Opinion
Hearing Granted July 1, 1940.
Appeal from Superior Court, Los Angeles County; Charles E. Haas, Judge.
Action by Amy Harned against Harry W. Watson for breach of promise to marry. From an adverse judgment, the defendant appeals.
Reversed.
MOORE, P.J., dissenting.
COUNSEL
Michael F. Shannon, Thomas A. Wood, and Charles W. Wolfe, all of Los Angeles, for appellant.
Cantillon & Glover and Thomas B. Sawyer, all of Los Angeles, for respondent.
OPINION
McCOMB, Justice.
From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for breach of promise to marry defendant appeals.
Divested of romantic and non-essential incidents, the pertinent facts are:
In 1935 plaintiff, a divorcee forty-five years of age, became acquainted with defendant, who was living with his wife, to whom he had been married for almost forty-five years. Defendant’s wife died in July, 1936. Thereafter defendant met plaintiff and told her of his bereavement. Plaintiff sympathized with him and invited him to share her companionship. This association ripened into a close friendship, both parties being constantly in each other’s company. In November, 1936, defendant asked plaintiff to marry him, which proposal plaintiff accepted. In January, 1937, they had a disagreement and their engagement was broken. This engagement, upon mutual agreement, was renewed June 3, 1937. No date, however, was set for the marriage, the marriage date having in each instance that the subject was discussed by the parties been made by defendant contingent upon the happening of some future event, the plaintiff testifying on this point as follows:
"Q. But every time he discussed the question of marriage he always made the date of the marriage contingent upon his straightening out his finances and his other things, did he not? A. Yes, he did."
"Q. Did he ever mention any particular date that you would be married upon? A. I wouldn’t say an exact date, but just as soon as he got his affairs fixed up; he thought it would be around the first of October."
September, 1938, in discussing their date of marriage defendant told plaintiff that he did not feel that he was able to marry her immediately, whereupon she told defendant she "was through", unless he married her at once. This defendant declined to do and plaintiff refused to associate with him thereafter. She filed the present action November 3, 1938.
Defendant relies for reversal of the judgment, among others, on the following grounds:
First: Defendant’s promise to marry plaintiff was contingent upon the happening of a future event, the happening of which contingency was neither pleaded nor proven.
Second: The trial court confused the jury when instructing the same to the prejudice of defendant.
The first proposition is tenable and is governed by the following established principles of law:
(1) In an action for breach of promise to marry, the general rules applicable to all contracts apply (see 4 Cal.Jur. [1921] 455).
(2) A promise to marry may be conditional upon the happening of a future event and no liability attaches to the promise until the contingency upon which the promise has been predicated occurs (see 11 C.J.S. (1938), Breach of Marriage Promise, p. 775, § 7; 8 Amer.Jur. (1937) 853, § 11).
This fundamental rule of contracts is well expressed in Pierce v. Merrill, 128 Cal. 464, 470, 61 P. 64, 65, 79 Am.St.Rep. 56, as follows:
"The intention of the parties, as it is to be derived from the language used, is to control in the construction of a contract, and this rule applies to time of performance as well as to all other matters; and when the time of performance is expressed, as it is here, in plain, unambiguous terms, the court will not presume that some other time was intended."
Loath as we are to clutter up the already too voluminous reports with unnecessary quotations from prior decisions, and bearing in mind the timely admonition of the present president of the American Bar Association, the Honorable Charles A. Beardsley, that judges in writing opinions are in effect sending telegrams collect to the members of the profession, we are nevertheless constrained, because of the pertinency thereof, to quote the language of Mr. Justice McLaughlin in Bailey v. Brown, 4 Cal.App. 515, 88 P. 518, wherein he so aptly expresses the reason for the rule of law just announced in a case in which defendant’s promise to marry plaintiff was contingent upon the death of plaintiff’s mother. At page 518 of 4 Cal.App., 88 P. at page 519, he says:
Vol. XXVI, No. 1, American Bar Association Journal, January, 1940, page 4.
"How could a contract to marry exist when the promisor might never be under a present obligation to marry the promisee, or vice versa? If this good mother should live to a very ripe old age, as mothers sometimes do, no human could tell what might happen. Either of the parties might be waiting for the other, harp in hand, beyond this vale of tears, or both might pine away and die before this promise of future connubial bliss could ripen into a cause of action enforceable in earthly courts. Then, too, age creeps on all apace, and, if the contingency which could make this promise quick with life, as a legal obligation, performable presently, was delayed through many weary years, waning desire and ripened judgment might prompt the parties to acknowledge the wisdom of that rule of public policy which forbids long-continued restraint upon marriage, and frowns upon a contract tantamount to an indefinite postponement thereof. And, if the roseate dreams of youth survived the blasting frosts of age, decrepitude, mental or physical incapacity, infirmities due to weight of years might be urged as defenses not now available to this defendant."
