text:
    [L. A. No. 16380.
    In Bank.
    January 31, 1938.]
    MARY CARTER, a Minor, etc., Respondent, v. JERRY MURPHY, Appellant.

      Ezra Neff, Edwin O. Boehler and Livingston & Livingston for Appellant.
    S. S. Hahn, W. O. Graf and Stanton Rippey for Respondent.
   SEAWELL, J.

Mary Louise Carter, a minor under the age of eighteen years and not the wife of defendant, by an action prosecuted in the name of her guardian ad litem against defendant-appellant, Jerry Murphy, was awarded a judgment against him in the sum of $10,000 by the Superior Court of the County of Los Angeles, sitting without a jury, on account of several alleged acts of seduction committed by him upon the body of said minor.

The complaint alleges four specific acts of sexual intercourse, committed in the city of Los Angeles, in the following order: On or about September 8,1935; on or about September 15, 1935; on or about February 14, 1936; on or about April 8,1936.

The defendant, without making any objection by demurrer or otherwise as to the sufficiency of the complaint or as to its infirmity in any particular, filed a verified answer in which he admitted the place of residence of the parties to the action and summarily disposed of all other allegations of the complaint by denying generally and specifically each and every allegation not otherwise expressly admitted or denied by his answer. Called as an adverse party (Code Civ. Proc., sec. 2055) he testified—contrary to the denials of his verified answer—to a number of acts of sexual intercourse committed with said plaintiff under guardianship, but was guarded as to any admission that would fix the times of intercourse prior to October 28, 1935, that being the day on which said Mary Carter arrived at the age of eighteen years. An admission on his part of the commission of any act of intercourse with Mary Carter prior to October 28, 1935, would have been an admission that he was guilty of the crime of rape. (Pen. Code, sec. 261.)

So much of the evidence is interwoven into our review of the sexual relations which existed between defendant and Mary Carter from the time he first met her to and including the month she became pregnant, to wit, April, 1936, and latterly the abortion committed to relieve her pregnancy, as we deem necessary to support the findings, and in turn, the judgment.

Defendant, a married man, thirty-three years of age, was a traveling salesman in the employ of the Standard Brands of California, a supply concern which had offices in the city of Los, Angeles. At all times material to the action it is alleged that by employing and resorting to artful and deceptive methods, seductive blandishments and amorous and passionate appeals, the defendant accomplished his sexual desires.

Plaintiff, under guardianship, as shown by the birth certificate, was born at Glendale, county of Maricopa, state of Arizona, "October 28, 1917. She resided with her parents near the town or city of her birth which, no doubt, was a rural community, where she attended school. During the summer vacations of the school she visited Mrs. Irene Brooks, a married sister, at Los Angeles, first in 1934, and again in 1935. Her sister was conducting a beauty parlor in said city and lived in an apartment. Mary Carter met the defendant on the occasion of her first visit with her sister, but nothing of an amorous character is mentioned in the evidence as to the defendant’s conduct toward Mary on her first visit. Defendant and Irene Brooks seemed to have been on friendly terms to the extent that he commonly addressed her as Irene. In fact "he signed as her surety on one occasion, in the sum of $100 on the purchase of a sealskin coat. The obligation was afterwards discharged by her without financial loss to him. Mary’s visits with her sister were during the summer vacation months, June, July and August, 1934, 1935. It was her plan upon completing her visit in 1935 to return to her home and enter the Arizona State College to complete her educational course. During her stay in Los Angeles Mary had rooms at her sister’s apartment. By his admissions defendant frequently took Mrs. Irene Brooks and Mary to cafes for lunch and dinners and to places of entertainment. His attentions soon centered on Mary. Irene’s business kept her occupied during the day and into the evenings. His method of contracting Mary was by phone calls at thé sister’s shop or at her apartment. He also called in person at her apartment during the sister’s absence. His method of contact was suited to the exigencies of the situation. The first act of intercourse was accomplished by defendant at plaintiff’s apartment in August, 1935, shortly prior to the time when Mary was about to return to her home in Arizona to resume her scholastic career.

Mary’s account of defendant’s advances which led to the accomplishment of defendant’s purpose is given in words and circumstances which bespeak remorseful consciousness caused by her deviation from the path of moral rectitude and the bitter humiliation which the shame of illegitimate pregnancy must bring to a young woman just emerging from girlhood into womanhood. There is not a word in the record that tends to show immoral propensities on the part of plaintiff under guardianship, or that she was unduly wayward, or was lacking in moral propriety or refinement, before she ■was beguiled by the blandishments of defendant. There is no reason to discredit the testimony of plaintiff to the effect that during her three months’ vacation in Los Angeles the defendant insinuated himself into her affection by professions of love of her, and by fervid appeals that he “must have her and he could not do without her”. Failing in his efforts to dissuade her from returning to school he requested her to spend her Christmas vacation at Los Angeles. He assured her that he would greatly miss her and asked her if he might write to her and visit her when and if he should go to Arizona, which he occasionally did. He had come to her apartments, he told her, to bid her good-bye. On the eve of departure she yielded to his amorous embrace. She testified that it was not without reluctance on her part but she had come to love him and her resistance was so weakened by his professions that she was unable to withstand his amorous advances. This first act of intercourse was committed late in August and on the next day, Saturday, she left for her Arizona home. She did not reenter school as her affections for him and the lustful passions aroused by her first act of intercourse impelled her to return to him about September 8th or 9th, after an absence of two weeks. Upon her return defendant called her by phone at her sister’s shop and took her to lunch and after taking her on a ride in his automobile he took her to her sister’s apartment and again had sexual intercourse. He took with him a bottle of liquor. Both took a drink or two or three at the apartment. He kissed her, made love to her and said he couldn’t do without her. When she hesitated to readily submit herself to him lie said: “When people cared for each other it wasn’t wrong”.

The defendant upon his examination expressed himself as entertaining perverted notions as to the personal relations which, in cases of mutual love, might properly exist between the sexes. In mitigation of his conduct, and in line with his moral conception he said he had thought, and still thought a great deal of Mary but her sister was trying to commercialize on something that was “decent”. When asked to explain what he meant by “decent”, his answer was that “as far as the way Mary Carter and I had sexual intercourse was just something that happens between people every day”. He said she knew that he was married. He denied that he told her that he loved her. Mary testified that he told her that his wife was his senior in years and that he respected her but he did not love her; that defendant made no specific statement which she could recall that he would marry her but he asked her if she could live on $250 per month, and by his treatment and conduct he led her to believe that he loved her and intended to possess her as his wife and companion. She believed his professions of love which she took to be sincere, and she became reciprocally enamored of him.

He had intercourse with her again on a date which she fixed as being about September 15th. The defendant came to her apartment at about 7 o’clock and again had intercourse with her. She drank no intoxicating liquor. Mrs. Ebba Holmberg,. a draft clerk with the General Insurance Company of America, and a close friend of Irene Brooks, came to the Brooks’ apartment at about 7:30 P.M., and rang the door bell but met with no response. She then went to the side bedroom window, called Mary and tapped on the window. Mary answered that she would open the door in a moment. Upon looking through the window she observed Mary rearranging her wearing apparel. Defendant was not fully attired as he went from the bedroom into the bathroom. Mary seemed confused by the unexpected call of her sister’s friend. Her disordered appearance and defendant’s presence made Miss Holmberg apprehensive as to proprieties of the situation. Defendant’s manner indicated that he was somewhat affected by the use of intoxicating liquor. This act of intercourse as testified to by plaintiff and corroborated by Miss Holmberg’s testimony would be sufficient to convict the defendant of the crime of rape as plaintiff was then under eighteen years of age. The defendant denied that he had intercourse on the day named by said witnesses but admitted acts of intercourse were committed a short time thereafter. Miss Holmberg did not mention what she had seen to the sister until she was afterwards told by Irene that Mary and the defendant had stayed together all night at a Los Angeles hotel.

