McCOMB, J., Dissenting. I dissent.
Stripped of immaterial verbiage, these are the essential facts:
Plaintiff and defendant’s son Fleetwood Jefferson were married February 27, 3935, at San Bernardino, California. At the time of the marriage defendant’s son was unable to support his wife and defendant advanced him money to enable him to marry and for maintenance for several months thereafter.
Immediately after the marriage the couple went to Santa Monica, California, where they spent the night. The bride then returned to her mother’s home in Ventura, California, and the groom to his father’s home in Pasadena, California. In April of the same year the couple took an apartment in Pasadena and plaintiff testified that at this time defendant said:
“Maria, you must remember that you must not come between Fleetwood’s career in any way. As long as you can, you must earn your own living, support yourself, and let my son follow his own career.”
“Maria, of course you know that I feel that my son also can have a musical career, and I feel in a few years he will be able to sing in the Metropolitan, and it is up to both of us, by not interfering whatsoever, for him to make a success.”
“My wife has objected to you because you are not wealthy.”
“We have both been interested in having Fleetwood marry a girl with means, and wealth, so that nothing could interfere with his career.”
Plaintiff further testified relative to an incident occurring in May, 1935, at which she, her husband, and defendant were present, as follows:
“It was in the evening, my husband was coming home from work. I heard footsteps in the hall, and the slamming of a door, and I heard Mr. Jefferson, Sr., say, ‘Why didn’t you answer my card 1 ’ My husband replied: ‘ Dad, I would have answered your card, but Maria has been so ill, I have been so busy.’ Then they proceeded to the room adjoining mine, there- was no door between, and Mr. Jefferson, Sr., said, ‘Maria’s illness makes no difference, it is just that you think more of Maria than you do of me, and more of your home.’ And my husband said, ‘Dad, you can see for yourself, Maria [507]is in a very serious condition.’ And Mr. Jefferson, Sr., replied : ‘ That makes no difference, that is not a good reason for ignoring me, either.’ I remember I was very nervous, and 1 called: ‘Dad, dad, won’t you listen to me, I am so ill, we would have answered your card, please forgive me.’ And Mr. Jefferson, Sr., just turned around and slammed the door and left the place. My husband came to my side and tried to comfort me for a moment, and he said, ‘There, I have to follow my father, he is very angry.’ And as Mr. Jefferson, Sr., was walking out the door, he said, ‘Don’t you ever speak to me again,’ and out he went. A few minutes later my husband left.”
Also she testified:
(a) My ‘‘husband had to visit his father every single day, and call him, or Mr. Jefferson, Sr., would be very disturbed.”
(b) Defendant was ‘‘always trying to make my husband believe that I was feigning my illness, that I was not as ill as I was. It was only natural”.
(e) Defendant said, “ ‘Maria, you must remember having a baby is a normal thing, it seems to me you should know that, think of my own wife and the misery she made me by being ill all of her life.’ ‘My wife is a hypochondriac, and I can see very easily you can become one if you are not careful, and make it miserable for my son.’ ”
They lived together in the apartment they had rented in Pasadena until the first part of June, at which time plaintiff, due to illness, went to a hospital, where she remained for several weeks, and upon leaving the hospital she returned to her mother’s home in Ventura, where she stayed until approximately the latter part of August, at which time she returned to Pasadena and lived in the same apartment with her husband until December 14, 1935, there having been born on September 29, 1935, to them a son.
On December 14, 1935, the couple moved to a dwelling house in Pasadena where they lived together until March 1, 1936, at which time plaintiff again returned to her mother’s home in Ventura. In March of 1936, plaintiff was served with a summons in a divorce action filed by her husband in Los Angeles County. Defendant objected to his son’s bringing an action for divorce, but when he found that the son was determined to proceed he employed a reputable lawyer Mr. Brooks Gifford of Pasadena to represent his son. In July, [508193]6, a reconciliation was effected between the parties, and on stipulation a judgment was entered denying relief to either party in the action. Immediately after the so-called reconciliation plaintiff returned to her mother’s home in Ventura and her husband remained with his father in Pasadena. They never thereafter maintained a common habitation. The next time plaintiff saw her husband was in Hollywood August 2, 1936, at which time she held a conference with him in the presence of defendant, her version of which is as follows: “Well, my husband had asked me to come to Los Angeles, so when I came that Sunday morning, I had an opportunity to come, I telephoned his residence and I was told he was taking a voice lesson, so I called his voice teacher, and finally located my husband, and he asked me to meet him at a convenient corner in Hollywood. I met him but he was not alone, he was with my father-in-law. After his greeting me, he kissed me there on the street corner, I recall, and we walked arm in arm to his car. We got there, and I said, ‘Good afternoon,’ it was after lunch time, and my father-in-law again made no reply, got out of the car, and my husband helped me in the car and he sat next to me, and we went along, and finally I asked my husband, I said, ‘ Fleetwood, do you think we can reestablish our home, do you think it will be very, very soon ? ’ And my husband said, 1 Well, dear, I don’t know, my father says that I have to stay with him in Pasadena, and he suggests perhaps it will be a good thing for you to find a little place in Hollywood where you could renew your contacts with the moving picture studios and where you possibly could do some teaching in music and that would help a great deal. In the meantime, I just have to stay with dad, dad wants me to stay with him.’ I said, ‘Fleetwood, you promised in the court room, you made a statement that we would come and live together in just two or three months, and here I have been so excited, and I want my home, and I want to be with you, don’t you love me?’ And he said, ‘Of course I love you, still my father thinks, he says I must stay with him in Pasadena, and we are to find a place for you here in Hollywood. ’ I objected, I said, ‘ Fleetwood, I think that is very impracticable, because the baby is so little I have to take care of him, or I have to pay someone to take care of him while I try to get myself on my feet.’ I was still not very well, and I said, ‘We could be so happy in just a tiny little place we could get together
Plaintiff did not get out of the car but defendant did and a conversation ensued between herself and her husband. Thereafter defendant got back into the car and said, “All right, drive her to the hotel, and be done with it.”
