SPENCE, J. I dissent.
In my opinion plaintiff’s alleged cause of action is esse^ tially one for damages for “breach of promise of marriage,” within the meaning of section 43.5 of the Civil Code, which provides that “no cause of action arises” in such cases.
The majority opinion states: “However, the language of the code section indicates that it was only intended to abolish causes of action based on an alleged breach of contract. The plaintiff’s complaint states a cause of action for fraud—the making of promises without any intention of performing them. . . . Such a cause of action is not barred by section 43.5, subdivision (d).” I cannot agree with this conclusion, as it permits a party to defeat the purpose of section 43.5 by the mere device of adding an allegation that at the time of making the promise, the party had no intention of performing it, thereby purporting to convert the action into a tort action. The cited section does not confine itself to abolishing actions ex contractu, but it abolishes all actions for “breach of promise of marriage” regardless of the form which the action may take. In this connection, it is significant that actions for “breach of promise of marriage” have been treated as being in the nature of tort actions (Syfert v. Solomon, 95 Cal.App. 228 [272 P. 810]; Lanigan v. Neely, 4 Cal.App. 760 [89 P. 441]), and that section 43.5 abolishes actions for “breach of promise of marriage” and three other classes of tort actions.
In Thibault v. Lalumiere (1945), 318 Mass. 72 [60 N.E.2d 349, 158 A.L.R. 613], plaintiff attempted to recover for alleged fraud in the face of a similar statute, and included a [605]similar allegation of “lost employment” as an element of damage. The court there said at page 351 [60 N.E.2d] : “Actions in tort for fraud have been held to be within the prohibition of such statutes and any other cause of action that originates in the breach of a promise of marriage. The plaintiff’s cause of action arises out of a breach of promise of marriage, and she cannot circumvent the statute by bringing an action in tort for damages so long as the direct or underlying cause of her injury is the breach of promise of marriage. (Citing cases.) ” Numerous authorities are collected in a note in 158 American Law Reports 618, where it is said at page 624: “Upon the general principle announced above, it has been held that where an action stems from, or arises out of, a breach of a marriage contract, the consequences of the statute abolishing actions for such a cause may not be avoided by bringing an action in tort for fraud or deceit. ’ ’
The cases cited in the majority opinion (Schaub v. Schaub, 71 Cal.App.2d 467 [162 P.2d 966]; Norman v. Burks, 93 Cal.App.2d 687 [209 P.2d 815]; Mack v. White, 97 Cal.App.2d 497 [218 P.2d 76]) do not support the conclusion reached by the majority. These cases merely allowed the restoration of property obtained through fraudulent representations. Such decisions may be justified on the basis of preventing unjust enrichment of the party perpetrating the fraud. In distinguishing the two situations, it was said in Norman v. Burks, supra, at page 691: “Defendant’s suggestion that this is a heartbalm action and barred by section 43.5 of the Civil Code is without merit.” The present action, however, is essentially a “heartbalm” action seeking damages rather than the restoration of property.
While the majority opinion does not consider a further point in view of its conclusion that section 43.5 does not apply to an action in the nature of a fraud action, plaintiff urges that her action is not barred by said section because plaintiff and defendant went through a marriage ceremony. In other words, plaintiff claims that there can be no “breach of promise of marriage,” within the meaning of the section, in a case where a ceremony has been performed. This claim places an unduly narrow construction upon the word “marriage” and upon the phrase “breach of promise of marriage,” as the ordinary concept of marriage contemplates much more than the mere performance of a marriage ceremony. In fact, the marriage relation existed long before any ceremony [606]was required, and the relation of husband and wife may still be created in some states without the formality of a ceremony. While such ceremony is required in California (Civ. Code, § 71), the ceremony merely evidences the only form of civil contract out of which the “personal relation” of marriage may be legally established in this state. “Marriage” is defined by section 55 of the Civil Code as “a personal relation arising out of a civil contract” and is to be distinguished from the contract itself. This distinction was made in Sharon v. Sharon, 75 Cal. 1, at page 9 [16 P. 345], where the court said: “The section of the code defines ‘marriage,’ ... as distinguished from a present contract to marry, or the act of becoming married.” (See also Armstrong, California Family Law, vol. I, pp. 1-3.)
Plaintiff recognized the greater import of the term “marriage” in drawing her complaint. She alleged that defendant “by his said proposal of marriage impliedly represented to plaintiff that defendant . . . intended ... to have with plaintiff normal and natural marital intercourse and consummate said marriage.” It is the alleged breach of this implied promise, or otherwise stated, the alleged falsity of the implied representation of an intention to consummate the marriage, which is the gist of plaintiff’s alleged cause of action by which she seeks to recover damages. I am therefore of the opinion that “breach of promise of marriage,” as that term is used in section 43.5, includes the breach of promise to consummate the marriage following a ceremony as well as the breach of promise to go through a ceremony; and that it is immaterial, for the purposes of section 43.5, whether the intention to breach the promise antedated, accompanied or followed the making of the promise.
While the New York statute contains somewhat different wording and has been construed as abolishing all types of actions based upon a “contract to marry,” including actions for restoration of property obtained through fraud in connection with such a contract (Bressler v. Bressler, 133 N.Y.S. 2d 38; Hallstrom v. Erkas, 124 N.Y.S.2d 169; Nosonowitz v. Kahn, 201 Misc. 863 [106 N.Y.S.2d 836]; Grunberg v. Grunberg, 99 N.Y.S.2d 771; Andie v. Kaplan, 263 App.Div. 884 [32 N.Y.S.2d 429]), the rule in that state, which I believe should be followed under the circumstances presented here, is that it makes no difference whether or not the parties actually went through a marriage ceremony. (Grunberg v. Grunberg, supra, 99 N.Y.S.2d 771, 773.) As above indicated, [607]I am therefore of the opinion that the failure to consummate the marriage following a ceremony is as much a “breach of promise of marriage,” within the meaning of section 43.5, as is a failure to participate in a marriage ceremony. It follows that plaintiff’s allegation that defendant “failed and refused to consummate said form of marriage” brings this action for damages within the class of actions which have been abolished by said section 43.5.
In view of my conclusion that plaintiff cannot prevail in this action because of the provisions of section 43.5 of the Civil Code, I deem it unnecessary to consider the other points discussed in the majority opinion. Mention should be made, however, of the majority’s characterization of plaintiff’s action as one for a “property tort.” Plaintiff here sought “actual damages in the sum of $15,000.00” and “$10,000.00 for the sake of example and by way of punishing defendant, ’ ’ based upon her allegations that “plaintiff suffered intense humiliation, public disgrace, mental anguish, became ill, sick and disabled” as well as upon her allegations concerning loss of employment and expense incurred. Such allegations show that this is essentially a “heartbalm action” for damages for injuries to person rather than an action for injuries to property. It bears no analogy to any of the cases cited in the majority opinion in which the restoration of property was permitted in order to prevent the unjust enrichment of the defendant.
I would affirm the judgment.
Schauer, J., and McComb, J., concurred.
Respondent’s petition for a rehearing was denied June 27, 1956. Schauer, J., Spence, J., and McComb, J., were of the opinion that the petition should be granted.