Successive acts of intercourse on defendant’s admissions took place at psuedo hotels, or at questionable hostelries, in which the occupants of rooms were not required to register. The defendant’s duties as traveling salesman frequently took him into various cities and communities in southern California, and often a few days would pass when he did not meet plaintiff. Upon his return to the city he resumed his prior relations with her. At all times he knew that she was a school-girl. When he first met her she was not seventeen years of age. He testified that he never asked plaintiff her age but he had a recollection that she told him on her birthday, which was October 28, 1935, that she had arrived at her eighteenth birthday. His course of illicit relations, according to his admission, began a few days after her birthday, about November 5th. From that day forward, he admitted that acts of sexual intercourse with plaintiff continued until interrupted by pregnancy which developed some time in April or May of the following year, 1936. When defendant was informed by Mary that a physician had pronounced her pregnant and that she had left her sister’s apartment and was then stopping at a hotel, he told her that he would help “her to get out”. He procured a prescription from a “friend”, and brought to her a bottle containing liquid with written directions as to its internal use. This much is admitted by defendant. The plaintiff gave a more extended account of the defendant’s active participation in the effort to relieve her of pregnancy. Briefly, she testified that when she called upon defendant and told him she was pregnant he asked her what the doctor had said. He assisted her in taking the medicine which he brought and told her that if it didn’t do the work she would have to try something else. Plaintiff, prior to this time, had procured a position with the telephone company. During three or four days after she had taken the medicine furnished her she was ill and unable to work. She then consulted a doctor and an operation was performed which relieved the pregnancy. The doctor who performed it was undoubtedly an abortionist as she did not see his face, which, in such cases, is usually masked or hidden from the patient by some means to prevent identification. Nurses are the usual mediums of visual contact. Plaintiff’s health was impaired by the operation to the extent that she became unable to perform her duties.

The effort made by this defendant to excuse his course of salacious conduct with a school-girl approximately one-half his age, on the ground that he had on certain occasions voluntarily drunk to an excessive degree presents a startling defense. He testified that on one or two occasions at least, after taking her to rooms for the purpose of having intercourse, he was not certain whether he had had intercourse or not, but upon being pressed for a definite answer he admitted that he did have intercourse. The evidence fully sustains the findings of the court that he was guilty of seduction. The only conclusion deducible from his testimony, is that he did not love plaintiff and he had no intention or expectation of setting aside his wife and ultimately marrying her, but that he deliberately planned by sedulous methods the undoing of an unsophisticated school-girl in order to satisfy his carnal and lustful passions.

There can be no doubt that the defendant used every means and influence at his command to beguile plaintiff into the commission of the irremediable error which neither regrets nor sorrow can blot from her memory. Whatever the true relations may have been that existed between Mrs. Irene Brooks and defendant are not told by the record. But, if for purposes of example, it should be conceded that they were meretricious—both being married persons—the continuous secret meetings planned by the defendant with her youthful sister, who came in her school years from a respectable home, shows a lack of respect for the moral code which is indefensible. There is no evidence whatsoever that the sister encouraged, or had any knowledge of the existence of any immoral relations between her sister and defendant.

The testimony of Mary is clear and convincing, and in several particulars, is corroborated by another witness, by unimpeachable circumstance and by the admissions of the defendant. She did not attempt to recite all of the terms of endearment employed by the defendant or describe the artful and subtle means by which the seducer may transport his youthful victim into a state of sexual excitation, whereby the will of the one is brought under subjugation of the other. Words are not adequate to describe the mental emotions and physical conduct of persons whose relations are such as shown by the record before us.

An attempt was made to show that plaintiff was a person of previous unchaste character. Defendant, during his examination, introduced into the case an episode to the effect that on one occasion he appeared at Mrs. Brooks apartment, at an unseemly hour, intoxicated, and because of his inebriated condition, he was permitted to occupy a bed for the balance of the night. His testimony to the effect that he occupied a bed with both Mrs. Brooks and Mary and when he awoke later in the morning he found Mary in his bed but he was too far under the influence of liquor to know if he had had improper relations with her, is not persuasive, and doubtless it did not impress the trial judge. The fact that his meetings with plaintiff were clandestinely made and his intrigues were secretly arranged renders his statement improbable. Besides it was refuted.

As a further effort to impeach the previous chaste character of plaintiff, the following questions were put to her and answers given on cross-examination:

“Q. During part of this time, [referring to the period of illicit relations] as I understand it, you were working as a taxi-dancer in a dance hall on Fifth Street? A. One night. Q. One night? A. Yes, sir. Q. That is the only time you ever worked there? A. Yes, sir.”

The subject was here dropped.

No act which tended in the slightest degree to reflect on plaintiff’s character, prior to meeting the defendant, was hinted at during the trial. Both of the above incidents introduced into the case were subsequent to the time when plaintiff came under the influence and domination of the defendant, and, even if true, the defendant would not be permitted to take advantage of his own wrongful acts. In the instant case, the alleged particular immoral act which defendant seeks to turn to his advantage is but the continuance of the relations which were initiated by him in the circumstances herein set forth. The incident, if true, would serve well to emphasize the moral degeneracy and the far-reaching consequences of which the initial sexual act was the primal cause.

The action is prosecuted by virtue of the following provisions of section 374, Code of Civil Procedure of this state:

“374. An unmarried female may prosecute, as plaintiff, an action for her own seduction, and may recover therein such damages, pecuniary or exemplary, as are assessed in her favor.”

A jury having been expressly waived, the court awarded the plaintiff a judgment in the sum of $10,000. The defendant has devoted the greater part of his argument to an effort to overthrow the judgment of the trial court holding him liable on the action for seduction. The acts offered to prove sexual intercourse, it is vigorously contended, even as detailed by the testimony of the plaintiff herself, giving due consideration to the inferences and deductions as are warranted by the facts proved or as are warranted from a consideration of the propensities and passions of the defendant as disclosed by the evidence (sections 1958, 1960, Code of Civil Procedure), considered either singly or altogether, are not legally sufficient to constitute an action for seduction.

The case upon which appellant most strongly relies and to which frequent references are made and extended excerpts are taken, is Breon v. Hinkle, 14 Or. 494 [13 Pac. 289]. The Oregon Supreme Court then consisted of three members. Chief Justice Lord and Associate Justices Thayer and Strahan, Justice Thayer writing the opinion. Justice Strahan specially concurred in the order of reversal on the ground that certain instructions given at the request of respondents were correct as abstract propositions of law, but in the justice’s opinion they had no application to any facts which the evidence tended to prove, and being mere abstract propositions of law were, in the facts of the case, misleading. Chief Justice Lord said in a general way, there were many things said in Justice Thayer’s opinion (without specially designating any one) to which he assented, but inasmuch as the matter was before the court on a bill of exceptions and it was not stated therein that the bill of exceptions contained all the evidence, therefore under the long approved rule, it must be presumed that the instructions were warranted by the evidence, and no reversible error was committed by the court, since, of course, the instructions set forth a correct exposition of the law of seduction. Said action was prosecuted under section 35, Civil Code of the state of Oregon, which provides that an “unmarried female over 21 years of age may maintain an action as plaintiff for her own seduction, and recover therein such damages as may be assessed in her favor; but the prosecution of an action to judgment by the father, mother, or guardian as presented in section 34, Civil Code, shall be a bar to an action by such unmarried female”. It will be observed that the Oregon statute differs from our section 374, Code of Civil Procedure.

It was because of deference to the common-law rule, influenced by the particular phrasing of the statute, that the author of the opinion manifested a leaning to the common law which limited the recovery in cases of illicit sexual intercourse resulting in pregnancy to the actual pecuniary loss sustained. In yielding to a construction of the statute which extended the ancient rule limiting the right of recovery to the loss of services sustained by parent or master, to include damages on account of mental anguish and loss of reputation and character suffered by the injured female, the author of the main opinion, undoubtedly incensed at the bold and iniquitous attempt of the plaintiff to convert pretended virtue into a thing of profit, entered into a lengthy disquisition on the subject of seduction both as to its legal and moral aspects in which neither of his two associates were willing to follow him the entire distance. One dissented and the third specially concurred. The divergent views of the court arose from the giving of an instruction held to be a correct general statement of the law of seduction but inapplicable to the case, there being no evidence to support certain assumed facts incorporated in the instruction. The assumption of said facts being deemed prejudicially misleading, it was held reversible error to give it. It reads:

“Seduction is the wrong of inducing a female to consent to unlawful intercourse by enticement and persuasions overcoming her reluctance and scruples. There must be reluctance on the woman’s part to commit the act, and her consent must be obtained by flattery, false promises, artifice, urgent importunity based on professions of attachment, or the like. Otherwise there is no seduction in the proper sense of the word. Sexual intercourse accomplished by means of a promise of marriage is seduction. Therefore, if you shall find that the defendant did, through enticement or persuasion, or by artifice, urgent importunity based on profession of attaehment, or by promise of marriage, or the like, overcome the plaintiff’s reluctance and scruples, and thereby induced her to have unlawful intercourse with him, then you should find for the plaintiff, and assess her damages. ’ ’

The authors of the main and concurring opinions were of the view that there was no evidence before the jury of any enticement, persuasion, artifice or urgent importunity based on professions of attachment and therefore the court erred in charging the jury in an abstract manner that they had a right to consider any of the aforementioned propositions in determining whether defendant had committed seduction. The chief justice dissented from the order of reversal, the instructions in his view being a sound exposition of the law and inasmuch as the bill of exceptions did not negative the assumption that no such evidence was adduced at the trial, and the law was correctly stated, error could not be presumed. It will require but brief references to the opinions in the case to make plain the wide factual differences which exist between the instant and the cited ease. We have sufficiently described plaintiff’s status in the instant case as a school-girl of previous chaste character, under the age of eighteen years, and a resident of a neighboring state, who was visiting her sister at the time the seduction was committed.