In all probability the learned justice had he been writing his opinion in this modern streamlined age, would have inserted in lieu of "harp in hand" "trident in hand".
In the instant case, as set forth above, plaintiff’s own testimony disclosed that defendant’s promise to marry her was "contingent upon his straightening out his finances". There is a total absence of either pleading or proof in the present case that this contingency has occurred.
Therefore, applying the aforementioned rules of law, the contingency upon which defendant’s promise was predicated not having occurred, defendant has not breached his contract with plaintiff and there is no liability on his part to her.
The second proposition is likewise tenable. During the course of the trial the following incidents occurred:
(1) In denying plaintiff’s motion for nonsuit the trial judge said, "There is a lot of haziness in this thing; it is foggy."
(2) The trial judge instructed the jury as follows:
"You are instructed that in this case there is no evidence that will justify the giving of punitive or exemplary damages and that therefore, no such damages can be found by you."
"You are instructed that in this action plaintiff alleges that on or about the 15th day of November, 1937, the defendant, Harry Watson, seduced her under a promise of marriage.
"You are instructed that there is no evidence in this action to sustain such an allegation; therefore, you must find that there is no proof of seduction under promise of marriage."
After reading the foregoing instructions the trial judge told the jury to disregard them and then said:
"However, in instructing you to disregard this instruction, together with defendant’s offered instruction No. 18 just read to you, I do not mean to convey the idea that you should or should not find that punitive or exemplary damages should be allowed by you in case you find for the plaintiff. This is a matter of your determination under all the instructions given herein."
(3) After the jury had deliberated for several hours, they returned into the courtroom and requested that the instructions immediately following those which the court had stricken out be reread. The judge reread certain instructions and then the following occurred:
"A Juror: You said at that part about there not being proof of promise of marriage, then told us to disregard that. And there was some instruction following that.
"The Court: There is no use of reading that. Do you want me to read what statement to disregard?
"A Juror: No, but something follows that.
"The Court: What follows that is what I read over here; that refers to both of these instructions that I told you to disregard.
"A Juror: That clears it up."
It is evident from the foregoing that the jury was confused by the court’s instructions, since the jurors stated that the court had told them that there was no proof of promise of marriage and had then instructed them to disregard such statement. A reading of the instructions of the court discloses that the court did not in fact tell the jury that there was no proof of a promise of marriage but that there was no proof of seduction under promise of marriage. However, the jury being confused, it is very probable that, since the jury believed the judge had instructed them that there was no proof of a promise of marriage and then instructed them to disregard such statement, they believed the judge was in effect saying that there was proof of a promise of marriage, which obviously would be prejudicial to defendant.
In view of our conclusions it is unnecessary for us to discuss defendant’s other contentions, which we believe to be sound, that there was no proof or basis for punitive damages.
For the foregoing reasons the judgment is reversed.
I concur in the judgment: WOOD, J.
MOORE, Presiding Justice.
I dissent.
Defendant appeals from a judgment after verdict whereby the jury awarded the plaintiff $2,000 actual damages and $8,000 exemplary damages on account of the breach of an alleged agreement of the defendant to marry the plaintiff.
The grounds of appeal are: (1) that the contract was contingent and the contingencies had not occurred at the commencement of the action; (2) that plaintiff cannot recover damages for seduction without proof of her chastity at the time of the seduction; (3) that the court erred in instructing the jury on seduction without stating that the person damaged was chaste at the time of the seduction, and where there was no evidence of her chastity; and (4) that the court erred in permitting plaintiff, over objection, to testify that she submitted to sexual intercourse with defendant in reliance upon his promise of marriage.
In substance, the complaint alleges that about November 1, 1936, at defendant’s request, plaintiff promised to marry defendant but that no definite time for the marriage was fixed, that she is still ready and willing to marry defendant; that after said promise to marry, the defendant seduced plaintiff about November 15, 1937, by means of his said promise and of plaintiff’s reliance thereon; that on June 3, 1937, plaintiff requested defendant to fulfill his said agreement but he then deferred the marriage until certain business transactions of defendant were completed; that they discussed their marriage from time to time; that about September 1, 1938, they agreed that said marriage should take place immediately after September 12, 1938; that upon her demand on September 17th that he marry her, defendant declined and refused to do so; that between November 15, 1936, and September 17, 1938, she gave to defendant all of her love, care, attention and services and looked after, managed and cared for him; during which period plaintiff was deprived of an opportunity to marry some one else, to her actual damage in the sum of $250,000. She asked that punitive damages be assessed in the sum of $25,000.
