[No. 22490. En Banc. December 29, 1930.] 

DEAN E. HART, as Administrator, Appellant,

v.

CECIL GEYSEL et al., Respondents.^[1]

Bell, McNeil & Bowles (J. Speed Smith and Henry Elliott, Jr., of counsel) for appellant.

Caldwell & Lycette, Eggerman & Rosling, A. C. Van Soelen, Bruce MacDougall, and Todd, Holman & Sprague, for respondents.

MAIN, J.—This action was brought by the administrator of the estate of Hamilton I. Cartwright, deceased, who died as the result of a blow received in a prize fight. To the amended complaint, which will be referred to as the complaint, each of the defendants interposed a demurrer, which was sustained. The [633] plaintiff refused to plead further and elected to stand upon the complaint. A judgment was entered dismissing the action, from which the plaintiff appeals.

February 5, 1929, Hamilton I. Cartwright and Cecil Geysel engaged in a prize fight in the city of Seattle, during which Cartwright received a blow which caused his death. In the complaint there are no facts showing that the mutual combat was engaged in in anger, that there was malicious intent to seriously injure, or that there was excessive force.

The controlling question is whether the action can be maintained for wrongful death when the encounter, though unlawful, was entered into with the consent of both parties. Section 2556, Rem. Comp. Stat., makes prize fighting unlawful, and provides that one engaging therein shall be guilty of a gross misdemeanor, with a proviso which is not here material.

The administrator has no greater rights pertaining to a recovery of damages than would the deceased have had, had he lived and brought an action for any injuries that he may have received. Ostheller v. Spokane & Inland Empire R. Co., 107 Wash. 678, 182 Pac. 630.

Upon the question stated, the adjudicated cases, as well as the text writers, are in conflict. One line supports what is known as the majority rule, and the other, the minority. The majority rule has been stated as follows:

"Where the parties engage in mutual combat in anger, each is civilly liable to the other for any physical injury inflicted by him during the fight. The fact that the parties voluntarily engaged in the combat is no defense to an action by either of them to recover damages for personal injuries inflicted upon him by the other."

[634] This rule is supported by the cases of Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. A. 853; Adams v. Waggoner, 33 Ind. 531, 5 Am. St. 230; Barholt v. Wright, 45 Ohio St. 177, 12 N. E. 185, 4 Am. St. 535; McNeil v. Mullin, 70 Kan. 634, 79 Pac. 168; Morris v. Miller, 83 Neb. 218, 119 N. W. 458, 131 Am. St. 636, 20 L. R. A. (N. S.) 907; Colby v. McClendon, 85 Okl. 293, 206 Pac. 207, 30 A. L. R. 196; Roger v. Belcher, 100 W. Va. 694, 131 S. E. 556; Littledike v. Wood, 69 Utah 323, 255 Pac. 172.

The minority rule has been stated as follows:

"Where parties engage in a mutual combat in anger, the act of each is unlawful and relief will be denied them in a civil action; at least, in the absence of a showing of excessive force or malicious intent to do serious injury upon the part of the defendant."

The cases of White v. Whittall, 113 Mich. 493, 71 N. W. 1118; Smith v. Simon, 69 Mich. 481, 37 N. W. 548; McNeil v. Choate, 197 Ky. 682, 247 S. W. 955; Lykins v. Hamrick, 144 Ky. 80,137 S. W. 852; Wright v. Starr, 42 Nev. 441, 179 Pac. 877, support this rule.

With reference to the two rules, after reviewing the authorities, the supreme court of Oklahoma, in the comparatively recent case of Colby v. McClendon, 85 Okl. 293, 206 Pac. 207, said:

"This court has never passed upon the question, but it seems that the majority rule is supported by the best reasoning. We think it should be followed in a case where the parties enter into a mutual combat with deadly weapons. The minority rule is announced in cases where the injury resulted from fist fights, although the case of Lykins v. Hamrick, 144 Ky. 80, 137 S. W. 852, was where parties were engaged in a cutting scrape. We think it would be against public policy to apply the minority rule in a case where persons enter into a mutual combat with deadly weapons."

In each of the cases which support the majority rule, the combat was entered into in anger, with a malicious [635] intent to seriously injure, and in some of them the question of excessive force was present as bearing upon the question of damages. In the cases which support the minority rule, the encounter, or fist fight, as it may be called, was entered into in anger, from which it would be necessarily inferred that there was an intent to do injury.

The majority rule carries into a civil action, where one party sues the other for damages for something which has been done in violation of positive law, the principle applied in criminal prosecutions by the state to the effect that the consent of one or both of the parties does not prevent such a prosecution. The minority rule does not apply this principle when a civil action is brought by one of the parties against the other for damages which have been sustained in a combat consented to by both parties, but which was in violation of positive law. The authorities supporting the majority rule recognize that if the thing done is not one prohibited by positive law, for which a penalty is imposed, then consent is a complete defense in a civil action for damages. The majority rule is an exception to two generally well recognized and accepted principles of law: (a) That one who has consented to suffer a particular invasion of his private right has no right to complain; and (b) that no one shall profit by his own wrongdoing. The minority rule recognizes and applies these principles.

The facts in the case now before us do not bring it within the authorities supporting the majority rule, because here there are no facts which show anger, malicious intent to injure, or excessive force. It may be stated that the facts of this case do not contain one element of the minority rule, that of anger. It is unnecessary, as we view it, in the present case to adopt either rule. It is sufficient to say that in our opinion [636] one who engages in prize fighting, even though prohibited by positive law, and sustains an injury, should not have a right to recover any damages that he may sustain as the result of the combat, which he expressly consented to and engaged in as a matter of business or sport. To enforce the criminal statute against prize fighting, it is not necessary to reward the one that got the worst of the encounter at the expense of his more fortunate opponent. This view is supported by the rule tentatively adopted by the American Law Institute in the Restatement of the Law of Torts, and is discussed in American Institute Treatise No. 1 (a) Supporting Restatement No. 1, Torts, chapter V, § 75, beginning at page 172, 1925. In part it is there said:

“Notwithstanding the numerical weight of authority against the view that an assent to a breach of the peace is a legally effective consent to such invasions of interest of personality as are involved therein the minority view is preferred for the following reasons: “1. The majority view is obviously an exception to the general principle that one who has sufficiently expressed his willingness to suffer a particular invasion has no right to complain if another acts upon his consent so given. The very nature of rights of personality, which are in freedom to dispose of one's interests of personality as one pleases, fundamentally requires this to be so. There is a further principle, applicable not only in tort law but throughout the whole field of law, and perhaps more conspicuously in other subjects, to the effect that no man shall profit by his own wrongdoing.

“The majority view is an exception to both of these two fundamental principles. Clearly if a plaintiff has consented to being struck by another in the course of a brawl, his right to the control of his person and to determine by whom and how it shall be touched has not been invaded. And it is equally clear that if he has so expressed his consent to the blow that, were he not party to a breach of the peace, his assent would be an operative consent and so bar his liability, he is [637] profiting by the illegality of his conduct if because he is party to the breach of the peace he gains a right of action, which but for his criminal joinder therein he would not have had.

“The majority view, being, as it is, an exception to two such otherwise universal principles of law, can be sustained only if it is founded upon authorities which were not only based upon sound reason when announced but which are based upon reasons which still remain sound and convincing, or if the exception is one which is required to carry into effect some weighty public policy.”

In the opinion in the case of Milam v. Milam, 46 Wash. 468, 90 Pac. 595, neither of the above rules was mentioned or discussed, and we do not regard that case as controlling. There is some language in it which leads to the belief that it was decided on the theory of excessive force.

The appellant cites a number of cases which hold that consent to an abortion by a patient is no defense to a subsequent action for damages against the doctor for performing the operation in a negligent manner, but if that be the rule in such cases it is not necessarily applicable to the facts now before us. We here distinctly do not express any opinion upon whether consent to an abortion precludes a right of recovery for the negligent act of the doctor in performing the operation.

The judgment will be affirmed.

MITCHELL, C.J., PARKER, TOLMAN, BEALS, MILLARD, and BEELER, JJ., concur.

HOLCOMB, J. (dissenting)—I am unable to concur in the prevailing opinion because it is contrary to the better reasoning as stated in what is called the majority rule, is contrary to public policy, and sets a bad precedent.

[638] The first error contained in the prevailing opinion is that there are no facts in the complaint showing that the mutual combat was engaged in in anger, that there was malicious intent to seriously injure, or that there was excessive force. If excessive force be necessary as an element of recovery in a case where a mutual combat was voluntarily engaged in, the complaint alleges it in the following language:

“. . . the said Cecil Geysel, having engaged and while engaged in the said unlawful encounter with the said Hamilton I. Cartwright, continued fighting with the said Hamilton I. Cartwright and did unlawfully and unjustifiably assault, strike, beat and injure the said Hamilton I. Cartwright, and did strike the said Hamilton I. Cartwright so cruelly and with such force and violence as to knock him down and cause him to fall upon the floor, from which said assault, striking, beating and blows, and from the injuries received from the falling the said Hamilton I. Cartwright died."

