Swett v. Gray

CHIPMAN, C.—

The action is for alleged seduction, accomplished by promise of marriage and other inducements. The cause was tried to a jury, and plaintiff had the verdict. Defendant appeals from the judgment on the judgment-roll and statement of the case. There is an appeal by the plaintiff from the order granting a new trial, L. A. No. 1120, which, having been affirmed November 6, 1903, makes it unnecessary to notice the numerous alleged errors of law occurring at the trial, specified in the motion for a new trial.

Defendant interposed a demurrer to the amended complaint which was overruled, and he now insists that it

[85]

should have been sustained. Counsel for respondent have filed no brief in support of their pleading. The grounds of-the demurrer are: 1. Insufficiency of facts alleged; 2. Misjoinder of a cause of action for failure to carry out a promise to marry; and 3. Ambiguity and uncertainty, in that it is not possible to ascertain from the complaint whether the cause of action is based on the alleged seduction or upon the alleged contract to marry referred to, or because of the alleged suffering of plaintiff in consequence of the illness mentioned in the complaint as attending her pregnancy.

In support of the general demurrer it is contended that it is an essential element of a cause of action of this character that the plaintiff was chaste at the time of the alleged seduction, and that without an allegation to that effect there is no cause of action stated (citing

Marshall

v.

Taylor,

98 Cal. 55;

1

People

v.

Krusick,

93 Cal. 79;

People

v.

Wallace,

109 Cal. 613). It is further urged that the complaint is fatally defective, because there is no averment of plaintiff’s willingness to marry the defendant or the refusal of defendant to marry plaintiff. The complaint contains the following allegations: “That at the time of the commission of the grievances hereinafter mentioned, plaintiff was a minor under the age of eighteen years, and was and still is an unmarried female; and at all the times prior thereto had been chaste and virtuous.” It is contended that the complaint alleges a series of grievances, and that the allegation only alleges chastity prior to this series, which it is said is not equivalent to an allegation that plaintiff was chaste at the time of the alleged seduction. The complaint alleges that about May 30, 1898, defendant, by false pretenses of his love for plaintiff, and by promises to marry her, and by urgent and persistent importunities, induced her to have sexual intercourse with him; “that she was young and was without experience in what he asked her to do, as above stated, and she greatly loved the defendant, and by reason of such love he had great influence over her, and she fully believed that he would soon marry her as he had promised to do, and that he loved her as he had so represented to her, and she alleges that she had no information, knowledge, or belief to the con