January 5, 1937, plaintiff’s husband visited her in Ventura and on that occasion for the last time cohabited with her.
June 21, 1937, defendant’s son married a former acquaintance, Helen Kenoss, at Tijuana, Mexico, Miss Kenoss understanding that defendant’s son had obtained a divorce which would permit him to marry her. She and her husband occupied an apartment above a garage on the premises of defendant’s residence. August 2,1937, plaintiff’s husband wrote her that he had obtained a divorce from her at Chihuahua.
Plaintiff testified that January 29,1938, she drove to defendant’s home in Pasadena with a Mrs. Rideout and that when [510]she asked defendant where she could find his son he slammed the door in her face and said, “I won’t tell you.” The complaint in the present action was filed April 13, 1938.
Defendant relies for reversal of the judgment, among others, on this proposition:
Plaintiff’s cause of action, if any, is barred by the statute of limitations (sec. 340, subsec. 3, Code Civ. Proc.)
This proposition is tenable and is governed by the following principles of law:
(1) The period of limitation for bringing an action for alienation of affections is one year as prescribed in section 340 of subsection 3 of the Code of Civil Procedure. (Tofte v. Tofte, 12 Cal. App. (2d) 111, 112 [54 Pac. (2d) 1137].)
(2) In an action for alienation of affections the period of limitation begins to run from the last wrongful act of the defendant (Bouchard v. Reed, 7 Cal. App. (2d) 652, 654 [46 Pac. (2d) 800]).
In Bouchard v. Reed, supra, it is said at pages 653 and 654 :
“The judgment in favor of respondent is based upon the conclusion of law of the trial court that plaintiff’s cause of action was barred by the statute of limitations. ... If a cause of action could arise in plaintiff’s favor without his wife leaving him, it became barred one year after the last wrongful act of the defendant. (Harp v. Ferrell, 115 Cal. App. 160 [300 Pac. 978].) Plaintiff’s complaint was filed August 8, 1932, and upon the findings of fact before us his action was barred at that time.”
It is to be noted in passing that Mr. Justice Houser, now a member of our Supreme Court, was a member of the court which rendered the decision in Bouchard v. Reed, supra.
From a reading of the ease and the portions of the opinion just quoted, I am unable to agree with my learned associates in the statement that the language quoted was dictum.
Applying the foregoing rules to the facts in the instant case, .it appears that the complaint was filed April 13, 1938, and that the last wrongful act charged against defendant was August 2, 1936, which was more than a year prior to the filing of the complaint. Therefore, plaintiff’s cause of action, if any, was barred by the statute of limitations.
In addition to the fact that in my opinion the statute of limitations has barred any cause of action, I am satisfied that the plaintiff has not sustained the burden of proof which is [511]required to support such an action as the present. In Hall v. Hall, 174 Cal. 718, an action for alienation of affections, our Supreme Court at page 726 [164 Pac. 390] states the rule:
“Actions for damages against parents for the alienation of the affections of their married child from his or her spouse are frequent in the law, and the principles governing the introduction of evidence and the weight to be given it are well settled. Having in contemplation the natural solicitude of the parent for the child, and the well-nigh universal experience of mankind that parents in their conduct toward their children are actuated by high and disinterested motives, involving the sacrifice of their own interest for the welfare of the child, it is not to be lightly inferred that the language or conduct of such a parent toward a child is prompted by evil and malicious motives. Therefore, to establish such wilful and malicious alienation, ‘the measure of proof must be extremely high’.” (Italics added.)
In Cripe v. Cripe, 170 Cal. 91, 93 [148 Pac. 520], our Supreme Court says:
“The decisions require a much stronger case to be made out where the defendant is a parent of the spouse alleged to have been enticed.”
In my opinion the facts are no stronger in the instant ease than were those in Bourne v. Bourne, 43 Cal. App. 516 [185 Pac. 489], wherein the court held there was insufficient evidence to sustain an action against a parent for alienating the affections of a child. The evidence in the instant case does not meet the high degree of proof required by the adjudicated cases.
For the foregoing reasons the judgment in my opinion should be reversed.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 17, 1940.