The foregoing certainly was an allegation of excessive force and brings the case squarely under our own decision in Milam v. Milam, 46 Wash. 468, 90 Pac. 595, which is distinguished in the majority opinion upon the ground that it was decided on the theory of excessive force. The principal contention in the Milam case, as shown by the briefs filed therein, was that the affray in that case was mutual and voluntary and, therefore, the act committed was not done against the will of the party assaulted. Unless this court intended to deny that proposition, there could be no recovery even when excessive force appears, just as in the present case.

For once, I am unable to agree with either the reasoning or conclusions arrived at tentatively by the American Law Institute in its Restatement of the Law, reference to which is made in the majority opinion, as being the better reasoning and the better principle to [639] follow in deciding this case. I admit that ancient precedents should not govern where they are bad. One ancient case criticized in the Restatement, supra, was that of Matthew v. Ollerton, Comerbach 218, 90 Eng. Reprint 438, which is said to be a mere dictum stating:

“. . . if a man license another to beat him, such license is void as it is against the peace.”

This dictum, it is said, was followed in a more modern case, Boulter v. Clark, Buffer's Nisi Prius, 16, where the presiding judge ruled that, the fighting being unlawful, the consent to fight, if proved, would not bar the plaintiff.

Although that may be but dictum and of faulty, human origin, there is ancient and Divine authority in the Mosaiclaw:

“And if men strive together, and one smite another, with a stone, or with his fist and he die not but keepeth his bed; if he rise again, and walk about upon his staff, then he that smote him be quit; only he shall pay for the loss of his time and shall cause him to be thoroughly healed." Exodus XXI:18, 19.

See, also, Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230, McNeil v. Mullin, 70 Kan. 634, 79 Pac. 168; Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. A. 853, Littledike v. Wood, 69 Utah 323, 255 Pac. 172.

Our statute, Rem. Comp. Stat., § 2556, makes prize fighting unlawful. Hence, there could be no lawful consent to such a combat. Physical combats are against the peace, anyway. Had it been a duel, it would have been unlawful, and consent to fight a duel would not prevent recovery by either those injured, on the ground of excessive force, or the heirs or personal representatives of those injured.

The reasoning of Judge Cooley is, to my mind, greatly superior to the reasoning employed in the Re [640] statement of the Law on Torts. Judge Cooley reasons as follows, Cooley on Torts (3d Ed.), p. 282:

“It is implied, in an assault or battery, that it is committed against the assent of the person assaulted; but there are some things a man can never assent to, and therefore his license in such cases can constitute no excuse. He can never consent, for instance, to the taking of his own life. His life is not his to take or give away; it would be criminal in him to take it, and equally criminal in any one else who should deprive him of it by his consent. The person who, in a duel, kills another, is not suffered to plead the previous arrangements and the voluntary exposure to death by agreement, as any excuse whatever. The life of an individual is guarded in the interest of the State, and not in the interest of the individual alone; and not his life only is protected, but his person as well. Consent cannot justify an assault.

“But suppose, in the duel one is not killed, but only wounded; may he have an action against his adversary for this injury? If there is any reason why he may not, it must be because he has consented to what has been done. Volenti non fit injuria. But if he had no right or power to consent, and the consent expressed in words was wholly illegal and void, the question then is, how a consent which the law forbids can be accepted in law as a legal protection?

"Consent is generally a full and perfect shield when that is complained of as a civil injury which was consented to…

“But in case of a breach of the peace it is different. The State is wronged by this, and forbids it on public grounds. If men fight, the State will punish them. If one is injured, the law will not listen to an excuse based on a breach of the law. There are three parties here, one being the State, which, for its own good, does not suffer the others to deal on a basis of contract with the public peace. The rule of law is therefore clear and unquestionable, that consent to an assault is no justification. Where a combat involves a breach of the peace, the mutual consent of the parties thereto is to be regarded as unlawful, and as not de [641] priving the injured party, or, for that matter, each injured party, from recovering damages for injuries received from the unlawful acts of the other."

See, also, 1 Jaggard on Torts, p. 203, to the same effect.

I am convinced the complaint stated a cause of action under the correct principles of law and the judgment should be reversed.

[1] Reported in 294 Pac. 570.

23 Colo. 113

COURVOISIER

V.

RAYMOND.

1. JURORS—EXCUSE—QUALIFICATION.

Service as a juror in another court within one year next preceding is not, under the act of 1889 (Mills' Ann. Stats., sec. 2595), sufficient to entitle the juror to be excused from service; neither does it constitute a ground of challenge for cause.

2. EVIDENCE—HYPOTHETICAL, QUESTIONS.

Questions to medical experts calling for their opinion upon a hypothesis within the probable or possible range of the evidence are permissible.

3. SAME—RECORD.

Where proof of a conviction of crime is admissible, the record of the conviction is usually the best evidence thereof; and as a general rule, parol proof of the fact should, on objection, be excluded.

4. SAME.

Evidence the tendency of which is to raise collateral questions and thereby divert the attention of the jury from the real issues should be excluded.

5. EXEMPLARY DAMAGES.

Exemplary damages may, in the cases specified in the statute, be awarded for an injury inflicted maliciously, or in wanton and reckless disregard of the plaintiff's rights.

6. EVIDENCE—FINANCIAL CONDITION OF DEFENDANT IN DAMAGE CASES.

Where exemplary damages may be awarded, the financial condition of the defendant may be shown.

7. SELF-DEFENSE.

A defendant is not liable in damages to one wounded by a shot fired by him in necessary self-defense, even though the plaintiff was not his assailant.

8. SAME.

When a defendant in a civil action for damages sustained by reason of a gunshot wound inflicted by him justifies under a plea of necessary self-defense, he must satisfy the jury not only that he acted honestly in using force, but that, under the circumstances, his fears and the means of defense made use of were reasonable.

Appeal from the District Court of Arapahoe County.

EDWIN S. RAYMOND, appellee, as plaintiff below, complains of Anguste Courvoisier, appellant, and alleges that on [114] the 12th day of June, A. D. 1892, plaintiff was a regularly appointed and duly qualified acting special policeman in and for the city of Denver; that while engaged in the discharge of his duties as such special policeman, the defendant shot him in the abdomen, thereby causing a serious and painful wound ; that in so doing the defendant acted wilfully, knowingly and maliciously, and without any reasonable cause.

It is further alleged that by reason of the wound so received plaintiff was confined to his bed for a period of ten days,

during which time he was obliged to employ, and did employ, a physician and nurse, the reasonable value of such services being one hundred (100) dollars, winch sum plaintiff had obligated himself to pay; that the wound rendered him incapable of performing his duties as special policeman for a period of three weeks.

It is further alleged that the injury caused the plaintiff great physical pain, and permanently impaired his health. Plaintiff alleges special and general damages to the amount of thirty thousand, one hundred and fifty (30,150) dollars, and asks judgment for that sum, with costs.

The defendant, answering the complaint, denies each allegation thereof, and, in addition to such denials, pleads five separate defenses. These defenses are all in effect a justification by reason of unavoidable necessity. A trial resulted in a verdict and judgment for plaintiff for the sum of three thousand, one hundred and forty-three (3,143) dollars. To reverse this judgment, the cause is brought here by appeal.

Mr. OSCAR REUTER and Mr. WM. YOUNG, for appellant.

Mr. F. J. HANGS and Mr. S.S. ABBOTT, for appellee.

CHIEF JUSTICE HAYT delivered the opinion of the court.

It is admitted or proven beyond controversy that appellee received a gunshot wound at the hands of the appellant at [115] the time and place designated in the complaint, and that as the result of such wound the appellee was seriously injured. It is further shown that the shooting occurred under the following circumstances:

That Mr. Courvoisier, on the night in question, was asleep in his bed in the second story of a brick building, situate at the corner of South Broadway and Dakota streets in South Denver; that he occupied a portion of the lower floor of this building as a jewelry store. He was aroused from his bed shortly after midnight by parties shaking or trying to open the door of the jewelry store. These parties, when asked by him as to what they wanted, insisted upon being admitted, and upon his refusal to comply with this request, they used profane and abusive epithets toward him. Being unable to gain admission, they broke some signs upon the front of the building, and then entered the building by another entrance, and passing upstairs commenced knocking upon the door of a room where defendant's sister was sleeping. Courvoisier partly dressed himself, and, taking his revolver, went upstairs and expelled the intruders from the building. In doing this he passed downstairs and out on the sidewalk as far as the entrance to his store, which was at the corner of the building. The parties expelled from the building, upon reaching the rear of the store, were joined by two or three others. In order to frighten these parties away, the defendant fired a shot in the air, but instead of retreating they passed around to the street in front, throwing stones and brickbats at the defendant, whereupon he fired a second and perhaps a third shot. The first shot fired attracted the attention of plaintiff Raymond and two deputy sheriffs, who were at the Tramway depot, across the street. These officers started toward Mr. Courvoisier, who still continued to shoot, but two of them stopped when they reached the men in the street, for the purpose of arresting them, Mr. Raymond alone proceeding towards the defendant, calling out to him that he was an officer and to stop shooting. Although the night was dark, the street was well lighted by electricity, and when the officer [116] approached him defendant shaded his eyes, and, taking deliberate aim, fired, causing the injury complained of.