The plaintiff in the Breon case, upon which the defendant herein relies, was a woman twenty-eight years of age, had been twice married, and twice divorced, and was the mother of a child by each of her former husbands. The° alleged seduction took place in plaintiff’s room at the Palace Lodging-house. She met the defendant some three months before he had intercourse with her. He called at her room on her invitation. Her narrative of what followed, as summarized in the opinion is, that on the occasion in question, after some discussion he went out and brought in some beer. Both drank, plaintiff drinking very little. Immediately after drinking the beer defendant grabbed her and a struggle ensued. She protested and fought until she became exhausted. During the struggle he promised to marry her and he made “every promise”. She still refused and he had intercourse with her by violence. She begged him not to make so much noise as the other rooms in the house were occupied and the noise would attract the attention of the persons who occupied them. Defendant remained in the room for some time and again had carnal knowledge of her, the circumstances of which she did not recollect. He spent the next evening with her but nothing improper happened. Their relations came to a close. She became pregnant following said acts of intercourse and was delivered of a child. The defendant testified that on the morning following said acts of sexual intercourse he gave plaintiff $20. The plaintiff testified that some time thereafter he gave her $20 or $30. The authors of the main and concurring opinions were manifestly of the opinion that the testimony of plaintiff was too improbable and insufficient to support the judgment as both bear heavily upon the plaintiff’s statement that during the struggle in which she was overcome by violence she begged the defendant not to make so much noise as it would attract the attention of those in the other rooms. The further fact that plaintiff’s acquaintance with defendant was of brief duration, and that she was a mature woman with maternal and worldly experience stand out as potent negations of her claim that she was “tempted, allured and led astray from the path of virtue, through the influence of some means of persuasion employed by the man, (defendant) until she freely consented to the sexual intercourse”, or that she was overcome by physical violence. The main opinion characterizes her as “a female a long way from girlhood”.

If plaintiff entered into an unlawful act of sexual intercourse freely and voluntarily, and without the employment on the part of the accused of any art, promise, deception, persuasion or the exercise of any undue influence over the alleged seducee, which was calculated to overcome her reluctance and scruples, plaintiff would not, under the foregoing observation, have a cause of action for the damage suffered by her, and the act thus voluntarily entered into would not amount to seduction.

The Breon case does not change the definition of the term seduction, used in its legal sense, in the slightest respect from the definition given by standard authors and the' best considered cases treating of the subject as will hereafter appear. The facts of the instant ease bring the ease well within the meaning of the term as defined by-the three separate opinions of a court consisting of three members, in which one justice concurred in the judgment of reversal on the sole ground that the evidence did not justify the giving of an instruction admitted to be correct as an abstract proposition of law, but which may have led the jury into the belief that the elements necessary to constitute the offense, as set forth in the instructions, had been proved. The third justice dissented generally.

Appellant has cited other cases in which the evidence adduced at the trial was held insufficient to sustain judgments for unlawful sexual intercourse, the leading one being Baird v. Boehner, 72 Iowa, 318 [33 N. W. 694], decided in 1887, as being factually similar to the instant case. The plaintiff in that case was a school teacher, twenty-five years of age. She and defendant had engaged in acts of sexual intercourse from July, 1882, to August of that year. She testified that partly with the determination of reforming her ways she withdrew from her former environment and went to Kansas, in September, 1882, where she remained for a period of six months. Two days after she returned to her home she went on a buggy ride with defendant and they again engaged in intercourse. This relationship continued until December, 1883, She finally became pregnant, and brought an action alleging seduction. She was a mature woman engaged in training the minds and developing the moral character of youths. There is no factual resemblance between the two cases. In the cited case there was no sufficient evidence tending to show that a false promise was made or deceit or artifice was practiced to allure plaintiff from the path of virtue, but in the circumstance of her station her lapse must be attributable to “indiscretion in permitting the intercourse to take place”. It would be a harsh and unjust decree of the moral law that would apply the same rule of accountability to the youthful plaintiff in the instant case as might properly be applied in the ease of mature womanhood. There is also this additional element present in the instant case which does not appear in the cited ease. Appellant professed close friendship with plaintiff’s sister but notwithstanding this relationship it was with a member of her household, in the home, which should be as a fortress of protection in which virtue is secure against alluring temptations, that plaintiff’s virtue was violated. The particular relationship that existed between the parties is an important element in determining the question of seduction. (De Haven v. Helvie, 126 Ind. 82 [25 N. E. 874].)

Appellant has cited eases of other states which held the evidence adduced was not sufficient to sustain a seduction judgment. We have examined the eases so holding and find none of them fairly comparable in culpable conduct to the instant case.

Both parties cite a case of this court, Marshall V. Taylor, 98 Cal. 55 [32 Pac. 867, 35 Am. St. Rep. 144], decided six years after Breon v. Hinkle, and Baird v. Boehner, supra, were in the books. The general facts recited in the opinion are that defendant was a man of mature years, owned large property interests, was married and residing with his family. The plaintiff was an employee of defendant, engaged as a Avaitress at the hotel kept by defendant. She was of the age of sixteen years and ten months, had seen considerable of the world, having resided with her mother in various localities and was an intelligent girl for her years. The proof of seduction rested alone with the testimony of plaintiff. The defendant squarely contradicted plaintiff’s evidence in every essential particular. The plaintiff’s testimony was that the defendant had called upon her once before at her room in a cottage near the hotel and brought her some books. On the evening in question, he conversed with her and asked her if she ever drank any wine. He handed her a glass of Avine which she drank. He poured out a glass for himself, tasted it and said it was too sweet. Plaintiff testified that very soon after drinking the wine her head commenced to go around and she had tingling sensations and became sick at the stomach. She said that her limbs felt hea-vy and numb. She described the sensations which she experienced as being peculiar and such as she had never experienced before. She arose and defendant helped her to the bed. She asked him to go away. He kissed her and told her he loved her, and assured her that he would always be her friend; that he had plenty of means and she would never want. She then yielded. She said she had no distinct recollection of what occurred after she was laid upon the bed until she felt pain. Plaintiff thereafter gave birth to a child. In an action for damages for seduction she was awarded the sum of $25,000.

The instruction given and the court’s discussion of the law and the particular situation presented by the facts of that case are singularly applicable to the facts of the instant ease with the exception that there is no direct evidence that plaintiff here was affected by liquor to the degree that plaintiff claimed she was affected by drinking one glass of wine in the cited case. All other elements germane to the subject are made the subject of discussion. We quote:

“ ‘The word “seduction”, when applied to the conduct of a man toward a female, means the use of some influence, promise, art, or means on his part, by which he induces the woman to surrender her chastity and her virtue to his embraces. There must be something more than a mere reluctance on the part of the woman to commit the act, and her consent must be obtained by flattery, false promises, artifice, urgent importunity, based on professions of attachment, or the like, for the woman, and that relying solely on said promises or professions of flattery or artifice or importunity, she surrendered her person and chastity to her alleged seducer. And that relying and being influenced solely by such promises, flattery, artifice, and urgent importunity, she then being chaste, surrendered her person and chastity to her alleged seducer. ’ After a careful examination of many cases, we are satisfied the law is fairly declared in the foregoing instruction, and that such instruction is in line with the authorities in this country. (State v. Bierce, 27 Conn. 319; Croghan v. State, 22 Wis. 444; Brown v. Kingsley, 38 Iowa, 220, 222.) Modern lexicographers define seduction as the act of persuading a woman to surrender her chastity. In its ordinary acceptation it implies a betrayal of confidence, and for that reason a great majority of this class of .cases are based upon a violated promise of marriage, but this is not a universal rule by any means; for a married man may seduce a girl, and that, too, though she is aware of his marriage. There are many cases to this effect, but they have arisen generally where the injured parties being young girls and easily beguiled could not be held to the plane of responsibility occupied by women possessing a wider knowledge of the world.
“In the present case we have a chaste girl, not seventeen years of age, making her living far distant from her few friends, stopping at night alone in a cottage. She is visited after dark by her employer, with whom she was upon friendly terms, a man of wealth and years. After a conversation upon ordinary topics, lasting some time, he gives her a glass of wine which she drinks, and her mind is seriously affected thereby. He expresses affection for her, repeatedly caresses her, makes promises of future friendship and assistance, and after all these things have been going on for some length of time he seduces her; at least a recital of these events would picture a case of seduction to the ordinary mind. They do not disclose a cold, deliberate transfer of virtue for a consideration. Neither do they describe a sacrifice of virtue to the demands of lustful passion; but the blandishments, the expressions of friendship, the promises, the wine, weapons of the seducer, were all there. If the plaintiff were a woman of years, with that knowledge of the world which age brings with it at the present day, the case might present a different aspect. The struggle would not have been so unequal, and she would have been held to a stricter responsibility. But we cannot charge her with that judgment and discretion which come only with age and experience. The drinking of the wine seriously affected her, and its administration alone may be well termed an artifice that conduced to her downfall. If these things which she has said be true, and the jury has so found the facts, her cause of action is supported by the evidence. ’'

The word “seduction” when used with reference to the conduct of a man toward a female, has a precise and determinate signification. The accepted definition is fully stated in 57 Corpus Juris, page 10, supported by many citations of cases, as follows: “Thus the word ‘seduce’ in its common as well as legal acceptance, imports the idea of illicit intercourse, accomplished by arts, promises, or deception ; the wrong of inducing a female by enticements and persuasions overcoming her reluctance and scruples; the use of arts, persuasions or wiles to overcome the resistance of a female who is not disposed of her own volition to step aside from the paths of virtue.” (See, also, 24 B. C. L., sections 3-10, pages 732-738 and cases cited.) In some eases the words “urgent importunity” are used instead of “persuasion”. Considered with respect to the context both terms express the same meaning.

The evidence clearly supports the finding of the trial court that the acts of the defendant are within the definition and meaning of the word “seduction” as judicially defined. Moreover, if the defendant committed the acts of intercourse as charged at a time when plaintiff was under the age of eighteen years, the fact that in so doing he also committed the crime of rape, would not exempt him from liability in an action charging seduction even though the acts charged were perpetrated without regard to any of the means necessary to make out a case of seduction. “The fact that defendant has committed the offense of rape, as well as seduction, only aggravates the latter injury and furnishes ground for exemplary damages.” (24 R. C. L., sec. 4, p. 734; Marshall v. Taylor, supra; 57 Cor. Jur., p. 14, and supporting eases.)

Appellant has devoted considerable space in his brief to supporting certain observations made by Justice Thayer setting forth his personal views as to the degree and kind of proof that should be required to substantiate a charge of seduction. The reasons given in justification of a departure from settled judicial pronouncements, and in some cases statutory regulations, are: “The individuality of the female sex has been 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.” He concludes his views on the subject divining that the law, unless interpreted to meet his views, will be resorted to more frequently by the unscrupulous than by the more womanly “who would be inclined to smother their disappointment and grieve over the wrong, while the unscrupulous would make it a matter of public parade and profit”. It is further stated that the radio, moving pictures, the widened field of female activities and widespread dissemination of information with reference to sexual relations have given the womanhood of today a better understanding of the moral duty that should guide their relations with men than existed when the Breon ease was written fifty years ago. Whether the inventions, creations, the startling developments of science and the entry into broader fields of social and political activity have had or should have had the effect of quickening moral responsibility and duty or have made it easier for the sex to conquer human emotions and passions or have hedged in female chastity with walls of protection which did not heretofore exist, are questions affecting public morals of which legislatures may take cognizance. There has never been a time in the history of the civilizations which observe a moral code, that the female sex has been in ignorance as to the magnitude of the misery and ruin which unlawful seduction inflicts upon transgressors. This age-old sin has been the concern of motherhood since the earliest civilizations and daughters in early girlhood in the ages past have not been ignorant as to its inexorable penalties.

It may be observed further that notwithstanding our intellectual advancements there have been more statutes enacted for the protection of the morals of youth since the Breon decision (1887) than were in our statutes at the time it was written. In fact the legislature in defining rape has since that day raised the age of consent of the female from sixteen years to eighteen years, thereby making voluntary intercourse with a female under that age rape. Many laws designed to protect female chastity and the morals of the 3ouths have been enacted notwithstanding the marvelous intellectual advancements made during the past half century.

If the arguments of appellant rest upon sound moral grounds they should be addressed to the law-making branch of government rather than to the judicial branch.

The complaint contains ten paragraphs numbered in numerical sequence. The findings refer to the paragraphs in their numerical order and find each to be true as alleged in the complaint except as to Number IX which alleges general damages in the sum of $50,000. The corresponding finding reduced that amount to the sum of $10,000. The prayer of complainant was for the further sum of $10,000 by way of exemplary damages.

Several exceptions are taken to the findings based on the contention that certain of them are not wholly supported by the evidence, and the court improperly included them in computing the amount which it found would fairly compensate for the damages suffered by plaintiff. One of the grounds of objection is based on allegations contained in paragraph X of the complaint, on information and belief, to the effect that the defendant was a man of wealth and was well able to pay for the irreparable damage done plaintiff. No evidence was tendered by plaintiff which in any way related to the defendant’s financial standing, except incidentally, the testimony of plaintiff that the defendant during a period of amative relations asked her if she could live on $250 per month. The defendant was examined by his attorney as to his financial ability and he said his salary as traveling salesman was $225 per month and that was his only source of income and he owned no property of any kind except an equity in his household furniture. The inquiry went no further.

An examination of the findings as a whole makes it very certain that the court did not consider the financial standing of the defendant in forming its judgment as the findings, by specific reference, were unquestionably based on general damages and nothing was allowed by way of exemplary damages or special damages as to which there were no allegations or proof as to the amount. The few references made to the necessity of obtaining the services of a physician to relieve the pregnancy which defendant admitted he aided and abetted by furnishing medicine, were merely recitals of conditions which were consequent, or incidental to, and descriptive of the acts charged. The complaint was not framed on the theory that special damages were sought. No demurrer was interposed or motion was made to strike out any part of the complaint on the grounds of uncertainty, irrelevancy or immateriality, or for any other alleged defect. The complaint alleged the first act of sexual intercourse was committed about September 8, 1935. Early at the trial she testified that the first act was committed in August of that year, just as she was on the eve of departure to her parents’ home. That testimony was objected to by defendant and the plaintiff asked leave to amend by including the first act of seduction in her complaint. The trial court took the view that it was not necessary to make the formal amendment and treated the act as an issue in the case. Plaintiff was fully cross-examined by defendant as to this act of intercourse. His point is that if the plaintiff had intercourse prior to the time alleged in the complaint as filed, she was not, on September 8th, 1935, a female of previous chaste character. But the fact is that if she was defiled in August it was by him and no one else. If he did not have intercourse with her in August, but did have such relations later as admitted by him, she was at the time alleged in the complaint, a female of previous chaste character and the pleadings and evidence remain amply sufficient to sustain the judgment. In either event he was the original violator of her chastity.

Lastly, the judgment is attacked on the grounds that it is exorbitantly excessive and a new trial should be ordered. The cause was tried by the court, a jury having been waived. “As a result of the difficulty in laying down any fixed rule of damages it is generally held that the action for seduction . . . is exempted, by peculiar considerations from the interference of the courts on the ground of excessive damages, and unless, under extraordinary circumstances, as where the verdict is so great as to raise the suspicion of partiality, passion, prejudice or corruption, the finding of the jury wall not be disturbed. Damages are the peculiar province of the jury, and it is their judgment and not that of the court, which is to determine the amount of such damages. Even at common law in this class of eases, verdicts of juries were seldom held to be excessive, even when the parent recovered on the fiction of loss of service, and there has been held to be even less reason for disturbing a verdict when the plaintiff is the woman seduced. ’ ’ The foregoing quotation is taken from 24 Ruling Case Law, page 759, and is buttressed with ample authorities. In the instant case the amount awarded by the judgment was not assessed by a jury’s verdict, but is the result of the trial court’s calm and judicial determination. In such cases we are bound by the judgment.

Judgment affirmed.

Curtis, J., Langdon, J., Waste, C. J., and Houser, J., concurred.