At the time of her alleged engagement plaintiff was about forty-five years of age and defendant was seventy. She operated a millinery business in her home on Cloverdale avenue, Los Angeles, where she earned an average of $200 per month. She met defendant in 1935 at a social function. After the decease of his wife, defendant visited the plaintiff at her said home, renewed their acquaintance, and following frequent visits together, their relations attained to a mutual affection. In November, 1936, they mutually confessed their love and became engaged. They visited the homes of mutual friends where they were received with respect and honor. He spent much time in defendant’s home and she lost much of her trade because defendant was in the way. He was there in the evenings and he was there in the mornings until 10 o’clock; he often spent the night. Their romance suffered a disturbance in January, 1937, and they walked their separate ways until about June 3 of the same year, when, after mutual apologies, they discussed marriage and renewed their engagement.
The attentions given plaintiff by defendant, following said reengagement, were constant and affectionate. During the summer of 1937 they accompanied a couple on their honeymoon and enjoyed a trip on the Russian river for about six days. In September, 1937, defendant suggested that plaintiff rent another apartment which would be suitable for them after their marriage and that she quit her millinery work. Together they found the apartment, selected the furniture and planned for their marriage to take place after the defendant’s son should have arrived from the East. About the 1st of October, while they were furnishing their future home, defendant asked leave to move in and abide with plaintiff while awaiting the arrival of his son and at the same time he placed the wedding ring of his own mother upon plaintiff’s finger as a token of his plighted faith and "to seal the bargain".
From the date of the ring incident until September 17, 1938, plaintiff and defendant occupied said apartment. During the period of their illicit relations, the question of marriage was frequently discussed but as often postponed. Various reasons were assigned: once he was awaiting his son’s arrival; then he wanted to get his affairs straightened out; he had mortgages out that he desired first to collect; he owed money at the bank which he desired first to pay. It was the cleaning up of all of his business transactions that he made contingencies that must occur prior to his fixing a definite date for the wedding.
Although defendant admits the acts of sexual intercourse during the period they lived together, and, in addition thereto, stated that he had acts of intercourse with her in the fall of 1936, while she resided in the Cloverdale apartment, he denied all of her testimony that he promised to marry her. He admitted telling her that he loved her. He accompanied her to church and took communion by her side; he introduced her to his children and to his intimate friends; he escorted her to his clubs; sent presents to his friends with cards bearing her name and his; wrote her letters of endearment; praised her for her sweetness and her beauty; gave her passes to the races; purchased furniture for their apartment and supplied her table. Witnesses testified as to his outspoken intentions to marry her.
She became impatient at his procrastination, telling him that she could not continue to live thus illicitly; that if he would not marry then, she was through with such life. On September 17th, he abandoned her apartment and shortly thereafter she brought this action.
I. The contract to marry was not contingent. It is true that, on a number of occassions following the resumption of their engagement in June of 1937, defendant made excuses that he had business transactions which he must consummate prior to their wedding; that he was trying to get them straightened out so that he would be in a position to travel after his marriage. It is true that, in answering one of many questions, she testified that every time he discussed the question of marriage, he always made the date contingent upon his consummating some purpose, business or otherwise. In view of his numerous excuses which she had recited to have been made by him, her momentary confusion was understood by the jury. Notwithstanding her tolerance of his pleas for delay, yet his proposal, her acceptance, his wedding ring, his attentions, his compliments, his social engagements with her as his chief delight, his declarations of intention to wed her, his attendance at church with her, his kneeling with her at communion— these facts clearly evinced to her a sincere purpose and justifiably left no doubt with the jury that there was an agreement to marry. It is not customary to fix the wedding date at the time of engagement. That is a detail usually left to the determination of the bride. But the fact of an agreement to marry was determined by the jury and the evidence was sufficient to justify the finding. After he had proposed a marriage, she justifiably concluded that her acceptance and his continued devotion to her would result in nuptial ties. An engagement implies that the wedding shall occur within a reasonable time. 4 R.C.L. 147. Under the circumstances the jury must have believed that his excuses and delays were mere installments of his breach of the contract.