The plaintiff's theory of the case is that he was a duly authorized police officer, and in the discharge of his duties at the time; that the defendant was committing a breach of the peace, and that the defendant, knowing him to be a police officer, recklessly fired the shot in question.

The defendant claims that the plaintiff was approaching him at the time in a threatening attitude, and that the surrounding circumstances were such as to cause a reasonable man to believe that his life was in danger, and that it was necessary to shoot in self-defense, and that defendant did so believe at the time of firing the shot.

The first error argued brings up for review the action of the district court in overruling a challenge interposed by the

defendant to the juror Gibbons. The ground of this challenge will appear from the following:

"Q. Have you served as a juror within the year last past? A. I was called a few weeks ago on one case in the county court.

"Q. As a talesman? A. Yes, sir. "The Court. When did you serve, Mr. Gibbons? A. A few weeks ago.

"The Court. Since the first of January? A. Yes, sir."

The statute relied upon to support the challenge reads as follows:

"The fact that any juror in any district or county court shall have served as juror of the regular panel, or as talesman, in either of said courts at anytime within the year next preceding, shall be a sufficient excuse for such juror from service in the same court and may also be ground for challenge for cause to such individual juror." Session Laws, 1889, page 220, sec. 1.

The statute limits the exception to service a second time within the year in the same court, and we think it was likewise intended to thus restrict this ground of challenge for cause. This has been the uniform practice under the stat[117]ute, and we think it must be upheld as the obvious meaning of the act.

The second error assigned is upon the overruling of defendant's objections to certain hypothetical questions propounded by plaintiff to medical experts. These questions called for the opinion of the witnesses as to the natural result of the wound received by plaintiff. It is claimed that the questions do not describe the wound with sufficient certainty, and that the evidence of the extent of the injury is not sufficient to form a basis for any hypothetical questions or for expert opinions upon the probable effects of the wound. We think the objections to these questions were properly overruled. The questions contain such a description of the wound as is easily understood by the lay mind, and the answers show that it was fully understood by the experts. The questions are framed upon the assumption that the evidence tended to prove certain facts. This assumption, being within the probable or possible range of the evidence, is permissible. Jackson v. Burnham, 20 Colo. 532.

The third assignment of error challenges the refusal of the court to permit witnesses for the defendant to testify as to whether or not, as a result of a criminal prosecution, one of the participants was convicted of " throwing a stone and hitting Mr. Courvoisier that night." The objection to this question was properly sustained. If proof of such conviction was admissible, the record is the best evidence thereof, except in the instances specified by statute. Mills' Annotated Statutes, sec. 4822. But as this action is between other parties, even the record is not admissible in this case. 

It was attempted to prove by the witness Reed, who was at the time marshal of the town of South Denver, that the neighborhood in the immediate vicinity of defendant's house had been the scene of frequent robberies and disturbances shortly prior to this shooting. This evidence was offered for the purpose of justifying the defendant's action. It is claimed that conduct which would cause no apprehension in a quiet and peaceful neighborhood would naturally and rea [118] sonably excite alarm if disturbances and breaches of the peace were frequent. We think, however, the court was justified in refusing this evidence. Its tendency is to raise collateral issues, and thereby divert the attention of the jury.

Under the fourth assignment of error it is claimed that evidence of the financial standing of the defendant was not admissible. If the jury believed from the evidence that the shooting was done with malice, or that the injury was the result of a wanton and reckless disregard of plaintiff's rights and not in necessary self-defense, exemplary damages might have been awarded, and wherever such damages are permissible, the financial condition of the defendant may be shown. In a number of cases, commencing with Murphy v. Hobbs, 7 Colo. 541, it has been held that in civil actions for injuries resulting from torts, exemplary damages, as a punishment, were not permissible, if the offense is punishable under the criminal laws. These decisions were based upon the common law. In 1889 the legislature provided, by statute, that exemplary damages may be given in certain cases. Before the passage of this act the question was one upon which the courts disagreed, but the statute has now settled the practice in this state.

The next error assigned relates to the instructions given by the court to the jury and to those requested by the defendant and refused by the court. The second instruction given by the court was clearly erroneous. The instruction is as follows: "The court instructs you that if you believe from the evidence, that, at the time the defendant shot the plaintiff, the plaintiff was not assaulting the defendant, then your verdict should be for the plaintiff."

The vice of this instruction is that it excluded from the jury a full consideration of the justification claimed by the defendant. The evidence for the plaintiff tends to show that the shooting, if not malicious, was wanton and reckless, but the evidence for the defendant tends to show that the circumstances surrounding him at the time of the shooting were such as to lead a reasonable man to believe that his life [119] was in danger, or that he was in danger of receiving great bodily harm at the hands of the plaintiff, and the defendant testified that he did so believe.

He swears that his house was invaded shortly after midnight by two men, whom he supposed to be burglars; that when ejected, they were joined on the outside by three or four others; that the crowd so formed assaulted him with stones and other missiles, when, to frighten them away, he shot into the air; that instead of going away someone approached him from the direction of the crowd; that he supposed this person to be one of the rioters, and did not  ascertain that it was the plaintiff until after the shooting. He says that he had had no previous acquaintance with plaintiff; that he did not know that he was a police officer, or that there were any police officers in the town of South Denver; that he heard nothing said at the time by the plaintiff or anyone else that caused him to think the plaintiff was an officer; that his eyesight was greatly impaired, so that he was obliged to use glasses, and that he was without glasses at the time of the shooting, and for this reason could not see distinctly. He then adds: "I saw a man come away from the bunch of men and come up towards me, and as I looked around I saw this man put his hand to his hip pocket. I didn't think I had time to jump aside, and therefore turned around and fired at him. I had no doubts but it was somebody that had come to rob me, because some weeks before Mr. Wilson's store was robbed. It is next door to mine."

By this evidence two phases of the transaction are presented for consideration: First, was the plaintiff assaulting the defendant at the time plaintiff was shot? Second, if not, was there sufficient evidence of justification for the consideration of the jury? The first question was properly submitted, but the second was excluded by the instruction under review. The defendant's justification did not rest entirely upon the proof of assault by the plaintiff. A riot was in progress, and the defendant swears that lie was attacked with missiles, hit with stones, brickbats, etc.; that he shot [120] plaintiff, supposing him to be one of the rioters. We must assume these facts as established in reviewing the instruction, as we cannot say what the jury might have found had this evidence been submitted to them under a proper charge.

By the second instruction the conduct of those who started the fracas was eliminated from the consideration of the jury. If the jury believed from the evidence that the defendant would have been justified in shooting one of the rioters had such person advanced towards him as did the plaintiff, then it became important to determine whether the defendant mistook plaintiff for one of the rioters, and if such a mistake was in fact made, was it excusable in the light of all the circumstances leading up to and surrounding the commission of the act? If these issues had been resolved by the jury in favor of the defendant, he would have been entitled to a judgment. Morris v. Piatt, 32 Conn. 75; Patton v. People,18 Mich. 318; Kent v. Cole, 84 Mich. 579; Higgins v. Minaghan, 76 Wis. 298.

The opinion in the first of the cases above cited contains an exhaustive review of the authorities and is very instructive. The action was for damages resulting from a pistol shot wound. The defendant justified under the plea of self-defense. The proof for the plaintiff tended to show that he was a mere bystander at a riot, when he received a shot aimed at another, and the court held that, if the defendant was justified in firing the shot at his antagonist, he was not liable to the plaintiff, for the reason that the act of shooting was lawful under the circumstances.

Where a defendant in a civil action like the one before us attempts to justify on a plea of necessary self-defense, he must satisfy the jury not only that he acted honestly in using force, but that his fears were reasonable under the circumstances; and also as to the reasonableness of the means made use of. In this case perhaps the verdict would not have been different had the jury been properly instructed, but it might have been, and therefore the judgment must be reversed.

Reversed.

VOL. LXVIII—8

71 A. 188
81 Vt. 471

PLOOF 
v.
PUTNAM.

Supreme Court of Vermont. Chittenden.

Oct. 2, 1908.

Exceptions from Chittenden County Court; Seneca Haselton, Judge.

Action by Sylvester A. Ploof against Henry W. Putnam. Heard on demurrer to declaration. Demurrer overruled, and declaration adjudged sufficient, and defendant excepted. Judgment affirmed, and cause remanded.

Martin S. Vilas and Cowles & Moulton, for plaintiff.

Batchelder & Bates, for defendant.

MUNSON, J.