Rehearing denied.


source: Caselaw Access Project

author: EDMONDS, J.

license: Public Domain

text:
    [S. F. No. 15785.
    In Bank.
    January 31, 1938.]
    PACIFIC EMPLOYERS INSURANCE COMPANY (a Corporation), Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION, KENNETH TATOR et al., Respondents.

      W. N. Mullen for Petitioner.
    Everett A. Corten and Keith & Creede for Respondents.
    Hartley F. Peart and Howard Hassard for Respondent Physicians.
   EDMONDS, J.

The petitioner by this proceeding for review, seeks to annul an award of compensation made by the Industrial Accident Commission upon the ground that at the time the employee was injured, he was subject to the workmen’s compensation law of Massachusetts. The defense of the insurer is that Massachusetts has exclusive jurisdiction of the controversy.

Dewey & Almy Chemical Company is a Massachusetts corporation, licensed to do business in California. Its principal offices are in Cambridge, Massachusetts, and one of its several factories is at Oakland, California. The business of the company is managed by its executive officers in Massachusetts and a research laboratory is maintained there.

Kenneth Tator, the injured employee, formerly lived in Portland, Oregon. He left there-to attend Massachusetts Institute of Technology, from which he graduated. Since January, 1930, he has been employed by the Dewey & Almy Company as chemical engineer and research chemist. The contract of employment (which is in writing but does not appear in the record) was made in Cambridge, and Mr. Tator has worked there in the company’s research laboratory except at various times when he has been sent elsewhere on company business.

In September, 1935, one of the principal customers of the company made a complaint about a chemical compound manufactured at the Oakland plant. Following a conference in New York between officers of the company and this customer, the company’s general manager ordered Mr. Tator, then at the laboratory in Cambridge, to go to Oakland and investigate the situtation. Mr. Tator did so, and suggested several changes in the machinery of the plant. The evidence shows that he made written reports from time to time concerning his work. These reports were addressed to the manager of the Oakland plant, but copies were sent to the home office in Cambridge and Mr. Tator received comments and suggestions from his superiors there.

It is clear that throughout this time he was subject to the control and direction of the officers of the company at Cambridge, although his method of procedure was subject to the approval of the manager of the Oakland factory, who assigned him a place to work, named men to assist him, and had limited authority to accept or reject the suggestions he made regarding changes in equipment. However, these were matters of detail. Mr. Tator had been sent to Oakland to find out why the company’s product manufactured there did not meet requirements, and to remedy the difficulty. His status in California is defined very clearly by his own testimony. Speaking of the trouble at the Oakland plant, he said: “I was brought out there to solve the thing by my technical knowledge if I could. ... I was advising the Oakland branch from a technical standpoint. . . . When I had found the trouble and rectified it, I was to . . . notify Cambridge and await orders. . . . There was no thought of staying out here permanently. ’ ’.

While he was in California Mr. Tator remained on the payroll of the company in Massachusetts and his salary as it accrued was deposited to his account in a bank in Massachusetts. He was given an advance before he left Cambridge to meet his traveling and other expenses in California, and a further sum was advanced to him by the Oakland office. At the time of the hearing these expenses had been billed to the Oakland office and the local manager understood that a charge would later be made for Mr. Tutor's salary while he was in California.

At the time of Mr. Tutor’s injury, the Dewey & Almy Company carried workmen’s compensation insurance covering its operations in Massachusetts and also in California. The Hartford Accident and Indemnity Compan)'' insured it by a policy under which the obligations of the insurer include the workmen’s compensation law of Massachusetts (G. L. (Ter. Ed.) C. 152) “and none other”. This policy names Cambridge and Walpole, Massachusetts, as the location of all work places of the employer. A policy issued by the petitioner insured the chemical company against the obligations imposed by the California Workmen’s Compensation, Insurance and Safety Act of 1917 (Stats. 1917, p. 831, as amended) and names the work places of the employer as the factory in Oakland “and elsewhere in the State of California”.

After being injured, Mr. Tator made an application to the Industrial Accident Commission of California for compensation, naming Dewey & Almy Chemical Company as his employer and the petitioner as the employer’s insurance carrier. The latter filed an answer denying the jurisdiction of the commission to determine the claim for the reason that he was an employee of Dewey & Almy Chemical Company in its operations in the state of Massachusetts and was not covered by the workmen’s compensation insurance policy of the petitioner. It is further alleged “that the applicant is a resident of the State of Massachusetts and entered his employment therein, and not having rejected the extraterritorial effect of the Workmen’s Compensation Act of the State of Massachusetts, thereby did elect, in the event of his injuries sustained by him outside the confines of the State of Massachusetts, to accept the benefits of said State, and such an agreement was a part of his contract to hire”.

Prior to the hearing the Hartford Company was joined as a defendant. The commission found that Mr. Tator sustained injury at Oakland, California, while employed as a chemical engineer “by the Pacific factory of the Dewey & Almy Chemical Company, a Massachusetts corporation”. It determined that this injury caused permanent disability which it rated at 4214 per cent of total, and awarded compensation therefore against the petitioner. It also found that the Hartford Accident & Indemnity Company was not the insurance carrier of the employer and dismissed it and the employer from all liability.

The workmen’s compensation law of Massachusetts provides:- “An employee of an insured person shall be held to have waived his right of action at common law or under the law of any* other jurisdiction in respect to an injury therein occurring, to recoverclamages for personal injuries if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right, ... If an employee who has not given notice of his claim of common law rights of action, under section twenty-four, or who has given such notice and has waived the same, receives a personal injury arising out of and in the course of his employment, or arising out of an ordinary risk of the street while actually engaged, with his employer’s authorization, in the business affairs or undertakings of his employer, and whether within or without the commonwealth, he shall be paid compensation by the insurer, as hereinafter provided, if his employer is an insured person at the time of the injury; provided, that as to an injury occurring without the commonwealth he has not given notice of his claim of rights of action under the laws of the jurisdiction wherein such injury occurs or has given such notice and has waived it.” It is conceded that no notice was given by Mr. Tator pursuant to the provisions of this law, and the petitioner asserts that under such circumstances Massachusetts has exclusive jurisdiction to award compensation for the injury. -

In the leading case of Bradford Electric Light Co. v. Clapper, 286 U. S. 145 [52 Sup. Gt. 571, 76 L. Ed. 1026, 82 A. L. R. 696], an employee of a Vermont corporation was killed while working in New Hampshire. He resided in Vermont and had been employed in that state as a lineman for emergency service either there or in New Hampshire. The accident occurred when he was sent to the New Hampshire substation to make some repairs. The employer, invoking the full faith and credit clause, set up a special defense : It pleaded that the action was barred by the provisions of the workmen’s compensation act of Vermont which as in effect at the time of the accident, provides that a workman hired within the state shall be entitled to compensation for an injury received either within or without the state; that “employers who hire workmen within this state to work outside of the state, may agree with such workmen that the remedies under the provisions of this chapter shall be exclusive as regards injuries received outside this state by accident arising out of and in the course of such employment, and all contracts of hiring in this state shall be presumed to include such agreement”. The act also stipulates that every contract of employment made within the state shall be presumed to be subject to its provisions unless prior to the accident an express statement to the contrary shall have been made by one of the parties, and that acceptance of the act is “a surrender by the parties ... of their rights to any other method, form or amount of compensation or determination thereof”. Neither the employer nor the employee filed any statement declining to accept any provision of the Vermont act.