In view of the evidence, the finding by the jury that defendant agreed to marry plaintiff is abundantly supported. Murphy v. Davis, 19 Cal.App.2d 316, 65 P.2d 917. If conflicts appear in her testimony, which consumed three days of the trial, it was the function of the jury and the trial court to reconcile her statements, and, unless manifestly without support, the findings of the jury should not be disturbed. Whitaker v. Whitaker, 137 Cal.App. 396, 30 P.2d 538; Parker v. Herndon, 19 Cal.App. 451, 126 P. 183. Defendant has repeated his arguments and cited many authorities to show that an obligation to act upon the happening of a contingency is unenforceable before the contingency has occurred. But since the contract was free from contingencies, said arguments and authorities are beside the question.
II. A more serious problem is presented by that part of the judgment whereby plaintiff was awarded $8,000 as exemplary damages. Punitive damages in a sum four times the amount determined as the actual damages is excessive, and for that reason alone, that part of the judgment should have been set aside in the event of plaintiff’s refusal to accept a reduction. 8 R.C.L. 681. If a lady has been wronged to the extent of $2,000 by a breach of a promise to marry her, then the promissor’s conduct in living with and supporting her for a year is not such as to warrant so severe a penalty.
But this case did not warrant punitive damages. Demands for exemplary damages are justified only in cases of seduction. In order to render an act of cohabitation by a chaste woman seduction, it must have been accomplished by the false promises or other deception of the seducer. It must consist of such acts, wiles or persuasions as will overcome the resistance of a female who is not disposed voluntarily to yield her virtue. Carter v. Murphy, 10 Cal.2d 547, 563, 75 P.2d 1072, 1080. If a mature woman engages in a sexual act voluntarily, she shows no right to recover. She is not in the position of an unsophisticated girl of normal impulses who may be the easy victim of the blandishments of her charmer.
In the case of this plaintiff, we have no such inexperienced girl. She had passed through the phase of matrimony and knew full well the consequences of extra-marital intimacies. She had attained the age of forty-five years, when the intellect controls and when she did not contend against the violence of biological forces that overwhelm her sister of immature years. Not only was she freed from the temptations that beset her youthful days but she had her own experiences and a wide knowledge of the experiences on the part of others to give her pause. She was fortified by long considered and often repeated moral concepts and by the prevailing conventions that abhor laxity in sex behavior. Between her and a man twenty-five years her senior "the struggle would not have been so unequal, and she would have been held to a stricter responsibility". Carter v. Murphy, supra. Plaintiff could not have been seduced because of these protective forces. She acted upon her own judgment and was guided by her own intellectual processes. With a long business experience behind her, she moved only after calculating the cost. With her this was no sudden descent of a charming Lothario. She had associated with this septuagenarian for a year and with feline cunning had observed his gradual approach to the critical moment when a change in their lives must occur. After their outings, their tete-a-tetes, her listening to his honeyed praises, their social whirl, his gift of the ring and all— he, expressly not ready to lead her to the altar, proposed that, without celebrating a marriage, they live together as man and wife. It was an occasion fraught with both social and economic values. It could not have failed to convey to her mind its momentous import. After he had definitely deferred a marriage to an indefinite day, if she opposed his program because it was contrary to her principles, her soul would have cried in anguish at the sordid prospect he presented. At the time of their engagement, his expectancy was less than eight and one-half years. While a disparity in their ages was a fact that should have caused her to hesitate even at an engagement, yet with time to reflect before her leap, she deliberately chose a status that could offer nothing but sorrow. There is no inference that can be reasonably drawn from her ready acceptance of his pre-hymeneal offer except her desire for the prospective amours or her zeal for economic gain, or social prestige or all of these things. She could not have been controlled by an ardent love or by his promise. She had in mind his speech of procrastination made on June 3d, and, at every discussion thereafter "it was always hinging upon his finances". His delays were warnings that flared like red rockets from the sky and still she yielded. Before the Ides of November, she took this man of three-score-and-ten into her home in defiance of the moral code and now offers the sole excuse that he had promised to marry her. Thus, for a year she fed upon his bounty and shone amongst his friends. Only after he had definitely repudiated his promise to marry did the scene pall upon her. It is not reasonable to believe that she was seduced from her lofty state of virtue by the promise of defendant to marry her. While her body may have been chaste, her avid desires directed her course and she chose her fate with a clear vision. It thus appears that there was not sufficient evidence to warrant the assessment of $8,000 punitive damages or any damages on the theory of the seduction of the plaintiff.
Inasmuch as the instructions and the ruling complained of related to the issue of seduction and punitive damages, we deem it unnecessary to discuss them.
It should be the order of this court that the judgment appealed from be modified by reducing the amount thereof from $10,000 to $2,000, and, as thus modified, affirmed.