It is alleged as the ground of recovery that on the 13th day of November, 1904, the defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached thereto, which island and dock were then in charge of the defendant's servant; that the plaintiff was then possessed of and sailing upon said lake a certain loaded sloop, on which were the plaintiff and his wife and two minor children; that there then arose a sudden and violent tempest, whereby the sloop and the property and persons therein were placed in great danger of destruction; that, to save these from destruction or injury, the plaintiff was compelled to, and did, moor the sloop to defendant's dock; that the defendant, by his servant, unmoored the sloop, whereupon [71 A. 189] it was driven upon the shore by the tempest, without the plaintiff's fault; and that the sloop and its contents were thereby destroyed, and the plaintiff and his wife and children cast into the lake and upon the shore, receiving injuries. This claim is set forth in two counts—one in trespass, charging that the defendant by his servant with force and arms willfully and designedly unmoored the sloop; the other in case, alleging that it was the duty of the defendant by his servant to permit the plaintiff to moor his sloop to the dock, and to permit it to remain so moored during the continuance of the tempest, but that the defendant by his servant, in disregard of this duty, negligently, carelessly, and wrongfully unmoored the sloop. Both counts are demurred to generally.

There are many cases in the books which hold that necessity, and an Inability to control movements inaugurated in the proper exercise of a strict right, will justify entries upon land and interferences with personal property that would otherwise have been trespasses. A reference to a few of these will be sufficient to illustrate the doctrine. In Miller v. Fandrye, Poph. 101, trespass was brought for chasing sheep, and the defendant pleaded that the sheep were trespassing upon his land, and that he with a little dog chased them out, and that, as soon as the sheep were off his land, he called in the dog. It was argued that, although the defendant might lawfully drive the sheep from his own ground with a dog, he had no right to pursue them into the next ground; but the court considered that the defendant might drive the sheep from his land with a dog, and that the nature of a dog is such that he cannot be withdrawn in an instant, and that, as the defendant had done his best to recall the dog, trespass would not lie. In trespass of cattle taken in A., defendant pleaded that he was seised of C. and found the cattle there damage feasant, and chased them towards the pound, and they escaped from him and went into A., and he presently retook them; and this was held a good plea. 21 Edw. IV, 64; Vin. Ab. Trespass, H. a, 4, pl. 19. If one have a way over the land of another for his beasts to pass, and the beasts, being properly driven, feed the grass by morsels in passing, or run out of the way and are promptly pursued and brought back, trespass will not lie. See Vin. Ab. Trespass, K. a, pl. 1. A traveler on a highway who finds it obstructed from a sudden and temporary cause may pass upon the adjoining land without becoming a trespasser because of the necessity. Henn's Case, W. Jones, 296; Campbell v. Race, 7 Cush. (Mass.) 408, 54 Am. Dec. 728; Hyde v. Jamaica, 27 Vt. 443 (459); Morey v. Fitzgerald, 56 Vt. 487, 48 Am. Rep. 811. An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. 21 Hen. VII, 27; Vin. Ab. Trespass, H. a, 4, pl. 24, K. a, pl. 3. In Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon the plaintiff's beach for the purpose of saving and restoring to the lawful owner a boat which had been driven ashore, and was in danger of being carried off by the sea; and it was held no trespass. See, also, Dunwich v. Sterry, 1 B. & Ad. 831.

This doctrine of necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the close of another to escape from his assailant. 37 Hen. VII, pl. 28. One may sacrifice the personal property of another to save his life or the lives of his fellows. In Mouse's Case, 12 Co. 63, the defendant was sued for taking and carrying away the plaintiff's casket and its contents. It appeared that the ferryman of Gravesend took 47 passengers into his barge to pass to London, among whom were the plaintiff and defendant; and the barge being upon the water a great tempest happened, and a strong wind, so that the barge and all the passengers were in danger of being lost if certain ponderous things were not cast out, and the defendant thereupon cast out the plaintiff's casket. It was resolved that in case of necessity, to save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the plaintiff's casket out of the barge; that, if the ferryman surcharge the barge, the owner shall have his remedy upon the surcharge against the ferryman, but that if there be no surcharge, and the danger accrue only by the act of God, as by tempest, without fault of the ferryman, every one ought to bear his loss to safeguard the life of a man.

It is clear that an entry upon the land of another may be justified by necessity, and that the declaration before us discloses a necessity for mooring the sloop. But the defendant questions the sufficiency of the counts because they do not negative the existence of natural objects to which the plaintiff could have moored with equal safety. The allegations are, in substance, that the stress of a sudden and violent tempest compelled the plaintiff to moor to defendant's dock to save his sloop and the people in it. The averment of necessity is complete, for it covers not only the necessity of mooring, but the necessity of mooring to the dock; and the details of the situation which created this necessity, whatever the legal requirements regarding them, are matters of proof, and need not be alleged. It is certain that the rule suggested cannot be held applicable irrespective of circumstance, and the question must be left for adjudication upon proceedings had with reference to the evidence or the charge.

The defendant insists that the counts are defective, in that they fail to show that the servant in casting off the rope was acting within the scope of his employment. It is said that the allegation that the island and dock were in charge of the servant does not [71 A. 190] imply authority to do an unlawful act, and that the allegations as a whole fairly indicate that the servant unmoored the sloop for a wrongful purpose of his own, and not by virtue of any general authority or special instruction received from the defendant. But we think the counts are sufficient in this respect. The allegation is that the defendant did this by his servant. The words "willfully, and designedly" in one count, and "negligently, carelessly, and wrongfully" in the other, are not applied to the servant, but to the defendant acting through the servant. The necessary implication is that the servant was acting within the scope of his employment. 13 Ency. P. & Pr. 922; Voegeli v. Pickel Marble, etc., Co., 49 Mo. App. 643; Wabash Ry. Co. v. Savage, 110 Ind. 156, 9 N. E. 85. See, also, Palmer v. St. Albans, 60 Vt. 427, 13 Atl. 569, 6 Am. St. Rep. 125.

Judgment affirmed and cause remanded.

[456] 109 Minn. 456

R. C. VINCENT and Another
v.
LAKE ERIE TRANSPORTATION COMPANY.^[1]

Nos. 16,262 - (102).

Supreme Court of Minnesota.

January 14, 1910.

Action in the district court for St. Louis county to recover $1,200 for damage to plaintiffs' wharf, caused by defendant negligently keeping its vessel tied to it. The defendant in its answer alleged that a portion of the cargo was consigned to plaintiffs' dock and on November 27, 1905, its vessel was placed alongside at the place and in the manner designated by plaintiffs and the discharge of cargo continued until ten o'clock that night, that by the time the discharge of cargo was completed the wind had attained so great a velocity the master and crew were powerless to move the vessel. The case was tried before Ensign, J., who denied the defendant's motion to direct a verdict in its favor, and a jury which rendered a verdict in favor of plaintiffs for $500. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.

H. R. Spencer, for appellant.

[457] Alford & Hunt, for respondents.

O'BRIEN, J.

The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiffs' dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about ten o'clock p. m., when the unloading was completed, had so grown in violence that the wind was then moving at fifty miles per hour and continued to increase during the night. There is some evidence that one, and perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was practically suspended from the hour mentioned until the morning of the twenty ninth, when the storm abated, and during that time no master would have been justified in attempting to navigate his vessel, if he could avoid doing so. After the discharge of the cargo the Reynolds signaled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was constantly [458] being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.

We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to have permitted his vessel to drift away from it. One witness testified upon the trial that the vessel could have been warped into a slip, and that, if the attempt to bring the ship into the slip had failed, the worst that could have happened would be that the vessel would have been blown ashore upon a soft and muddy bank. The witness was not present in Duluth at the time of the storm, and, while he may have been right in his conclusions, those in charge of the dock and the vessel at the time of the storm were not required to use the highest human intelligence, nor were they required to resort to every possible experiment which could be suggested for the preservation of their property. Nothing more was demanded of them than ordinary prudence and care, and the record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship.

It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the wharf, and to continue in that position after it became apparent that the storm was to be more than usually severe. We do not agree with this position. The part of the wharf where the vessel was moored appears to have been commonly used for that purpose. It was situated within the harbor at Duluth, and must, we think, be considered a proper and safe place, and would undoubtedly have been such during what would be considered a very severe storm. The storm which made it unsafe was one which surpassed in violence any which might have reasonably been anticipated.

The appellant contends by ample assignments of error that, because its conduct during the storm was rendered necessary by prudence and good seamanship under conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others, and claims that the jury should have been so instructed. An analysis of the charge given by the trial court is not necessary, as in our opinion the only question for the jury was the amount of damages [459] which the plaintiffs were entitled to recover, and no complaint is made upon that score.

The situation was one in which the ordinary rules regulating property rights were suspended by forces beyond human control, and if, without the direct intervention of some act by the one sought to be held liable, the property of another was injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered the harbor, and while there had become disabled and been thrown against the plaintiffs' dock, the plaintiffs could not have recovered. Again, if while attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel carried against some other boat or dock in the harbor, there would be no liability upon her owner. But here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury inflicted.

In Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485, this court held that where the plaintiff, while lawfully in the defendants' house, became so ill that he was incapable of traveling with safety, the defendants were responsible to him in damages for compelling him to leave the premises. If, however, the owner of the premises had furnished the traveler with proper accommodations and medical attendance, would he have been able to defeat an action brought against him for their reasonable worth?

In Ploof v. Putnam (Vt.) 71 Atl. 188, 20 L. R. A. (N. S.) 152, the supreme court of Vermont held that where, under stress of weather, a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of trespass, and that the defendant was responsible in damages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in that case, the vessel had been permitted to remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the injury done.