In determining that the rights of the employer and the representative of the dead employee were fixed hy the law of Vermont and that the action in New Hampshire could not be maintained, the court said: “The administratrix contends that the full faith and credit clause is not .applicable. The argument is that to recognize the Vermont act "as a defense to the New Hampshire action would be to give to that statute an extra-territorial effect, whereas a state’s power to legislate is limited to its own territory. It is true that full faith and credit is enjoined by the Constitution only in respect to those public acts which are within the legislative jurisdiction of the enacting State. (See National Mutual Bldg. & Loan Assn. v. Brahan, 193 U. S. 635, 647 [24 Sup. Ct. 532, 48 L. Ed. 823]; Olmsted v. Olmsted, 216 U. S. 386, 395 [30 Sup. Ct. 292, 54 L. Ed. 530, 25 L. R A. (N. S.) 1292].) But, obviously, the power of Vermont to effect legal consequences by legislation is not limited strictly to occurrences within its boundaries. It has power through its own tribunals to grant compensation to local employees, locally employed, for injuries received outside its borders, compare Quong Ham Wah Co. v. Industrial Acc. Com., 255 U. S. 445 [41 Sup. Ct. 373, 65 L. Ed. 723], dismissing writ of error, 184 Cal. 26 [192 Pac. 1021, 12 A. L. R 1190], and likewise has power to exclude from its own courts proceedings for any other form of relief for such injuries. . . . The answer is that such recognition in New Hampshire of the rights created by the Vermont Act, can not, in any proper sense, be termed an extra-territorial application of that Act. . . . The relation between Leon Clapper and the Company was created by the law of Vermont; and as long as that relation persisted its incidents were properly subject to regulation there. For both Clapper and the Company were at all times residents of Vermont; the Company’s principal place of business was located there; the contract of employment was made there; and the employee's duties required him to go into New Hampshire only for temporary and specific purposes, in response to orders given him at the Vermont office. The mere recognition by the courts of one State that parties by their conduct have subjected themselves to certain obligations arising under the law of another State is not to be deemed an extra-territorial application of the law of the State creating the obligation. Compare Canada Southern Ry. Co. v. Gebhard, 109 U. S. 527, 537 [3 Sup. Ct. 363, 27 L. Ed. 1020], ... By requiring that, under the circumstances here presented, full faith and credit be given to the public act of Vermont, the Federal Constitution prevents the employee or his representative from asserting in New Hampshire rights which would be denied him in the State of his residence and employment. . . . The interest of New Hampshire was only casual. Leon Clapper was not a resident there. He was not continuously employed there. So far as appears, he had no dependent there. It is difficult to see how the State’s interest would be subserved, under such circumstances, by burdening its courts with this litigation.”

In the later case of Ohio v. Chattanooga Boiler & Tank Co., 289 U. S. 439 [53 Sup. Ct. 663, 77 L. Ed. 1307], the employer was a Tennessee corporation and the dead employee had been a resident of that state and had been hired there. The accident for which compensation was claimed occurred in Ohio. That state, after paying an award of compensation from its insurance fund, brought an original action against the employer to recover the amount of its payment. In defense, the employer relied upon a provision of the Tennessee workmen’s compensation law that “the rights and remedies herein granted to an employee subject to this Act on account of personal injury or death by accident shall exclude other rights and remedies of such employee, his personal representative, dependents or next of kin, at common law or otherwise, on account of such injury or death”. However, in giving judgment for Ohio, the Supreme Court pointed out that this statute, as construed and applied by the highest court of Tennessee, did not preclude recovery under the law of another state “and the full faith and credit clause does not require that greater effect be given the Tennessee statute elsewhere than is given in the courts of that State”.

The principles stated in the Clapper case were followed and applied in Cole v. Industrial Com., 353 Ill. 415 [187 N. E. 520, 90 A. L. R 116]. There the employee, who was injured while at work in Illinois, was a resident of Indiana and was hired there by contractors who resided and had their principal place of business in that state. The Indiana law provided that the rights and remedies “granted to an employee subject to this act on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or death”. The court held that as the contract of employment was made in the state of Indiana between parties who were subject to the terms of the workmen’s compensation law of that state, the remedy provided by it was an exclusive one.

The more recent case of Alaska Packers Assn. v. Industrial Acc. Com., 294 U. S. 532 [55 Sup. Ct. 518, 79 L. Ed. 1044], presents another application of the full faith and credit clause. In that case an employee who had been hired in California for seasonal work in Alaska recovered compensation under the California law, in spite of a contract made by him in which he elected to be bound by the law of Alaska. This award was affirmed. At the time of the injury, which occurred in Alaska, the California law provided: “The [industrial accident] commission shall have jurisdiction over all controversies arising out of injuries suffered without the territorial limits of this state in those cases where the injured employee is a resident of this state at the time of the injury and the contract of hire was made in this State, ...” This statute, the court said, came in conflict with the statute of Alaska, and such a conflict is to be resolved “not by giving automatic effect to the full faith and credit clause, compelling the courts of each state to subordinate its own statutes to those of the other, but by appraising the governmental interests of each jurisdiction, and turning the scale of decision according to their weight”.

The case of De Gray v. Miller Bros. Const. Co., 106 Vt. 259 [173 Atl. 556], also recognizes the public policy of the forum as' controlling. The court said that when a person employed in another state is injured in Vermont, its courts, either upon the principles of comity or under the full faith and credit clause, usually will decline to take jurisdiction if the contract of employment does not conflict with the law and public policy of Vermont. But it was held in Esau v. Smith Bros., 124 Neb. 217 [246 N. W. 230], that the full faith and credit clause must yield to the public and domestic policy of the state which is asked to enforce the constitutional provision.

In considering the application of these and other cases to the right of Mr. Tator to recover compensation in California, it is important to note that the Supreme Court of Massachusetts has decided that in the administration of the workmen’s compensation law, the Industrial Accident Commission and the courts of that state are not bound by the acts of any other jurisdiction and that a proceeding brought in another state by a.n employee hired in Massachusetts “has no standing- in law”. (Migues’ Case, 281 Mass. 373 [183 N. B. 847]; Mc-Laughlin's Case, 274 Mass. 217 [174 N. E. 338].) In each of these cases an award made in Massachusetts in favor of an employee was sustained notwithstanding the fact that compensation had also been allowed in another state, although the employer was allowed credit for the amount previously awarded. In the Clapper case it was stated that if the action for damages in New Hampshire could be maintained, the plaintiff might get a recovery which would be denied him by the law of Vermont; this also has some bearing upon Mr. Tator’s application. Although the proceeding brought by him in California sought an award under the compensation law and is not an action for damages, the scale of compensation benefits is not the same in all states. If the employee may disregard the law of the state of his residence and employment and assert his rights in another jurisdiction, an employer may be required to pay compensation in an amount different from that for which he would be liable under the lex loci.

Upon the principles which have been stated and applied in these cases, Mr. Tator cannot recover compensation in California unless this state has a governmental interest in the controversy superior to that of Massachusetts. At the time of his injury, Mr. Tator was a resident of Massachusetts. He was employed there, and was subject to the direction of officers of the employer there located. His salary was paid to him in that state, and he had come to California only on a specific errand for his employer. Under these circumstances the interest of California, like that of New Hampshire in the Clapper case, supra, is only “casual” unless there are other facts upon which a governmental interest may be based. It is urged that this interest may be found in the medical and hospital expenses which were incurred in this state and had not been paid at the time of the hearing. ■

The modern view that the cost of industrial injuries is properly a part of the expense of production underlies all workmen’s compensation laws. (Western Ind. Co. v. Pillsbury, 170 Cal. 686 [151 Pac. 398].) The public has a direct interest in the results of industrial accidents. When the injured employee had only a right of action for damages, he too often became an object of charity. Even under present laws the public bears some part of the expense of such accidents in addition to the amount which is added to the cost of manufacture. The public, therefore, is vitally concerned to see that adequate medical care is furnished to those injured. Indeed, the constitutional amendment adopted in 1918 which vested the legislature with plenary power to create and enforce a complete system of workmen’s compensation defines such a system as including “full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury”. (Art. XX, sec. 21.) The workmen’s compensation law uses this same language in prescribing the medical and hospital treatment which an employer must furnish. (Sec. 9a.) Even before these enactments this court recognized the important place medical care has in the administration of workmen’s compensation when it said: “Compensation means more than a mere cash payment to an individual. Compensation to employees for injuries incurred by them may fairly be said to mean not only a money payment to the employee himself, but provision or indemnification for the various elements of loss which may be the direct result of his injury. It includes, for example, the obligation to provide medical and surgical treatment (sec. 15, subd. a)—an obligation which does not necessarily involve payment in cash to the employee himself. ’ ’ (Western Metals Supply Go. v. Pillsbury, 172 Cal. 407 [156 Pac. 491, Ann. Cas. 1917E, 390].)

An award for medical expense cannot be made in favor of a physician in a proceeding to which the injured employee is not a party (Pacific Employers Ins. Co. v. French, 212 Cal. 139 [298 Pac. 23]), but a physician who has rendered medical aid to a compensable employee may maintain an application to recover the value of his services in a proceeding in which both the employer and employee are named as defendants. Such a physician is a party in interest because an effective administration of the workmen’s compensation act both assures and requires adequate medical care and treatment. This court has said: “As a practical matter, injured employees as a class will receive better and more willing medical service if remuneration for such services from an employer or insurance carrier is assured to doctors and hospitals than if instances may arise in which, if an employee neglects to file a claim for compensation, after the services have been rendered, such doctors and hospitals may be required to look only to the injured employee for compensation. It should be borne in mind that the medical, surgical and hospital treatment which is intended to be assured to injured employees as one of the items of their compensation by the act, will be more certain to be furnished if doctors and hospitals are assured of certain remuneration for their services. ’ ’ (Independence Indem. Co. v. Industrial Acc. Com., 2 Cal. (2d) 397, 404 [41 Pac. (2d) 320].)

