Langley v. Schumacker , 46 Cal. 2d 601 ( 1956 )

SHENK, J.

This is an appeal from a judgment entered following an order sustaining a demurrer to the plaintiff’s second amended complaint.

Ena Langley, the plaintiff, brought this action to recover damages from the defendant, Spencer Schumacher, upon a cause of action for fraud. In her second amended complaint the plaintiff alleged that she was employed for some time prior to March 31, 1953, by an insurance company as personnel director and as secretary to its president, earning a salary which, by January, 1953, amounted to $425 per month, plus certain fringe benefits; that on or about January, 1953, the defendant fraudulently induced her to resign her position on representations that he intended to marry her, to consummate the marriage, and to maintain a normal and natural marital relationship; that in reliance upon such representations she resigned her position on March 31, 1953, and on April 17, 1953, she and the defendant went through a ceremony of marriage; that the defendant’s representations were untrue and known by him to be untrue; that he never intended in good faith to consummate the marriage or maintain a normal and natural marital relationship, but on the contrary, that his preconceived plan and intention was not to consummate the marriage or maintain a normal and natural marital relationship, and that after the ceremony he refused to consummate the marriage by having marital intercourse and stated that he would never cohabit with her. On January 29, 1954, the plaintiff obtained a decree of annulment upon her complaint charging fraud in that the defendant had secretly intended not to consummate the marriage, that he had not consummated it, and that he never intended to do so. After that decree became final the plaintiff commenced this action to recover damages for the fraud thus practiced on her. Her action for damages is entirely independent of the annulment proceeding but is based upon essentially the same facts.

In support of the trial court’s order sustaining his demurrer, the defendant contends that according to the doctrine of res judicata any cause of action for damages that the plaintiff might have had was merged in the decree of annulment and no longer exists. This contention assumes that her suit for damages involves the same cause of action that was involved in her suit for annulment. But the fact that the same misrepresentations were involved in both suits is not conclusive. The harm remedied by the decree of annulment is not the same as the harm sought to be remedied by the present action. The suit for annulment was brought in equity to determine the plaintiff’s marital status. In contrast, the present suit seeks damages at law as compensation for an injury to a property right. The present action is based on a cause of action different from that asserted in the suit for annulment and therefore is not barred under any theory of res judicata.

A second ground asserted in support of the order sustaining the demurrer is that the present action is barred by section 43.5, subdivision (d) of the Civil Code, which provides that no cause of action arises for “breach of promise of marriage.” 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. (Civ. Code, § 1572, subd. 4; Mack v. White, 97 Cal.App.2d 497 [218 P.2d 76]; Schaub v. Schaub, 71 Cal.App.2d 467 [162 P.2d 966].) Such a cause of action is not barred by section 43.5, subdivision (d). (See Mack v. White, supra; Norman v. Burks, 93 Cal.App.2d 687 [209 P.2d 815].)

The defendant’s final contention is that the present action is foreclosed by the rule barring tort actions between spouses. American courts now generally agree that this rule does not apply to property tort actions—that is, to tort actions involving injury directly to a property interest rather than to the person. (See cases collected in Prosser, Torts (2d ed. 1955) § 101, pp. 672-673; McCurdy, Torts Between Persons in Domestic Relations, [1930] 43 Harv.L.Rev. 1030, 1037-1040; see also 3 Vernier, American Family Laws, § 180.) To the extent that the tort inherent in the commission of fraud has been characterized, it has been said to be a property tort. (See cases collected in Prosser, Torts (2d ed. 1955), § 101, p. 672, n. 24; McCurdy, supra at 1039, n. 30, 1040, n. 44. But see McCurdy, supra at 1044, n. 63.)

There is also authority in this state indicating that the marital immunity does not apply to property torts. (See Peters v. Peters, 156 Cal. 32, 34, 36 [103 P. 219, 23 L.RA.N.S. 699]; Smith v. Stuthman, 79 Cal.App.2d 708, 711 [181 P.2d 123]; People v. Graff, 59 Cal.App. 706, 712 [211 P. 829].) The enactment of “statutes giving the wife the right to separate property and to make contracts with her husband concerning the same” indicates a legislative intent to abolish the immunity insofar as it applied to actions concerning property rights. (Peters v. Peters, supra, 156 Cal. 32, 34, 36. See Civ. Code, § 158; Code Civ. Proc., § 370.) Whatever may have been the scope of the immunity at common law it should not apply to interspouse property tort actions such as the present one. This conclusion makes it unnecessary to consider whether the annulment of a voidable marriage would remove an immunity that was operative while the marriage existed. No immunity from the present action attached when the plaintiff and the defendant were married.

The second amended complaint states a cause of action and the demurrer was improperly sustained.

The judgment is reversed.

Gibson, C. J., Carter, J., and Traynor, J., concurred.