[460] Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made.

Let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon the dock. No matter how justifiable such appropriation might have been, it would not be claimed that, because of the overwhelming necessity of the situation, the owner of the cable could not recover its value.

This is not a case where life or property was menaced by any object or thing belonging to the plaintiffs, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiffs' property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.

Order affirmed.

LEWIS, J. (dissenting).

I dissent. It was assumed on the trial before the lower court that appellant's liability depended on whether the master of the ship might, in the exercise of reasonable care, have sought a place of safety before the storm made it impossible to leave the dock. The majority opinion assumes that the evidence is conclusive that appellant moored its boat at respondents' dock pursuant to contract, and that the vessel was lawfully in position at the time the additional cables were fastened to the dock, and the reasoning of the opinion is that, because appellant made use of the stronger cables to hold the boat in position, it became liable under the rule that it had voluntarily made use of the property of another for the purpose of saving its own.

[461] In my judgment, if the boat was lawfully in position at the time the storm broke, and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an inevitable accident. If the master was in the exercise of due care, he was not at fault. The reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not parted, or if, in the first instance, the master had used the stronger cables, there would be no liability. If the master could not, in the exercise of reasonable care, have anticipated the severity of the storm and sought a place of safety before it became impossible, why should he be required to anticipate the severity of the storm, and, in the first instance, use the stronger cables?

I am of the opinion that one who constructs a dock to the navigable line of waters, and enters into contractual relations with the owner of a vessel to moor the same, takes the risk of damage to his dock by a boat caught there by a storm, which event could not have been avoided in the exercise of due care, and further, that the legal status of the parties in such a case is not changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.

JAGGARD, J.

I concur with Lewis, J.

[1] Reported in 124 N. W. 221.

[193 Cal.Rptr. 425] [145 Cal.App.3d 372] Mary Cynthia Dunlap, San Francisco, for cross-complainant and appellant.

Long & Levit, Ronald E. Mallen, Donald W. Carlson, Marsha L. Morrow, San Francisco, for cross-defendant and respondent.

[145 Cal.App.3d 373] BARRY-DEAL, Associate Justice.

The issue presented in this appeal is whether a woman (appellant) suffering injuries from an ectopic pregnancy^[1] has a cause of action in tort against the responsible man (respondent) for his misrepresentations of infertility. The trial court ruled that no cause of action would lie and granted respondent's motion for judgment on the pleadings. We reverse the judgment.

I. Procedural Background

Respondent, an attorney, filed an action in municipal court against appellant for $1,520 in fees for representing her in a family law matter. Appellant filed her answer and a cross-complaint for damages alleging, inter alia, fraud and legal malpractice, and the action was transferred to the superior court. After a demurrer to the cross-complaint was filed, appellant by stipulation filed her first amended cross-complaint, which is the subject of this appeal. After several hearings on the demurrer to the amended cross-complaint, the court (Kongsgaard, J.) sustained a demurrer to the count alleging intentional/negligent infliction of emotional distress and dismissed the two counts alleging legal malpractice for appellant's failure to amend.^[2] The court overruled the demurrer to the count alleging battery and the one alleging intentional misrepresentation, in spite of respondent's argument that an action was barred by Civil Code section 43.5, the "anti-heart balm" statute.^[3]

Prior to trial, on May 12, 1980, the Second District filed its opinion in Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640, 164 Cal.Rptr. 618, holding that a man stated no cause of action in a cross-complaint against a woman for misrepresentations about her use of birth control in an action brought by her to establish paternity of their child and to impose on him an obligation for child support. In the case at bar, the court (Sherwin, J.) agreed with respondent that Stephen K. v. Roni L. was controlling and granted his motion for judgment on the pleadings, which was entered on [145 Cal.App.3d 374] July 25, 1980. Respondent's complaint for fees was remanded to the municipal court for resolution.

II. Standard of Review and Factual Allegations

A motion for judgment on the pleadings based on failure to state a cause of action has a function similar to that of a general demurrer. (See 4 Witkin, Cal Procedure (2d ed. 1971) Proceedings Without Trial, §§ 161-170, pp. 2816-2823.) On review of the judgment in either case, all material facts alleged in the pleading under attack must be accepted as true.^[4] (Marvin v. Marvin [193 Cal.Rptr. 426] (1976) 18 Cal.3d 660, 666, 134 Cal.Rptr. 815, 557 P.2d 106; Kachig v. Boothe (1971) 22 Cal.App.3d 626, 630, 99 Cal.Rptr. 393.) As a reviewing court, we, of course, are not bound by the trial court's determination on whether the alleged facts state a cause of action. With these rules in mind, we summarize the essential facts alleged in appellant's first amended cross-complaint.

Appellant and respondent met about April 1978. Appellant retained respondent, an attorney, to represent her in a post-dissolution proceeding for modification of spousal support and child support for her three children; the legal relationship was in existence at the time of the alleged events. On two occasions, June 25 and June 30, 1978, she and respondent had sexual intercourse with each other. Before they engaged in sexual intercourse the first time, appellant demanded that respondent use a contraceptive device, i.e., a condom, and explained that for emotional and financial reasons she did not want to become pregnant. Appellant further told respondent "... that she would not engage in sexual intercourse with him if there was any likelihood of her becoming pregnant; ..." Respondent told appellant not to worry, saying, " 'I can't possibly get anyone pregnant.' " She understood this to mean that he was sterile by nature or as the result of a vasectomy.

Respondent's representation about his procreative inability was false, and he knew it was false. It was made with the intent to induce appellant to engage in sexual intercourse, protected or not. Appellant, relying on respondent's assurance of his sterility, consented to and did engage in sexual intercourse with respondent. The attorney-client relationship produced in appellant a sense of trust in respondent, and she justifiably relied on his representations.

[145 Cal.App.3d 375] As a result of sexual intercourse with respondent, appellant became pregnant. The pregnancy was determined to be tubal, and, as a consequence, appellant was forced to undergo surgery to save her life. Her Fallopian tube was removed, and she was rendered sterile by the surgery.^[5] She suffered physical, emotional, and financial injuries as a result of the pregnancy.

III. Cause of Action on Theories of Battery or Deceit

Based on the alleged facts, appellant has stated a cause of action in battery, i.e., an unconsented invasion of her interest in freedom from intentional, unlawful, and harmful or offensive contact with her person. (See Prosser, Torts (4th ed. 1971) § 9, pp. 34-37 [hereafter cited as Prosser]; 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 194, pp. 2482-2483.) Consent to an act, otherwise a battery, normally vitiates the wrong. (Delia S. v. Torres (1982) 134 Cal.App.3d 471, 480, 184 Cal.Rptr. 787; Prosser, supra, § 18, p. 101.) However, appellant has alleged alternate grounds for invalidating her consent and rendering respondent's act a battery: (1) that the act of impregnation exceeded the scope of the consent (see Cobbs v. Grant (1972) 8 Cal.3d 229, 239-240, 104 Cal.Rptr. 505, 502 P.2d 1; Estrada v. Orwitz (1946) 75 Cal.App.2d 54, 57, 170 P.2d 43), and (2) that the consent to intercourse was fraudulently induced (Prosser, supra, § 18, p. 105; see Butler v. Collins (1859) 12 Cal. 457, 463). As she has alleged physical, emotional, and financial damage proximately caused by the wrongful touching, appellant's cause of action for battery was sufficiently pleaded.

As an alternative theory for recovery in tort, appellant pleaded deceit, an action sanctioned by Civil Code section 1709, which provides: "One who willfully deceives another with intent to induce him [or her] to alter his [or her] position to his [or her] injury or risk, is liable for any damage which he [or she] thereby suffers." Deceit, within the meaning of section 1709, [193 Cal.Rptr. 427] is defined by Civil Code section 1710^[6] to include both fraudulent misrepresentations ("The suggestion, as a fact, of that which is not true, by one who does not believe it to be true ...") and negligent misrepresentations ("The assertion, as a fact, of that which is not true, by one who has no reasonable [145 Cal.App.3d 376] ground for believing it to be true ..."). (See, generally, 4 Witkin, Summary of Cal.Law, Torts, supra, §§ 445-482, pp. 2710-2744; Prosser,supra, ch. 18, §§ 105-110, pp. 683-736; Rest.2d Torts, §§ 310, 557A.)

In pleading a cause of action for deceit, a plaintiff must specifically plead the following elements: (1) a false representation (ordinarily of a fact) made by the defendant; (2) knowledge or belief on the part of the defendant that the representation is false, or that the representation was made by defendant without reasonable grounds for believing its truth; (3) an intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation; (4) justifiable reliance upon the representation by the plaintiff; (5) damage to the plaintiff, resulting from such reliance. (See Prosser, supra, § 105, pp. 685-686; Gagne v. Bertran (1954) 43 Cal.2d 481, 487-489, 275 P.2d 15; O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 804-805, 142 Cal.Rptr. 487.)