The public policy of California upon this question has been clearly and positively stated in the Constitution, the workmen’s compensation law which was enacted pursuant to it, and the decisions of this court. It would be obnoxious to that policy to deny persons who have been injured in this state the right to apply for compensation when to do so might require physicians and hospitals to go to another state to collect charges for medical care and treatment given to such persons. Under these circumstances the governmental policy of California weighs more heavily in the scale of decision than the law of Massachusetts and the conflict in laws must be resolved in favor of the state where the injury occurred.

The award is affirmed.

Shenk, J., Curtis, J., Seawell, J., Waste, C. J., and Langdon, J., concurred.

Houser, J., concurred in the judgment.

Rehearing denied.


author: WASTE, C. J.

text:
    [L. A. No. 16449.
    In Bank.
    February 1, 1938.]
    EVA G. BARTON, Appellant, v. J. H. BARTON et al., Respondents.

      Porter C. Blackburn for Appellant.
    Hibbard & Klcindienst and H. P. Hibbard for Respondents.
   WASTE, C. J.

This cause is presented upon a motion by defendants to dismiss the appeal of plaintiff or to affirm the judgment. The motion is made upon two grounds: (1) that the appeal should be dismissed for failure to file a properly certified transcript, or (2) the judgment should be affirmed because the appeal presents no substantial question.

The first point, is without merit. The printed transcript contains a thirty-page partial judgment roll, including pleadings, findings, and judgment, certified by the clerk and stipulated to by counsel, and also a bill of exceptions, stipulated to by counsel, and allowed and settled by the trial judge. The transcript is in a form which sufficiently satisfies statutory requirements and the rules of this court.

The second contention must be sustained. Plaintiff sought by this action to enforce an alleged prenuptial agreement which she alleged was made in consideration of her marriage to defendant J. H. Barton, and pursuant to which allegedly she should have acquired a one-half interest in all property which he owned as of July 26, 1934, date of their marriage.

The trial court found that prior to the marriage of plaintiff and said defendant, certain oral promises (not thereafter kept) were made by him to her, but that said defendant did not make such promises with the intention to deceive or defraud plaintiff, or as a material inducement to plaintiff in bringing about the marriage; that there was never executed between plaintiff and said defendant any written agreement or written memorandum of any agreement made upon consideration of marriage, or as a contract for marriage settlement, as referred to in sections 178 and 179 of the Civil Code, and paragraph 3 of section 1973 of the Code of Civil Procedure; that plaintiff’s claims were barred by the provisions of those sections, and that no estoppel existed for her benefit which denied said defendant the right to rely upon the statutes in defense of plaintiff’s alleged cause of action. These findings were followed by entry of judgment in favor of defendants.

Plaintiff appealed from the judgment. . She urges two main contentions, which she has argued under several headings ; that is, she contends, first, that the evidence does not justify the findings, and, second, that defendant is estopped to plead the above cited statutes as a defense to the action.

The first contention is without merit. The evidence affords ample support for the findings and conclusions of the trial court. Neither can the. second contention be upheld. Plaintiff claimed that letters written to her by defendant J. H. Barton contained a note or memorandum of the alleged prenuptial agreement sufficient to satisfy the statute of frauds, and that as those letters were destroyed by said defendant, he did not come before the court with clean hands, and it should have been presumed that the letters contained evidence adverse to him; that therefore he was estopped to rely upon the statute of frauds as a defense. The answer to this claim is that the trial court expressly found the following facts: That “plaintiff went to the City of Seattle . . . for a visit and that while there many letters were exchanged between plaintiff and the defendant J. H. Barton, which the court finds were solely of a social and sentimental nature and were intended as such. The court finds that plaintiff failed to meet the burden of proof of establishing that said letters or any of them . . . contained any promise or agreement on the part of the defendant J. H. Barton to transfer his property in joint tenancy between plaintiff and defendant J. H. Barton upon their marriage and the court finds that no such letter, nor any letter, written by J. H. Barton to plaintiff contained any memorandum of any such promise or agreement, nor of any similar promise or agreement.” The evidence supports these findings.

The judgment is affirmed.

Shenk, J., Langdon, J., Curtis, J., Edmonds, J., Seawell, J., and Houser, J., concurred.


author: SHENK, J.

text:
    [Sac. No. 5083.
    In Bank.
    February 1, 1938.]
    PACIFIC GAS AND ELECTRIC COMPANY, Respondent, v. J. W. SCOTT et al., Appellants.

      James F. Peek and Elizabeth M. Maxwell for Appellants.
    Thomas J. Straub, W. R Dunn, T. L. Chamberlain and Orrin J. Lowell for Respondent.
   SHENK, J.

The plaintiff, a public utility corporation, owns certain parcels of real property in Nevada and Placer Counties which are riparian to Bear River. For approximately ten years prior to the commencement of the action it has maintained a system of canals, power houses and regulating reservoirs through which, under its riparian and appropriative rights, waters from Bear River are diverted and used in the generation of electric energy sold by the plaintiff to the public. The waters of the river are also sold to several small communities, to the Nevada Irrigation District, and to the cities of Roseville and Lincoln for irrigation and domestic uses. The defendants within three years of the filing of the action commenced hydraulic placer mining operations above the points of diversion of water by the plaintiff. Their operations washed down tailings and detritus through the channel of the river and into the diversion and distributing system of the plaintiff, with the result that quantities of earth, sand, gravel, “slickens”, filth, debris, collodial matter and foreign substances were discharged into the reservoirs, canals, and power generating apparatus and caused serious damage thereto. The action was brought against several defendants who operated various mining properties above the lands of the plaintiff. The court found damage to the plaintiff’s property in excess of $232,655.54, but that the plaintiff had remitted the excess. It also found the proportions of that amount contributed by the several defendants and entered' its judgment accordingly, viz.: against You Bet Mining Company and J. W. Scott for $126,928.57; Liberty Hill Gold Mines, Ltd., and M. A. Grizzle for $16,-880.40; R. P. M. Davis, Liberty Hill Gold Mines, Ltd., and M. A. Grizzle for $83,970.57; D. B. Fuller, for $646, and Remington Hill Placers, Inc., Ltd., Frank A. Cramp ton and' others, for $4,240. Injunctive relief was also granted. The defendants You Bet Mining Company and J. W. Scott only have appealed from the judgment.

The appeal was taken pursuant to the provisions of section 953a of the Code of Civil Procedure. A clerk’s transcript consisting of the judgment roll was filed. Proceedings for preparation of the reporter’s transcript were terminated in the trial court for failure of the appellants to deposit the ■cost of transcription of the testimony. A reporter’s transcript therefore was not filed. The respondent moved this court to dismiss the appeal on the ground that the reporter’s transcript had not been filed. The motion was denied. Inasmuch as a judgment roll is on file herein the appellants are entitled to a consideration of the appeal based thereon. {Ramsey v. Rodgers, 189 Cal. 100 [207 Pac. 516].)

The respondent also moved to dismiss the appeal or affirm the judgment on the ground of the claimed frivolous and insubstantial nature of the points raised by the appellants. That motion was continued for consideration with the appeal on its merits. The latter motion and the appeal are now before us for determination.

The appellants, who will be referred to <is the defendants, contend that this controversy as between them and the plaintiff, is between placer miners, and that the law and customs governing the corelative rights of placer miners in a placer mining district govern its disposition. The defendants contend that it appears from the judgment roll that the plaintiff’s rights originated as and continued to be those of a placer miner, and that a lower placer miner has no right to have the stream come down to him free of the washings, tailings, and detritus of an upper placer miner. It is urged that not only are the defendants not liable to the plaintiff for the damage done to the latter’s property by their placer mining operations, but that the plaintiff, if it desires the water to come down to it free from the tailings washed from the defendants’ mines, must compensate the defendants for the taking of that use. The court did not find that the lands of the plaintiff and the defendants were useful only for mining purposes. The defendants, however, invoke the judicial knowledge of the court that the lands are in a placer mining district, and have been so surveyed, returned and approved' by the United States government. The court upon the evidence before it, found that the lands of the defendants were not situate in a mining district, or in a district where placer mining constitutes the major industry, and that the carriage or storage of mining debris was not the sole or economic use or value of the channel of Bear River. The finding continues: “Placer mining was the major industry at one time prior to the issuance of injunctions against hydraulic mining but. since said time and after about 1890 mining in said district has dropped off and become a very minor industry as compared with other industries and the use of said district as a collecting area for public power and irrigation water supply purposes and for conducting such water supply through said Bear river and its tributaries to public uses. Said latter industries and those dependent upon them render the mining operations of defendants and others in the district infinitesimal in comparison both in importance and amounts invested.” The findings also disclose that the mining properties of the defendants did not contain gold in quantites or values capable of being worked profitably by hydraulic or any ground sluicing process, and that the properties were not of any value for such purposes. The court further found that the plaintiff could not obviate the effect of the defendants’ operations by any reasonable expenditure.

