had unlawful sexual intercourse with a male. Bailey v. State, 57 Neb. 706, 78 N.W. 284, 285, 73 Am.St.Rep. 540.
Third. The consent of the seducee to commit the act of sexual intercourse must be obtained solely through (a) false promises, (b) artifice, or (c) like conduct of the seducer; mere reluctance on her part to commit the act being insufficient. Marshall v. Taylor, 98 Cal. 55, 60, 32 P. 867, 35 Am. St.Rep. 144.
In the instant case it is conceded that the first element is present, in that, on four separate occasions, Mary Carter and defendant had sexual intercourse.
The second element, however, is absent, for it is also conceded that in August of 1935 Mary Carter had engaged in an unlawful act of sexual intercourse. She, therefore, by her own testimony could not have been chaste on September 8, 1935, the date alleged in her complaint as the time of her seduction by defendant.
The third element is likewise lacking, as it appears from the testimony of the seducee herself that defendant never promised to marry her, and that it was not solely because of false promises or artifice that she submitted to his embraces, but she was induced to have sexual intercourse with him on account of his importunities and because of her love and affection for him. In fact, on one occasion when he was intoxicated and she was sober, the unlawful act was performed.
It therefore appears that the acts of sexual intercourse between them were voluntarily engaged in.
The requirements above set forth as necessary to maintain an action for seduction are thoroughly consonant with good morals and protection of the virtue of the womanhood of this state. Fifty years ago, Judge Thayer of the Supreme Court of the State of Oregon in Breon v. Hinkle, 14 Or. 494, 13 P. 289, 292, said: "The individuality of the female sex has been materially advanced during the past few years. Their knowledge of the world has been greatly improved, and their legal capacity enlarged. The notion that they belong to the weaker sex is only entertained by the credulous and unsophisticated. They are not easily beguiled, and should be held to a reasonable responsibility; and if allowed to maintain an action for their own seduction, and demand a large compensation for their loss of character, should be required to prove something more than mere importunity as the means through which it was accomplished. I have but little faith in the merits of such a law. It will be resorted to much more often by the unscrupulous and wanton than by the more womanly portion of the sex, although the latter should have the better right. The honest ones would be inclined to smother their disappointment, and grieve over the wrong, while the unscrupulous portion would make it a matter of public parade and profit."
It cannot be doubted that with the advent of the radio, moving pictures, and the wide-spread dissemination of information with reference to the sexual relationship of man and woman, the female of eighteen years today is better informed concerning the course of conduct which she should follow in her association with those of the opposite sex than was her sister of the period when the decision in Breon v. Hinkle, supra, was written.
Our disposition of the points above mentioned makes it unnecessary to pass upon the contention that the judgment will be set aside upon appeal, because it is so excessive as to suggest at the first blush passion, prejudice, or corruption. Corvin v. Hyatt, 10 Cal.App.(2d) 107, 108, 51 P.2d 176.
For the foregoing reasons the judgment is reversed.
We concur: CRAIL, P. J.; WOOD, J.