Appellant has pleaded all the essential allegations, as set forth above, of a cause of action for deceit. Respondent's challenge to the sufficiency of the pleading, i.e., "She does not allege that she asked him what he meant by that ambiguous statement ['I can't possibly get anyone pregnant'] ...," is meritless. His proposed allegation relates to proof of justifiable reliance at trial, not to sufficiency of the pleading.

IV. Basic Rule

It is a fundamental principle of our system of jurisprudence that for every legal wrong there is a remedy (Civ.Code, § 3523), and that an injured party should be compensated for all damage proximately caused by the wrongdoer unless a departure from the basic principle is mandated by a legislative exception or by strong public policy. (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433, 58 Cal.Rptr. 13, 426 P.2d 173; Murdock v. Murdock (1920) 49 Cal.App. 775, 782-783, 194 P. 762, citing Civ.Code, §§ 1667, 1708, 1709, 3523, and 2224; cf. Rowland v. Christian (1968) 69 Cal.2d 108, 111-112, 70 Cal.Rptr. 97, 443 P.2d 561, characterizing Civ.Code, § 1714, as a basic principle of tort law.)

V. The "Anti-Heart Balm" Statute

Respondent asserts that appellant's action comes within the statutory exception declared in Civil Code section 43.5 and is thus barred. We find that statute is not applicable. Section 43.5 provides, in relevant part, "No cause of action arises for: ... [p] (c) Seduction ...." The word "[s]eduction," as used in the statute, is a term of art involving elements substantively different from those alleged by appellant.

[145 Cal.App.3d 377] "Seduction imports the idea of illicit intercourse accomplished by 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. [Citation.]" (Davis v. Stroud (1942) 52 Cal.App.2d 308, 317, 126 P.2d 409.) It is no longer possible for two consenting adults in the State of California to engage in [193 Cal.Rptr. 428] "illicit intercourse." (See Note, California "Consenting Adults" Law: The Sex Act in Perspective (1976) 13 San Diego L.Rev. 439.)

The old action for seduction required that the woman was "... chaste and virtuous at the time of the alleged seduction ..." (Davis v. Stroud, supra, 52 Cal.App.2d at p. 316, 126 P.2d 409), and it was used primarily to protect young, inexperienced women who had succumbed to the sexual advances of older men. (See Carter v. Murphy (1938) 10 Cal.2d 547, 75 P.2d 1072.)

In the instant case appellant complains not because her virtue was violated or because she suffered humiliation and loss of reputation, but because the sexual act was unprotected and led to an ectopic pregnancy as a result of respondent's misrepresentation. The gravamen of the complaint in this situation is substantially different from an action for "[s]eduction," which is indeed precluded by Civil Code section 43.5.^[7] (Cf. Mack v. White (1950) 97 Cal.App.2d 497, 500, 218 P.2d 76.)

Nevertheless, respondent argues that the public policy considerations underlying the statutory bar to seduction actions are sound and are applicable to the case before us. He points out that seduction actions are "... fruitful sources of fraud and extortion because of the ease with which they may be employed to embarrass, harass and besmirch the reputation of one wholly innocent of wrongdoing ...," quoting from Ikuta v. Ikuta (1950) 97 Cal.App.2d 787, 789, 218 P.2d 854. He predicts a multitude of unfounded or fraudulent claims if appellant's claim is allowed.

Our Supreme Court has held that fear of unfounded or fraudulent claims is not a valid reason for disallowing a tort action predicated upon a meritorious claim. In Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, the court stated: "[t]he possibility that some fraud will escape detection does not justify an abdication of the judicial responsibility to award damages for sound claims: if it is 'to be conceded that our procedural system for the ascertainment of truth is inadequate to defeat fraudulent claims ..., the result is a virtual acknowledgment that [145 Cal.App.3d 378] the courts are unable to render justice in respect to them.' [Citation.]" (Id., at p. 737, 69 Cal.Rptr. 72, 441 P.2d 912.) The reasoning is sound and is applicable to the case before us.

VI. Inapplicability of Stephen K.

Appellant argues that the trial court mistakenly relied on Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, 164 Cal.Rptr. 618, because that case is factually distinguishable and the public policy considerations underlying the two actions differ. Respondent reiterates that appellant's action contravenes public policy "... to eliminate governmental intervention into private sexual dealings ...," as enunciated in Stephen K.

In that case, Stephen, the defendant in a paternity action, after admitting paternity, cross-complained against Roni, the mother of the child, claiming that she had falsely represented that she was taking birth control pills. The father alleged that in reliance upon such representation, he engaged in sexual intercourse with Roni, which eventually resulted in the birth of a baby unwanted by the father. He further alleged that as a proximate result of the misrepresentation, he had become obligated to support the child financially and had suffered mental distress.

In affirming the dismissal of Stephen's cross-complaint, the court held that Roni's misrepresentation was not actionable and gave rise to no liability. (Id., at p. 642, 164 Cal.Rptr. 618.) In summary, the court concluded that "... the circumstances and the highly intimate nature of the relationship wherein the false representations may have occurred, are such that a court should not define any standard of conduct therefor." (Id., at p. 643, 164 Cal.Rptr. 618.) The court added that to "... supervise the promises [193 Cal.Rptr. 429] made between two consenting adults as to the circumstances of their private sexual conduct ... would encourage unwarranted governmental intrusion into matters affecting the individual's right to privacy ...," and that "... as a matter of public policy the practice of birth control, if any, engaged in by two partners in a consensual sexual relationship is best left to the individuals involved, free from any governmental interference." (Id., at pp. 644-645, 164 Cal.Rptr. 618.)

The facts in Stephen K. and in the case before us, both based on deceit, are obviously similar. A significant distinction between the cases, however, lies in the element of damage. In essence, Stephen was seeking damages for the "wrongful birth" of his child^[8] resulting in support obligations and alleged [145 Cal.App.3d 379] damages for mental suffering. Here, no child is involved; appellant is seeking damages for severe injury to her own body.

Although the Stephen K. court alluded to Stephen's claim as separate and apart from the issue of either parent's obligation to raise and support the child, it reached its decision without attempting to resolve the problem of the mother's reduced financial ability to support the child if she were required to pay damages to the father. We think this concern over the child, and not governmental intrusion into private sexual matters, which we discuss below, is the central issue in Stephen K. and compels different public policy considerations.

Civil Code section 196a imposes on the natural father as well as the natural mother of a child the obligation to give the child support and education suitable to his or her circumstances. To assess damages against the mother for false representations about birth control would have the practical effect of reducing or eliminating support from the father by way of offset. Erasing much or all of the father's financial support, to the detriment of the child, is clearly against public policy and the statutory mandate.

Further, we think it is not sound social policy to allow one parent to sue the other over the wrongful birth of their child. Using the child as the damage element in a tortious claim of one parent against the other could seldom, if ever, result in benefit to a child.^[9] Such a lawsuit would indeed be strong evidence of parental rejection, which could only be emotionally detrimental to the child. Such an action, with its potential for engendering disharmony between a mother and father, would also be contrary to the spirit of the recent legislation providing for mediation between parents in order to reduce acrimony. (See Civ.Code, § 4607.)

In short, we agree with the Stephen K. court that Roni's misrepresentation was not actionable, but we find that different policy reasons justify that result. The question remains, however, whether allowing appellant's [193 Cal.Rptr. 430] action in the case before us encourages "... unwarranted governmental intrusion [145 Cal.App.3d 380] into matters affecting the individual's right to privacy ..." and thus contravenes public policy.

VII. Privacy Right Not Absolute^[10]

The constitutional right to privacy extends to all matters relating to marriage, family, and sex. (People v. Belous (1969) 71 Cal.2d 954, 963, 80 Cal.Rptr. 354, 458 P.2d 194; Cal. Const., art. I, § 1; Stanley v. Georgia (1968) 394 U.S. 557, 564, 89 S.Ct. 1243, 1247-48, 22 L.Ed.2d 542; Griswold v. Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Eisenstadt v. Baird (1972) 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349.) The right to privacy, however, is not absolute, and governmental intervention in matters affecting an individual's right to privacy in sexual matters has been sanctioned in both criminal and civil law.

California has adopted a general scheme for the regulation of the criminal aspects of sexual activity and has determined when sexual intercourse between persons not married to each other shall be criminal. (In re Lane (1962) 58 Cal.2d 99, 102-104, 22 Cal.Rptr. 857, 372 P.2d 897 [citing specific penal statutes].) Prosecution under many of the penal statutes, covering both consensual and forcible sexual acts, often requires testimony of a far more intimate sexual nature than in the case before us. The victim of many of the proscribed acts suffers an invasion of privacy in both the act and the required testimony. And, the state has a fundamental right to enact laws which promote public health, welfare, and safety, even though such laws may invade the offender's right of privacy. (People v. Mills (1978) 81 Cal.App.3d 171, 181, 146 Cal.Rptr. 411 [compulsory registration of convicted sex offenders].)

Even sexual relations within marriage, long held sacrosanct, have recently been opened to scrutiny when a spouse complains of forcible sexual intercourse. (Pen.Code, § 262.) The ancient policy of protecting the privacy of the marriage bed is outweighed in the modern view by the grievous harm to a man or woman caused by spousal rape. (See Freeman, "But If You [145 Cal.App.3d 381] Can't Rape Your Wife, Who[m] Can You Rape?": The Marital Rape Exemption Re-Examined (1981) 15 Family L.Q. 1.)