The foregoing and related findings of the court, which also show that the defendants had no prior or prescriptive rights as against the plaintiff to discharge washings from its mining operations into the channel of Bear River, answer all of the defendants’ major contentions. It appears to be the law of this state that an owner of upper placer mining land, whether prior or subsequent, has no right to permit tailings, detritus and foreign substances to be washed onto the land of any lower proprietor or mine operator and cause damage to his property. The law that one may not use his own so as to cause damage to or destruction of his neighbor’s property governs, whatever may be the use of the land, and “custom” may not be invoked to excuse or justify such damage or destruction. (Hill v. King, 8 Cal. 336; Pilot Rock Creek Canal Co. v. Chapman, 11 Cal. 161; Esmond v. Chew, 15 Cal. 137, 143; Hill v. Smith, 27 Cal. 476; Robinson v. Black Diamond Coal Co., 57 Cal. 412 [40 Am. Rep. 118]; People v. Gold Run Ditch & Min. Co., 66 Cal. 138, 151 [4 Pac. 1152, 56 Am. Rep. 80]; Junkans v. Bergin, 67 Cal. 267 [7 Pac. 684]; Dripps v. Allison’s Mines Co., 45 Cal. App. 95 [187 Pac. 448]; Henderson v. Western Precipitating Co., 10 Cal. App. (2d) 18 [51 Pac. (2d) 126].) All questions of fact bearing upon the nature and extent of the operations of the defendants and the corelative rights of the parties, considering the use to which each has put his land, have been resolved against the defendants. The court’s conclusions on the facts found show that the law was correctly applied.

The action herein was commenced and prosecuted to judgment in Placer County. The defendants contend that the action should have been commenced in Nevada County because the lands of the defendants are situate in that county. A sufficient answer is that the complaint shows that the lands of the plaintiff are situate in Nevada and Placer Counties. The Bear River flowing through those lands forms the boundary between the two counties. Inasmuch as a portion of the real property involved in the action was situate in Placer County, the action was properly commenced in that county. (Sec. 392, Code Civ. Proc.)

Finally the defendants contend that the court could not apportion the damages among the defendants. If the defendants were joint tort-feasors, the apportionment was advantageous to the defendants, since otherwise each would be answerable to the plaintiff for the full amount of the damage. If the defendants were separate tort-feasors, then any specific appropriate objection should have been made by demurrer or answer, otherwise it is deemed to have been waived. (Sec. 434, Code Civ. Proc.) The record indicates that the specific objection is made here for the first time.

The judgment is affirmed.

Seawell, J., Curtis, J., Waste, C. J., and Edmond's, J., concurred.

Rehearing denied.


author: THE COURT.

text:
    [L. A. No. 16059.
    In Bank.
    February 2, 1938.]
    A. E. MAYNES et al., Appellants, v. ANGELES MESA LAND COMPANY (a Corporation), Respondent.

      Van Lee Hood for Appellants.
    Robert R. Ashton for Respondent.
   THE COURT.

This is an appeal by plaintiffs from a judgment for defendant in an action for declaratory relief and damages. A motion by defendant to dismiss the appeal was filed, and the cause thereafter placed on the ready for submission docket.

The lower court sustained a general and special demurrer to the first amended complaint, without leave to amend. On this appeal, the question is whether the complaint states a cause of action.

In substance, the complaint alleges that defendant owned real estate, and submitted a written proposal to plaintiffs to lease the same for three years, commencing November 1, 1934, the rental to be 25 per cent of the gross receipts of plaintiffs’ undertaking business; that plaintiffs executed and delivered the proposed lease to defendant, took possession and made payments thereunder until about November 21, 1935; that at this time defendant notified plaintiffs that defendant had never executed the lease and did not consider the same binding; that thereafter defendant served a 30-day notice to terminate plaintiffs’ tenancy; that plaintiffs thereafter elected to treat this notice as a repudiation of the lease and are now willing to vacate but are unable to determine whether they were tenants under the lease or from month to month; that they have paid more than actually required to pay -as rental; and that they are entitled to cancellation of the lease and an accounting. In another cause of action incorporating many of these prior allegations, they attempt to plead' a cause of action for fraud, based upon the theory that defendant represented that it would lease the property and failed to do so.

It appears from the complaint that, subsequent to defendant’s notice plaintiffs remained in undisturbed possession, and were still in the premises at. the commencement of this action in April, 1936. In June, 1936, defendant brought an unlawful detainer action against plaintiffs and on stipulation secured judgment for possession, without damages or costs; and' thereafter the premises were sold to a third person.

With the tenancy thus terminated by the prior judgment, there is no basis for a declaration of rights in the proposed lease; and since plaintiffs admittedly remained in undisturbed possession during the unlawful detainer suit, there is no showing of damage by reason of any alleged repudiation of the lease prior thereto. The only theory of recovery which requires consideration is that of fraud in failing to sign the lease.

Plaintiffs have attempted to plead a cause of action for fraud consisting of the making of a promise without any intention of performing the same. The trial court deemed the pleading insufficient, and plaintiffs have failed to show any authority justifying reversal of its judgment.

In the first place, the complaint alleges representations by defendant that it would lease the premises to plaintiffs, in other words, a promise of future action; but it does not allege that the promise was made with the intention of deceiving plaintiffs, nor that the promise was made without the intention of performing it. The mere failure to carry out a promise is not a tort, and it is therefore essential, in pleading fraud consisting of a false promise, to allege the elements of fraud. (See Rheingans v. Smith, 161 Cal. 362 [119 Pac. 494, Ann. Cas. 1913B, 1140]; Ayers v. Southern Pac. R. Co., 173 Cal. 74, 79 [159 Pac. 144, L. R A. 1917E, 949]; Jacobson v. Mead, 12 Cal. App. (2d) 75, 82 [55 Pac. (2d) 285, 1267].) The complaint is wholly insufficient in this respect. It is perfectly consistent with its allegations to infer that defendant made the alleged promise with the full intention of performing the same, and hence without fraud.

Nor have plaintiffs properly pleaded any damage resulting from the alleged fraud. The complaint shows that they spent money to establish a business, but there is no showing that defendant’s alleged fraud deprived them of such business. They were not evicted from the premises but in fact remained in possession when they brought this action. The complaint fails to show how any acts of defendants interfered with their business or caused the expenditures in question. In short, even if fraud had been well pleaded, the complaint would still be fatally defective in its attempted pleading of damage, an essential element of the cause of action. (See Gutterman v. Gally, 131 Cal. App. 647, 650 [21 Pac. (2d) 1000]; Barron Estate Co. v. Woodruff Co., 163 Cal. 561 [126 Pac. 351, 42 L. R. A. (N. S.) 125].)

The attempted pleading of a cause of action for breach of contract by repudiation is likewise so uncertain and defective as to warrant the sustaining of the demurrer. If the original oral negotiations constituted the contract, the statute of frauds was a bar and could be raised by demurrer. (See Harper v. Goldschmidt, 156 Cal. 245 [104 Pac. 451, 134 Am. St. Rep. 124, 28 L. R. A. (N. S.) 689].) If the action was for breach of the written lease, there is no allegation that such a lease was actually entered into by the parties, and in fact the complaint discloses that the theory of the action is that the defendant failed to enter into the lease but represented to plaintiffs that it had. Nor does the complaint plead the essential element of performance of conditions and covenants by the plaintiffs. (See Fenn v. Pickwick Corp., 117 Cal. App. 236, 242 [4 Pac. (2d) 215]; Los Angeles G. & E. Co. v. Amalgamated Oil Co., 156 Cal. 776 [106 Pac. 55].)

The judgment is affirmed.