In the civil law, for example, our Legislature has recently amended Evidence Code section 621 to state a limited exception to the rule that the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. (See also Civ.Code, § 7004, subd. (a).) Either husband or wife, under certain circumstances, can bring an action to establish that the husband is not the biological father of his wife's child. (Evid.Code, § 621; cf. Michelle W. v. Ronald W. (1983) 139 Cal.App.3d 24, 188 Cal.Rptr. 413.) Here, traditional notions about the inviolability of certain aspects of human relationships have given way to recognition that former "protection" in reality worked hardship and injustice in many cases.

Where paternity of a child is at issue, the mother cannot refuse to answer all relevant questions about her sexual activity on the plea that it is a private matter. Her right of privacy must yield to " 'the historically important state interest of facilitating the ascertainment of truth in ... legal proceedings.' [Citation.]" (Fults v. Superior Court (1979) 88 Cal.App.3d 899, [193 Cal.Rptr. 431] 904, 152 Cal.Rptr. 210.) Nor can a man invoke the right of privacy to avoid a determination of paternity of a child he has fathered. (See Uniform Parentage Act (Civ.Code, §§ 7000-7021).)

Although the right to privacy is a freedom to be carefully guarded, it is evident that it does not insulate a person from all judicial inquiry into his or her sexual relations. We do not think it should insulate from liability one sexual partner who by intentionally tortious conduct causes physical injury to the other. (Cf. Marvin v. Marvin, supra, 18 Cal.3d 660, 682, fn. 21, 134 Cal.Rptr. 815, 557 P.2d 106.) Public policy does not demand such protection for the right of privacy.

VIII. Analogy to Venereal Disease Cases

Three out-of-state cases, without discussing public policy or the right to privacy, have held that a woman's consent to sexual intercourse was vitiated by the man's fraudulent concealment of the risk of infection with venereal disease or infestation with vermin. (See De Vall v. Strunk (Tex.Civ.App.1936) 96 S.W.2d 245 [single woman, seduced by promise of marriage, had action in battery against man who infected her with crab lice]; Crowell v. Crowell (1920) 180 N.C. 516 [105 S.E. 206] [wife was not under disability to maintain action for battery or fraud against husband for infecting her with venereal disease]; State v. Lankford (1917) 29 Del. 594 [102 A. 63] [man [145 Cal.App.3d 382] convicted of battery for fraudulently concealing venereal disease and infecting wife]; see Prosser, supra, § 18, p. 105.)

These old cases lend support to allowing the within action, in spite of the language in each case extolling the virtuous character of the woman involved.

We do not assess the wisdom nor predict the future course in the retreat from the double standard of morality for men and women in sexual matters. We do not think, however, at this stage of social mores, that it is relevant to judge appellant's action on the basis of morality.

IX. Violation of Fiduciary Obligation

Appellant and respondent differ markedly in their assessment of the impact of the attorney-client relationship in the case before us. Appellant contends that a fiduciary obligation extends to any type of conduct by which an attorney seeks to benefit at the client's expense. Respondent replies that no legal authority imposes on an attorney the burden of a fiduciary obligation with respect to his or her personal relations with a client. The parties have cited no case directly on point, and we can find none.

It is evident, however, that the lawyer-client relationship affects the proof of appellant's cause of action at trial, rather than the sufficiency of the pleadings. Because of the importance of the issue, we offer the following comments for the guidance of the trial court in further proceedings.

"[F]iduciary" and "confidential" have been used synonymously to describe " '... any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter's knowledge or consent....' " (Herbert v. Lankershim (1937) 9 Cal.2d 409, 483, 71 P.2d 220; Bacon v. Soule (1912) 19 Cal.App. 428, 434, 126 P. 384.) Technically, a fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client (see Frankel, Fiduciary Law (1983) 71 Cal.L.Rev. 795), whereas a "confidential relationship" may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship. (See Stevens v. Marco (1956) 147 Cal.App.2d 357, 374, 305 P.2d 669; Bolander v. Thompson (1943) 57 Cal.App.2d [193 Cal.Rptr. 432] 444, 447, [145 Cal.App.3d 383] 134 P.2d 924; Robbins v. Law (1920) 48 Cal.App. 555, 561, 192 P. 118.) The essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, because the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert unique influence over the dependent party.

Our Supreme Court has stated that "[t]he relation between attorney and client is a fidicuary relation of the very highest character, and binds the attorney to most conscientious fidelity ...." (Cox v. Delmas (1893) 99 Cal. 104, 123, 33 P. 836; see also Rader v. Thrasher (1962) 57 Cal.2d 244, 250, 18 Cal.Rptr. 736, 368 P.2d 360; Sanguinetti v. Rossen (1906) 12 Cal.App. 623, 630, 107 P. 560; 1 Witkin, Cal.Procedure (2d ed. 1970) Attorneys, §§ 47-54, pp. 55-62.) Further, the court has admonished that "[a] member of the State Bar should not under any circumstances attempt to deceive another person, ..." (Cutler v. State Bar (1969) 71 Cal.2d 241, 252, 78 Cal.Rptr. 172, 455 P.2d 108; McKinney v. State Bar (1964) 62 Cal.2d 194, 196, 41 Cal.Rptr. 665, 397 P.2d 425; cf. Bus. & Prof.Code, § 6106.) Numerous cases have applied these basic principles where an attorney in breaching the fiduciary obligation has gained financial advantage. (See, e.g., Cutler v. State Bar, supra, 71 Cal.2d at p. 251, 78 Cal.Rptr. 172, 455 P.2d 108; Gold v. Greenwald (1966) 247 Cal.App.2d 296, 309-310, 55 Cal.Rptr. 660; Clark v. Millsap (1926) 197 Cal. 765, 783, 786, 242 P. 918.) We can find no valid reason to restrict these principles to actions involving financial claims of a client and not to apply them to actions in which the client alleges physical damage resulting from a violation of the attorney's fiduciary obligation.

Generally, the existence of a confidential relationship is a question of fact for the jury or the trial court. (Rieger v. Rich (1958) 163 Cal.App.2d 651, 664, 329 P.2d 770; Wilson v. Sampson (1949) 91 Cal.App.2d 453, 459, 205 P.2d 753; Estate of Llewellyn (1948) 83 Cal.App.2d 534, 562, 189 P.2d 822; Wilson v. Zorb (1936) 15 Cal.App.2d 526, 532, 55 P.2d 593; see 7 Witkin, Summary of Cal.Law (8th ed. 1974) Wills and Probate, § 112, p. 5626.) Where a legally recognized fiduciary relationship exists, however, the law infers a confidential relationship, i.e., it becomes a question of law for the court. (Rader v. Thrasher, supra, 57 Cal.2d 244, 250, 18 Cal.Rptr. 736, 368 P.2d 360; Sime v. Malouf (1949) 95 Cal.App.2d 82, 98, 212 P.2d 946.) If the fact finder determines that a confidential relationship exists or the court determines as a matter of law that a fiduciary relationship exists, it is presumed that the one in whom trust and confidence is reposed has exerted undue influence. (Rader v. Thrasher, supra, 57 Cal.2d 244, 250, 18 Cal.Rptr. 736, 368 P.2d 360; Roeder v. Roeder (1953) 118 Cal.App.2d 572, 580, 258 P.2d 581.) Because a presumption is no longer independent evidence, the effect of the presumption of undue influence is to shift the burden of proof to the fiduciary. (Evid.Code, § 600, subd. (a); 1 Witkin, Cal.Procedure, [145 Cal.App.3d 384] Attorneys, supra, § 51, p. 60.) The undue influence in the case before us is, of course, relevant on the issue of consent in appellant's cause of action for battery and on the issue of justifiable reliance in her cause of action for misrepresentation.

Nevertheless, the unique facts in the case before us compel a more cautious approach in imposing on respondent, as a matter of law, the highest fiduciary standard in all his relations with appellant, social as well as legal. The existence of a confidential relationship between appellant and respondent is more properly a question of fact for the jury, or court, who can better assess whether the legal relationship was dominant or whether the parties functioned on a more equal basis in their personal relations. Thus, appellant would have the burden of proving the existence of a confidential relationship. If such a relationship were established, respondent would then have the burden of proving that consent was informed and freely given in the battery cause of action, or, in the alternative, that her reliance was unjustified in the misrepresentation cause of action. To hold otherwise would have a chilling and far- [193 Cal.Rptr. 433] reaching effect on any personal relations between an attorney and his or her clients. The possibility of a factual determination of a confidential relationship should be a sufficient warning to monitor the profession in personal or social relations with clients.

We decline to address another issue indirectly raised by appellant--one of first impression in California, at least as far as statutes, cases, and rules are concerned. She asserts that it is a breach of ethics for an attorney, particularly in a family law context, to induce a client to have sexual relations during the course of the representation, and she points out that other professions have imposed discipline on a member for sexual misconduct with a patient. (See, e.g., Dresser v. Board of Medical Quality Assurance (1982) 130 Cal.App.3d 506, 181 Cal.Rptr. 797; Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 123 Cal.Rptr. 563.)

We think this question is more properly directed to the State Bar of California, which so far has not publicly addressed the issue.^[11]

[145 Cal.App.3d 385]

Conclusion

In summary, the facts alleged in appellant's cross-complaint state causes of action for battery and deceit. Her causes of action are not barred by Civil Code section 43.5, nor by the holding in Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, 164 Cal.Rptr. 618, or the public policy considerations underlying that decision. Although the constitutional right to privacy normally shields sexual relations from judicial scrutiny, it does not do so where the right to privacy is used as a shield from liability at the expense of the other party. No California statute or decision bars appellant's causes of action, and decisions of other states support their viability by analogy.

Disposition

The judgment is reversed. The Municipal Court of the Napa-St. Helena Judicial [193 Cal.Rptr. 434] District, County of Napa, State of California, is ordered to retransfer respondent's action to the Superior Court of the State of California, for the County of Napa, for further proceedings consistent with the views expressed herein.

FEINBERG, J., concurs.

SCOTT, Acting Presiding Justice.

I respectfully dissent. The cause of action appellant attempts to allege falls squarely within the prohibition of Civil Code section 43.5 which provides that "No cause of action arises for ... [p] (c) Seduction of a person over the age of legal consent."

[145 Cal.App.3d 386] The Legislature in abolishing the seduction cause of action in 1939 labeled the anti-heart balm statute as "Wrongs not actionable." Clearly the majority's assertion that "for every wrong there is a remedy" doesn't apply in the instant case.

The majority attempts to characterize appellant's cause of action as a battery or an action for deceit. But in fact, appellant was allegedly seduced by respondent's false representation of infertility. The gravamen of appellant's cause of action is the seduction, that is the act of sexual intercourse induced by appellant's false representations. The injury sustained as a result of the alleged seduction was the ectopic pregnancy and damages that flowed therefrom. Clearly if there can be no cause of action for seduction, there can be no damages for the consequences thereof.

In rejecting respondent's contention that appellant's action is barred by Civil Code section 43.5, subdivision (c), the majority argues that this is not a seduction action because "appellant complains not because her virtue was violated ... but because the sexual act ... led to an ectopic pregnancy as a result of respondent's misrepresentation." I find no support for the contention that the only damage from a seduction is loss of virtue. Surely a woman can suffer mentally and physically from an unwanted pregnancy whether it results in a live birth or is sooner terminated. All we are talking about is the damage that flows from the seduction.

I agree with the court in Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640 at pages 644 and 645, 164 Cal.Rptr. 618, where it states: "Despite [the] legalism [of plaintiff's claim], it is nothing more than asking the court to supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct. To do so would encourage unwarranted governmental intrusion into matters affecting the individual's right of privacy." Should we grant appellant here a cause of action, we cannot logically foreclose a cause of action to a woman who carries the child to a live birth, or one who has a miscarriage. The possibilities are limitless. The courts should stay out of the bedroom. I would affirm the judgment.

Hearing denied; RICHARDSON, J., dissenting.

[1] In an ectopic pregnancy, the impregnated ovum develops outside the cavity of the uterus. (Stedman's Medical Dict. (3d unabridged lawyers' ed. 1972) p. 1013.) A tubal pregnancy, which occurred in the case before us, is an ectopic pregnancy where the fertilized ovum develops in the oviduct, also referred to as the Fallopian tube or tuba uterina. (Id., at pp. 903, 1014.) Respondent incorrectly refers to an ectopic pregnancy as a false pregnancy (pseudocyesis), a condition in which some of the signs and symptoms suggest pregnancy, although the woman is not in fact pregnant. (Id., at pp. 1013, 1033.)

[2] The court also granted respondent's motion to disqualify appellant's attorney.

[3] Civil Code section 43.5, enacted in 1939, provides:

"No cause of action arises for:

"(a) Alienation of affection.

"(b) Criminal conversation.

"(c) Seduction of a person over the age of legal consent.

"(d) Breach of promise of marriage."

[4] In his answer, respondent denies not only the representations, but also the acts of intercourse. We, however, consider only the allegations in the cross-complaint.

Neither appellant nor respondent directed much attention to the sufficiency of the allegations in the first amended cross-complaint. Instead, each party emphasized public policy considerations and constitutional issues, which we discuss later.

[5] Appellant does not explain what happened to her second Fallopian tube, but this is a matter of proof at trial.

[6] Civil Code section 1710 provides:

"A deceit, within the meaning of the last section, is either:

"1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

"2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;

"3. The suppression of a fact, by one who is bound to disclose it or who gives information of other facts which are likely to mislead for want of communication of fact; or,

"4. A promise, made without any intention of performing it."

[7] The Legislature has retained in Penal Code section 268 criminal sanctions for "[e]very person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character...."

[8] The so-called "wrongful birth" cases were rejected by the Stephen K. court as precedent for Stephen's claim for two reasons: "First, in none of those cases did the plaintiffs seek so radical a change in the socially accepted ideas and views of sexual conduct, family relationship, parental obligations, and legal and moral responsibility for one's own conduct as does Stephen. Secondly, in those cases the facts and the relationship of the parties-litigants are different." (Id., at p. 643, 164 Cal.Rptr. 618.) The actions have uniformly been instituted by parents against health professionals for negligence causing the birth of a child or the birth of an impaired child. For cases and discussion, see Turpin v. Sortini (1982) 31 Cal.3d 220, 225-228, 182 Cal.Rptr. 337, 643 P.2d 954; Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, 643-644, 164 Cal.Rptr. 618.

[9] In response to Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811, 165 Cal.Rptr. 477, which suggested "... possible parental liability [to the child] for deciding to conceive or failing to abort a potentially defective child, the Legislature enacted section 43.6 of the Civil Code, effective January 1, 1982. Section 43.6 relieves the parents of any liability in this situation ...." (Turpin v. Sortini, supra, 31 Cal.3d 220, 228, 182 Cal.Rptr. 337, 643 P.2d 954.) Although this section does not refer to intraparental tort actions based on misrepresentations, we think it is consistent with our conclusion that such actions are contrary to public policy.

[10] Both parties raise the issue of equal protection under the law. We do not view our holding as raising that issue. A man who suffers physical injury as a result of his female partner's intentional misrepresentation will have the same right to seek legal redress as does appellant in the case at bench.

Furthermore, although the different treatment of men and women must be examined with strict scrutiny (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 15-20, 95 Cal.Rptr. 329, 485 P.2d 529), such treatment may be justified where men and women are not similarly situated (Schlesinger v. Ballard (1975) 419 U.S. 498, 508, 95 S.Ct. 572, 577-78, 42 L.Ed.2d 610.) Since it is obvious that men and women are not similarly situated with regard to the risk of pregnancy, any difference in treatment of them which may be perceived in our holding is justified.

[11] The Board of Governors of the Oregon State Bar in June 1982 issued Legal Ethics Opinion No. 475, advisory only, stating that it is unethical for an attorney to be sexually involved with the client while representing the client in a divorce action, which of course may differ in degree from a post-dissolution modification proceeding. The discussion accompanying the opinion is as follows:

"DR 5-101(A) requires that a lawyer not accept employment if the exercise of his or her professional judgment on behalf of the client may be affected by his or her own personal interest, except with the consent of the client after full disclosure. DR 5-101(A) and 2-110(B)(2) and (C)(2) also imply a duty to withdraw from employment if circumstances arise whereby the attorney's personal interests may impair his or her ability to continue to exercise independent professional judgment on behalf of the client, unless the client consents to continued representation after full disclosure.

"These rules recognize that to fulfill the lawyer's responsibility of fully and adequately representing the client, it is essential that the lawyer be able to exercise independent professional judgment on behalf of the client. Where there is any question about the lawyer's ability to exercise an independent professional judgment, the client must be able to give an informed consent.

"The lawyer representing one spouse in a dissolution proceeding cannot know with certainty whether a reconciliation is possible or is in the best interest of the client, or how the possibility of a reconciliation might be affected by an affair between the lawyer and the client. Nor can the lawyer know with certainty what reaction the client's spouse would have to learning that the lawyer is having an affair during the dissolution proceedings, or how such knowledge might affect the negotiation of property rights and, if children are involved, the right to custody. See In the Matter of Lehr and Lehr, 36 Or.App. 23, 583 P.2d 1157 (1978). The potential for prejudice to the client is immense.

"Moreover, the client may be unable to give a voluntary and informed consent to continued representation. The attorney-client relationship is a fiduciary relationship, one of trust. The nature of that fiduciary relationship tends to make the client intellectually and, in many cases, emotionally dependent upon the attorney. If the client becomes involved in a love affair with the attorney, that dependency would only be increased. It would appear impossible for the lawyer to carry on such an affair with the client and maintain an independent judgment about whether the affair might harm the client's interests. See DR 7-101(A)(3). Even if the attorney were able to predict the consequences of the affair and explain them to the client, it is doubtful that the client's consent to the attorney's continued representation could ever be deemed truly informed and voluntary...."